ee ats 4 a meat ere Garuell Law School Library Cornell University Libra TATA AN OBITER DIGEST OF THE UNITED STATES SUPREME COURT REPORTS (1 DALLAS to 197 U. S.) A COLLECTION OF THE OBITER STATEMENTS OF LAW FOUND IN THE OPINIONS OF THE JUSTICES COMPILED BY THE PUBLISHERS’ EDITORIAL STAFF Vo. I. ABANDONMENT TO INTERPRETATION AND CONSTRUCTION EDWARD THOMPSON COMPANY NORTHPORT, LONG ISLAND, NEW YORK 1906 BESZS. CopyricHt, 1905 BY EDWARD THOMPSON COMPANY All rights reservea PREFACE. Tis work has been compiled on the theory that there is a real demand for an accurate collection of the dicta uttered by the justices of the Supreme Court of the United States. The syllabi of the reports of that court, both official and unofficial, rarely record anything more than the bare points decided in the cases reported. The numerous digests, as a rule, confine their statements to the same matter. This is as it should be. But if obiter dicta are not authoritative, they may be of the highest importance and usefulness. Especially is this true of the utterances of the justices of a court of the high standing of our Federal Supreme Court. For more than a century, in opinions which command the admiration of the legal world, these jurists of distin- guished ability have not only been deciding cases, but shedding light on almost every topic of the law. In the consideration given the questions brought before them for decision, distinctions are made, unsound propositions are refuted, the history of legal doctrines is reviewed, the development of the law is traced, basic principles are restated, the great rules of equity and the common law are illuminated, practice is settled, and advice and warnings are given to counsel who would have our highest court pass upon their cases. It is the province of this work to collect and classify this matter, so long buried and unindexed, in order that it may be available for the use of the profession. Every opinion has been read, and the dicta are quoted in the exact lan- guage of the justices who uttered them. Occasionally it has been necessary, in order to complete the sense of the extract, to add a word or a phrase, but this is always indicated by brackets, thus [ ]. The name of the justice responsible for the dictum and the case in which, and the page of the official report on which, it is to be found are given immediately after each quotation. Dissenting opinions have been treated like majority opinions, but the word “dissenting” follows the name of the justice in every such instance. It is scarcely to be hoped that no dicta whatever have been omitted, although great PREFACE. pains have been taken to make the collection complete. Occasionally the syllabi in the reports contain dicta. These have been uniformly omitted, as it is the plan of this work to uncover the buried law and give only matter not supplied in the headnotes and many excellent digests proper. Especial care has been taken to gather all expressions beginning “It is well settled,” ‘It is firmly established,” and the like, for when the United States Supreme Court asserts that a proposition is settled, lawyers will hesitate long before con- troverting it. Where new questions arise in State courts, and especially where there are conflicting lines of authorities in other jurisdictions, the dicta of the United States Supreme Court will be weighed carefully and may prove decisive. The classification does not follow the beaten paths of ordinary digests. While most of the main titles of the law will be found in this work, the mate- rial collected has afforded opportunity for unusual titles, such as “Government,” “Liberty,” “Law,” “Justice,” “Rights,” “Ethics,” etc. Where [the amount of matter justifies it, the titles have been treated analytically, and black-letter catchlines have been freely used. E. T. Co. “‘It is dictum of the highest grade, and of a grade so high that the line between it and authoritative decision is too shadowy to be discerned by average judicial acumen.”—-McCorMICK, J., in L. Bucki & Son Lumber Co. v. Fidelity & Deposit Co., 109 Fed. Rep. got. DIGEST OF THE OBITER DICTA CONTAINED IN THE REPORTS OF THE SUPREME COURT OF THE UNITED STATES 4a VOL. I. ABANDONMENT OF PROP- ERTY. Of Land. “Under the Anglo-Saxon system of juris- prudence questions of the abandonment of land by the owner rarely arise, since they are usually sold to the purchaser or to the state for taxes; but the Spanish law recog- nizes distinctly the right to abandonment.” Brown, J. Sena v. U. S.,19 U. S. 239. Appropriation of Derelict. “The right to appropriate a derelict is one of universal law; well known to the civil law, the common law, and to all law; it existed in a state of nature, and is only modi- fied by society, according to the discretion of each community.” Jounson, J. Hawkins wv. Barney, 5 Pet. 467. Evidence of Abandonment. “What is the evidence of an individual having abandoned his rights or property? It is clear that the subject is one over which every community is at liberty to make the rule for itself.” JoHNson, J. Hawkins v. Barney, 5 Pet. 467. ABATEMENT AND REVIVAL. See APPEAL AND Error; LIMITATION oF AC- TIONS; MANDAMUS; PARTIES. Abatement by Death —In General. * At common law all actions abated by the death of parties before judgment.” Mc- Kenna, J. In re Connaway, 178 U. S. 430. 1 Os. Dic.—1 “Tn real and personal actions, the death of either party, before judgment, did at common law abate the suit.” WasHincTon, J. Mack- er v. Thomas, 7 Wheat. 531. Where the Cause of Action Survives. “The personal representatives of a de- ceased party to a suit cannot prosecute or defend the suit after his death, unless the cause of action, on account of which the suit was brought, is one that survives by law.” Waite, C. J. Schreiber v. Sharpless, 110 U. S. 80. “The action did not abate at common law if the cause of action survived against the other defendant.” McKenna, J. In re Con- naway, 178 U. S. 435, “A court which has once acquired juris- diction. of a suit does not lose it by a change of domicile of the parties, and may, when the suit is of a nature that survives, bring in the representatives or successors of a party who has died or ceased to exist without regard to their domicile.” Gray, J. Hem- ingway v. Stansell, 106 U. S. 402. What Cause of Action Survives. “Whether an action survives depends on the substance of the cause of action, not on the forms of proceeding to enforce it.” Waite, C. J. Schreiber v. Sharpless, 110 U. S. 80. “Tf we turn to the common law, there the rule was that if a party increased his own estate by wrongfully taking another’s property an action against him would sur- ABATEMENT AND REVIVAL. vive his death, and might be revived against his personal representative.” Brewer, J. Patton v. Brady, 184 U. S. 614. “Congress has not, speaking generally, at- tempted to prescribe the causes which sur- vive the death of either party. Section 955, Rev. Stat. does not define the causes which survive. In the absence of some special legislation the question in each case must be settled by the common law or the law of the state in which the cause of action arose.” Brewer, J. Patton vw. Brady, 184 U. S. 612. “Tf an action be brought in a federal court, and is based on some act of Congress or arises under some rule of general law recognized in the courts of the Union, the question of revivor will depend upon the statutes of the United States relating to that subject. But if at the time an action is brought in a state court the statues of that state allow a revivor of it on the death of the plaintiff before final judgment — even where the right to sue is lost when the death occurs before any suit is- brought then we. have a case not distinctly or necessarily cov- ered by section 955, [of the Rev. Stat. of the . United States].” Harran, J. Baltimore, etc., R. Co. wv. Joy, 173 U. S. 229. “Nor ought it to be supposed that Con- gress intended that in the case of removal of an action from a state court,on the petition of the:defendant prior to the death of the plaintiff, the federal court should ignore the law of the state in reference to the revival of pending actions, and make the question of revivor depend upon the inquiry whether the cause of action would have survived if no suit had been brought. If Congress could legislate to that extent it has not done so.” Hartan, J. Baltimore, etc, R. Co. wv. Joy, 173 U. S. 230. Injuries to Person or Character. “The authorities are so numerous and so uniform to the proposition, that, by the com- mon law no civil action lies for an injury which results in death, that it is impossible to speak to it as a proposition open to. question. It has been decided in many cases in the English courts and in many of the state courts, and no deliberate, well- considered decision to the contrary is to be found.” Hunt, J. Mobile Life Ins. Co. wv. Brame, 95 U. S. 756. “The maxim of the common law is actio personal is moritur cum persona, and as this maxim is recognized both in England and in Virginia, the interpretation of it in the former country becomes pertinent to its ex- position or application here. In England it has been expounded to exclude all torts when the action is in form ex delicto, for the re- covery of damages, and the plea not guilty. That in case of injury to the person, whether by assault, battery, false imprisonment, slan- der, or otherwise, if either party who re- ceived or committed the injury die, no action can be supported either by or against the executors or other personal representatives.” DaniEL, J. Henshaw v. Miller, 17 How. 219. “In this country the law is well settled that by the common law no civil ac- tion lies for an injury resulting in death.” Brown, J. The Albert Dumois, 177 U. S. 258. “By the rule of the common law, actio personalis moritur cum persona, the death of the sole plaintiff or of the sole defendant before final judgment abated any personal action, except that, if the’ death occurred in vacation after verdict, judgment might be entered as of the proceeding term. The rule has been modified in England and in this country by various statutes, with the object of avoiding the necessity of bring- ing a new action when the cause of action survives to the personal representative, but not always limited to that object.” Gray, J. Martin v. Baltimore, etc., R. Co., 151 U. S. 697. Penal and Criminal Actions. “ At common law actions on penal statutes do not survive, and there is no act of Congress which establishes any other rule in respect to actions on the penal statutes of the United States.’ Waite, C. J. Schreiber v. Sharpless, 110 U. S. 80. “All private criminal injuries or wrongs, as well as all public crimes, are buried with the offender.” McLean, J. U. S. uv. Daniel, 6 How. 14. “State statutes allowing suits on state penal statutes to be prosecuted after the death of the offender, can have no effect on suits in the courts of the United States. for the recovery of penalties imposed by an act of Congress.” Waite, C. J. Schreiber wv. Sharpless, 110 U. S. 80. Another Suit Pending. “A subsequent suit may be abated by an allegation of the pendency of a prior suit; but the converse of the proposition is, in ABUSE OF PROCESS. personal actions, never true.” Story, J. Renner v. Marshall, 1 Wheat. 217. “Tt has been frequently held that the pendency of a suit in a state court is not ground even for a plea in abatement to a suit upon. the same matter in a Federal court.” Braptey, J. Gordon v. Gilfoil, 99 U. S. 178. “Tt may be admitted that the pendency of an action between the same parties and for the same cause, in a foreign jurisdiction, is pleadable only in abatement.” New York Mut. L. Ins. Co. v. Harris, 97 U. S. 335. Revival— By Person Without Interest. “The idea cannot be sustained that when a judgment or decree is rendered against. a defendant, and it remains wholly unexecuted, anybody, without any right, authority or interest in the matter can come in, and, by filing a bill of revivor, or by making a mo- tion, have himself substituted for the plain- tiff who has deceased, with all the rights which that plaintiff would have had to en- force the judgment or decree.” Mutuer, J. Terry v. Sharon, 131 U. S. 46. Effect of Prior Pleading and Evidence. “Tf an ancestor die, pending a suit, and the proceedings be revived against his heir, or if a suit be revived against an executor or administrator, the answer of the deceased person or any other evidence, establishing any fact against him, might be read also against the person who succeeds to him.” MarsHatt, C. J. Osborn v, Bank of U. S., 9 Wheat. 832. ABATEMENT OF NUI- SANCES. See Eguity; Injunctions; NuISANCES. ABET. “Can a party ‘advise’ another to kill without intending to encourage the killing? Does not the word ‘abet’ imply an intent that the party shall do that which he is abetted to do? .. We are not dealing with the mock scenes and shows of the stage, but with real life, and in that who does not understand that the significance of the word ‘abet’ is as Bouvier defines it, and carries with it the intent that the party shall do that which he is commanded, counselled or en- Strone, J. Brewer, J., dissenting. couraged to do?” And see Hicks v. U. S., 150 U. S. 455. “CRIMINAL Law. ABSOLUTE. “Its [the word absolute] most ordinary signification is ‘unrestricted’ or ‘uncondi- tional.’ Thus, an absolute estate in land is an estate in fee simple. . . . In the law of insurance, that is an absolute interest in property which is so completely vested in the individual that there could be no danger of his being deprived of it without his own consent.” Brown, J. Columbia Water Power Co. v. Columbia Electric R. Co., 172 UL S. 491. ABUSE OF PROCESS. Liability for Use of Process. “Tf a party uses the process of the law wilfully and oppressively, his conduct may be considered by the jury in estimating the damages sustained by the injured party.” Taney, C. J. Jackson v. Hale, 14,How. 528. “Those who ste out process authorized by law, are not responsible for the loss con- sequent from that process, unless that loss is produced by the improper use made of it.” MarsuHa.., C. J. Brashear v. West, 7 Pet. 617. Colorable Issues. “Tf in the course of a trial it appears by’ evidence, which is admissible under the pleadings, and pertinent to the issues joined, that the suit does not really and substantially involve a dispute of which the court has cognizance, or that the parties have been improperly or collusively made or joined for the purpose of creating a cognizable case, the court may stop all further proceedings and dismiss the suit.” Warts, C. J. Hartog v. Memory, 116 U. S. 591. “Tt is the office of courts of justice to decide the rights of persons and of property, when the persons interested cannot adjust them by agreement between themselves,— and to do this upon the full hearing of both parties. And any attempt, by a mere color- able dispute, to obtain the opinion of the court upon a question of law which a party desires to know for his own interest or his own purposes, when there is no real and sub- stantial controversy between those who ap- pear as adverse parties to the suit, is an abuse which courts of justice have always - reprehended, and treated as a punishable ACCORD AND SATISFACTION. contempt of court.” Taney, C. J. Lord vw. Veazie, 8 How. 255. And see DECISIONS, Decoying Parties into Jurisdiction and Kidnapping. “If a person is induced by false repre- sentations to come within the jurisdiction of a court for the purpose of obtaining service of process upon him, and process is there served, it is such an abuse that the court will, on motion, set the process aside.” Fut- Ler, C. J. Fitzgerald, etc., Const. Co. vw Fitzgerald, 137 U. S. 105. “The law will not permit a person to be kidnapped or decoyed within the jurisdiction for the purpose of being compelled to answer to a mere private claim, but in criminal cases the interests of the public override that which is, after all, a mere privilege from arrest.” Brown, J. In re Johnson, 167 U. S. 126. ACCESSORIES. See Recetvinc SToLEN PROPERTY. ACCIDENT. See Accipent INSURANCE; AcT oF GoD; Carriers; COLLISION. Definition and Nature. “An accident or casualty, according to common understanding, proceeds from an unknown cause or is an unusual effect of a known cause. Either may be properly said to occur by chance and unexpectedly.” Har- LAN, J. Chicago, etc. R. Co. v. Pullman Southern Car Co., 189 U. S. 86. “The Louisiana Code, following the French law and the Code Napoleon, recog- nizes two kinds of degrees of what, under various but equivalent names, has been called vis major, cas fortuit, irresistible force, in- evitable accident, or unforeseen event; the one, ordinary, which might have been fore- seen by any man of common prudence as not unlikely to happen at some time; the other, extraordinary, which could not have been foreseen, or expected to occur at any time.” Gray, J. Viterbo v. Friedlander, 120 UL S. 728. “The annual rise and overflow of a river may doubtless in some countries and places be considered as one of the things that necessarily occur in the order of the seasons. But the bursting of a river through its natural banks or through artificial dikes must generally be regarded as an accident or cas fortuit, ordinary or extraordinary, ac- cording to the frequency or infrequency with which it takes place in the tract of country in question.” Gray, J. Viterbo v. Fried- lander, 120 U. S. 733, “Tn Louisiana, the breaking of the Missis- sippi through the levees occurs so often that _it is held not to be an extraordinary accident; 4 but that does not take it out of the general class of accidents or unforeseen events, cas fortuits.” Gray, J. Viterbo v. Friedlander, 120 U. S. 733. Liability for Injuries From. “No one is responsible for injuries result- ing from unavoidable accident, whilst en- gaged in a lawful business.” Frexp, J. Nitro-Glycerine Case, 15 Wall. 537. Equitable Relief. “Courts of equity will not grant relief merely upon the ground of accident where the accident has arisen without fault of the other party, if it appears that it might have been avoided by inquiry or due diligence. Cuirrorp, J. U. S. v. Ames, 99 U. S. 47. ACCIDENT INSURANCE. See also INsuRANCE; Lire INSURANCE. Suicide — Self-inflicted Injuries — Insane Person. “Tf self-killing, ‘suicide,’ ‘dying by his own hand,’ cannot be predicated of an in- sane person, no more can ‘self-inflicted in- juries’; for in either case it is not his act.” Gray, J. Accident Ins. Co, v. Crandal, 120 U. S. 532. Bodily Infirmity. “The words ‘bodily infirmities or disease’ {restricting liability under an accident policy] do not include insanity.” Gray, J. Accident Ins. Co. v. Crandal, 120 U. S. 532. ACCORD AND SATISFAC- TION. See also AccouNTS AND ACCOUNTING; CoMPROMISE AND SETTLEMENT, Payment of Part of Debt Not Satisfaction. “Payment by a debtor of a part of his debt is not a satisfaction of the whole, except it be made and accepted upon some new consideration.” Warts, C. J. U. S. v. Bost- wick, 94 U. S. 67. To the same effect see the language of Warts, C. J., in Baird v. U. S.,, 96 U, S. 431. ACCORD AND SATISFACTION. Anticipating Time of Payment. “An agreement to give a less sum for a greater, if the time of payment be antici- pated, is binding.” Curtis, J. Very v. Levy, 13 How. 360. Agreements Unperformed. “Agreements wunperformed cannot be pleaded as accord and satisfaction.” CriF- ForD, J. Brown v. Spofford, 95 U. S. 484. In Equity. “At law, a mere accord is not a defence; and before breach of a sealed instrument, there is a technical rule, which prevents such an instrument from being discharged, except by matter of as high a nature as the deed itself. . . . But no such difficulties exist in equity. On the broad principle that what has been agreed to be done, shall be con- sidered as done, the court will treat the cred- itor as if he had acted conscientiously, and accepted in satisfaction what he had agreed to accept, and what it was his own fault only that he had not received.” Curtis, J. Very v Levy, 13 How. 357. Debt of Record. “At common law actual payment of a debt of record could not be pleaded in bar of an action for the recovery of the debt. This has been changed by statute both in England and in this country, and no reason can be assigned why an accord and satisfac- tion should not have the same effect.” Mart- THEWS, J. Boffinger v. Tuyes, 120 U.'S. 205. Unliquidated Debt. “It is equally true, that where the debt is unliquidated and the amount is uncertain this rule [that payment of a part of a liqui- dated debt is not a satisfaction of the whole] does not apply. In such cases the question is, whether the payment was in fact made and accepted in satisfaction. Waite, C. J. Baird v. U. S., 96 U. S. 431. Agreement to Receive Specific Property. “An agreement by a creditor, to receive specific articles in satisfaction of a money debt, is binding on his conscience; and if he ask the aid of a court of equity to en- force the payment, he can receive that aid only to compel satisfaction in the mode in which he has agreed to accept it. A court of equity will even go further; and in a proper case will enforce the execution of such an agreement.” Curtis, J. Very v. Levy, 13 How. 357. : 5 Disputed Debt. “The cases are many in which it has been held that where an aggregate amount is in dispute, the payment of a specified sum conceded to be due, that is, by in- cluding certain items but excluding dis- puted items, on condition that the sum so paid shall be received in full satisfaction, will be sustained as an extinguishment of the whole.” Futter, C. J. Chicago, etc., R’y Co. v. Clark, 178 U. S. 367. “ Parties may adjust their own controver- sies in their own way, and . . when they do so voluntarily, and with a full knowl- edge of their rights and all the circum- stances, ‘no appeal lies to the courts to review their mutual decision. Courts cannot make contracts for parties; and if parties under- standingly contract to adjust a controversy between them in a particular way, and ac- tually execute the contract, they are both bound to regard the controversy as at an end.” CLiFForD, J. Savage vw. U. S,, 92 Uz. S. 388. Claims Against United States. “ Parties having claims against the United States, which are disputed by the officer authorized to adjust the same, may compro- mise the claim, and may accept payment in a different medium from that promised or may accept a smaller sum than that claimed; and where it appears that the claimant volun- tarily entered into a compromise, and accepted payment in full in a different medium from that promised, or accepted a smaller sum than that claimed, and executed a discharge in full for the whole claim, or voluntarily surrendered to the proper officer the evi- dences of the claim for ,cancellation, he cannot subsequently siie the United States, and recover in the Court of Claims for any part of the claim voluntarily relinquished in the compromise.” CLirForD, J. Savage v. U. S., 92 U. S. 388. “Unconditional acceptance of a medium of payment different from that promised by the United States, or absolute acceptance of a smaller sum from the Secretary of the Treasury than the one claimed from the United States, even in a case where the amount relinquished is large, does not leave the United States open to further claim on the ground of duress, if the acceptance of the different medium or the smaller sum is voluntary, and without intimidation, and with a full knowledge of all the circum- stances; nor is the case changed if it appears ACCOUNTS AND ACCOUNTING. that the claimant was induced to accept the different medium or the smaller sum in full as a means to secure an earlier payment of the claim than he could otherwise hope to procure.” CLiFForD, J. Savage v. U. S., 92 U. S. 388. Presumption that Payment Was Satisfac- tion. “As the bank was in liquidation, arid the officers were not authorized to enter into new contracts, the presumption is, in every case where the creditor accepted paper in settlement of his claim, that-it was received in payment and operated as a satisfaction.” MarttHEews, J. Richmond v. Irons, 121 U. S. 63. ACCOUNTS AND ACCOUNT- ING. As to effect of receipt, see EvIDENCE. And see PARTNERSHIP; PATENTS. Account Stated. “In order to constitute an account stated between individuals, the statement of the account must be adopted by one party and submitted as correct to the other.” Mart- THEwS, J. Nutt v. U. S., 125 U. S. 655. “The distinction between an account cur- rent and an account stated, has been often taken and is now admitted.” MarsHALL, C. J. Spring v. Gray, 6 Pet. 167. Right to Accounting—In Patent and Copyright Cases. ; “The right to an account of profits is incident to the right to an injunction in copy and patent-right cases.” Curtis, J. Stevens v. Glidding, 17 How. 455, See also Copy- RIGHT; PATENTS. Money Received in Illegal Undertaking. “Even where money has been received, either by an agent or a joint owner, by force of a contract which was illegal, the agent or joint owner carnot protect him- self from accounting for what was so re- ceived, by setting up the illegality of the transaction in which it was paid to him.” Curtis, J. Kinsman v. Parkhurst, 18 How. 293. “We think no case can be found where the agreement itself, to divide a common fund or to pay over money received, as contradistinguished from the transaction out of which the money arose, was illegal, in which it has been held that a recover could be had.” Braptey, J. Baltimore, etc. R. Co. v. Maryland, 21 Wall. 468. “In the cases in which it has been held that parties engaged in an illegal undertak- ing are answerable to one another for moneys received therein, it was the under- standing, and not the agreements to pay over the moneys received, which was ob- noxious to the law or its policy.” BrRabLey, J. Baltimore, etc, R. Co., v. Maryland, 21 Wall. 468. See also ILLEGAL CoNTRACTS. Remedy — Jurisdiction —In Equity. “The remedy in equity in cases of account is generally more complete and adequate than it is or can be at law.” Futter, C. J. U. S. v. Old Settlers, 148 U. S. 465. “That a court of chancery has jurisdic- tion in matters of account cannot be ques- tioned, nor can be doubted that this jurisdiction is often beneficially exercised.” MarsuHat., C. J. Fowle v. Lawrason, 5 Pet. 503. Between Partners. “Except in an action of account, which is almost obsolete, it is a general rule that between partners, whether they are so in general or for a particular transaction only, no account can be taken at law.” CLIFForRD, J. Ivinson v, Hutton, 98 U. S. 79. “That a bill in equity may be maintained by the personal representatives of a deceased partner against the survivors to compel an ‘account, so far as an account is possible, and for a discovery of the partnership property which came to their hands, is undeniable.” Stronc, J. Denver v. Roane, 99 U. S. 357. Complexity of Accounts. “But in transactions not of this peculiar character, [cases in which an action of ac- count would be the proper remedy at law, and in all cases where a trustee is a party,] great complexity ought to exist in the ac- counts, or some difficulty at law should interpose, some discovery should be required in order to induce a Court of chancery to exercise jurisdiction.” MarsHALL, C. J. Fowle v. Lawrason, 5 Pet. 503. . In Admiralty. “A court of admiralty takes cognizance of certain questions between part owners, as to the possession and employment of the ship, but will not assume jurisdiction in matters of account between them. «» a Tt is not disputed that a contract of partnership’ ACTION ON in the earnings of a ship comes within the same category. If the party desires an ac- count, his remedy is in a court of chancery. If, his complaint be for a breach of some independent covenant, he should seek his remedy in a court of common law.” GRIER, J. Ward v. Thompson, 22 How. 333. Manner of Accounting. “There can be no doubt, that if the de- fendant be called upon to render an account on which the plaintiff seeks to charge’ him, the account cannot be garbled, but must be taken entire. And so where a plaintiff ren- ders an account, at the instance of the de- fendant, to be used in his defense; the account thus rendered is considered as the admission of the party, and its parts cannot be separated.” M’LeEan, J. U.S. v. Jones, 8 Pet. 383. As to manner of stating an pesoual; see also REFERENCE AND REFEREES. Opening and Attacking Accounts. “An account rendered which has become an account stated, is open to correction for mistake or fraud.” Hartan, J. Leather Manufacturers’ Bank v. Morgan, 177 U. S. 107. “When the account is admitted in evidence as a stated one, the burden of showing its incorrectness is thrown upon the other party. -He may prove fraud, omission, or mistake, and in these respects he is no wise con- cluded by the admission implied from his silence after it was rendered.” Swayne, J. Wiggins v. Burkham, 10 Wall. 132. “The whole labor of proof lies upon the party objecting to the account, and errors which he does not plainly establish cannot be supposed to exist.” MarsHatt, C, J. Chappedelaine wv. Dechenaux, 4 Cranch 309. “No practice could be more dangerous than that of opening accounts which the parties themselves have adjusted, on sugges- tion supported by doubtful or by only prob- able testimony. But if palpable errors be shown, errors’ which cannot be misunder- stood, the settlement must so far be con- sidered as made upon absolute mistake or imposition, and ought not to be obligatory on the injured party or his representatives, be- cause such items cannot be supposed to have received his assent.” MarsHatt, C.J. Chappedelaine v. Dechenaux, 4 Cranch 309, ACCRETIONS. See RIPARIAN OWNERS. _used THE CASE. ACKNOWLEDGMENTS. As to the privy examination of married women, see MARRIAGE AND MarRIED WoMEN. Certificate. “Tt is the policy of the law to uphold cer- tificates when substance is found, and not to suffer conveyances, or the proof of them, to be defeated by technical or unsubstantial objections.” Fretp, J. Carpenter v. Dexter, 8 Wall. 526. « “In the early settlement of most of our states, the forms of conveyances of land were very simple; and they were usually ‘drawn either by the parties themselves, or by persons equally ignorant of the proper forms of certificates of acknowledgment re- quired by law. In some states, the statutes concerning acknowledgments and registry were stringent, while the practice was loose and careless. And, in some, the courts by unnecessary strictness, in their construction of the statutes, added to the insecurity of titles, in a county where too many have acted on the supposition that every one who can write is fit for a conveyancer. The great evils likely to arise from a strict construc- tion applied to the bona fide conveyances of an age so careless of form, have compelled legislatures to quiet titles by confirmatory acts, in order to prevent the most gross in- justice.” Grier, J. Webb vw Den, 17 How. 578. ACROSS. “To the word ‘across,’ unless it is quali- fied by some prefix as diagonally or obliquely, there is attached, in ordinary use, but one meaning, and that is a direction opposite to length. This is especially true when it is in connection with parallel lines.” Lamar, J. Hannibal etc., R. Co. v. Packet Co., 125 U.S. 271. ACT. “Independently of dictionary definitions, it may be safely said that, in common usage and understanding, the word ‘act’ signifies some- thing done voluntarily, or in other words, the result of an exercise of the will.” Suiras, J., dissenting. Wilson v. Nelson, 183 U. S. 212. ACTION ON THE CASE. See Case. ACTIONS. ACTIONS. I. DEFINITIONS AND ‘TERMINOLOGY. II. Cause or AcTIoNn. . In General. . Liability Without Fault. . Right Founded on Wrong. . Actual Controversy. — a. Rule Requiring. b. Mere Possibilities. c. Amicable Suits. 5. Motive. a. In General. b. Defense. 6. Accrual of Right to Sue. III. RemMepy. 1, Right To. 2. What Law Governs. 3. Character and Form. a. In General. ' b. Ex Delicto and Ex Contractu. c. Trespass and Case. d. At Law and in Equity. (1) Distinction. (2) Equitable Defenses. 4 e. Civil and Criminal. (1) Proceedings Defined. (2) Two Remedies Based on Same Wrong. f. Proceedings in Rem. (1) Nature. (2) Seizure and Citation. g. Statutory Remedy. 4. Joinder and Splitting. 5. Commencement and Prosecution. mw Nw ee CROSS-REFERENCES. As to actions and judgments, see JUDGMENTS AND DECREES; exemption of government, see Gov- ERNMENT; particular actions, see ASSUMPSIT; Case; Dest — AcTION oF; REPLEVIN ; TRESPASS; TROVER. See also Erection oF REMEDIES AND Ricuts; Limitation oF Actions; MANDa- MUS; PARTIES; PLEADING; Process; REAL Actions; SERVICES. ; I. DEFINITIONS AND TERMI- ° NOLOGY. Convertible Terms. “In any legal sense, action, suit, and cause, are convertible terms.” Davis, J. Ex p. Mil- ligan, 4 Wall. 112, Civil Action, “The term civil actions would, from its natural import, embrace every species of suit, which is not of a criminal kind; and when, it is considered, that the District Court has a criminal as well as a civil jurisdiction, it is clear, that the term was used by the Legis- lature, not to distinguish between Admi- ralty causes, and other civil actions, but to exclude the idea of removing judgments in criminal prosecutions, from an inferior to a superior tribunal.” Exswortu, C. J. Wis- cart v. Dauchy, 3 Dall. 328. ; Suit. “What is a suit? We understand it to be the prosecution, or pursuit, of some claim, demand, or request. In law language, it is the prosecution of some demand in a court of justice.” MarsHatt, C. J. Cohen v. Vir- ginia, 6 Wheat. 407. “Suits at common law indicate a class, to distinguish them from suits in equity and admiralty; cases in admiralty another class distinguishable from both, as well as to the system of laws determining them as the man- ner of trial, except that in equity issues of fact may be sent to the common law courts for a trial by jury.” Wayne, J. Waring v. Clarke, 5 How. 460. “The phrase, ‘suits at common law and in equity,’ in this section [11th section of the Judiciary Act of 1789], and the correspond- ing term ‘suit,’ in the twelfth, are un- doubtedly of very broad signification, and cannot be construed to embrace ordinary actions at law and ordinary suits in equity, but must be construed to embrace all liti- gations between party and party which in the English system of jurisprudence, under the light of which the Judiciary Act, as well as the Constitution, was framed, were embraced in all the various forms of pro- cedure carried on in the ordinary law and equity courts, as distinguished from the ecclesiastical, admiralty, and military courts of the realm. The matters litigated in these extraordinary courts are not, by a fair con- struction of the Judiciary Act, embraced in the terms ‘suit at law or in equity,’ or ‘suit,’ unless they have become incorporated with the general mass of municipal law, and subjected to the cognizance of the ordinary courts. Now, it is perfectly plain that an application for the probate of a will is not such a subject as is fairly embraced in these terms.” Braptey, J., dissenting. Gaines v. Fuentes, 92 U. S. 24. ACTIONS. Defense is Not Action. “Can a defense to an action be called the action? No more can the defense to a suit be called the suit.” Mutter, J., dissenting. New Orleans, etc., R. Co. v. Mississippi, 102 U. S. 143. II. CAUSE OF ACTION. 1. In GENERAL. Object of Litigation. “The prime object of all litigation is to establish a right asserted by the plaintiff or to sustain a defense set up by the party pursued.” Brown, J. Tyler v. Judges of Court of Registration, 179 U. S. 406. Law and Its Incidence Necessary. “Not a law alone, but a law and its’in- cidence are necessary to a justiciable right or injury.” McKenna, J. Clark v. Kansas City, 176 U. S. 118. General and Particular Rights. “The right to bring a suit is entirely dis- tinguishable from the right to prosecute the particular bill. One goes to the mainte- nance of any action; the other to the main- tenance of the particular action.” Brown, J. Illinois Cent. R. Co. v. Adams, 180 U. S. 35. Does Not Depend On Defense. “The question respecting the right to make a particular contract, or to acquire a par- ticular property, or to sue on account of a particular injury, belongs to every particular case, and may be renewed in every case. The question forms an original ingredient in every cause. Whether it be in fact relied on or not, in the defense, it is still a part of the cause, and may be relied on. The right of the plaintiff to sue, cannot depend on the defense which the defendant may choose to set up. His right to sue is anterior to that defense, and must depend on the state of things when the action is brought.” Mar- SHALL, C. J. Osborn v. Bank of U. S. 9 Wheat. 824. Principle of Indemnity. “There is a general principal of justice pervading our laws, and the laws of all free governments, which require that whoever unlawfully and wrongfully imposes upon an- other the necessity of an unusual expenditure of money or labor or materials for the pro- tection and preservation of his property, shall make complete indemnity for the expenditure. The principal applies as fully to the acts of the government as to those of individuals; and wherever suits can be brought in the tribunals of the country, such indemnity can be enforced. Here the government waives exemption from suit which its sovereign character gives, and submits the question of its liability to the judgment of its tribunals.” Fietp, J., dissenting. Newport, etc., Bridge Co. v. U. S., 105 U. S. 503, Exemption from Suit. “The exemption from suit does not neces- sarily imply exemption from liability.” Waite, C. J. Newport, etc, Bridge Co. wv. U. S., 105 U. S. 483. Mere Equitable Claim. “A claim having no foundation in law, but depending entirely on the generosity of the government, constitutes no basis for the action of any legal principle. It cannot be assigned. It does not go to the administrator as assets. It does not descend to the heir. And if the government, from motives of public policy, or any other considerations, shall think proper, under such circumstances, to make a grant of money to the heirs of the claimant, they receive it as a gift of pure do- nation. A donation made, it is true, in ref- erence to some meritorious act of their an- cestor, but which did not constitute a matter of right against the government.” M’LEan, J. Emerson v. Hall, 13 Pet. 413. “Services rendered under an authority which is casual, or in some degree discretion- ary, may constitute an equitable claim.” M’Lean, J. Emerson v. Hall, 13 Pet. 412. “An individual, by timely efforts, may save from destruction by fire or otherwise, a large amount of public property. This would be a highly meritorious act; but would it constitute a claim on the government for compensation?” M’Lean, J. Emerson v. Hall, 13 Pet. 412. 2. LIABILITY WitTHOUT FAULT. Examples. “Our jurisprudence affords examples of legal liability without’ fault, and the de- privation of property without fault being attributable to its owner. The law of deodands was such an example. The person- ification of the ship in admiralty law is an- other. Other examples are afforded in the liability of the husband for the torts of the wife —the liability of a master for the acts of his servants.” McKenna, J. Chicago, etc, R. Co, v. Zernecke, 183 U. S. 586. ACTIONS. 38. Ricut FouNpDED on Wronc. Not Enforceable. “Tt is a cardinal maxim that no one shall . be allowed in a court of justice to take advantage of his own wrong.” MatrHews, J. Gumbel v. Pitkin, 124 U. S. 147. “No court will lend its aid to a party who founds his claim for redress upon an illegal act.” Swayne, J. The “Florida,” 101 U. S. 43, 4, AcTUAL CONTROVERSY. a. Rule Requiring. Dismissal. “Tt is well settled that when there is no actual controversy, involving real and sub- stantial rights, between the parties to the record, the case will be dismissed.” Lamar, J. . Little vu. Bowers, 184 U. S. 557. And see ABUSE OF PROCESS. Must be Actual Transaction. “No court sits to determine questions of law in thesi. There must be a litigation upon actual transactions between real parties, growing out of a controversy affecting legal or equitable rights as to person or property. . All questions of law arising in such: cases are judicially determinable.” Matruews, J. Marye v. Parsons, 114 U. S. 330. “The duty of this court, as of every other judicial tribunal, is to decide actual con- troversies by a judgment which can be car- ried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.’ Gray, J. Mills v. Green, 159 U. S. 653. Abstract Opinion upon Constitutionality of Statute. “This Court can have no right to pro- nounce an abstract opinion upon the con- stitutionality of a state law. Such law must be brought into actual or threatened opera- tion, upon rights properly falling under judicial cognizances, or a remedy is not to be had here.” Tompson, J., dissenting. Cher- okee Nation vw. Georgia, 5 Pet. 75. See also DEcIsIons. Termination of Controversy Before Judg- ment. “Private parties may settle their con- troversies at any time, and rights which a plaintiff may have had at the time of the commencement of the action may terminate _ period in the future.” 10 before judgment is obtained or while the case is on appeal, and in any suck case the court, being informed of the facts, will pro- ceed no further in the action.” PECKHAM, J. U. S. uv. Trans-Missouri Freight Assoc., 166 U. S. 309. “In civil cases it has been the universal practice to dismiss the case whenever it be- came apparent: that there was no real dis- pute remaining between the plaintiff and the defendant, or that the case had been settled or otherwise disposed of by agreement of the parties, and there was no actual con- troversy pending. . . . We know at pres- ent of no reason why the same course may not be taken in criminal cases if the laws of the state or the practice of its courts author- ize it.’ Brown, J. Allen v. Georgia, 166 U. S, 140. ° Who May Object. “We have adopted it as a rule of practice that third persons cannot be heard to prove before us that a case pending on our docket is feigned, and a decision sought at our hands intended alone to effect other men’s rights, by combination of the parties of rec- ord.” Catron, J., dissenting. Moore w. Brown, 11 How. 430. b. Mere Possibilities. Courts Will Not Determine. “Courts deal with things as they are, and do not determine rights upon mere possi- bilities.’ Brewer, J. Adams Express Co. v. Ohio, 166 U. S. 222. “Courts of justice make orders and de- crees upon actually existing states of fact, not upon what may possibly occur at some Curtis, J., dissenting. Florida v. Georgia, 17 How. 497. ce. Amaicable Suits. Real Dispute. “An amicable action, in the sense in which these words are used in courts of jus- tice, presupposes that there is a real dispute between the parties concerning some matter of right. And in a case of that kind it sometimes happens, that, for the purpose of obtaining a decision of the controversy, with- out incurring needless expense and trouble, they agree to conduct the suit in an ami- cable manner, that is to say, that they will not embarrass each other with unnecessary forms and technicalities, and will mutually admit facts which they know to be true, and without requiring proof, and will bring the point in dispute before the court for deci- sion, without subjecting each other to un- ACTIONS. necessary expense or delay. But there must be an actual controversy, and adverse in- terests. The amity consists in the manner in which it is brought to issue before the court. And such amicable actions, so far from be- ing objects of censure, are always approved and encouraged, because they facilitate greatly the administration of justice be- tween the parties.” Taney, C. J. Lord v. Veazie, 8 How. 255. 5. Motive. a. In General. -Fraud or Malice. “There are cases of injurious acts for which a suit will not lie, unless there be fraud or malice concurring to characterize and distinguish them. But in these cases the act must be tortious, and there must be consequent damage. An act legal itself, and violating no right, cannot be made ac- tionable on account of the motive which superinduced it.” CAampsBett, J. Adler vw. Fenton, 24 How. 410. Malicious Prosecution. “Tt is abundantly settled that no suit can be maintained against an unsuccessful plain- tiff or prosecutor, unless it is shown affirm- atively that he was actuated in his conduct by malice, or some improper or sinister mo- tive.” Stronc, J. Stewart v. ‘Sonneborn, 98 U. S. 192, “There is a possibility that any citizen, however innocent, may be subjected to a civil or criminal prosecution, and put to the expense of defending himself, but un- less such prosecution be malicious, he is remediless, except so far as a recovery of costs may partially indemnify him. He may even be convicted of a crime and suffer im- prisonment or other punishment before his innocence is discovered, but that gives him no claim to indemnity against the state, or even against the prosecutor if the action of the latter was taken in good faith. and in a reasonable belief that he was. justified in doing so.” Brown, J. Brown v. Walker, 161 U. S. 608. : See also Matictous PRosECuUTION. b. Defense. Not Available. “If the action be founded upon a just judgment, and be conducted according to the forms of law and with a- due regard to the rights. of parties, it is no defense that the plaintiff may have had some ulterior ob- 11 ject in view beyond the recovery of a judg- ment, so long as sych object was not an unlawful one.” Brown, J. Dickerman vw. Northern Trust Co., 176 U. S. 190. “Tf the law concerned itself with the mo- tives of parties new complications would be introduced into suits which might seriously obscure their real merits.” Brown, J. Dick- erman v. Northern Trust Co., 176 U. S. 190. 6. AccruAL oF RiGHT TO SUE. In General. “No man can be said to refuse or neglect to make payment before the money is de- mandable from him, and till then no action can be brought.” Marsuatt, C. J. Yeaton v. Bank of Alexandria, 5 Cranch 53. For action for breach of contract, see ConTRACT. : Action Before Credit Expires. “Where goods cre sold on credit, and the purchaser agrees to give his note for them, and refuses to do so, it has been held that an action will lie before the credit ex- pires, and that the measure of damages is the price of the goods. Davis, J. Bayne v. Morris, 1 Wall. 98. III. REMEDY. 1. Ricut To. “The citizen here knows no person, how- ever near to those in power, or however powerful himself, to whom he need yield the rights which the law secures to him when it is well administered. When he, in one of the courts of competent jurisdiction, has established his right to property, there is no reason why deference to any person, natural or artificial, not even the United States, should prevent him from. using the means: which the law gives him for the protection and enforcement of that right.” Mitter, J. U. S. v. Lee; 106 US S. 208. 2. WHat Law Governs. Laws of the Forum. “No man can sue in the courts of any country, whatever his rights may be, un- less in conformity with the rules -prescribed by the laws of that country.” MarsHatt, C. J. Dixon v. Ramsay, 3 Cranch 324. “The law of the forum determines the form of the action, as whether it shall be assumpsit, covenant, or debt.” MatrHews, J. Pritchard v. Norton, 106 U. S. 133. ACTIONS. 8. CHARACTER AND Form. a. In General. “A remedy does not necessarily imply an action.” Brown, J. Knapp, etc, Co. w. McCaffrey, 177 U. S. 644. “ While remedies for nonfulfil- ment of contracts are generally by action, they are by no means universally so.” Brown, J. Knapp, etc., Co. v. McCaffrey, 177 U. S. 644. b. Ex Delicto and Ex Contractu. Difference. “The difference is not merely formal or technical between actions founded in tort and in contract.” Davis, 4 How. 144. Discrimination. “With respect to these cases ex delicto quasi ex contractu, as they have been called, it has been ruled, that if the plaintiff states the custom, and also relies on an undertak- ing general or special, the action is in reality founded on the contract, and will be treated as such.” Dawntet, J., dissenting. New Jer- sey Steam Nav. Co. v. Merchants’ Bank, 6 How. 412. “In farther proof that these actions in form ex delicto, founded on a breach of contract, are essentially actions of contract, it is clear that, in such actions, an infant could not be debarred the privilege of his nonage, nor could the operation of the stat- ute of limitations upon the true cause of the action be avoided; both these defenses would apply, according to the real founda- tion of the action.” Dantet, J., dissenting. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 412. “Where contract and tort, in the forms of: declaration at common law in actions of the case, are with difficulty discriminated, the general test adopted is, if specific breaches are assigned, sounding ex delicto, it is case on the tort.” Woopsury, J., concurring. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 433. c. Trespass and Case. “Nice distinctions were formerly drawn between actions of trespass and case, but it was never supposed that an error in that particular affected the jurisdiction of the court, or could be drawn in question col- laterally.” Brown, J. Insley v. U. S., 150 U.S. 515. Woopsury, J. Garland v. 12 d. At Law and in Equity. (1) Distinction. In General. “Tt would be difficult, and perhaps im- possible, to state any general rule which would determine, in all cases, what should be deemed a suit in equity as distinguished from an action at law, for particular ele- ments may enter into consideration which would take the matter from one court to the other; but this may be said, that, where an action is simply for the- recovery and pos- session of specific real or personal property, or for the recovery of a money judgment, the action is one at law. An action for the recovery of real property, including damages for withholding it, has always been of one class.” Frecp, J. Whitehead wv. Shattuck, 138 U. S. 151. “Tt is a little difficult, no doubt, to keep entirely separate proceedings in the same cause, part of which take place on the law side, and part on the chancery side of the same court, when all are conducted by the same judge.” MartrHews, J. Kerr v. South Park Com’rs, 117 U. S. 384. “Even in states where chancery jurisdic- tion has been preserved, the decisions of their respective courts do not always harmonize in marking the line of division between law and equity.” Taney, C. J. Smith v. Mc- Cann, 24 How. 404. What Is a Legal Action. “All actions which seek to recover specific property, real or personal, with or without damages for its detention, or a money judg- ment for breach of a simple contract, or as damages for injury to person or property, are legal actions.” Frietp, J. Scott v. Neely, 140 U. S. 110. Distinction Abolished. “In Idaho, as in other Territories, there is but one form of civil action, in which either legal or equitable remedies, or both, may be administered, through the interven- tion of a jury, or by the court itself, accord- ing to the nature of the relief sought, pro- « vided, however, that no party can be ‘deprived of the right of trial by jury in cases cognizable at common law.” Gray, J. Idaho, etc.,"Land Co. v. Bradbury, 132 U. S. 513. To the same effect see the language of Futter, C. J., in Perego v. Dodge, 163 U. S. 163. “Tn states where there is no court of equity, the courts of common law necessarily. ACTIONS. deal with equitable interests as if they were legal, and exercise powers over them which are unknown to courts of common law, where a separate chancery jurisdiction is established.” Taney, C. J. Smith v. Mc- Cann, 24 How. 404. Distinction Preserved. “This court has uniformly resisted the tendency to confuse the boundaries of law and equity in its procedure, and maintained the distinction between the two systems, so deeply imbedded in our jurisprudence.” Matruews, J. Krippendorf v. Hyde, 110 U. S. 284. To the same effect see the language of Mutter, J., in Quincy v. Steel, 120 U. S. 244; Haran, J., in Lantry v. Wallace, 182 U. S. 549. “This is an equitable suit brought in the United States court, where the distinction between law and equity is constantly en- forced.” Brewer, J., dissenting. San Fran- cisco Nat. Bank v. Dodge, 197 U. S. 108. “In the Supreme Court of the District of Columbia, as in the Circuit Court of the United States, the jurisdiction in equity is distinct from the jurisdiction at law, and equitable relief can not be granted in an action at law.” Gray, J. Willard v. Wood, 135 U. S, 314. Exclusion of Inappropriate Matters. “The court, in a suit at law, shotld exclude the hearing and determina- tion of all questions that belong appropriately and exclusively to the jurisdiction of a court of equity.” Netson, J. Jones wv McMasters, 20 How. 22. Effect of State Practice. “The line of demarcation between equi- table and legal remedies in the federal courts cannot be obliterated by state legislation.” Brewer, J. Hollins v. Brierfield Coal, etc., Co., 150 U. S. 379. To the same effect see the language of CuiFForD, J., in Nations v. Johnson, 24 How. 206; Grier, J., in Weems v. George, 13 How. 197; Brewer, J., in Mis- sissippi Mills v. Cohn, 150 U. S. 204; Fretp, J., in Scott v. Neely, 140 U. S. 110. “The remedies in the courts of the United States are at common law, or in equity, not according to the practice of state courts, but according to the principles of common law and equity, as distinguished and defined in that country from which we derive our knowledge of these principles, and that al- though the forms of proceedings and practice in the state courts shall have been adopted 13 in the Circuit Courts of the United States, yet the adoption of the state practice must not be understood as confounding the prin- ciples of law and equity, nor as authorizing legal and equitable claims to be blended to- gether in one suit.” Suurras, J. Lindsay v. Shreveport First Nat. Bank, 156 U. S. 493. To the same effect see the language of FuL- Ler, C. J., in New Orleans v. Louisiana Con- struction Co., 129 U. S. 46. Effect of a Case Stated. “A statement of facts agreed by the parties, or, technically speaking, a case stated, in an action at law, doubtless waives all questions of pleading, or form of action, which might have been cured by amendment; but it cannot enable a court of law to as- sume the jurisdiction of a court of equity.” Gray, J. Willard v. Wood, 135 U. S. 314. (2) EquirasLte DEFENSES. Not Available. “Under the jurisprudence of the courts of the United States a court of law can no more take cognizance of an equitable de- fense than a court of equity can entertain a suit upon a purely legal title’ Woops, J. Burnes wv. Scott, 117 U. S. 587. “In an action at law in a Circuit Court of the United States equitable defenses are not permitted.” Harian, J. Lantry v. Wallace, 182 U. S. 549. Attached to Negotiable Instrument. “Tf by the law of the place of a contract equitable defenses are allowed in favor of the maker of a negotiable note, any subsequent indorsement will not change his rights in favor of the holder.” Matruews, J. Pritch- ard v. Norton, 106 U. S. 133. Fraud — Failure of Consideration. “It is said that fraud vitiates all con- tracts, and even records, which is doubtless true in a general sense. But it must be reached in some regular and authoritative mode; and this may depend upon the forum in which it is presented, and also upon the parties to the litigation.” Netson, J. Harts- horn v. Day, 19 How. 223. “The general rule is; that in an action upon a sealed instrument in a cotfrt of law, failure of consideration, or fraud in the con- sideration, for the purpose of avoiding the obligation, is not admissible, as between the parties and privies to the deed; and, more especially, where there has been a part ex- ecution of the contract. The difficulties are in adjusting the rights and equities of the ACTIONS. parties in a court of law; and hence, in the states where the two systems of jurispru- dence prevail, of equity and the common law, a court of law refuses to open the question of fraud in the consideration, or in the trans- action out of which the consideration arises, in a suit upon the sealed instrument, but turns the party over to a court of equity, where the instrument can be set aside upon such terms as, under all the circumstances, may be equitable and just between the parties. A court of law can hold no middle course; the question is limited to the validity or invalidity of the deed.” Netson, J. Hartshorn v. Day, 19 How. 222. “By the earlier English decisions the fol- lowing principles appear to have been in- flexibly ruled, viz:— That whenever a con- tract was obtained by fraud, it never could, | if this were shown, be made the foundation of a recovery to any extent, but must be set aside im toto. That in all instances wherein a party was injured either by a partial failure of consideration for the con- tract, or by the nonfulfilment of the con- tract, or of a warranty, the person so in- jured could not defend himself, in an action on the contract, by proving these facts, but could find redress only in a cross action against the plaintiff. These rules of the common-law courts appear to have yielded materially to the influence of common sense and common convenience. An example of this may be perceived in the permission given in cases where a recovery is sought upon the principle of quantum meruit, to set up as a’ defense that the plaintiff has unfairly, or in- juriously, or imperfectly fulfilled his obliga- tions towards the defendant, and that he should in such cases recover so far only as he could prove a meritorious performance; admitting, in these instances at least, the defense founded on discount or on a partial failure of consideration, or a dishonest per- formance.” DaAntEL, J. Withers v. Greene, 9 How. 227. “But however the rule laid down by the courts in England should be understood, it has repeatedly been decided by learned and able judges in our own country, when act- ing, too, not in virtue of a statutory license or provision, but upon the principles of jus- tice and convenience, and with the view of preventing litigation and expense, that where fraud has occurred in obtaining or in the performance of contracts, or where there has been a failure of consideration, total or partial, or a breach of warranty, fraudulent or otherwise, all or any of these facts may be relied on in defense by a party, when sued upon such contracts; and that he shall ° not be driven’ to assert them either for pro- tection, or as a ground for compensation in a cross action.” DawnrEL, J. Whithers v. Greene, 9 How. 230. See also Fraup AND DECEIT. e. Civil and Criminal. (1) Procerpincs DEFINED. In General. “Proceedings to enforce civil rights are civil proceedings, and proceedings for the punishment of crimes are criminal proceed- ings.” Warts, C. J. Ex p. Tom Tong, 108 U.S. 559. (2) Two Remepies BASED on SAME WRonc. Punishment and Compensation. “There is no inconsistency between a remedy for an illegal act which works a private wrong, securing pecuniary compen- sation, and a statute making the same act a criminal offense and punishing it accord- ingly.” Strone, J. Stockwell v. U. S., 13 Wall. 552. Effect as Double Punishment. “A man may be compelled to make rep- aration in damages to the injured party, and be liable to punishment for a breach of the public peace, in consequence of the same act; and may be said, in common parlance, to be twice punished for the same offense.” Grier, J. Moore v,. Illinois, 14 How. 19. “The law is full of instances in which the same act may give rise to a civil action and a criminal prosecution. An assault with in- tent to kill may be punished criminally, under an indictment therefor, or will support a civil action for damages, and the same is true of all other offenses which cause injury to person or property. In such cases the jurisdiction of the civil court is invoked, not to enforce the criminal law and punish the wrongdoer, but to compensate the in- jured party for the damages which he or his property has suffered, and it is no defense to the civil action that the same act by the defendant exposes him also to indictment and punishment in a court of criminal juris- diction.” Brewer, J. In re Debs, 158 U. S. 594. f. Proceedings In Rem. (1) Nature, Against Property Alone, “Actions in rem, strictly considered, are 14 ACTIONS. proceedings against property alone, treated as responsible for the claims asserted by the libelants or plaintiffs. The property .it- self is in such actions the defendant, and, except in case arising during war for its hos- tile character, its forfeiture or sale is sought for the wrong, in the commission of which it has been the instrument, or for debts or obligations for which by operation of law it is liable.” Fiexp, J. Freeman v. Alderson, 119 U. S. 187. “The world must move on, and those who claim an interest in persons or things must be charged with knowledge of their status and condition, and of the vicissitudes to which they are subject. This is the foun- dation of all judicial proceedings im rem.” Brabiey, J. Broderick’s Will, 21 Wall. 519. “An essential characteristic of a proceeding im rem is that there must‘be a” res or subject-matter upon which the court is to exercise its jurisdiction.” Wuutz, J. Overby v. Gordon, 177 U. S. 221. “Tn a strict sense, a proceeding in rem is one taken directly against property and has for its object the disposition of the prop- erty, without reference to the title of in- dividual claimants; but, in a larger and more general sense, the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein. Such are cases commenced by attachment against the property of debtors, or instituted to parti- tion real estate, foreclose a mortgage, or en- force a lien. So far as they affect property in the state, they are substantially proceed- ing in rem in the broader sense which we have mentioned.” Frerp, J. Pennoyer v. Neff, 95 U. S. 734, * Process in rem is founded on a right in the thing, and the object of the process is to obtain the thing itself, or a satisfaction out of it, for some claim resting on a real or quasi proprietary right in it.” CLIFForRD, J. The Maggie Hammond, 9 Wall. 456. To the same effect see the language of Ciir- ForD, J., in Averill v. Smith, 17 Wall. . 95. (2). SEizuRE AND CITATION. Jurisdiction Acquired By. “The court acquires jurisaiction over the property in such cases by its seizure, and of the subsequent proceedings by public cita- tion to the world, of which the owner is at liberty to avail himself by appearing as a claimant in the case.” Fre.p, J. Freeman v. Alderson, 119 U. S. 187. Validity. “The very theory upon which all proceed- ings in rem are sustained is that jurisdiction of the court is acquired by taking the res into its custody. It is the seizure under judicial process, judicial seizure as distin- guished from any preliminary seizure in any other way, which gives the jurisdiction, and nothing else ever has been held to confer jurisdiction in this class of cases.” FIELD, J., dissenting. Miller v. U. S., 11 Wall. 324, “To constitute a valid seizure of property as a basis for a proceeding im rem, the party previously in possession must be dispossessed and unable any longer to exercise dominion over the property, and such dominion must be transferred to the officer making the seiz- ure. No other seizure than this will sustain proceedings in rem, according to the estab- lished doctrine in admiralty and revenue cases, unless a different mode of seizure is specially prescribed by statute. No other mode would conserve the principle of notice to the party whose property was to be af- fected, which is essential to the validity of all judicial proceedings.” Frexp, J., dissent- ing. Miller v. U. S, 11 Wall. 325. Proceedings in Form in Personam. “In cases purely in rem, as in admiralty ‘and revenue cases for the condemnation or ' forfeiture of specific property, a preliminary seizure of the property is necessary to the power of the court to adjudicate at all. In other cases, where the proceedings are in form in personam, but the court is unable to acquire jurisdiction of the person of the de- fendant, by actual or constructive service of process, the action may proceed, as one in rem against the property of which a pre- liminary seizure or its equivalent has been made; or, jurisdiction may be exercised with- out such preliminary seizure, where the re- lief sought is an adjudication respecting the title to or validity of liens upon real estate situate within the jurisdiction of the court.” Wurst, J. Overby uv. Gordon, 177 U. S. 221, Evidence of Constructive Seizure. “In proceedings im rem to confiscate prop- erty in the absence of its owner, where the seizure of it is sine qua non to the jurisdic- tion of the court, and where, as in the pres- ent case, actual manucaption is impossible, the evidence which supports a constructive seizure should be scrutinized as closely, and be of a character as satisfactory, as that 15 ACTUAL. which would subject the party holding the fund or owing the debt which is the object of the proceedings to an ordinary civil suit in the same court.” Mutier, J. Alexandria v. Fairfax, 95 U. S. 779. g. Stotutory Remedy. Exclusiveness. “It may well be that where a purely stat- utory right is created the special remedy provided by the statute for the enforcement of that right must be pursued.” Brewer, J. Stewart v. Baltimore, etc, R. Co, 168 U. S. 448. 4, JoINDER AND SPLITTING. Joinder. “A suit may, consistently with the rules of pleading, embrace several distinct con- troversies.” McKenna, J. Geer v. Mathie- son Alkali Works, 190 U. S. 432. “In those states where the distinction between forms of action have been abolish- ed, the declaration could have been amend- ed, and the two matters joined in the same action. In that case, we might, under the statute of jeofails, disregard the error as one capable of removal by amendment be- low, and as cured by verdict and judg- ment when it comes here.” Mutter, J. Phillips, etc., Constr. Co. v. Seymour, 91 U. S. 655. Different Forms of Action. “It is certainly opposed to the common- law system of pleading which prevails in the Illinois circuit, to join the actions of cove- nant and assumpsit. If this had been done in the declaration, the defendant could have successfully demurred.” Mutter, J. Phillips, etc, Constr. Co. v. Seymour, 91 U. S. 654. Splitting. “The whole tendency of our decisions is to require a plaintiff to try his whole cause of action and his whole case at one time. He cannot even split up his claim, and, a fortiori, he cannot divide the grounds of recovery.” Hotmes, J. U. S. wv. California, etc., Land Co, 192 U. S. 358, “The recent tendency of judicial decisions in this country, in actions of contract, as well as in actions of tort, has been towards allowing entire damages to be recove-ed, once for all, in a single action, and thus avoid- ing the embarrassment and annoyance of repeated litigation. This especially appears by well considered opinions in cases of agreements to furnish support or to pay wages.” Gray, J. Pierce v. Tennessee Coal, etc. R. Co. 173 U. S. 11. Rents Payable at Different Times. “In covenant for nonpayment of rent, payable at different times, a new action lies as often as the respective sums become due and payable.” Davis, J. Cross uv. U. S, 14 Wall. 484. 5. COMMENCEMENT AND PROSECUTION. General Definition. “To commence a suit is to demand some- thing by the institution of process in a court of justice; and to prosecute the suit is, according to the common acceptation of the language, to continue that demand.” MarsHatt, C. J. Cohen v. Virginia, 6 Wheat. 408. See also Costs. “Brought” and “ Commenced.” “A suit is brought when in the law it is commenced, and we see no significance in the fact that in the legislation of Con- gress on the subject of limitations the word ‘commenced’ is sometimes used, and at other times the word ‘brought.’ In this connec- nection the two words evidently mean the same thing, and are used interchangeably.” Waite, C. J. Goldenberg v. Murphy, 108 U. S. 163. Pending. “When can a suit be said to be ‘in any court of the United States,’ or said to be ‘pending’ therein? Is not the answer in- evitable, from the time the suit is com- menced? It cannot be pending until it is commenced.” McKenna, J. In re Conna- way, 178 U. S, 427. ACT OF GOD. “Extraordinary floods, storms of unusual violence, sudden tempests, severe frosts, great droughts, lightnings, earthquakes, sud- den deaths and illnesses, have been held to be ‘acts of God’; but we know of no in- stance in which a rain of not unusual vio- lence, and the probable results thereof in softening the superficial earth, have been so considered.” Lamar, J. Gleeson v. Vir- ginia Midland R. Co., 140 U. S. 4309. See also AcctpENT; Fires. ACTUAL. “ Actual means existent, but it does not preclude change.” McKenna, J. Osborne v. San Diego Co, 178 U. S. 38. 16 ADMIRALTY. ACUERDO. “An ‘acuerdo,’ or order on the margin of a letter, petition, or communication of any kind, is merely an expression of the determination of the Minister or other func- tionary to whom it is addressed, in re- gard to its subject-matter. Its chief use was to direct the clerks or other subordi- nates in the preparation of the reply, or in taking other action with regard to it. “If the proceedings has been interrupted after the ‘acuerdo’ is affixed, but before the dispatch is written or title issued as di- rected, it may be regarded, not unreasonably, as a species of equitable title, or as sufficient, coupled with other equitable circumstances, to justify the party in asking the comple- tion of the proceedings so initiated. But when the title has issued, or the dispatch has been written in pursuance of the ‘acu- erdo,’ when the latter has been submitted to the Minister, and approved and signed by him, the dispatch so approved and signed is the highest and best evidence, not only of the action of the Government in the prem- ises, but of the true intention of the ‘ acuer- do’; for surely no argument is necessary to prove that an official reply, signed by a public officer, is better evidence of his res- olution, with regard to a particular appli- cation, than a direction to his subordinates as to the form in which the reply is to be drafted.” Wayne, J., dissenting, U. S. v Castillero, 2 Black 322. ADJACENT. “* Adjacent,’ we admit, is a relative term, and sometimes depends for its proper appli- cation upon the facts in the particular case.” PecxHaM, J. U.S. v. St. Anthony R. Co, 192 U. S. 537. “As the word [adjacent] is frequently uncertain and relative as to its meaning, it might naturally perhaps be regarded as more extended when used with reference to a large object than with reference to a comparatively small one. In other words, it must be defined with reference to the context, at least to some extent.” Prcx- Ham, J. U. S. wv. St. Anthony R. Co., 192 U. S. 530. ADJOINING LANDOWNERS. Lateral Support. “The general rule may be admitted that every landowner has a right to have his land preserved unbroken, and that an adjoin- 1 Os. Dic.—2 ing owner excavating on his own land is subject to this restriction, that he must not remove the earth so near to the land of his neighbor that his neighbor’s soil will crum- ble away under its own weight and fall upon his land. But this right of lateral support extends only to the soil in its natural condition.” Stronc, J. Northern Transp. Co. v. Chicago, 99 U. S. 645. Fences. “Tt is true that a man may build a fence upon his own land as high as he pleases, even though it obstructs his neighbor’s light, and the weight of authority is that his motives in so doing cannot be inquired into, even though the fence be built ex- pressly to annoy and. spite his neighbor; and, that in this particular, the law takes no account of the selfishness or malevolence of individual proprietors; although there are many strong intimations to the contrary.” Brown, J. Canfield wu U. S, 167 U. S. 523. See also NUISANCES. ADMINISTRATION. See Propate AND ADMINISTRATION. ADMINISTRATORS. See ExEcuTORS AND ADMINISTRATORS. ADMIRALTY. I. DEFINITION. II. Nature oF RESPONSIBILITY AND PROCEEDINGS. 1. In General. 2. Proceedings sonam. III. Jurispicrion. . In General. Extent. Consent. . Particular Courts. . Exclusive and Concurrent Jurisdic- tion and Remedies. . Proper Subjects of Jurisdiction. a. In General. b. Dependent upon Locality and Ne: ture of Contract. (1) In General. (2) Nature of Voyage or Waters. (3) Maritime Liens in General. (4) Mortgages. (5) Contracts for Shipbuilding. (6) Contracts for Maritime Services. (7) Repairs and Supplies. (8) Torts. in Rem and in Per- arwrme’ ao 17 ADMIRALTY. c. Vessels. d. Dry Dock. e. Effect of Alienage of Parties. IV. Maritime Law — Rutes oF DE- CISION. 1. In General. 2. Uniformity. aoe 3. Control by Equitablé Principles. 4. Rule of Damages. V. PRocEDURE — PLEADING AND PRAC- TICE. _ 1. In General. 2. Venue. 3. Parties. 4, Stipulation or Bail. 5. Order of Sale. 6. Rules of Pleading. a. Simplicity in General. b. Libel or Information. c. Answer. d. Cross Libel. e. Variance and Departure. f. Amendments. 7. Nonsuit. 8. Hearing. 9. Evidence. 10. Decree. 11. Costs. 12. Distribution of Funds. 13. Appeal. CROSS-REFERENCES. As to droits of admiralty, see Drorrs oF Ap- MIRALTY; Prracy; jurisdiction to compel accounting, see AccouNTS AND ACCOUNTING. See also Caprure, RECAPTURE, CONFISCA- TION, AND Prize; CoLiision; ELECTION oF REMEDIES AND RicHts; Lacnwés; MARITIME Liens; NaviGABLE Waters; NAviGATION; SALVAGE; SHIPS AND SHIPPING. I. DEFINITION. “What is admiralty? It is the law, not of the water, but of the seas.” Brewer, J., dissenting. The Robert W. Parsons, 191 U. S. 48. II. NATURE OF RESPONSIBILITY AND PROCEEDINGS. 1. In GENERAL. Origin and Growth. “The dominion of the Admiral was over the sea—the ships and men who frequented _ it—their contracts and their: torts. His court proceeded either against the ship or the person of the owner, by arrest of the thing or the person.” Grrer, J. Ward v. Chamberlain, 2 Black 446. “Tt [admiralty] grew up out of the fact that the ocean ‘is not the territorial property of any nation, but the common property of all; that vessels engaged in commerce be- tween the different nations ought, so far as possible, to be subject to a uniform law, and not annoyed by the conflicting local laws and customs of the several nations which they visit.” Brewer, J., dissenting. The Robert W. Parsons, 191 U. S. 48. “Courts of admiralty are established for the settlement of disputes between persons engaged in commerce and navigation who, on the one hand, may be absent from their homes for long periods of time, and, on the other hand, often have property or credits in other places.” Gray, J. In re Louisville Underwriters, 134 U. S. 493. “The admiralty and maritime jurisdiction, like the common law or chancery jurisdic- tion, embraces a system of procedure known and established for ages. It may be called a system of regulations embodied and ma- tured by the most enlightened and commer- cial nations of the world. Its origin may be traced to the regulations of Wisbuy, of the Hanse towns, the laws of Oleron, the ordinances of France, and the usages of other commercial countries, including the English admiralty.” McLran, J. Jackson v. Steam- boat Magnolia, 20 How. 303. Responsibility of Ship. , “Tt is not an uncommon cotrse in the ad- miralty, acting under the law of nations, to treat the vessel in which or by which, or by. the master or crew thereof, a wrong or offense has been done as the offender, with- out any regard whatsoever to the personal misconduct or responsibility of the owner thereof. The ship is also by the gen- eral maritime law held responsible for the torts and misconduct of the master and crew thereof, whether arising from negligence of a wilful disregard of duty; as for example, in cases of collision and other wrongs done upon the high seas or elsewhere within the admiralty and maritime jurisdiction.” Story, J. Harmony v. U. S,, 2 How. 233, 234. To the same effect see the lan- guage of Ciirrorp, J., in Dobbins’ Distillery v. U. S., 96 U. S. 400. : “She [a ship] is capable, too, of commit- ting a tort, and is responsible in damages therefor. She may also become a quasi bank- rupt; may be sold for the payment of her 18 ADMIRALTY. debts, and thereby receive a complete dis- charge from all prior liens, with liberty to begin a new life, contract further obligations, and perhaps be subjected to a second sale.” Brown, J. Tucker v. Alexandroff, 183 U. S. 438. Dependency upon Common-law Liability. “Suppose the courts of common law had never decided that an action could not be- maintained at common law for damages caused by the death of a human being, would any one doubt the power of courts of admir- alty to determine whether such an action could be brought in that jurisdiction?” Wart, C. J. Ex p. Gordon, 104 U. S. 517. “In England it is held that the ship is not responsible in admiralty, where the owner would not be at common law, differing in this respect from our own decisions.” .Gray, J. Homer Ramsdell Transp. Co. v. La Com- pagnie Generale Trans-Atlantique, 182 U. S. 413. Death by Wrongful Act. “There is no case, we believe, in which a libel in admiralty has been maintained by this court, as for a tort, upon a cause of action on which, by the law . prevailing throughout the country, no action at law can be maintained. On the contrary, it has repeatedly’ held that, as no action lies at common law for the death of a human being, no suit for a death caused by the negligence of those in charge of a vessel on navigable waters, either within a state or on the high seas, can be maintained in admiralty in the courts of the United States, in the absence of an act of Congress, or a statute of the state, giving a right of action therefor.” Gray, J., dissenting. Workman v. New York City, 178 U. S. 587. 2. ProcEEDINGS IN REM AND IN PERSONAM. Nature In General. “ Actions in rem are prosecuted to enforce a right to things arrested to perfect a mari- time privilege or lien attaching to a vessel or cargo or both, and itt which the thing to be made responsible is proceeded against as the real party, but actions im personam are those in which an individual is charged per- sonally in respect to some matter of admir- alty and maritime jurisdiction. Both the process and proceedings are different, and the appropriate decree in the one might be absolutely absurd in the other.” CLuFrorp, J. The “Sabite,” 101 U. S. 388. 19 “Tf the cause is a maritime cause, subject to admiralty cognizance, jurisdiction is com- plete over the person, as well as over the ship; it must, in its nature, be complete, for it cannot be confined to one of the remedies on the contract, when the contract itself is within its cognizance.” Nexson, J. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 392. “For the redress of torts, the courts of admiralty may proceed in personam, and when the cause of the injury is the sub- ject of a maritime lien, may also proceed in rem. The latter proceeding is the remedy afforded for the enforcement of liens of that character.” Frisip, J. Rock Island R. Bridge, 6 Wall. 215. “For the damages occasioned by collision of vessels at sea a claim is created against the vessel in fault, in favor of the injured party. This claim may be enforced in the admiralty by a proceeding in rem, except where the vessel is the property of the United States.” Fretp, J. The Siren, 7 Wall. 155. “The distinction is sharply drawn between a common law action in personam with a concurrent attachment against the goods and chattels of the defendant, subject, of course, to any existing liens, and a proceeding in rem against the vessel as the debtor or ‘ of- fending thing,’ which is the characteristic of a suit in admiralty. The same distinction is carefully preserved in the general admir- alty rules prescribed by this court; rule sec- ond declaring that in suits im personam the mesne process may be ‘by a warrant of arrest of the person of the defendant, with a clause therein that if he cannot be found, to attach his goods and chattels to the amount sued for;’ and rule nine, that in suits and proceedings in rem the process shall be by warrant of arrest of the ship, goods or other things to be arrested, with public notice to be given in the newspapers. The former is in strict analogy to a common law proceeding and is a concurrent remedy. The latter is a proceeding distinctively mari- time, of which exclusive jurisdiction is given to the admiralty courts.” Brown, J. The Robert W. Parsons, 191 U. S. 37, In Rem — Object and Nature. “The procedure in rem has for its object the enforcement’ of a liability which by the maritime law is a lien upon the vessel which is a jus in re, and is treated as a proprietary right, capable of being realized by judicial process.” Mutxer, J., dissenting. The Great Western, 118 U. S. 534. ADMIRALTY. “ As applied to a suit [in admiralty] in rem for the breach of a maritime contract, it presupposes, first, that the contract sued upon is a maritime contract; and, second, that the property proceeded against is within the lawful custody of the court. These are the only requirements necessary to give juris- diction.” Brown, J. The Resolute, 168 U. S. 439. “Usually a maritime lien is the proper foundation of a proceeding in rem, as such process is seldom or never appropriate for any purpose except to enforce the inchoate interest created by such a lien, and the law appears to be well settled that where a pro- ceeding in rem is the proper pleading there a maritime lien exists in the thing which it is the office of such a process or pleading to perfect.” CzxiFrorp, J., dissenting. The Lottawanna, 21 Wall. 598. “Process in rem [in admiralty] is founded on a right in the thing, and the object of the process is to obtain the thing itself, or a satisfaction out of it, for some claim resting on a real or quasi proprietary right in it. Consequently, the court, through its process, arrests the thing, and holds possession of it by its officers, as the means of affording such satisfaction, and in contemplation of law it is in the possession of the court itself.” Crrr- ForD, J. The Propeller Commerce, 1 Black 580. “Courts of admiralty proceed, in many cases, in rem. But this does not alter the principles by which they are to be governed in the disposition of the res.’ THompson, J. The Monte Allegre, 9 Wheat. 648. “Tt is true that there can be no decree in rem against the vessel except for the en- forcement of a lien given by the maritime law,’ or by state law.” Brown, J. The Resolute, 168 U. S. 440. In Personam — Liability. “By the general admiralty law of this country, often declared by this court, a ship, by whomsoever owned and navigated, is liable for an actionable injury resulting from the negligence of her master or crew to another vessel. But that does not warrant the inference that a libel in per- Sonam can be maintained against the owner for a tort which would neither sustain a libel in rem against the ship nor an action at law against her owner.” Garay, J., dis- senting. Workman v. New York City, 179 U. S. 586. “By the ancient and settled practice of courts of admiralty, a libel in personam may 20 be maintained for any cause within their jurisdiction, wherever a monition can be served upon the libelee, or an attachment made of any personal property or credits of his; and this practice has been recognized and upheld by the rules and decisions of this court.” Gray, J. In re Louisville Un- derwriters, 134 U. S. 490. “The prerequisite in admiralty to the right to resort to a libel in personam is the ex- istence of a cause of action, maritime in its nature.” WuuitE, J. Workman v. New York City, 179 U. S. 573. Deficiency.’ “Tn cases of torts, as well as in many cases of contract, where the general owner has intrusted a special owner or charterer with authority to bind the ship but not him- self, the vessel is treated by the maritime law as an actor and juridical person, capable of committing wrongs, and is pursued as a delinquent without regard to ownership or agency. And when the liability is not only a lien on the vessel, but a claim against the owner personally, if satisfaction is not secured by process in rem, the defi- ciency may be made good by proceedings in personam.” Mrter, J., dissenting. The Great Western, 118 U. S. 534. ‘ Election of Remedies. “Whenever a maritime lien arises the in- jured party may pursue his remedy, whether for a breach of a maritime contract or for a maritime tort, by a suit in rem or by a suit in personam, at his election.” CL1FFoRD, J. The Belfast, 7 Wall. 642. See also, SALVAGE; Suips AND SHIPPING. ee “ Materialmen who furnish ma- terials and supplies for a vessel in a foreign port - . are entitled to proceed in rem in the admiralty court to enforce the lien, but they are not compelled to do so, as they may waive the lien and bring their suit i personam against the master or owners, as they are also liable as well as the vessel.” CuirrorD, J. The Belfast, 7 Wall. 643. “Parties in maritime cases are not re- stricted to that mode of proceeding, even in the admiralty, as they may waive the lien and proceed im personam against the owner or master of the vessel, in the same juris- diction; nor are they compelled to proceed in the admiralty at all, as they may resort to their common-law remedy in the State courts, or in the Circuit Court, if the party seeking redress and the other party are citi- zens of different States.” Cxirrorp, J. Nor- ton v. Switzer, 93 U. S. 356, ADMIRALTY. Nature of Process. “In a court of admiralty, as in a court of common law, a process of foreign attach- ment is auxiliary and incidental to the prin- cipal cause.” Gray, J. Cushing v. Laird, 107 UL S. 76. “ Where these proceedings [in admiralty] are against the person, notice is served per- sonally, or by publication; where they are in . rem, notice is served upon the thing itself. This is. necessarily notice to all those who have any interest in the thing, and is reason- able because it is necessary, and because it is the part of common prudence for all those who have any interest in it to guard that interest by persons who are in a situation to protect it.’ MarsHatt, C. J. The Mary Stafford, 9 Cranch 144. III. JURISDICTION. 1. In GENERAL. In English Jurisprudence. “Matters of admiralty cognizance were, in most cases, reserved to the crown in the colonial charters, but the first charter granted to the colony of Massachusetts Bay contained no such reservation.” CLiFForD, J., dissent- ing. The Lottawanna, 21 Wall. 600. “In the English maritime jurisprudence the jurisdiction of the admiralty court on the instance side, and the jurisdiction in prize, are entirely distinct and independent of each other.” Swayne, J. The Siren, 13 Wall. 391. Conferred by Constitution. “Judicial power to hear and determine controversies in admiralty, like other judicial power, was conferred upon the government of the United States by the Federal Consti- tution.” 636. “Judicial power under the Federal Con- stitution extends to all cases of admiralty and maritime jurisdiction.” CurFForp, J. Ex p. Easton, 95 U. S. 70. “The admiralty jurisdiction under our system, can only be exercised under the laws of the United States.” Jounson, J. Janney v. Columbian Ins. Co., 10 Wheat. 418. 2. EXTENT. See also NavicABte WATERS. Extension of Jurisdiction. “So far, then, as the opinions of Hale and Blackstone are entitled to respect—so far CuiFrForp, J. The Belfast, 7. Wall. 21 as the writings and decisions of the ven- erable expounders of the British Constitu- tion to which they refer may be regarded as authority —the origin and powers of the admiralty in England, the subjects permitted to its peculiar cognizance, the control ex- erted to restrict it to that peculiar cognizance by. the common law tribunals, would seem not to be matters of uncertainty.” DANIEL, J., dissenting. New Jersey Steam Nav. Co. uv. Merchants’ Bank, 6 How. 400. See also infra, III, 6. “A wide departure from the English limit of admiralty jurisdiction took place within two years after the adoption of the Consti- tution; and that, too, by the Congress called upon to expound the grant with a view to the establishment of the proper tribunals to carry it into execution.” NeEtson, J. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 387. “Every advance of the admiralty is a victory over the common law; a conquest gained upon the trial by jury.” JoHNson, J., concurring. Ramsay v. Allegre, 12 Wheat. 640. “Too true does it seem to me the case, that the ambitious and undefined pretensions of this branch of jurisprudence [admiralty] have found greater favor here than, in my view, is compatible with civil liberty, with public policy or private benefit; and hence I have been the more inclined to watch and prevent its dangerous encroachments, and in all sincerity can, in contemplating the favor extended to those encroachments, ex- claim, ‘hine illae lachrymae’” Dantet, J., dissenting. Ward v. Peck, 18 How. 270. “On that subject [admiralty jurisdiction] three propositions may be assumed as settled by authority, and to those it will be sufficient to refer on the present occasion, without much discussion of the principles on which the adjudications rest: 1. That the juris- diction of the District Courts is not limited to the particular subjects over which the ad- miralty courts of the parent country exer- cised jurisdiction when our Constitution was adopted. 2. That the jurisdiction of those courts does not extend to all cases which would fall within such jurisdiction, accord- ing to the civil law and the practice and usages of continental Europe. 3. That the nature and extent of the admiralty juris- diction conferred by the Constitution must be determined by the laws of Congress and the decisions of this court, and by the usages ADMIRALTY. prevailing in the courts of the States at the time the Federal Constitution was adopted. No other rules are known which it is reason- able to suppose could have been in the minds of the framers of the Constitution than those which were then in force in the respective States, and which they were ac- customed to see in daily and familiar prac- tice in the State courts.” CuiFForD, J. Ex p. Easton, 95 U. S. 70. Boundary Not Well Defined. “Tt is how seventy years since the estab- lishment of courts of admiralty in these states, yet it seems that the boundary line of their jurisdiction is not yet settled.” Grier, J., dissenting. Ward v. Chamberlain, 2 Black 446. “The precise scope of admiralty juris- diction is not a matter of obvious principle or of very accurate history.” Hotmes, J. The Blackheath, 195 U. S. 365. - Cases of Law and Equity. “The admiralty jurisdiction of the Dis- trict Courts of the United States, being ex- clusive, cannot be extended to cases of law or equity, cognizable by the Circuit and state courts, under the 11th section of the Judiciary Act.” McLean, J. Grant v. Poil- lon, 20 How. 168. , Court Cannot Exercise Powers of Court of Equity. “While the court of admiralty exercises its jurisdiction upon equitable principles, it has not the characteristic powers of a court of equity. It cannot entertain a bill or libel for specific performance, or to correct a mis- take; or declare or enforce a trust or an equitable title; or exercise juris- diction in matters of account merely; . . . or decree the sale of a ship for an unpaid mortgage, or declare her to be the property of the mortgagees and direct possession of her to be: given to them.” Futter, C. J. The Eclipse, 135 U. S. 608. Confined by Constitution. “Even if it be admitted that a power in the admiralty such as would permit en- croachments upon the venerable precincts of the common law would be ever so beneficial, the reality of such advantage, and the right or power to authorize it, are essentially different concerns.” DANIEL, J., dissenting. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 410. “Tf a restricted admiralty jurisdiction, though ever so impotent for good or pro- lific of inconvenience, has been imposed by the Constitution, either or both those evils must be of far less magnitude than would be attempts to remedy them by means sub- versive of the Constitution itself, by- unwar- ranted legislative assumption, or by violent judicial constructions. The pressure of any great national necessity for amendments of that instrument will always insure their adoption.” Danzet, J., dissenting. New Jer- sey Steam Nav. Co. v. Merchants’ Bank, 6 How. 410. “The fact that Congress, under the Con- stitution, cannot extend our admiralty juris- diction affords an argument for a broad in- terpretation commensurate with the needs of modern commerce.” Brown, J. The Black- heath, 195 U. S. 369. Connected with Grant of Commercial Power. “The exclusive jurisdiction in admiralty cases was conferred on the national govern- ment, as closely connected with the grant of the commercial power. It is a maritime court instituted for the purpose of adminis- tering the law of the seas. There seems to be ground, therefore, for restraining its jurisdiction, in some measure, within the limit of the grant of the commercial power, which would confine it, in cases of contracts, to those concerning the navigation and trade of the country upon the high seas and tide- waters within foreign countries, and among the several states.” Netson, J. New Jer- sey Steam Nav. Co. v. Merchants’ Bank, 6 How. 392. “Difficulties attend every attempt to de- fine the exact limits of admiralty jurisdic- tion, but it cannot be made to depend upon the power of Congress to regulate com- merce, as conferred in the Constitution. They are entirely distinct things, having no necessary connection with one another,, and are conferred, in the Constitution, by sep- arate and distinct grants. Congress may regulate commerce with foreign nations and among the several states, but the judicial power, which, among other things, extends to all cases of admiralty and maritime juris- diction, was conferred upon the Federal gov- ernment by the Constitution, and Congress cannot enlarge it, not even to suit the wants of commerce, nor for the more convenient execution of its commercial regulations.” CuirForD, J. The Belfast, 7 Wall. 640. “Cases of Admiralty and Maritime Juris- diction.” “The foundation, nay,-the whole extent Pg fabric, of the admiralty power of the ADMIRALTY. government are to be found in that portion of the second section of the third article of the Constitution, which declares that the judicial power shall extend (amongst other subjects of cognizance there enumerated) ‘to all cases of admiralty and maritime juris- diction”” Danie, J., dissenting. New Jer- sey Steam Nav. Co. v. Merchants’ Bank, 6 How. 395. “Tt is very much to be regretted that the jurisdiction of the court of admiralty in this country is not more clearly defined. It has been repeatedly decided in this court that its jurisdiction is not restricted to the subjects over which the English courts of admiralty exercised jurisdiction at the time our Cén- stitution was adopted.” Tawney, C. J. Cut- ler v. Rae, 7 How. 732. “ As is well known, the admiralty jurisdic- tion of this country has not been limited by the local traditions of England.” Ho.tmes, J. The Blackheath, 195 U. S. 365. “J do not think that there is anything doubtful in the terms used in the Constitu- tion. ‘To all cases of admiralty and mari- time jurisdiction’ means all cases arising or happening on the sea, growing out of war or commerce, and all cases strictly of maritime contracts — admiralty jurisdiction meaning originally those cases of which the admiral took cognizance in virtue of his office upon the sea, and maritime, these also, with all others arising out of the perils or accidents upon the sea; trespasses upon it of all kinds; contracts relating to commerce in which a sea service was to be rendered; contracts for building and repairing of ships, and for money loaned upon bottomry. Now, it having been repeatedly ruled by this court that its ad- miralty jurisdiction was not limited by what was the jurisdiction in England when the Constitution was adopted, the principal diffi- culty in the way of interpreting the words of the Constitution relating to it has been over- come. Wayne, J. Cutler v. Rae, 7 How. veye “Admiralty jurisdiction, as exercised in the Federal courts, is not restricted to the subjects cognizable in the English courts of admiralty at the date of the Revolution, nor is it as extensive as that exercised by the continental courts, organized under, and gov- erned by, the principles of the civil law. Best guides as to the extent of the admiralty jurisdiction of the Federal courts are the Constitution of the United States, the laws of Congress, and the decisions of this court.” CuirForD, J. The Belfast, 7 Wall. 636. “ Judicial power to hear and determine con- troversies in admiralty, by the express terms of . . . [the Constitution], extends to all cases of admiralty and maritime jurisdiction; which, doubtless, must be held to mean all such cases of a maritime character as were cognizable in the admiralty courts of the states at the time the Constitution was adopt- ed.” CuirForp, J. The Belfast, 7 Wall. 636. “While this court has never regarded its admiralty authority as restricted to the sub- jects over which the English courts of ad- miralty exercised jurisdiction at the time our Constitution was adopted, yet it has never claimed the full extent of admiralty power which belongs to the courts organized under, and governed altogether by, the principles of the civil law.” Taney, C.J. 4885 Bags Lin- seed, 1 Black 113. “T do not contest the position, that the established, well-defined, regular, and known civil jurisdiction of the admiralty courts of England, or of the vice-admiralty courts of the American Colonies, was in the contem- plation of the men who achieved our inde-- pendence, and was adopted by those who framed the Constitution. I willingly con- cede this position.” Dantet, J., dissenting. New Jersey ‘Steam Nav. Co. v. Merchants’ Bank, 6 How. 406. “The colonial vice-admiralty courts, as regular parts of the English admiralty, cre- ated by its authority, could by their consti- tution, therefore, be invested, only with the known and restricted jurisdiction of the for- mer. If a more extended jurisdiction eyer belonged to, or be claimed for, these colonial tribunals, it must rest on some peculiar and superadded ground, which it is incumbent on the advocates of this jurisdiction clearly to show.” Dantt, J., dissenting. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 407. Effect upon Internal Polity of States. “T hold it as an axiom or postulate that, by the admiralty jurisdiction vested by the Constitution of the United States, a power has not been, nor was ever intended to he, delegated to those courts, to supersede or control the internal polity of the States in providing for the preservation of property, or for the regulation of order, or the secur- ity of personal rights. These subjects con- stitute a class, the control of which is insep- arable from political or social existence in the states, every encroachment upon which is an instance of unwarrantable assumption 23 ADMIRALTY. in the federal government, and of progres- sive decline in the health and vigor in those of the states.” DanzeL, J., dissenting. The Steamboat New York, etc., v. Rea, etc., 18 How. 226. Extent Accorded Foreign Jurisdiction. “The courts of common law there [Eng- land] will not allow a greater latitude to the jurisdiction of foreign courts of admiralty than to their own.” CusHinc, J. Penhal- low v. Doane’s Adm’rs, 3 Dall. 116. 3. CONSENT. “Tt is insisted that consent cannot give ju- risdiction — that this is a sound rule, and as applied to the common law courts, cannot be controverted. But is it so in the admiralty? It must be recollected that the common-law courts have themselves released this rule, in relation to the admiralty.” JoHNson, J., dis- senting. Governor v. Madrazo, 1 Pet. 132. 4, PARTICULAR CourTS. District Court. “By the act constituting the judicial sys- tem of the United States, the District Courts are courts both of common law and admiral- ty jurisdiction. In the trial of all cases of seizure, on land, the court sits as a court of common law. In cases of seizure made on waters navigable by vessels of ten tons bur- then and upwards, the court sits as a court of admiralty.” MarsHatt, C. J. The Sarah, 8 Wheat. 394, “The District Court holds both its prize jurisdiction and its jurisdiction as an in- stance court of admiralty from the Consti- tution and the Act of Congress, and it is but one court, with these different branches of admiralty jurisdiction, as well as cognizance of other and distinct subjects. MuLLEr, J. U.S. v. Weed, 5 Wall. 69. Territorial Courts. “Our Constitution, in its operation, is co- extensive with our political jurisdiction, and whenever navigable waters exist within the limits of the United States it is competent for Congress to make provision for the exer- cise of admiralty jurisdiction, either within or outside of the States; and in organizing territories Congress may establish tribunals for the exercise of such jurisdiction; or they may leave it to the legislature of the terri- tory to create such tribunals. Courts of the kind, whether created by an Act of Congress or a territorial statute, are not, in strictness, courts of the United States; or, in other words, the jurisdiction with which they are invested is not a part of the judicial power defined by the third article of the Constitu- tion, but is conferred by Congress in the ex- ecution of the general power which the legis- lative department possesses to make all: needful rules and regulations respecting the public territory and other public property.” CuirrorD, J. The “City of Panama,” 101 U. S. 460. 5. EXCLUSIVE AND CONCURRENT JURIS- DICTION AND REMEDIES. In General. “Tt is believed that in all other countries except England, the courts of admiralty, or tribunals of commerce having cognizance of maritime causes, exclusively exercise this ju- risdiction; and no other courts can really exercise it so conveniently and satisfactorily as those courts can. And the general course of proceeding, in whatever courts it is exer- cised, shows the necessity, everywhere ac- knowledged, that the court exercising the jurisdiction in any case should have exclu- sive control of the case.” Brapiey, J. Providence, etc., Steamship Co. v. Hill Mfg. Co., 109 U. S. 597. “ By the Constitution, the entire admiralty power of the country is lodged in the fed- eral judiciary, and Congress intended by the ninth section to invest the District Courts with this power, as courts’ of original juris- diction. The term ‘exclusive original cog- nizance’ is used for this purpose, and is in- tended to be exclusive of the state, as well as of the other federal courts. The saving clause was inserted, probably, from abundant caution, lest the exclusive terms in which the power is conferred on District Courts might be deemed to have taken away the concurrent remedy which had before existed. This leaves the concurrent power where it stood at common law.” Netson, J. New | Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 390. “It was doubtless the intention of Con- gress, by the ninth section of the Judiciary Act, to confer upon the District Court the ex- clusive original cognizance of all admiralty and maritime causes, the words of the act being in terms exactly coextensive with the power conferred by the Constitution.” Cuirrorp, J. Ex ». Easton, 95 U. S. 70. “The District Courts of the United States have original exclusive jurisdiction in ques- tions of prize.” Davis, J. The Thompson, 3 Wall. 162. “The true distinction between such pro- ceedings as are and such as are not invasions 24 ADMIRALTY. of the exclusive admiralty jurisdiction is this: If the cause of action be one cogniza- ble in admiralty, and the suit be im rem against the thing itself, though a monition be also issued to the owner, the proceeding is essentially one in admiralty. If, upon the other hand, the cause of action be not one of which a court of admiralty has jurisdic- tion, or if the suit be im personam against an individual defendant, with an auxiliary at- tachment against a particular thing, or against the property of the defendant in gen- eral, it is essentially a proceeding according to the course of the common law.” Brown, J. Knapp, etc., Co. v. McCaffrey, 177 U. S. 648. Territorial District Courts. “Maritime cases, in every form of ad- miralty proceeding, have been heard and de- termined in the territorial District Courts, and by appeal in the Supreme Courts of the territories.” CuiFForp, J. The “City of Panama,” 101 U. S. 461. Common-law Remedies Inapplicable. “Common-law remedies are not applicable to enforce a maritime lien by a proceeding in rem, and consequently the original juris- diction to enforce such a lien by that mode of proceeding is exclusive in the District Courts.” CxiFForD, J. The Belfast, 7 Wall. 644. CuiFForp, J. Edwards v. Elliott, 21 Wall. 557. To the same effect see the language of CtirForp, J., in Norton wv. Switzer, 93 U. S. 366; U. S. v. Ames, 99 U. S. 42; Leon wv. Galceran, 11 Wall. 191; and of Futter, C. J., in Moran v. Stur- ges, 154 U. S. 277. “Tt has been repeatedly declared by this court, following the statute, that a claim cognizable in admiralty can be enforced in the state courts by common-law remedies.” Brewer, J., dissenting. The Robert W. Par- sons, 191 U. S. 42. Remedies Other than in Rem. “Causes of action which give rise to a maritime lien, whether contracts or torts, may be prosecuted in other modes of pro- ceedings as well as im rem in the admiralty.” CuirForD, J. Norton v. Switzer, 93 U. S. 356, Where No Remedy Exists in Admiralty. “Where no remedy exists for an injury in the admiralty courts the fact that such courts exist and exercise jurisdiction in other causes of action leaves the state courts as free to exercise jurisdiction in respect to an 25 injury not cognizable in the admiralty as if the admiralty courts were unknown to the Constitution and had no existence in our ju- risprudence.” CuirForp, J. American Steam- boat Co. v. Chase, 16 Wall. 530. Personal Suits. “Under the grant by the Constitution of judicial power to the United States in all cases of admiralty and maritime jurisdiction, and under the rightful legislation of Con- gress, personal suits on maritime contracts or for maritime torts can be maintained in the state courts.” BriatcHForp, J. Man- chester v. Massachusetts, 189 U. S. 262. Concurrent Remedies — Election. “Common-law remedies in cases of tort, as given in common-law courts, and suits in personam in the admiralty courts of this country, bear a strong resemblance to each other in respect to parties, and the effect of a recovery by the injured party against one or all of the wrongdoers, and the extent of redress to which an innocent party is en- titled against the wrongdoer.” CLIFFoRD, J. The “Atlas,” 93 U. S. 316. “The common-law courts exercise a con- current jurisdiction in nearly all the cases of admiralty cognizance, whether of tort or con- tract (with the exception of proceedings in vyem).” Netson, J. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 390. “Suitors have a right to a common-law remedy in all cases where the common law is competent to give it.” Cuirrorp, J. The “ Atlas,” 93 U. S. 316. “Wherever a maritime lien arises, the libellant or plaintiff may waive the lien in the admiralty, and pursue his remedy by a suit in personam, or he may institute an ac- tion at law, if the common law is competent to give him a remedy. Such a party may, if he sees fit, proceed in rem in the admiral- ty; and, if he elects to enforce the maritime lien which arises in the case, he cannot pro- ceed in any other mode or forum, as the jurisdiction of the admiralty courts to en- force a maritime lien is exclusive, and can- not be exercised in any other mode than by a proceeding in rem.” Cu1FForD, J. Norton v. Switzer, 93 U. S. 356. “Undoubtedly most common-law remedies in cases of contract and tort, as given in common-law courts, and suits in personam in the admiralty courts, bear a strong resem- blance to each other, and it is not, perhaps, ADMIRALTY. inaccurate to regard the two jurisdictions in that behalf as concurrent, but there is no form of action at common law which, when compared with the proceeding im rem in the admiralty, can be regarded as a concurrent remedy.” CxirrorD, J. The Belfast, 7 Wall. 644. . “Mariners, in suits to recover their wages, may proceed against the owner or master of the ship in personam, or they may proceed in rem against the ship or ship and freight at their election. Where the suit is in rem against the ship or ship and freight, the ‘original jurisdiction of the controversy is ex- clusive in the District Courts, as provided by the ninth section of the Judiciary Act, but when the suit is in personam against the owner or master of the vessel, the mariner may proceed by libel in the District Court, or he may, at his election, proceed in an ac- tion at law either in the Circuit Court, if he and his debtor are citizens of different states, or in a state court as in other causes of action cognizable in the state and federal courts exercising jurisdiction in common-law cases, as provided in the eleventh section of the Judiciary Act.” Ctrirrorp, J. Leon v. Galceran, 11 Wall. 187. “Suitors in cases of seizures on waters navigable from the sea by vessels of ten or more tons burthen are saved the right of a common-law remedy where the common law is competent to give it.” CtirFrorp, J. U.S. v. Ames, 99 U. S. 4! (Common-law Remedies Reserved. “ By section 9 of the Judiciary Act of 1789, re-enacted by section 563, clause 8, of the Revised Statutes, a common-law remedy is expressly reserved to suitors in all cases _where the admiralty has jurisdiction, pro- vided the common law also gives a remedy; and that the common law gives a remedy in cases of losses by fire where goods are en- trusted to common carriers by water, there can be no doubt. Of such common-law rem- edy the state courts have exclusive jurisdic- tion when the parties are citizens of the same “state, and concurrent jurisdiction with the federal courts when the parties are citizens of different states. The state court, there- fore, had jurisdiction of this case.” Frexp, J., dissenting. Providence, etc., Steamship Co. v. Hill Mfg. Co., 109 U. S. 606. State Legislation and Jurisdiction. “State laws cannot extend or restrict the jurisdiction of the admiralty courts.” Crir- FORD, J.’ American Steamboat Co. v. Chase, 16 Wall. 531, See also infra, III. 6. b. “The admiralty and maritime jurisdiction is conferred on the courts of the United States by the Constitution, and cannot be enlarged or restricted by the legislation of a state. No state legislation, therefore, can bring within the admiralty jurisdiction of the national courts a subject not maritime in its nature.” Gray, J. The J. E. Rumbell, 148 U. S. 12. To the same effect see the language of Gray, J., in Watts v. Camors, 115 U. S. 362. “State legislatures have no authority to create a maritime lien, nor can they confer any jurisdiction upon a state court to enforce such a lien by a suit or proceedings in rem, as practiced in the admiralty courts.” CiF- ForD, J. Edwards v. Elliott, 21 Wall. 556. CuirForD, J. The Belfast, 7 Wall. 644. “State courts have no jurisdiction in ad- miralty cases, nor can courts within the states exercise such jurisdiction, except such as are established in pursuance of the third article of the Constitution.” CzrrorD, J. the City of Panama,” 101 U. S. 459. “We think it entirely clear that, as a state court is without jurisdiction to enforce mari- time liens, so it is incapable of displacing them.” FuLier, C. J. Moran v. Sturges, 154 U. S. 283.. “The state courts have not, and cannot have, any jurisdiction in admiralty and mari- time liens, to bring them into conflict with the courts of the United States.” Taney, C. J., dissenting. Taylor v. Carryl, 20 How. 605. Attachment in State Court. “Liens under state statutes, enforceable by attachment, in suits in personam, are of every-day occurrence, and may even extend to liens on vessels, when the proceedings to enforce them do not amount to admiralty proceedings in rem, or otherwise conflict with the Constitution of the United States.” Biatcurorp, J. Johnson v. Chicago, etc., Elevator Co., 119 U. S. 399. “There is no more valid objection to the attachment proceeding to enforce the lien in a suit in personam, by holding the vessel aby mesne process to be subjected to execution on the personal judgment when recovered, than there is in subjecting her to seizure on the execution. Both are incidents of a com- mon-law remedy, which a court of common law is competent to give.” BLATCHFoRD. J. 26 ADMIRALTY. Johnson v. Chicago, etc. Elevator Co., 119 U.S. 400. 6. PRopeER SUBJECTS OF JURISDICTION. a. In General. All Maritime Contracts, Claims, and Torts. “Admiralty jurisdiction extends to mari- time contracts and service, and to torts or injuries of a civil nature, committed on navigable waters.’ Waite, C. J. Ex p. Gordon, 104 U. S. 516. “Courts of admiralty have undoubted ju- risdiction of all marine contracts and torts.” Swayne, J. Ex p. McNeil, 13 Wall. 242. “Principal subjects of admiralty jurisdic- tion are maritime contracts and maritime torts, including captures jure belli, and seizures on water for municipal and revenue forfeitures.” CiirForD, J. The Belfast, 7 Wall. 637. “Wide differences of opinion have existed as to the extent of the admiralty jurisdiction, but it may now be said, without fear of con- tradiction, that it extends to all contracts, claims, and services essentially maritime, among which are bottomry bonds, contracts of affreightment and contracts for the con- veyance of passengers, pilotage on the high seas, wharfage, agreements of consortship, surveys of vessels damaged by the perils of the seas, the claims of materialmen and others for the repair and outfit of ships be- longing to foreign nations or to other States, and the wages of mariners; and also to civil marine torts and injuries, among which are assaults or other personal injuries, collisions, spoliation, and damage, illegal seizures or other depredations on property, illegal dis- possession or withholding of possession from the owners of ships, controversies between the part owners as to the employment of ships, municipal seizures of ships, and cases of salvage and marine insurance.” CLIFFORD, J. Ex p. Easton, 95 U. S. 72. “Contracts or claims for service or dam- age purely maritime and touching rights. and duties appertaining to commerce and naviga- tion are cognizable in the admiralty.” Cu1F- ForpD, J., dissenting. The Lottawanna, 21 Wall. 590. “ The vice-admiralty courts in this country, nnder the colonial government, exercised ju- risdiction over all maritime contracts, and over torts and injuries, as well in ports as upon the high seas, and this was the juris- diction conferred on our courts by the Con- stitution.” McLean, J. Jackson v. Steam- boat Magnolia, 20 How. 306. “Except in England, I believe, the juris- diction of the maritime courts has always embraced, both in rem and in personam, ‘all cases of freight, charter-parties, mariners’ wages, debts due to materialmen for the building and repairing of ships,’ and all acci- dents upon the sea, affecting the rights of those having any interest in the cargo of a vessel, and who are in any way connected with her.” Wayne, J. Cutler v. Rae, 7 How. 736. “Over maritime contracts the admiralty possesses a clear and established jurisdic- tion, capable of being enforced in personam, as well as in rem, as is familiarly seen in cases of mariners’ wages, bottomry bonds, pilotage services, supplies by materialmen to foreign ships, and other cases of a kindred nature, which is not necessary here to enu- merate.” Story, J. Andrews v. Wall, 3 How. 572. “Tt would be simple, if simplicity were the only thing to be considered, to confine the admiralty jurisdiction, in respect of damage to property, to damage done to property afloat. That distinction sounds like a logical consequence of the rule determining the ad- miralty cognizance of torts by place.” Hoimes, J. The Blackheath, 195 U. S. 364. Civil Law Not Applicable. “Tf the courts of admiralty in this country used the process in rem, or process by at- tachment of the property, in all cases in which it was authorized in countries governed by the civil law, it would unavoidably in some cases come in collision with the common-law courts of the state where the parties resided, and where the property was situated, and where other parties besides the owners or builders or equippers of the ship might have an interest in, or a claim upon, the property, which they had a right to assert in the courts of the state.” Taney, C. J. The Steamer St. Lawrence, 1 Black 527. General Average. “The constitutional clause, ‘all cases of admiralty and maritime jurisdiction, is as well and as definitely expressed, for the pur- pose meant, as it can be, and .. . it leaves nothing doubtful, except as to some cases of which the admiralty court in England took jurisdiction, which had been there ex- clusively within the cognizance of the courts of common law, and also of other cases in the Continental maritime courts, which did ADMIRALTY. not relate to ‘things done upon the sea, or to contracts, pleas, and quarrels which were not maritime.’ Among the latter is certainly not a case of general average.” Wayne, J. Cutler v. Rae, 7 How. 736. Petitory and Possessory Actions. “Originally, the court of admiralty in England entertained jurisdiction of petitory as well as mere possessory actions. Since the Restoration, that court, through the jeal- ous interference of courts of law, had ceased to pronounce directly on questions of own- ership or property. Petitory suits were si- lently abandoned, and if in a possessory action a question of mere property arose, especially of a more complicated nature, it declined to interfere.” Grier, J. Ward v. Peck, 18 How. 267. Pilotage. “ Another class of cases in which jurisdic- tion is entertained by the [admiralty] courts in this country on contracts, but which is denied in England, are suits for pilotage. . It is denied in England on the ground of locality, the contract having been made within the body of the country.” NELsoN, J. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 391. “Tt has long been settled that claims for pilotage fees are within the jurisdiction of the admiralty. Warrr, C. J. Ee p. Hagar, 104 U. S. 521. Prize, “Exclusive original cognizance of all civil causes of admiralty and maritime jurisdic- tion was by the ninth section of the Judiciary Act conferred upon the District Courts, and it was conclusively determined, at a very early period in our history, that prize juris- diction was involved in the general delega- tion of admiralty and maritime powers as expressed in the language of that section.” CurrrorD, J. The Admiral, 3 Wall. 612. “Tn its ordinary jurisdiction, the admiral- ty takes cognizance of mere questions of meum and tuum arising between individuals; its extraordinary or prize jurisdiction is vested in it for the purpose of revising the acts of the sovereign himself performed through the agency of his officers or sub- jects.” JoHNSOoN, J., dissenting. Rose v. Himely, 4 Cranch 282. Captures. “The admiralty, . . . not only takes cognizance of all captures made at sea, in creeks, havens, and rivers, but also of all captures made on land, where the same have been made by a naval force, or by co-opera- tion with a naval force.” Story, J., dissent- ing. Brown v. U. S., 8 Cranch 139. Revenue and Navigation Laws. “The High Court of Admiralty in-England never had original jurisdiction of causes arising under the revenue laws, or laws con- cerning the navigation and trade of the king- dom. They belong, exclusively, to the juris- diction of the Court of Exchequer, in which the proceedings are conducted as at common law. That court exercises an appellate power over the decisions of the vice-ad- miralty courts in revenue cases in the colo- nies; even that power was doubted, till af- firmed by the Court of Delegates, on an appeal from a decision of the vice-admiralty court of South Carolina, in 1754. Since then, it has been exercised; but this is the extent of its power over revenue cases, or cases arising under the navigation laws.” Netson, J. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 386. “The admiralty in England did not exer- cise any jurisdiction over seizures for reve- nue, though on the ocean.” Woopgury, J., dissenting. Waring v. Clarke, 5 How. 483. Surveys. “Every commercial country has its own regulations on the subject of surveys. It is properly a subject of admiralty jurisdiction ; since mariners and freighters have to claim the aid of the admiralty to release them from their contract in cases of a defect of sea- worthiness. A regular survey must, there- fore, in every instance, be such as is known to the laws and customs of the port in which a vessel happens to be.” Jounson, J. Dorr v. Pacific Ins. Co., 7 Wheat. 612. b. Dependent upon Locality and Nature of Contract. (1) In GENERAL, Two Classes of Cases. “Admiralty and maritime jurisdiction is conferred by the Constitution, and Judge Story says it embraces two great classes of cases — one dependent upon locality, and the other upon the nature of the contract.” CuirForp, J. Ex p. Easton, 95 U. S. 72. To the same effect see the language of CurrrorD, J., in The Belfast, 7 Wall. 637. Contracts Purely Maritime. “The admiralty jurisdiction, in cases of contract, depends primarily upon the nature ADMIRALTY. of the contract, and is limited to contracts, claims, and services, purely maritime, and touching rights and duties appertaining to commerce and navigation.” Catron, J. Peo- ple’s Ferry Co. v. Beers, 20 How. 401. To the same effect see the language of Cuirrorp, J., in Ex p. Easton, 95 U. S. 72; McLean, J., in Grant v. Poillon, 20 How. 168; Grier, J., in Philadelphia, etc, R. Co. v. Philadelphia, etc., Towboat Co., 23 How. 215, “The jurisdiction embraces all maritime contracts, torts, injuries, or offenses, and it depends, in cases of contracts, upon the na- ture of the contract, and is limited to con- tracts, claims, and services purely maritime, and touching rights and duties appertaining to commerce and navigation.” Futter, C. J. The Eclipse, 135 U. S. 608. To the same effect, see the language of CxirForD, J., in The Belfast, 7 Wall. 637. Bottomry and Respondentia. “The contract of respondentia, which is as much a maritime contract as bottomry, gives no jurisdiction to the admiralty either in rem or in personam.” Jounson, J., concur- ring. Ramsay v. Allegre, 12 Wheat. 632. See also Maritime LIENS Contracts upon Land. “In general, contracts upon land, though to be executed on the sea, and contracts at sea, if to be executed on the land, are not cognizable by the English admiralty. There are some exceptions to this rule in that coun- try.” McLean, J. Grant v. Poillon, 20 How. 168. “Tt would seem that a contract made on land, to be performed on land, and in fact performed on land, is not subject to admiralty jurisdiction.” Brewer, J., dissent- ing. The Robert W. Parsons, 191 U. S. 41. (2) Nature oF VoyacE or WATERS. In General. “The jurisdiction of the admiralty does not depend upon the fact that the injury was inflicted by the vessel, but upon the locality —the high seas, or navigable waters where it occurred.” Netson, J. The Plymouth, 3 Wall. 36, “Contracts to be performed on waters not navigable are not maritime any more than those made to be performed on land. Nor are torts cognizable in the admiralty unless committed on waters within the admiralty jurisdiction, as defined by law.” CxzFForp, J. The Belfast, 7 Wall, 637. See also High Seas; NaviGABLE WATERS. Tidewaters and Waters Within the Body of a County. “Damage claims arising from acts and injuries done within the ebb and flow of the tide have always been considered as cog- nizable in the admiralty.” C irForpD, J. Ex p. Easton, 95 U. S. 72. “A trespass on board of a vessel, or by the vessel itself, above tidewater, when that was the limit of jurisdiction, was not of ad- miralty cognizance. The reason was, that it was not committed within the locality that gave the jurisdiction.” Netson, J. The Plymouth, 3 Wall. 35. “No distinction has ever been attempted in settling the line between the admiralty and common-law jurisdiction, growing out of the greater or less influence of the tide. So far as that admiralty jurisdiction depends upon locality, it is bounded by the ebb and flow of the tide; and if the influence of the tide is felt, it must determine the question. No other certain and fixed rule can be adopted; and in determining this, we must look at the ordinary state of the water, uninfluenced by any extraordinary freshets.” THompson, J. Peyroux v. Howard, 7 Pet. 343. “ Attempt was made at an early period to limit the jurisdiction of the admiralty courts to tidewaters, and to exclude its exercise al- together from waters within a body of a county, whether the waters were or were not affected by the ebb and flow of the tide.” Currorp, J., dissenting. The Lottawanna, 21 Wall. 583, “It to my view seems manifest, that an extension of admiralty jurisdiction over all waters affected by the ebb and flow of the tide, would not merely be a violation of set- tled and venerable authority, but would nec- essarily result in the most mischievous inter- ference with the common-law and internal and police powers of every community.” DaniEL, J., dissenting. The Steamboat New World v. King, 16 How. 479. : “Under the statutes of Richard, as ex- pounded by the common-law courts, in cases of prohibition against the admiralty, its ju- risdiction over contracts was confined to sea- men’s wages, bottomry bonds, and contracts made and to be executed on the high seas. If made on land, or within the body of an English county, though to be executed, or the ADMIRALTY. service to be performed, upon the sea, or if made upon the sea, but to be executed upon . the land, in either case it was held by the common-law courts that the admiralty had no jurisdiction. In the first, because the place where the contract was made, and in the second, where it was to be performed, was within the body of the county, and, of course, within the cognizance of the common- law courts, which excluded the admiralty.” Netson, J. New Jersey Steam Nav. Co. vw. Merchants’ Bank, 6 How. 385. “On looking into the several cases in ad- miralty which have come before this court, and in which its jurisdiction was involved or came under its observation, it will be found that the inquiry has been, not into the jurisdiction of the court of admiralty in England, but into the nature and subject- matter of the contract— whether it was a maritime contract, and the service a maritime service, to be performed upon the sea, or tidewaters, although it had commenced and had terminated beyond the reach of the tide; if it was, then the jurisdiction has always been maintained. But if the substantial part of the service under the contract is to be performed beyond tidewaters, or if the con- tract relates exclusively to the interior navi- gation and trade of a state, jurisdiction is disclaimed.” Netson, J. New Jersey Steam Nav. Co. wv. Merchants’ Bank, 6 How. 392. “From the best lights I have been able to bring to the inquiry before us, reflected either from the jurisprudence of the mother coun- try, from the history of the colonial govern- ment, or the transactions of the general Con- federation, I am satisfied that the civil admiralty and maritime jurisdiction con- ferred by the second section of the third article of the Constitution was the restricted jurisdiction known to be that of the English admiralty, insisted upon and contended for by the North American colonies, limited in matters of contract (seamen’s wages ex- cepted) to things agreed upon and to be performed upon the sea, and cases of hypo- thecation, and in civil torts to injuries occur- ring on the same theatre, and excluded as to the one and the other from contracts made, or torts committed, within the body of a county.” Dante, J., dissenting. New Jer- sey Steam Nav. Co. v. Merchants’ Bank, 6 How. 409. Modern Rule — Navigable Waters. “The modern doctrine, . to which this court has consistently and invariably ad- hered, [is] that not the ebb and flow of the tide, but the actual navigability of the waters, is the test of jurisdiction [in admiralty].” Brown, J. The Robt. W. Parsons, 191 U.S.” 26. “At one time the existence of tidewaters was deemed essential in determining the ad- miralty jurisdiction of courts in England. That doctrine is now repudiated in this coun- try as wholly inapplicable to our condition.” Fretp, J. Illinois Cent. R. Co. v. Illinois, 146 Uz. S. 485. “When the reason of the limitation of ad- miralty jurisdiction in England was found inapplicable . to the condition of. navigable waters in this country the limitation and all its incidents were discarded.” Furetp, J. Illi- nois Cent. R. Co. v. Illinois, 146 U. S. 436. “Tt is considered to be equally well set- tled that remedies for acts and injuries done on public navigable waters, not within the ebb and flow of the tide, may be enforced in the admiiralty, as well as for those upon the high seas and upon the coast of the sea.” CurrrorD, J. Ex p. Easton, 95 U. S. 72. “T recognize the fact that this court has decided in a series of cases that the admiralty jurisdiction of the federal courts is not limited by tidewaters, as ad- miralty jurisdiction was understood to bé limited both in Great Britain and in this country at the time the Constitution was framed, but extends to all navigable waters of the United States, and I have no disposi- tion to question the correctness of those de- cisions, or in way limit their scope.” BREWER; J, 1 ie The Robert W. Parsons, 191 47. “Navigable waters which empty into tlie sea, or into the bays and gulfs which form a part of the sea, are but arms of the sea, and are as much within the admiralty and mari- time jurisdiction of the United States as the sea itself.” Czirrorp, J. The Belfast, 7 Wall. 640. " “Exclusive original cognizance of all civil causes of admiralty and maritime jurisdic- tion, was conferred upon the District Courts by the ninth section of the Judiciary Act, in- cluding all seizures under the laws of impost, navigation, or trade of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten .or more tons burden, within their respective districts as well as upon the high seas.” Currorp, J. The Belfast, 7 Wall. 638. 30 ADMIRALTY. Inland Lakes. “Take an inland lake, wholly within the limits of the territory of a state and having no connection with the ocean. The admiral- ty jurisdiction of the federal courts does not extend to contracts or collisions in respect to or upon such waters.” Brewer, J., dis- senting. The Robert W. Parsons, 191 U. S. 51. “ Take the case of a landlocked lake within the limits of New York. Unquestionably the state has full jurisdiction over its waters and the vessels traversing them. The admiralty courts of the United States would not as- sume any jurisdiction.” Brewer, J. dissent- ing. The Robert W. Parsons, 191 U. S. 52. Canals. “While the admiralty jurisdiction may ex- tend to canals, yet the United States have no such exclusive control over canals as ver natural navigable waters.” Brewer, J., dis- senting. The Robert W. Parsons, 191 U. S. 54, “Tt seems an anomaly that when the State builds a waterway and owns a waterway, and has a general control over that water- way, it cannot provide as it sees fit for en- forcing claims for work done on vessels navi- gating such highway when the vessels are of a character which prevents them being used ‘for any foreign commerce.” Brewer, J., dis- senting. The Robert W. Parsons, 191 U. S. 54, See also CANALS. Voyage Between Two or More States. “Every voyage of a vessel between two or more states is subject to the admiralty juris- diction, and not to any state , regulation.” McLean, J. Jackson v. Steamboat Magno- lia, 20 How. 304. Voyage Within a State. “TJ do not believe that under the true in- terpretation of the Constitution the admiral- ty jurisdiction of the federal courts extends to contracts for the repairs of vessels en- gaged wholly in commerce within a state.” Brewer, J., dissenting. The Robert W. Par- sons, 191 U. S. 47. “The grant to the national government over admiralty and maritime matters was in furtherance of commerce between this nation and others and designed to secure uniform- ity in respect thereto, and does not extend to contracts made in respect to vessels which are incapacitated from foreign commerce, de- signed and used exclusively for mere local 31 traffic within a state.” Brewer, J., dissent- ing. The Robert W. Parsons, 191 U. S. 54. “Remedies for maritime torts, it is con- ceded, may be sought in the admiralty courts {under the ninth section of the Ju- diciary Act] although committed within the body of a county, but it is denied that redress can be obtained in the admiralty for a breach of a contract of affreightment in a case where the port of shipment and the port of destina- tion are in the same state.” CtrFForpD, J. The Belfast, 7 Wall. 638. Torts Within the Body of a County. “Remedies for marine torts, it is con- ceded, may be prosecuted in the admiralty courts, even though the wrongful act was committed on navigable waters within the body of a county.” CuiFForp, J. American Steamboat Co. v. Chase, 16 Wall. 529. (3) Maritime Liens IN GENERAL. Lien under Maritime Law. “T have always thought that a lien given by the maritime law, of whatever kind it may be, is one which can be enforced in a maritime court.” Wayne, J. Cutler v. Rae, 7 How. 734. Lien under Local Law. “A maritime lien is said by writers upon maritime law to be the foundation of every proceeding im rem in the admiralty. In much the larger class of cases, the lien is given by the general admiralty law, but in other instances, such for example ds insur- ance, pilotage, wharfage, and materials fur- nished in the home port of the vessel, the lien is given, if at all, by the local law. As we are to look, 'then, to the local law in this instance for the right to take cognizance ot this class of cases, we are bound to inquire whether the local law gives a lien upon the offending thing.” Brown, J. The Corsair, 145 U. S. 347. “ As a general rule, where there is no trea- ty regulation, and no law of Congress to the contrary, the admiralty courts have always enforced the lien where it was given by the law of the state or nation to which the ves- sel belonged. In this respect the admiralty courts act as international courts, and enforce the lien upon principles of comity.” Taney, C. J., dissenting. Taylor v. Carryl, 20 How. 611. “Tt is well settled that in certain cases where a lien is given by a state statute, the admiralty courts will enforce rights so con- ferred when not in absolute conflict with the: ADMIRALTY. admiralty law.’ Waite, J. Workman v. New York City, 179 U. S. 562. “When a right, maritime in its nature, and to be enforced by process in the nature of ad- miralty process, has been given by the statute of a state, the admiralty courts of the United States have jurisdiction, and exclusive juris- diction, to enforce that right according to their own rules of procedure.” Gray, J. The J. E. Rumbell, 148 U. S. 12. “Wherever any lien is given by a state statute for a cause of action cognizable in admiralty, either im rem or in personam, proceedings in rem to enforce such lien are within the exclusive jurisdiction of the ad- miralty courts.” Brown, J. Knapp, etc., Co. v. McCaffrey, 177 U. S. 642. “State lien laws are too complicated and pregnant with too many conditions and spe- cial regulations in their machinery to be ad- ministered in a court of admiralty, even if it be competent for this court to provide for the exercise of such a jurisdiction by a dis- trict court sitting as a court of admiralty.” CuirForD, J., dissenting. The Lottawanna, 21 Wall. 602. (4) Mortcaces. Not Within Admiralty Jurisdiction. “It has been repeatedly decided in the ad- miralty and common-law courts in England, that the former have no jurisdiction in ques- tions of property between a mortgagee and the owner. No such jurisdiction has ever been exercised in the United States. No case can be found in either country where it has been done.” Wayne, J. Bogart v. Steamboat John Jay, 17 How. 401. “Courts of admiralty have always taken the same view of a mortgage of a ship, and of the remedies for the enforcement of them, that courts of chancery have done of such a mortgage and of any other mortgaged chat- tel. But, from the organization of the for- mer and its modes. of proceeding,. they cannot sécure to the parties to such a mortgage the remedies and protection which they have in a court of chancery. They have, therefore, never taken jurisdiction of such a contract to enforce its payment, or by a possessory action to try the title, or a right to the possession of a ship.” Wayne, J. Bogart v. Steamboat John Jay, 17 How. 402. “A debt secured by the mortgage of a ship does not give the ownership of it to the mortgagee. He may use the legal title to make the ship available for its payment. A \ legal title passes conditionally to the mort- gagee. Where there has been a failure to pay, he cannot take the ship manu forti, but he must resort either to a court of equity or to statutory remedies for the same purpose when they exist, to bar the mortgagor’s right of redemption by a foreclosure, which is to operate at such time afterward, when there shall be a foreclosure without a sale, as the circumstances of the case may make it equi- table to allow. Indeed, after a final order of foreclosure has been signed and enrolled, and the time fixed by it for the payment of the money has passed, the decree may be opened to give further time, if there are circum- stances to make it equitable to do so, with an ability in the mortgagor to make prompt payment.” Wayne, J. Bogart v. Steamboat John Jay, 17 How. 402. Jurisdiction to Pass upon Rights of Mort- gagee in Fund. “An ordinary mortgage of a vessel, wheth- er made to secure the purchase money upon. the sale thereof, or to raise money for gen- eral purposes, is not a maritime contract. A court of admiralty, therefore, has no jurisdic- tion of a libel to foreclose it, or to assert either title or right of possession under it. But it has jurisdiction, after a vessel has been sold by its order and the proceeds have been paid into the registry, to pass upon the claim of the mortgagee, as of any other per- son, to the fund, and to determine the prior- ity of the various claims.” Gray, J. The J. E. Rumbell, 148 U. S. 15. (5) ConTRACTS For SHIPBUILDING. “Contracts for shipbuilding are held not to be maritime contracts.” CtiFForD, J. The Belfast, 7 Wall. 646. To the same ef- fect, see the language of Brewer, J., dis- senting, in The Robert W. Parson, 191 U. S. 39. “{[It] is now settled that a contract for building a ship, being a contract made on land and to be performed on land, is not a maritime contract, and that a lien to secure it, given by local statute, is not a maritime lien, and cannot therefore, be enforced in admiralty.” Gray, J. The J. E. Rumbell, 148 U. S. 11. “Tt may . be assumed that neither a contract for ‘building a ship nor ‘to furnish the materials for the construction of the same is a maritime contract, because such contracts are not directly connected with maritime commerce. They are contracts made on land and are to be performed on 32 ADMIRALTY. land.” CuirrorpD, J., dissenting. The Lot- tawanna, 21 Wall. 592. “District courts have recognized the exist- ence of admiralty jurisdiction in rem against a vessel to enforce a carpenter’s bill for work and materials furnished in constructing it, in cases where a lien had been created by the local law of the state where the ves- sel was built.” Catron, J. People’s Ferry Co. v. Beers, 20 How. 402. “It is well established that for causes of action not cognizable in admiralty, either in rem or in personam, the states may not only grant liens, but may provide reme- dies for their enforcement. Contracts for the building ‘of a ship are the most prom- inent examples of such as are not maritime in their character, and hence within this tule.” Brown, J. The Robert W. Parsons, 191 U. S. 25, (6) ConTracts For Maritime SERVICES. In General. “Tt [the contract in question] is a con- tract for maritime service, and belongs to the admiralty courts of the United States.” Taney, C. J., dissenting. Thomas v. Os- borne, 19 How. 43. “An agreement by the master of a vessel to pay wages may be sued upon in the ad- miralty; but a stipulation in the same con- tract to pay a sum of money in case the voy- age should be altered or discontinued can be enforced only at common law.” McLean, J. Grant v. Poillon, 20 How. 168. Vessel Navigated by Receiver. “Prima facie, the rendition of mariner’s services imports a lien, and the mere fact that the vessel is navigated by a receiver does not necessarily negative such lien, although there may be facts in the particular case to show that the above statute [Rev. Stat. U. 'S., § 4535} does not apply, or that credit was expressly given to the owner, to the charterer, or to some third person. In fact, the question of lien or no lien is not one of jurisdiction, but of merits.” Brown, J. The Resolute, 168 U. S. 440. Foreign Crew. “Such [admiralty] courts may, if they see fit, take jurisdiction in such d case [libel by foreign crew against foreign for wages], but they will not do so as a general rule without the consent of the representative of the country to which the vessel belongs, where it is practicable that the representative should 1 Os. Dic.—3 33 be consulted. His consent, however, is not a condition of jurisdiction, but is regarded as a material fact to aid the court in determin- ing the question of discretion, whether juris- diction in the case ought or ought not to be exercised.” Czirrorp, J. Ex p. New- man, 14 Wall. 169. (7) Repairs AND SUPPLIES. Under Maritime Law. “Where necessary repairs have been made or necessary supplies furnished to a foreign ship, or to a ship in a port of a state to which the ship does not belong, the general maritime law, as all agree, gives the party a lien on the ship itself for his security, which may be enforced in the admiralty by a proceeding in rem.’ CLiFFoRD, J. The Lottawanna, 20 Wall. 218. “Executory contracts for repairs and sup- plies to a domestic ship it is admitted, are as much within the jurisdiction of the ad- miralty court as one for similar necessaries furnished to a foreign ship or to the ship of a state other than that to which the ship belongs.” CtrFForD, J., dissenting. The Lot- tawanna, 21 Wall. 595, “In this country, the principle, applied in the case of The Bold Buccleugh to a claim for damages by collision, that a maritime lien is created as soon as the claim comes into being, has long been held to be equally ap- plicable to all claims, which can be enforced in admiralty. against the ship, whether aris- ing out of tort or of contract. . . Ac- cordingly, in our own law, it is well estab- lished that a maritime lien or privilege, con- stituting a present right of property in the ship, jus in ve, to be afterwards enforced in admiralty by process in'rem, arises, not only from a collision and for the damages caused thereby, but also for neces- sary supplies or repairs furnished a vessel, whether under the general maritime law in a foreign port, or according to a local statute in her home port.” Gray, J. The John G. Stevens, 170 U. S. 117. Under Local Statute. “That a state may provide for liens in favor of materialmen for necessaries fur- nished to a vessel in her home port, or in a port of the state to which she belongs, though the contract to furnish the same is a maritime contract, and that such liens can be enforced by proceedings in rem in the District Courts of the United States, is so well settled by a series of cases in this court as to be no longer open to question. ADMIRALTY. . . . The remedy thus administered by the admiralty court is exclusive.” Brown, J. The Robt. W. Parsons, 191 U. S. 24. “ Another class of cases in which juris- diction has always been exercised by the admiralty courts in this country, but which is denied in England, are suits by ship- carpenters and materialmen, for repairs and necessaries, made and furnished to ships, whether foreign or in a port of a state to which they do not belong, or in the home port, if the municipal laws of the state give a lien for the work and materials.” Netson, J. New Jersey Steam Nav. Co. vu. Merchants’ Bank, 6 How. 390. “A lien upon a ship for repairs or sup- plies, whether created by the general mari- time law of the United States, or by a local statute, is a jus in re, a right of property in the vessel, and a maritime lien, to secure the performance of a maritime contract, and therefore may be enforced by admiralty proc- ess in rem in the District Courts of the United States. When the lien is created by the general maritime law, for repairs or supplies in a foreign port, no one doubts ,at the present day that the ad- miralty jurisdiction in rem of the courts of the United States is exclusive of similar jurisdiction of the courts of the state. The contract and the lien for repairs or supplies in a home port, under a local statute, are equally maritime, and equally within the admiralty jurisdiction, and that jurisdiction is equally exclusive.” Gray, J. The Glide, 167 U. S. 624. “The lien created by the statute of a state, for repairs or supplies furnished to a vessel in her home port, has the like pre- cedence over a prior mortgage that is ac- corded to a lien for repairs or supplies in a foreign port under the general maritime law, as recognized and adopted in the United States. The contract in each case is maritime in its nature, and is enforced in admiralty by reason of its maritime nature only. The mortgage on the other hand, is not a maritime contract, and constitutes no maritime lien, and the mortgagee can only share in the proceeds in the registry after all maritime liens have been satisfied.” Gray, J: The J. E. Rumbell, 148 U. S. 19. Repairs on Land. “For incidental repairs made on land to articles of a ship’s furniture or machinery, it has never been supposed that a court of admiralty had jurisdiction. . . . Articles removed from a vessel and repaired or reno- vated upon land at the shop of the artisan stand upon quite a different footing from repairs made upon the vessel herself, and are the subject of a possessory lien at com- mon law.” Brown, J. The Robert W. Par- sons, 191 U. S. 32. “Tf an engine be taken out of a steam tug and repaired on land, and a court of admiralty has no jurisdiction of the claim for such repairs, has it any more claim when the hull of a canal boat is brought on to the land and the side of it replaced? In each case the contract is one performed on the land, and although having intimate re- lation to navigation on the water it is not of itself directly connected with navigation.” Brewer, J., dissenting. The Robert W. Par- sons, 191 U. S. 41. “Tt is true many cases may be found in which it is stated generally that admiralty has jurisdiction of claims for repairs upon vessels, but evidently that contemplates re- pairs made while the vessel is in the water.” Brewer, J., dissenting. The Robert W. Par- sons, 191 U. S. 41. Repairs in Dry Dock. “All injuries suffered by the hulls of vessels. below the water line, by collision or stranding, must necessarily be repaired in a dry dock, to prevent the inflow of water, but it has never been supposed . . . that such repairs were made on land. As all serious repairs upon the hulls, of vessels are made in dry dock, the proposition that such repairs are made on land would practically deprive the admiralty courts of their largest and most important jurisdic- tion in connection with repairs.” Brown, J. The Robert W. Parsons, 191 U. S. 33. (8) Torts. In General. “There is no doubt . . . that the jurisdiction of the admiralty extends to all cases of tort committed on the high seas, and in this country on navigable waters.” Fietp, J. The Rock Island Bridge, 6 Wall. 215, “Every species of tort whether on board a vessel or not, if [committed] upon the high seas on navigable waters, is of admiralty cognizance.” Ne son, J. The Plymouth, 3 Wall. 36. Personal Injuries. : “ Injuries of the kind alleged [personal in- juries arising through the carrier’s neglect] 34 ADMIRALTY. give the party a claim for compensation, and the cause of action may be prosecuted by a libel in rem against the ship; and the rule is universal that if the libel is sus- tained, the decree may be enforced in rem as in other cases where a maritime lien arises.” C.iFForD, J. The “City of Pan- ama,” 101 U. S. 463. Collision. “Controversies growing out of collisions [of ships] are cognizable in the admiralty.” CuirrorD, J. The Continental, 14 Wall. (U. S.) 355. “That a collision upon navigable waters of the United States between vessels, by the fault of one of such vessels, creates a mari- time tort and a cause of action within the jurisdiction of a court of admiralty is of course unquestioned.” Wuutte, J. Work- man v. New York City, 179 U. S. 573. Violent Dispossession of Property. “Every violent dispossession of property on the ocean is, prima facie, a maritime tort; as such, it belongs to the admiralty jurisdic- tion, But sitting and judging, as such courts do, by the law of nations, the moment it is ascertained to be a seizure by a commis- sioned cruiser, made in the legitimate exer- cise of the rights of war, their progress is arrested; for this circumstance is, in those courts, a sufficient evidence of right.” JoHN- son, J. L’Invincible, 1 Wheat. 257. See also Capture, RECAPTURE, CONFISCA- TION, AND PRIZE. Place of Commission. “The wrong and injury complained of must have been committed wholly upon the high. seas or navigable waters, or, at least, the substance and consummation of the same must have taken place upon these waters to be within the admiralty jurisdiction. other words, the cause of damage, in tech- nical language, whatever else attended it, must have been there complete.” NeEtson, J. The Plymouth, 3 Wall. 35. “There are cases of personal wrongs, which commenced on the land; such as im- properly enticing a minor on board a ship and there exercising unlawful authority over him. The substance and consummation of the wrong were on board the vessel — on the high seas, or navigable waters —and the in- jury complete within admiralty cognizance. It was the tortious acts on board the vessel to which the jurisdiction attached.” Ne- son, J. The Plymouth, 3 Wall. 34. In 35 “A tort resulting in injury to something on the land is also not subject to admiralty jurisdiction, although the tort was on waters subject to such jurisdiction.” Brewer, J., dissenting. The Robert W. Parsons, 191 U.S. 41. “Where damage is done wholly upon the land admiralty will not take jurisdiction, although the cause of the damage originated on waters subject to its jurisdiction.” Brewer, J., dissenting. The Robert W. Par- sons, 191 U. S. 40. In England. “No principle appears to be better settled there [in England] than that the court of admiralty has not jurisdiction over torts, whether to person or property, and out of the limits of a county.” Woopsury, J., dis- senting. Waring v. Clarke, 5 How. 468. c. Vessels. Before and After Launching. “A ship is born when she is launched, and lives so long as her identity is pre- served. Prior to her launching she is a mere congeries of wood and iron —an ordi- nary piece of personal property—as dis- tinctly a land structure as a house, and sub- ject only to mechanic’s liens created by state law and enforcible in the state courts. In the baptism of launching she receives her name, and from the moment her keel touches the water she is transformed, and becomes a subject of admiralty jurisdiction. She ac- quires a personality of her own; becomes competent to contract, is individually liable for her obligations, upon which she may sue in the name of her owner, and be sued in her own name.” Brown, J. Tucker wv, Alexandroff, 183 U. S. 438. “So sharply is the line drawn between a vessel upon the stocks and a vessel in the water that the former can never be made liable in admiralty, either in rem against herself or im personam against her owners, upon contracts or for torts, while if, in tak- ing the water during the process of launch- ing, she escapes from the control of those about her, shoots across the stream, and in- jures another vessel, she is liable to a suit in rem for damages.” Brown, J. Tucker v. Alexandroff. 183 U. S. 438, Character of Vessel. “Neither size, form, equipment, nor means of propulsion [of a vessel] are deter- minative factors upon the question of {admiralty] jurisdiction, which regards only ADMIRALTY. the purpose for which the craft was con- structed, and the business in which it is engaged. The application of this criterion has ruled out the floating dry dock, the floating wharf, the ferry bridge hinged or chained to a wharf, the sailors Bethel moored to a wharf, . . and a gas float moored as a_ beacon. But it has been held in England to include a fishing coble, a boat of ten tons burthen, twenty- four feet in length, decked forward only, though accustomed to go only twenty miles to sea, and to remain out twelve hours at a time, though not a dumb barge, propelled by oars only, and in America to steamers of five tons burthen, engaged in carrying freight and passengers upon navigable waters; a barge without sails or rudder, used for transport- ing grain.” Brown, J. The Robert W. Par- sons, 191 U. S. 30. “So long as the vessel is engaged in commerce and navigation it is difficult to see how the jurisdiction of admiralty is affected by its means of propulsion, which may vary in the course of the same voyage, or with new discoveries made in the art of naviga- tion.” Brown, J. The Robert W. Parsons, 191 U. S. 31. “The modern law of England and America rules out of the admiralty jurisdiction all vessels propelled by oars, simply because they are the smallest class and beneath the dignity of a court of admiralty; ‘but long within the historic period, and for at least seven hundred years, the triremes and quad- riremes of the Greek and Roman navies were the largest and most powerful vessels afloat.” Brown, J. The Robert W. Par- sons, 191 U. S. 32. . “To hold that such ‘boats [canal boats] are not within the admiralty jurisdiction of the courts, while on a trip down the Hudson river, would require us to overrule a large number of cases in this court.” Brown, J. The Robert W. Parsons, 191 U. S. 32. “Tt would seem like sticking in the bark to hold that a canal boat might recover for a collision while in tow of a tug, but might not recover while in tow of a horse.” Brown, J. The Robert W. Parsons, 191 UL. S. 32. d. Dry Dock. “A dry dock itself is not a subject . . . of admiralty jurisdiction, because it is not used for the purpose of navigation.” Brown, J. The Robert W. Parsons, 191 U. S, 34. e. Effect of Alienage of Parties. “The better opinion is that, even under those circumstances [where both parties to the libel are foreigners], the court will take cognizance of torts to which both parties are foreigners; at least in the absence of a protest from a foreign consul.” Brown, J. Panama R. Co. v. Napier Shipping Co., 166 U. S. 285, “Such a remedy [enforcement of mari- time lien] will not in general be accorded, in our courts of admiralty, to the citizens or subjects of a foreign country whose courts are not clothed with the power to give the same remedy in similar controversies to the citizens of the United States.” C.irrorp, J. The Maggie Hammond, 9 Wall. 451. _ “Tn the absence of treaty stipu- lations . . . the case of foreign seamen is undoubtedly a special one, when they sue for wages under a contract which is gen- erally strict in its character, and framed ac- cording to the laws of the country to which the ship belongs; framed also with a view to secure, in accordance with those laws, the rights and interests of the shipowners as well as those of master and crew, as well when the ship is abroad as when she is at home. Nor is this special character of the case entirely absent when foreign seamen sue the master of their ship for ill-treatment. On general principles of comity, admiralty courts of other countries will not interfere between the parties in such cases unless there is special reason for. doing so, and ‘will require the foreign consul to be noti- fied, and, though not absolutely bound by, will always pay due respect to, his wishes as to taking jurisdiction.” Braptey, J. The Belgenland, 114 U. S. 364. IV. MARITIME LAW—RULES OF DECISION. 1. In GENERAL; Maritime Law Indefinite. “The actual maritime law can hardly be said to have a fixed and definite form as to all the subjects which may be embraced within its scope.” Brapiry, J. The Lotta- wanna, 21 Wall. 572. Law Applied in United States. ' “The law, admiralty and maritime, as it has existed for ages, is applied by our courts 36 ADMIRALTY. to the cases as they arise.” MARSHALL, C. J. American Ins. Co. v. Canter, 1 Pet. 546. “That we have a maritime law of our own, operative throughout the United States, cannot be doubted.” Braptey, J. The Lot- tawanna, 21 Wall. 574. Distinguished from Rules of Common-law Courts. “Admiralty courts proceed to the prin- ciples, rules, and usages which belong to the admiralty, as contradistinguished from courts of common law.” C.irForp, J. The “ Wan- ata,” 95 U. S. 611. “Courts of admiralty are gov- erned by their own rules, and not by the ccmmon law or local statute, in matters affecting their own jurisdiction and pro- cedure, as, for instance, in regard to the rules of navigation in navigable waters; to the limitation of the liability of ship own- ers; to the duration, enforcement and mar- shalling of maritime liens; and of the effect of contributory negligence of a suitor upon his right to recover and upon the assessment of damages.” Gray, J., dissenting. Work- man v. New York City, 179 U. S. 586. Gathered from Rules at Home and Abroad. “The admiralty law must be gathered from the accepted practice of courts of admiralty, both at home and abroad.” Brown, J. The Osceola, 189 U. S. 168. “The general maritime law is in force in this country, or in any other, so far only as administered in its courts, or adopted by its own laws and usages.” Gray, J. The John G. Stevens; 170 U. S. 126. “To ascertain what the maritime law of this country is, it is not enough to read the French, German, Italian, and other foreign works on the subject, or the codes which they have framed; but we must have regard to our own legal history, Constitu- tion, legislation, usages, and adjudications as well. The decisions of this court illustrative of these sources, and giving construction to the laws and Constitution are especially to be considered; and when these fail us, we must resort to the principles by which they have been governed.” Braptey; J. The Lottawanna, 21 Wall. 576. 2. UNIFORMITY. Each Nation May Adopt Its Own Rules. “No one doubts that every nation may adopt its own maritime code.” Braviey, J. The Lottawanna, 21 Wall. 572. “As long as each nation is the master of its own territory it may legislate as it sees fit in reference to maritime matters coming within its jurisdiction, and yet this does not abridge the fact that admiralty grew up out of the thought of having a common law of the seas.” BREwer, J., dis- senting. The Robert W. Parsons, 191 UL S. 48. “Perhaps the maritime law is more uni- formly followed by commercial nations than the civil and common laws are by those who use them. But, like those laws, how- ever fixed, definite, and beneficial the theo- retical code of maritime law may be, it can have only so far the effect of law in any country as it is permitted to have.” Brap- Ley, J. The Lottawanna, 21 Wall. 572. “And the power to make such amend- ments [of the maritime law of the country] is coextensive with that law. It is not con- firmed to the boundaries or class of sub- jects which limit and characterize the power to regulate commerce; but, in maritime mat- ters, it extends to all matters and places to which the maritime law extends.” BRADLEY, J. In re Garnett, 141 U. S. 12. “It is hardly necessary to argue that’ the maritime law is only so far operative as law in any country as it is adopted by the laws and usages of that country, In this respect it is like international law or the laws of war, which have the effect of law in no country any further than they are ac- cepted and received as such; or, like the case of the civil law, which forms the basis of most European laws, but which has the force of law in each state only so far as it is adopted therein, and with such modifica- tions as are deemed expedient.” BRADLEY, J. The Lottawanna, 21 Wall. 572. “Tt will be found that the mari- time codes of France, England, Sweden, and other countries, are not one and the same in every particular; but that whilst there is a great correspondence between them aris- ing from the fact that each adopts the essen- tial principles, and the great mass of the general maritime law, as the basis of its system, there are varying shades of differ- erice corresponding to the respective terri- tories, climate, and genius of the people of each country respectively.” Bravery, J. The Lottawanna, 21 Wall. 573. “Whilst it is true that the great mass of maritime law is’ the same in all com- 37 ADMIRALTY. mercial countries, yet, in each country, pe- culiarities exist either as to some of the rules, or in the mode of enforcing them. Especially is this the case on the outside boundaries of the law, where it comes in contact with, or shades off into the local or municipal law of the particular country and affects only its own merchants or people in their relations to each other.” Brabiey, J. The Lottawanna, 21 Wall. 572. Upon Questions of Commercial Law. “Tt was argued that all the admiralty courts of the United States should be gov- erned by one rule of maritime law, without regard to local decisions. Such is doubtless the case in the courts of admiralty, as it is in the other courts of the United States, upon questions of general commercial law.” Gray, J., dissenting. Workman v. New York City, 179 U. S. 586. Uniformity of Construction. “Tt is for the interest of merchants and shipowners, whose relations and dealings are international in their character, that the same construction should, so far as possible, be placed upon the law maritime by the courts of all maritime nations.” Brown, J., dissenting. The Irrawaddy, 171 U. S. 202. 83. ConTROL BY EQuITABLE PRINCIPLES. In General. “In England and in this country, a court of admiralty, within the scope of its powers, acts upon equitable principles; and when the facts before it, in matter within its juris- diction, are such that a court of equity would relieve, and a court of law could not, it is the duty of the court of admiralty to grant relief.” Gray, J. Watts v, Cam- ors, 115 U. S. 361. In Cases of Tort. “even in cases of marine torts, inde- pendent of prize, courts of admiralty are in the habit of giving or withholding damages upon enlarged principles of justice and equity, and have not circumscribed them- selves within ‘the positive boundaries of mere municipal law. They have exercised a conscientious discretion upon the subject. A party who is im delicto ought to make a strong case to entitle himself: to general relief.” Story, J. The Marianna Flora, 11 Wheat. 54. In Cases of Contracts and Liens. “Courts of admiralty, when carrying into execution maritime contracts and liens, are 1 38 not governed by the strict and technical rules of the common law, and deal with them upon equitable principles, and with reference to the usages and necessities of trade.” TANEy, C. J. 4885 Bags Linseed, 1 Black 114. 4, RULE oF DAMAGES, Exemplary and Compensatory. “TAdmiralty] courts proceed, in cases of tort, upon the same principles as courts of common law, in allowing exemplary damages, as well as damages by way of compensation or remuneration for expenses incurred, or injuries or losses sustained, by the miscon- duct of the other party.” Gray, J. Lake Shore, etc, R. Co. v. Prentice, 147 U. S. 108. Compensation, Not Forfeiture. “So far as the general maritime law ap- plies to torts or injuries committed on the high seas and within the admiralty juris- diction, the general rule is, not forfeiture of the offending property, but compensation to the full extent of all damages sustained or reasonably allowable, to be enforced by a proceeding therefor in rem or in personam. It is true that the law of nations goes in many cases much farther, and inflicts the penalty of confiscation for very gross and wanton violations of duty. But, then, it limits the penalty to cases of extraordinary turpitude or violence. For petty misconduct, or petty plunderage, or petty neglect of duty, it contents itself with the mitigated rule of compensation in damages.” Story, J. Harmony v. U. S., 2 How. 235. V. PROCEDURE — PLEADING AND PRACTICE. 1. In GENERAL, Orderly System of Administration. “The advantage of an orderly, not to say scientific, system of administration is as apparent in the courts of admiralty, and the mischiefs of uncertainty or inexactness are as positive there, as in any other tri- bunals. Such seems to have been the opinion of Justice Story.” CAMPBELL, J., dissenting. Dupont de Nemours v. Vance, 19 How. 175. Opportunity to Be Heard. “The right of the claimant to be informed by the libel of the specific act by which he or his property has violated the law, and to have an opportunity to produce witnesses, and to cross-examine those produced against him, are as fully recognized in the admiralty courts, in all except prize cases, as they are ADMIRALTY. in the courts of common law.” Mutter, J. U. S. v. Weed, 5 Wall. 68. “In establishing a new rule as regards steamboats, the parties interested in the de- cision of the question, and claiming adverse interests, should both be heard, and a proper issue made between them, where the testi- mony taken should have direct reference to the issue decided.” Grier, J. The Island City, 1 Black 129. Common-law System Distinguished. “Different systems of pleading and modes of proceeding prevail in the two jurisdictions [common law and admiralty], and in some respects there is a difference in the rules of evidence adopted in the admiralty court from those which prevail in common-law actions.” CLirForD, J. The “Atlas,” 93 U. S. 316. Jurisdiction Independent of Form of Pro- cedure. “The jurisdiction of the admiralty courts does not depend on the form of the pro- cedure. Congress may if it see fit change entirely that procedure.” Brewer, J., dis- senting. The Robert W. Parsons, 191 U. S. 46. Admiralty Rules under Act of Congress. “Our admiralty rules were promulgated in ‘accordance with the Act of Congress.” CuiFForD, J. The “Sabine,” 101- U. S. 388. 2. VENUE. Marine Torts. “Marine torts are in the nature of tres- passes upon the person or upon personal property, and they may be prosecuted in personam in any district where the offending party resides, or in rem wherever the offend- ing thing is found to be within the jurisdic- tion of the court issuing the process.” C1iF- ForD, J. The Propeller Commerce, 1 Black 580. When Ship Is Abroad. “To compel suitors in admiralty (when the ship is abroad and cannot be reached by a libel ix rem) to resort to the home of the defendant, and to prevent them from suing him in any district in which he might be served with a summons or his goods or credits attached, would not only often put them to great delay, inconvenience, and ex- pense, but would in many cases amount to a denial of justice.” Gray, J. In re Louis- ville Underwriters, 134 U. S. 493. 39 3. PARTIES. See also INFoRMERS; PARTIES. Proper Parties—All Who Have an In- terest. “Tn admiralty, all parties who have an in- terest in the subject of the suit—the res— may appear, and each may propound inde- pendently his interest.” CAMPBELL, J. Tay- lor v. Carryl, 20 How. 599. “Every person may make himself a party [in an admiralty cause].” Marsuatt, C. J. The Mary Stafford, 9 Cranch 144, Right of Owner and Others to Appear and File Claim. “Whenever a seizure takes place, it is the right of the owner to appear and file his claim, if he complies with the preliminary order of the court as to costs; but the claim is often made by the master of the vessel or the managing owner, and it may be made by an agent or the consignee, and in the case of a foreign ship it may be filed by the consul of the nation to which the ship be- longs.” CutFForp, J. U. S. v. Ames, 99 UL S. 43. ‘ Person Without Lien. “A distribution cannot be claimed in the admiralty, except by those who have a lien.” McLegan, J. Grant v. Poillon, 20 How. 169. Attitude of Claimant. “In the admiralty a claimant is an actor.” Jounson, J., dissenting. Governor v. Mad- razo, 1 Pet. 132. Joinder and Consolidation. “The joining of several owners of cargo conveyed in the same ship in a libel in rem for damages done to the goods in the course, of the shipment, and the consolidation of libels filed separately by the respective own- ers for like damage, is allowed by the prac- tice of the court for its convenience, and the saving of time and expense to the parties. It is a practice deserving commendation and encouragement in all cases where it can be adopted without complicating too much the proceedings, and thereby prejudicing the rights of the parties.” Netson, J. Rich v. Lambert, 12 How. 353. Bringing In Administrator of Deceased Libelant. “In case of the death of any seaman, who is a libelant, his administrator is to be brought before the court before any final ADMIRALTY. decree is entered upon his claim.” Srory, J. Sheppard v, Taylor, 5 Pet. 714. Government — Consent. ‘ “In England it is usual, in the admiralty courts, in proceedings im rem, when it is made to appear that property of the govern- ment ought, in justice, to contribute to a general average, or to salvage, for the proper officer of the government to consent in court that it may take jurisdiction of the matter.” Brabiey, J. Carr v. U. S., 98 U.S. 438. “In English courts, when it is made to appear that property of the government ought, in justice, to contribute to a general average, or to salvage, it seems to be~ the usual course of proceeding for the proper officer of the government to consent in court that it may take jurisdiction of the matter. This consent is given by the authority of the king, who thus submits to be sued in his own courts. The liberal exercise of this authority removes the ‘difficulty presented here, where no power to do this exists in any officer of government, and prevents any apprehension of gross injustice in such cases in England.” Mutier, J. The Davis, 10 Wall. 20. Exemption of Municipal Corporation. . “The necessity of allowing a municipal fireboat to proceed on her way to put out a fire affords a special reason for not allow- ing her, while so occupied, to be seized on a libel in rem. But al! the reasons for not maintaining an action of this kind against the city in a court of common law apply -with undiminished force to a libel against the city in personam in a court of admir- alty.” Gray, J., dissenting. Workman w. New York City, 179 U. S. 590. Intervention of Insurer, “The insurer may at all times intervene in courts. of admiralty, if he has the equi- table right to the whole or any part of the damages. Under the 34th rule in admiralty of this court, he may be allowed to intervene, and become the dominus litis where he can show an abandonment, which devests the original claimant of all interest. Under the 43d rule also he may intervene after decree, and claim the damages recovered, by showing that he is equitably entitled to them.” GnriER, J. The Propeller Monticello v. Mollison, 17 How. 156. See also, as to subrogation of insurer, INSURANCE; MARINE INSURANCE. Sentence Binding on All the World. “The sentence of a court of admiralty, or i of appeal in questions of prize, binds all the world, as to everything contained in it, be- cause all the world are parties to it. The sentence, so far as it goes, is corlclusive to all persons.” Paterson, J. Penhallow v. Doane’s Adm’rs, 3 Dall. 86. “Tn the proceedings, 7m rem, the admiralty wants no consent or concession to enlarge its jurisdiction. All the world are parties to such a suit, and bound by it, by the com- mon consent of the world, The interest of a state, ot the United States, in the res sub- jecta, must be affected by such a decision.” Jounson, J., dissenting. Governor v. Mad- razo, 1 Pet. 133. “The whole world, it is said, are parties in an admiralty cause; and, therefore, the whole world is bound by the decision. The reason on which this dictum stands will de- termine its extent. Notice of the controversy is necessary in order to become a party, and it is a principal of natural jus- tice, of universal obligation, that before the rights of an individual be bound by a judicial sentence, he shall have notice, either actual or implied, of the proceedings against him.” MarsHatt, C. J. The Mary Stafford, 9 Cranch’ 144, See also Process. 4, STIPULATION oR BAIL. In General. “His [the admiral’s] court proceeded either against the ship or the person of the owner, by arrest of the thing or the person. When either was arrested, they could be re- leased by entering into stipulation with approved sureties (fide jussoux) who con- sented that execution should issue against their goods and chattels in case of default.” Grrr, J., dissenting. Ward wv. Chamber- lain, 2 Black 446. “TIn an admiralty suit] the practice is, where the claimant desires to regain the possession, to allow the value of the same to be ascertained, and when that is done according to law, the claimant may file a stipulation for that amount in the place of the vessel. When the claimant desires to secure the possession of the vessel, he may apply to the court for an appraisement, or if the parties agree upon a sum as the value, the court may adopt that sum, and accept a stipulation for that amount.” CurrrorD, J. The Ann Caroline, 2 Wall. 548. “Where the stipulation or bond is given for the value of the ship, the obligation of 40 . ADMIRALTY. the stipulator is that he pay into court the sum ascertained as the value.” C.irForp, J. The “ Wanata,” 95 U. S. 605. “When money is the thing in contest, or the thing captured has been converted into money, it becomes essentially a debt; and, of course, a metaphysical thing —not to be ar- rested specifically.” JoHnson, J., dissenting. Governor v. Madrazo, 1 Pet.. 135. Substitute for Thing Seized, “Whenever a stipulation is taken in the admiralty for the property subjected to legal process and condemnation, the stipulation is deemed a mere substitute for the thing itself, and the stipulators are held liable to the exercise of all those authorities on the part of the court which it could properly exercise if the thing itself were still in the custody of the court.” CuiFrorp,.J. The “ Wanata,” 95 U. S, 611; U. S. uv. Ames, 99 U. S. 36. Story, J. The Palmyra, 12 Wheat. 10. Reduction of Bail. “Bail is taken for property attached for the value of the same when delivered to: the claimant, and it will not be reduced if the property when sold brings less than the appraised value.” CurrForv, J. The “ Wan- ata,’ 95 U. S. 611. Recall of Property. “Proceedings in rem are exclusively cog- nizable in the admiralty, and the question whether a case is made for the recall of property released under bond or stipulation in such a case must, beyond all doubt, be determined by the courts empowered to hear and determine the matter in controversy in the pending suit.” Currrorp, J. U.S. w. Ames, 99 U. S. 43. Obligation of Sureties, “Rule in admiralty, however, is the same as in law, that sureties are only bound to the extent of the obligation expressed in their bond, but not beyond its plain and obvious meaning.” CutFFrorp, J. The Ann Caroline, 2 Wall. 549. “ Sureties in admiralty, like sureties at law, are only bound to the extent of the obliga- tion expressed in their stipulation, unless they are themselves guilty of default, or ap- pear and make defense, in which case they become responsible for costs, and, in some cases, for interest by the way of damages for the delay of payment.” C.iFForp, J. The “ Wanata,” 95 U. S. 612. 41 Damages Beyond Proceeds or Value. “It is the settled rule, that, where the value of the property held in a cause of damage is insufficient to pay the loss, it is not competent for the court to award dam- ages against the sureties in the stipulation beyond the proceeds or value.” CLiFForD, J. The “ Wanata,” 95 U. S. 611. 5. ORDER OF SALE. 1 “In cases only where the subject itself is in possession of the court, is the order of sale made. If it be delivered on security to either party, an order of sale pending the cause is unheard of in admiralty proceed- ings.” Marswatt, C! J. Jennings v. Car- son, 4 Cranch 26. = * “A right to order a sale is for the benefit of all parties, not because the case is depend- ing in that particular court, but because the thing may perish while in its custody, and while neither party can enjoy its use.” MarsHatt, C. J. Jentings v. Carson, 4 Cranch 26. 6. Rutes or PLEADING. a. Simplicity in General. “The rules of pleading in the admiralty are exceedingly simple and free from tech- nical requirements.” Curtis, J. Dupont de Nemours v. Vance, 19 How. 171. b. Libel or Information. Form. “Libels in rem, in instance causes, civil or maritime, says Mr. Greenleaf, shall state the nature of the cause, as, for example, that it is a cause civil and maritime, of con- tract, of tort or damage, of salvage, or pos- session, or otherwise, as the case may be; and if the libel is ix rem, that the property is within the district, and if in personam, the names and place of residence of the parties.” Cuirrorp, J. The Propeller Commerce, 1 Black 581. “The forms of libels for maritime torts include those which caused only consequen- tial damages, as well as those which caused direct damages.” Woopzury, J., concurring. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 434, “The term ‘information’ [is not] exclusively applicable to a proceeding at common law. . « A libel on a seizure, in its terms and in its essence, is an informa- tion.” MarsHatt, C. J. The Samuel, 1 Wheat. 14. ADMIRALTY, Libel Substitute for Declaration. “The libel in the admiralty court takes the place of the declaration in an action at law.” CLIFFORD, J. The “Atlas,” 93 U. S. 316. Sufficiency — Strictness of Criminal Prose- cutions Not Applicable. “The strict rules of the common law as to criminal prosecutions have never been supposed by this court to be required in information of seizure in the admiralty for -forfeitures, which are deemed to be civil pro- ceedings in rem.” Story, J. The Palmyra, 12 Wheat. 12. Greater Certainty Than in Indict- ment Not Required. “ An information for forfeiture of a vessel need not be more technical in its language or specific in its description of the offense than an indictment.” Grier, J. U. S. w Brig Neurea, 19 How. 94. -— S§trictness of Averment Not Required. “The same technical minuteness is not necessary in a libel as in a declaration at common law.” Woopsury, J., concurring, New Jersey Steam Nay. Co. v. Merchants’ Bank, 6 How. 434. “There is, indeed, in admiralty proceed- ings, little ground to insist upon much strict- ness of averment, because, in however gen- eral terms the offense may be articulated, it is always in the power of the court to prevent surprise, by compelling more particular charges as to the matters intended to be brought forward by the proofs.” ‘Story, J. The Palmyra, 12 Wheat. 13. “Tt is incumbent on the libelant to pro- pound with distinctness the substantive facts on which he relies; to pray, either specially or generally, for the relief appropriate to them; and to ask for such process of the court as is suited to the action, whether in rem or in personam. The court [is not] precluded from granting the relief appropriate to the case appearing on the record and prayed for by the libel, because that entire case is not distinctly stated in the libel.” Curtis, J. Dupont de Nemours v. Vance, 19 How. 171. “In admiralty an omission to state some facts which prove to be material, but which cannot have occasioned any surprise to the opposite party, will not be allowed to work any injury to the libellant, if the court’ can see there was no design on his part in omit- 42 ting to state them.” Davis, J. The Steam- er Syracuse, 12 Wall. 173. “The proceedings in the admiralty must always contain at least a general allegation of such a nature as will apply to the case, as of prize, etc.” MarsHatt, C. J. The Divina Pastora, 4 Wheat. 64. Allegations Justifying Judgment Required. “In every suit for penalties or forfeitures what must be proved to entitle the complain- ing party to judgment against either person or property must be averred in the libel; and its omission will not be cured by any verdict in the case.” Fiexp, J., dissenting. Friedenstein v. U. S., 125 U. S, 235. “T would as soon sustain an indictment for piracy or, murder, without any specific allegations, as a libel in which the offense is not set forth with such convenient certainty as to put the claimant on his defense.” Jounson, J., dissenting. The Luminary, 8 Wheat. 416, Language of Statute Sufficient. “In general, it may be said, that it is suffi- cient in libels 7m rem, for forfeiture, to al- lege the offense in the terms of the statute creating the forfeitures.” Story, J. The Palmyra, 12 Wheat. 13. “Tn libels in rem, less certainly than what belongs to proceedings at the common law, will sustain a decree of condemnation, if the words of the statute are pursued, and the allegations point out the facts, so as to give reasonable notice to the party to enable him to shape his defense.” Story, J. The Pal- myra, 12 Wheat. 13. “Tt is, in general, true that it 1s suffi- cient for a libel to charge the offense in the very words which direct the forfeiture; but this proposition is not, we think, universally true. If the words which describe the sub- ject of the law are general, embracing a whole class of individuals, but must neces- sarily be so construed as to embrace only a subdivision of that class, we think the charge in the libel ought to conform to the true sense and meaning of those words as used by the legislature.” MarsHatt? C. J. The Mary Ann, 8 Wheat. 389. “Tt is true that the same technical nice- ties are not necessary in a libel, as the wary precision of the common law requires in in- dictments ; and the rule, as usually laid down, is generally correct, viz., that the offense may be laid in the words of the act. But ADMIRALTY. it is obvious that this rule can only apply to those laws which create a substantive offense, not those which generalize and create of- fenses by classes.” JoHNSON, J., dissenting. The Luminary, 8 Wheat. 416. Matters of Defense. “Tn no case can it be necessary to state in a libel, any fact which constitutes the defense of the claimant, or a ground of exception of the operation of the law on which the libel is founded.” Jounson, J. Cargo of Brig Aurora v. U. S., 7 Cranch 389. Joinder of Causes of Action. “In the same libel between the same par- ties, unlike the rule at common law, it is held by some that both contract and tort may be joined, though it is proper to state them in separate articles in the libel, like separate counts.” Woopsury, J., concurring. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 434, Objections. “Objections of this kind [technical objec- tion to a libel in the nature of an informa- tion] made at so late a period, if not entirely precluded, are not entitled to much indul- gence; they ought, if well founded, to be made at an earlier day, when the information might be amended, and great expense and delay avoided.” TuHompson, J. The Emily & The Caroline, 9 Wheat. 386. c. Answer. Substitute for Plea. “The answer [in the admiralty court] is the substitute for the plea of the defendant.” CuirForD, J. The “Atlas,” 93 U. S. 316. Requisites. “Persons appearing as claimants, or for the purpose of making defense in causes civil and maritime, are required, under all cir- cumstances, to answer on oath or solemn affirmation, and the authorities are unanimous that the answer should be full, explicit, and distinct, to each separate article and alle- gation of the libel.” CxirFrorp, J. The Com- mander-in-Chief, 1 Wall. 48. “It is incumbent on the respondent to answer distinctly each substantive fact alleged in the libel, either admitting or denying, or declaring his ignorance thereof, and to allege such other facts as he relies upon. as a defense, either in part or in whole, to the case made by the libel.” Curtis, J. Dupont de Nemours v. Vance, 19 How, 171. 43 Not Evidence. “In the admiralty the same rule does not prevail as in equity, that the answer to matters directly responsive to the allegations of the bill, is to be treated as sufficient proof of the facts, in favor of the respondent, un- less overcome by the testimony of two wit- nesses, or of one witness and other circum- stances of equivalent force.” Srory, J. Andrews v. Wall, 3 How. 572. d. Cross Libel. Nature. “Whether the controversy pending is a sfit in equity or in admiralty, a cross bill ot libel is a bill or libel brought by a defend- ant in the suit against the plaintiff in the same suit or against other defendants in the original suit or against both, touching the matters in question in the original bill or libel. It is brought in the admiralty to obtain full and complete relief to all parties as to the matters charged in the original libel; and in equity the cross-bill is some- times used to obtain a discovery of facts.” CurrrorD, J. The “Dove,” 91 U. S. 385. Governed by Principles Which Control Cross-bills, “Generally speaking, the same principles apply to cross-libels as to cross-bills.” Futter, C. J. Bowker v. U. S.,, 186 U. S. 139. Matters Not Embraced in Libel. “New and distinct matters, not included in the original bill or libel, should not be embraced in the cross-suit, as they cannot be properly examined in such a suit, for the reason that they constitute the proper sub- ject-matter of a new original bill or libel. Matters auxiliary to the cause of action set forth in the original libel or bill may be included in the cross-suit, and no others, as the cross-suit is, in general, incidental to, and dependent upon, the original suit.” CurrForp, J. The “Dove,” 91 U. S. 385. Necessity. “In admiralty, if the respondent desires to obtain entire damages against the libelant, or damages in excess of those claimed by libelant, a cross bill is necessary, although matters of recoupment or counterclaim might be asserted in the answer.” Futrer, C. J. Bowker wv. U. S., 186 U. S. 140. “Causes of the kind [cross-libel] may be tried together or separately, as it is obvious that the pleadings in each are complete with- out any reference to the other. Nothing is ADMIRALTY, required on the part of the respondent in the original suit beyond his answer, unless he claims that his vessel was injured, and that the collision was occasioned wholly by the fault of the vessel of the original libellant. For all purposes of defense to the charges made by the libelant, his answer, if in due form, is sufficient; but if he intends to claim a decree for the damages suffered by his own vessel, then he should file a cross- libel. Damages for injuries to his own ves- sel cannot be decreed to him under an answer to the original libel, as the answer does not censtitute a proper basis for ‘such a decree in favor of the respondent. Consequently, whenever he desires to prefer such a claim, he should file an answer to the original libel, and institute a cross-action to recover the damage for the injuries sustained by his own vessel.” CuirForp; J. The “Dove,” 91 U. S. 384, Hearing. “Usually such suits are heard together, and are disposed of by one decree or by sep- arate decrees entered at the same time, but a decision in the cross-suit adverse to the libelant, even if. the decree is entered before the original suit is heard, will not impair the right of the respondent in the origi- nal suit to avail himself of every legal and just defense to the charge there made which is regularly set up in the answer, for the plain reason that the-adverse decree in the cross-suit does not dispose of the answer in the original suit.” Cxirrorp, J. The “Dove,” 91 U. S. 384. f e. Variance and Departure. Technical Rules of Variance and Departure ‘Not Applicable. - “There is no doctrine of mere technical variance in the admiralty.” Davis, J. The Steamer Syracuse, 12 Wall. 173. “In the courts of admiralty of the United States, although the proofs of each party must substantially correspond to his alle- gations, so far as to prevent surprise, yet there are no technical rules of variance, or of departure, in pleading, as at common law.” Gray, J; The Gazelle and Cargo, 128 U. S. 487. “The proofs of each party must corre- spond substantially with his allegations, so as to prevent surprise. But there are no technical rules of variance, or departure in pleading, like those in the common law.” Curtis, J. Dupont de Nemours v. Vance, 19 How. 171. “If the technical rules of common-law pleading existed in the admiralty, there might be difficulty in admitting a claim for general average, in an action founded on a contract of affreightment; because, though the claim for such average grows out of the contract of affreightment, the implied promise to pay it is technically different from the promise on the face of a bill of lading. . . But in the admiralty, . . there are no tech- nical rules of variance or departure. The court decrees upon the whole matter before it, taking care to prevent surprise, by not al- lowing either party to offer proof touching any substantive fact not alleged or denied by him.” Curtis, J. Dupont de Nemours v. Vance, 19 How. 173, f. Amendments. Liberally Allowed. “Amendments are readily granted in the admiralty court, as carrying out the maxim that all the world are parties to the pro- ceeding; and if due notice be given, and any one interested fails to appear, he cannot thereafter have any ground of complaint.” Cuirrorp, J. The Commander-in-Chief, 1 Wall. 52. “Where merits clearly appear on the rec- ord, it is the settled practice, in admiralty proceedings, not to dismiss the libel, but to allow the party to assert his rights in a new allegation. This practice, so consonant with equity and sound principle, has been delib- erately adopted by this court on former oc- casions.” Story, J. The Schooner Adeline, 9 Cranch 284. \ In Appellate Court. “Tf proper care is taken to avoid sur- prise, and to confine amendments in the ap- pellate court to the original subject of con- troversy, so as not to allow matters outside of the general scope of the pleadings below to be brought in, it is difficult to see how any possible harm can come from permitting a libellant to amend his libel in such a way as to give him the full benefit of his suit as it has been begun.” Waite, C. J. The Charles Morgan, 115 U. S. 76. Defects Which Should Be Cured by Amendment. “Substantial accuracy in pleading should be observed by the libellant; and it is proper to remark that a departure from that re- quirement, with intention to deceive, may constitute a bar to recovery, unless the faulty party is relieved from its consequences by leave of the court. Defects of: the kind, 44 ADMIRALTY. when discovered, should be cured by amend- ment in all cases where the imperfection is calculated to deceive or mislead.” CLiFForRD, J. The “Stephen Morgan,” 94 U. S. 602. % Nownsult. “Under the rules of the common law it must be conceded that the prosecuting party may relinquish his suit at any stage of it, and withdraw from court at his option, and without other liability to his adversary than the payment of taxable costs which have accrued up to the time when he withdraws his suit. Precisely the same rule prevails in the admiralty courts, and consequently the libellant has the right at any stage of the cause voluntarily to discontinue the same, and the only penalty to which he can legally be subjected, in the absence of any statutory regulation, except perhaps, in prize cases, is the payment of the costs of the proceedings.” Cuirrorp, J. Confiscation Cases, 7 Wall. 457. 8. HEARING. By Court Without Jury. “In all cases at common law [in the dis- trict courts] the trial must be by jury. In cases of admiralty and maritime jurisdiction, it has been settled that the trial is to be by the court.” Marsuatt, C. J. The Sarah, 8 Wheat. 394. Findings. “Circuit Courts, in deciding causes of ad- miralty and maritime jurisdiction on the in- stance side of the court, are required to find the facts and the conclusions of law upon which their judgments and decrees are ren- dered.” Futter, J. The Eclipse, 135 U. S. 606. Reference. “Valuable aid Z is sometimes ob- tained, in such an investigation [of questions of navigation], by referring the cause to a special master, or masters, of nautical ex- perience, with power to examine witnesses, and to report the facts to the court. Such a proceeding, though not specifically author- ized by law or the rules prescribed by this court, cannot be considered irregular, as the power of final decision is still in the tri- bunal to which the report is made.” Curr- ForD, J. The “City of Washington,” 92 U. S. 39. “Questions of the kind [as to fault in navigation], if presented in the admiralty court of England, would doubtless be sub- mitted, in the first instances, to the Trinity 45 Masters for their consideration and advice; and it cannot be doubted that much aid would be derived, in such an investigation, from the experience and nautical knowledge oi such a board of judicial assistants; but the Acts of Congress, regulating the practice the proceeding of the District Courts sitting in admiralty, have not made any provision for any such board of assistants, to sit with the district judges, in the adjudication of such controversies. Nor do the rules regu- lating the practice of the admiralty courts, as framed by this court, make any such provision.” CuirForD, J. The “City of Washington,” 92 U. S. 38. 9. EVIDENCE. Evidence in One Cause Invoked in An- other. “Original evidence and depositions taken on the standing interrogatories may be in- voked from one prize cause into another.” MarsHatt, C. J. The Experiment, 4 Wheat. 84. Value of Positive Oaths. “Tt is a melancholy truth, that forces itself upon the observation of every one who is conversant with the courts of admiralty, that positive oaths are too often the most unsat- isfactory evidence that can be resorted to. A species of casuistry or moral sophistry seems to have acquired too great an ascen- dancy over the witnesses who sometimes ap- pear in those courts.” Jounson, J. The St. Nicholas, 1 Wheat.’ 426. Order for Further Proof. “The order [for further-proof] is always made with extreme caution and only where the ends of justice clearly require it.” Swayne, J. The Gray Jacket, 5 Wall. 368. 10. DECREE. Separate Decrees as to Several Parties. “In case of an individual claiming for others in admiralty, the rights of each person or firm represented ate supposed to be con- tained or recovered in separate decrees, or separate portions of one decree, as each owns separately, and, if not thus considered, one may have to pay, or be made to suffer, for another.” Woopsury, J. Spear vw. Place, 11 How. 527. Final Condemnation. “Every condemnation is final as to the court which pronounces it, and no other dif- ference is perceived between a condemnation and a final condemnation, than that the one ADMIRALTY. terminates definitely the controversy between the parties and the other leaves that con- troversy still depending.” MarsHatt, C. J. U. S. uv. Schooner Peggy, 1 Cranch 109. “Vessels are seldom if ever condemned but by a final sentence.” MarsHatt, C. J. U. S. uv. Schooner Peggy, 1 Cranch 109. “An interlocutory order for a sale is not a condemnation.” Marswatt, C. J. U. S. v. Schooner Peggy, 1 Cranch 109. Judgment Against Owner for Deficiency. “Settled rule is, that where the value of the vessel condemned in a cause of damage is insufficient to pay the loss, it is not com- petent for the court to award damages against the owner beyond the value or pro- ceeds of the ship. But it has been held that costs might be awarded against the owner where there was an appearance and hear- ing, although no stipulation to that effect had been given.” CuirForp, J. The Ann Caroline, 2 Wall. 549. “The decree in a proceeding in rem against the vessel is not a decree against the owner, nor will it render the owner liable in such a case for any greater amount than what the Act of Congress limiting the lia- bility of such owners allows. Such a de- cree in such a case is merely the ascertain- ment of the damage, interests, and costs which the libellant has sustained by the collision, and which he is entitled to re- cover, provided the interest of the owners in the colliding vessel or vessels is sufficient to pay it, and not otherwise.” CurFrorp, J. The City of Hartford, 97 U. S. 330. Effect — Conclusiveness as to Facts. “A sentence of a court of admiralty is said not only to bind the subject-matter on which it is pronounced, but to prove conclusively the facts which it asserts.” MarsHatt, C. J. The Mary Stafford, 9 Cranch 142, “On the conclusiveness of a sentence of a foreign court of admiralty, it is not in- tended now to decide. For the present, therefore, such sentence will be considered as conclusive, to the same extent which is al- lowed to it in the courts of Great Britain. But, in those courts, it has never been supposed to evidence more than its own cor- rectness; it has subsequently never been sup- posed to establish any particular fact, with- out which the sentence may have been rightly pronounced.” MarsHatt, C. J. Maley v. Shattuck, 3 Cranch 488, See also supra, V. 3. —— Of Decree of Dismissal. “The final decree dismissing the libel in the cross-suit determines that the libellant in that suit is not entitled to recover affirm- ative damages for any injuries suffered by his vessel in the collision.” CiiFForp, J. The “ Dove,” 91 U. S. 384. —— As Lien on Land. “Tt has never been supposed that the definite sentence or decree of a court of ad- miralty was a lien or could be levied on lands.” Grier, J., dissenting. Ward wv. Chamberlain, 2 Black 446. “There is no process known to the courts of admiralty for seizing or selling land.” Grier, J., dissenting. Ward v. Chamberlain, 2 Black 446. 11. Costs. Discretion of Court. “Costs in admiralty are entirely under the control of the court. They are sometimes, from equitable considerations, denied to the party who recovers his demand, and they are sometimes given to a libellant who fails to recover anything, when he was misled to commence the suit by the act of the other party. Doubtless they generally follow the decree, but circumstances of equity, of hard- ship, of oppression, or of negligence induce the court to depart from that rule in a great variety of cases.” Strona, J. Weber v. Harbor Com’rs, 18 Wall. 57. Beyond Security or Stipulation. “The respondent [in admiralty], where there is no statutory prohibition, may be- come liable for costs beyond the security given for the same and for additional dam- ages in the nature of interest in case of appeal.” Cuxirrorp, J. The ‘“ Wanata,” 95 U.S. 618. “Tt is well settled that costs may be awarded against the owner beyond the stipu- lation, if he appeared and made defense.” CuirForD, J. The “Wanata,” 95 U. S. 612. 12. DisTRIBUTION OF FunpDs, “Tt is a wholesome jurisdiction very com- monly exercised by nearly all superior courts to distribute a fund rightfully in its possession to those who are legally entitled to it; and there is no sound reason why admiralty courts should not do the same.” Bravtey, J. The Lottawanna, 21 Wall. 582. “Beyond doubt maritime liens upon the eee sold by the order of the admiralty ADMIRALTY. court follow the proceeds, but the proceeds arising from such a sale, if the title of the owner is unencumbered and not subject to any maritime lien of any kind, belong to the owner, as the admiralty courts are not courts of bankruptcy or of insolvency, nor are they invested with any jurisdiction to distribute such property of the owner, any more than any other property belonging to him, among his creditors.” Ciirrorp, J. The Lotta- wanna, 20 Wall. 221. 13. APPEAL. From District to Circuit Court. “ An appeal in admiralty from the District to the Circuit Court must be to the term of the Circuit Court held next after the de- cree, and it must be made while the District Court is sitting, or within the time required by the general rules or a special order. These requirements are jurisdictional.” Warte, C. J. The “S. S. Osborne,” 105 U. S. 450, “The jurisdiction of the District Court is limited to cases at law, and of admiralty and maritime jurisdiction. From all decrees over a certain amount, in the latter, appeals may be taken to the Circuit Court. Mc- Lean, J. U.S. v. Nourse, 6 Pet. 495. Who May Appeal. “Every person may make himself a party [in an admiralty cause] and appeal from the sentence. MarsHatt, C. J. The Mary Stafford, 9 Cranch 144. Amount in Dispute — Claims of Several. “In cases of joint libels for wages, it is obvious that the claim of each seaman is distinct and several; and the decree upon each claim is in like manner distinct and several. One seaman cannot appeal from the decree made in regard to the claim of another; for he has no interest in it, and cannot be aggrieved by it. The controversy, so far as he is concerned, is confined solely to his-own claim; and the matter of dispute between him and the owners, or other re- spondents, is the sum or value of his own claim, without any reference to the claims of others. It is very clear, therefore, that no seaman can appeal from the District Court to the Circuit Court, unless his own claim exceeds fifty dollars; nor from the Circuit Court to the Supreme Court unless his own claims exceeds two thousand dol- lars.” Story, J. Oliver v. Alexander, 6 Pet. 147. 47 “Tt is true the amount involved in this case is a small one, but the jurisdiction of the admiralty court has never been deter- mined by the amount, though appeals from the District Court to the Supreme Court were first limited to cases involving $300, subsequently reduced to $50, and finally, by the Court of Appeals act, allowed apparently in all cases regardless of amount.” Brown, J. The Robert W. Parsons, 191 U. S. 33. Effect of Stipulation. “A--stipulation is binding on the appel- late court, unless it appears that the prop- erty was released by misrepresentation and fraud.” Currrorp, J. The “ Wanata,” 95 U. S. 611. “ Admiralty bonds and stipulations taken in the District Court, inasmuch as they con- stitute the fund out of which compensation is to be decreed to the libellants, follow the appeal into the Circuit Court.” CzrFForp, J. The “ Wanata,” 95 U. S. 618. “Sureties in such an appeal bond [in ad- miralty}] or stipulation may become liable for the whole amount specified, as the con- dition of the instrument is that the princi- pal shall prosecute his appeal with effect, and pay all damages awarded against the appellant, if he fail to make good his ap- peal.” CziFForp, J. The “ Wanata,” 95 U. S. 617. “Where the claimant appeals from the the decree, the fruits of the appeal bond and other stipulations follow the cause into the Circuit Court; and, upon the affirmation of the decree, the fruits of the appeal bond and other stipulations may be obtained in the same manner as in the court below, they being in fact nothing more than a security taken to enforce the original decree, and are in the nature of a stipulation in the admiralty.” Cirorp, J. The ‘“ Wanata,” 95 U. S. 616. Appeal or Error. “An appeal is allowed in admiralty causes; and the remedy by writ of error is strictly confined, in this part of the section at least, to civil actions.” Wrson, J., dissenting. Wiscart v. Dauchy, 3 Dall. 326. Course of Proteeding in United States Courts. “The courts of the United States, in the exercise of appellate jurisdiction in admi- ralty causes, are, by law, authorized to pro- ceed according to the course of proceedings ADVERSE ‘POSSESSION. jn admiralty courts.” Story, J. The Mari- anna Flora, 11 Wheat. 38, “Tt must be supposed that a court of ad- miralty, having prize jurisdiction, and con- sequently: proceeding im rem, and not hav- ing its practice precisely regulated by law, would conform to those principles which usually govern courts proceeding in rem, and which seem necessarily to belong to the proper exercise of their functions.” Mar- SHALL, C. J. Jennings v. Carson, 4 Cranch 24. Trial de Novo. “Tt is undoubtedly the general rule that an appeal in admiralty, like all appeals de- rived from the practice of the civil law, carries the whole cause to the appellate court, in which it is to be tried anew upon the same and such additional proofs as the parties may propound. Whilst this is the general rule, there is also no doubt that the legislature may authorize the appellate court, after hearing the cause, and determining the questions raised therein, to remand it to the court a quo for further proceedings.” BrapLey, J. The “Benefactor,” 103 U. S. 247, “Tf the process of the court of admiralty does not appear regular, this court, not sitting to reverse or affirm their judgment, but to carry a decree of reversal and res- toration into effect, must suppose the prop- etty to be in the hands of those in whom the law places it, unless the contrary ap- pears.” MarsHatt, C. J. Jennings v. Car- son, 4 Cranch 25. “Circuit Courts, in deciding causes of admiralty and maritime jurisdiction om ,the instance side of the court, are required to find the facts and the conclusions of law upon which their judgments and dectees are ren- dered, stating them separately; and we are limited, in reviewing such judgments and decrees, to a determination of the questions of law arising upon the record, and to such rulings of the court, excepted to at the time, as tnay be presented by a bill of exceptions, prepared as in actions at law.” Futter, C. J. The Eclipse, 135 U. S. 606. “Where the appeal involves a question of fact, the burden is on the appellant to show that the decree in the subordinate court is erroneous, but it is a tnistake to suppose that this court will not re-examine the whole testimony in the case.” CLIFFORD, J. The Baltimore, 8 Wall. 382. —— New Testimony and Pleadings. “New testimony may be taken here, in an admiralty case, and a new aspect given to it.’ Taney, C. J, Hemmenway w. Fisher, 20 How. 260. “Tn an admiralty case, you may in this court amend the -pleadings, and take new evidence,-so as in effect make it a different case from that decided by the court below. And the court might well, therefore; deal with the judgment and appeal of the in- ferior tribunal in the same spirit. But the powers which an appellate court may law- fully exercise in an admiralty proceeding, are altogether inadmissible in a common- law suit.” Taney, C. J. Rice v. Minne- sota, etc, R. Co, 21 How. 85. Interest on Decree. “No rule fixing any certain rate of interest upon decrees in admiralty, wher- ever the decree is affirmed, could be adopted with justice to the parties.” Taney, C. J. Hemmenway wv. Fisher, 20 How. 260. See also JuDGMENTS AND DECREES. Supersedeas. “An appeal in admiralty has the effect to ‘supersede and vacate the decree from which it is taken.” Mutter, J. The Lucille, 19 Wall. 74. As to supersedeas generally, see APPEAL AND Error. ADMISSIONS. “See AcreNcy; CoMPROMISE AND SETTLE- MENT. ADULTERY. SEE BicAmy. ADVERSE POSSESSION. I. Nature, Purpose, AND ORIGIN. II. WHat Constitutes ADVERSE POSSESSION. 1. In General. 2. Possession Must Be Hostile and under Claim of Right. 3. Possession Must Be Actual and Ex- clusive. 4. Possession Must Be Continuous, III. Cotor or Tite. IV. Presumptions As To Possession AND TITLE. V. ReLationsuirs Not Preciup- ING ADVERSE POSSESSION. VI. Pusriic Lanps. 48 ADVERSE POSSESSION. VII. AccounTING For Rents on RE- COVERY BY TRUE OWNER. VIII. Errect or ADVERSE POSSESSION. CROSS-REFERENCES. See EstopreL; Laces; Actions; PRESCRIPTION. LIMITATION OF I. NATURE, PURPOSE, AND ORIGIN. “There are few principles of more ancient or more dignified origin [than those of ‘ad- verse possession]. It is the law of kings, that the fact of possession proves the right of possession, and the idea is thrown out by Blackstone, that it probably passed down from greater to less, until it extended to every man’s close.” JoHNson, J. Brad- street v. Huntington, 5 Pet. 436, “A statute of limitations is founded upon the idea of an elder and better title out- standing, and prescribes a period of pos- session and cultivation of the land, under the junior or inferior title, as a bar to the elder, for the repose of society; thereby settling the title by lapse of time, and pre- venting litigation.” Netson, J. Davila wv. Mumford, 24 How. 223. “Possession has always been a means of acquiring title to property. It was the earliest mode recognized by mankind of the appropriation of anything tangible by one person to his own use, to the exclusion of others, and legislators and publicists have always acknowledged its efficacy in confirm- ing or creating title.’ Murier, J. Camp- bell v. Holt, 115 U. S. 623. II. WHAT CONSTITUTES ADVERSE POSSESSION. 1. IN GENERAL. “Tt is well settled law that the possession, in order that it may bar the recovery, must be continuous and uninterrupted as well as open, notorious, actual, exclusive, and ad- verse.” CLIFFoRD, J. Armstrong v. Morrill, 14 Wall. 145. “The action of ejectment, or of trespass to try title, necessarily implies the wrongful possession of the defendant. He can only defeat that position by showing title or ownership in the party under whom he holds or in himself. But how can he show title or ownership in himself? If he has a title by deed which he can trace back beyond the claim of the plaintiff he can do so; but 1 Os. Dic—4 if he relies upon the statute [of limitations] he must show adverse possession of the prop- erty in himself for the period prescribed. To render his possession adverse it must be ac- companied by a claim of title or ownership in himself as against the whole world. It must be exclusive and continuous, and not referable to any other claimant. If the de- fendant admits that any other person, or that the government, has the title, or owns the property at any time within the period of prescription, his adverse possession, on which alone he can rely, fails, and his claim of the right to the property is defeated. This doc- trine is sustained by the whole current of authorities in the English and American courts.” Fuietp, J., dissenting. Stanley vw. Schwalby, 147 U. S. 523. “Tt is admitted that in cases where offi- cers of the army, or agents of the govern- ment, state or national, are in possession of real property, holding it for either of them, they cannot, in an action for its re- covery, rely upon their agency or official character under the government as a justi- fication of their possession, without showing a title in the government. Fuietp, J., dis- senting. Stanley v. Schwalby, 147 U. S. 522. [To constitute a title by adverse pos- session] “the possession must be adverse, exclusive and uninterrupted, and inconsist- ent with the existence of title in another.” Pecxuam, J. Peabody w U. S., 175 U. S. 550. 2. Possesston Must Be Hostite anpD UNDER CLaim oF RIGHT. In General. “ Possession, to give title, must be adver- sary.” MarsHa, C. J. Kirk v. Smith, 9 Wheat: 288. : “That a possession, to sustain a bar under the act, must be adverse, is unquestionable.” MarsHa.t, C. J. Kirk v. Smith, 9 Wheat. 322. “Tt seems that wherever the proof is, that one in possession holds for himself, to the exclusion of all others, the possession so held must be adverse to all others; whatever relation in point of interest or privity he may stand in to others.” Jounson, J. Bradstreet v. Huntington, 5 Pet. 440. “There must be title somewhere to all land in this country. Either in the govern- ment, or in some one deriving title from the government, state or national. Any one in possession, with no claim to the land what- 49 ADVERSE POSSESSION. ever, must in presumption of law be in possession in amity with and in subservience to that title. Where there is no claim of right, the possession cannot be adverse to the true title.” Mutter, J. Harvey wv. Tyler, 2 Wall. 349. Indefeasible Title Unnecessary. “ Statutes of limitation would be of little use if they protected those only who could otherwise show an indefeasible title to the land.” Grier, J. Pillow v. Roberts, 13 How. 477. “Statutes of limitation are founded on sound policy. They are statutes of repose, and should not be evaded by a forced con- struction. The possession which is pro- tected by them must be adverse and hostile to that of the true owner. It is not neces- sary that he who claims their protection should have a good title, or any title but possession. A wrongful possession, obtained by a forcible ouster of the lawful owner, will amount to a disseizor, and the statute will protect the disseizor.” Grier, J. Pil- low v. Roberts, 13 How. 477. Evidence of Claim of Right. “In regard to proof of the fact of pastur- ing cattle as evidence of an adverse pos- session upon which to base a claim of title, we have held that such fact is of very slight weight when applied to cases arising under alleged grants of land of the nature of the one under consideration [Mexican grant].” PreckHam, J. Bergere v. U. S., 168 U. S. 79. 3. Possession Must Be AcTUAL AND EXcLUuSIVE. In General. “ Possession, to be effectual, either to pre- vent a recovery or vest a right under the statute of limitations, must be an actual pos- session, attended with a manifest intention to hold and continue it. It must be, in the ‘language of the authorities, an actual, con- tinued, adverse, and exclusive possession for the space of time required by the statute.”’ McLean, J. Doswell v. De La Lanza, 20 How. 32. “A possession not actual, but constructive; not exclusive, but in participation with the owner or others, falls very far short of that kind of adverse possession which deprives the true owner of his title” Suuras, J. Ward v. Cochran, 150 U. S. 608, “The survey of a large tract of land can- not be considered as an entry on a smaller tract within its lines, as an ouster of the Occupant, or even as a trespass on him.” MarsHal, C. J. Kirk v. Smith, 9 Wheat. 291. Actual Ouster Unnecessary. “Actual ouster is clearly not requisite, either to be presumed or proved; adverse possession may exist without it; and notice, as a fact, may clearly be deduced from cir- cumstances, as well as be positively proved.” Jounson, J. Bradstreet v. Huntington, 5 Pet. 440. Forcible Ouster Unnecessary. “A person in possession of land, clearing, improving, arid building on it, and receiving the profits to his own use, under a claim of title, is not bound to show a forcible ouster of the true owner in order to evade the presumption that his possession is not hostile or adverse to him.” Grier, J. Pil- low v. Roberts, 13 How. 477. Personal Residence Unnecessary. “Tt cannot be denied, that an adverse possession may be kept up without a per- ,sonal residence where the disseizor gives leases to tenants, puts them in possession, and receives the rents, claiming the land as his own.” Grier, J. Reed v. Proprietors of Locks, etc., 8 How. 292. Sufficiency of Residence Question for Jury. “As a general rule, the possession neces- sary to sustain a prescription is founded upon facts, which it is the province of a jury to ascertain.” CAmpBELL, J. Ander- son v. Bock, 15 How. 329. 4, Possession Must BE ContINUOUS. “Tf the continuity of possession is broken before the expiration of the period of time prescribed by the statute of limitations, an entry within that time destroys the effi- cacy of all prior possession, so that to gain a title under the statute, a new adverse pos- session for the time limited must be taken for that purpose.” C.irForp, J. Armstrong v. Morrill, 14 Wall. 146. “Tt need not be continued by the same per- son; but when held by different persons, it must be shown that a priority existed be- tween them.” McLean, J. Doswell v. De La Lanza, 20 How. 32. III. COLOR OF TITLE. Definition. “The courts have concurred, it is believed, without an exception, in defining ‘color of 50 ADVERSE POSSESSION. title’ to be that which in appearance is title, but which in reality is no title” Dan- JEL, J. Wright v. Mattison, 18 How. 56. What Constitutes. “There can be no color of title in an occupant who does not hold under any instrument, proceeding, or law, purporting to transfer to him the title or to give to him the right of possession.” Frietp, J. Deffe- back v. Hawke, 115 U. S. 407. “Where possession is taken under claim of title it sufficiently shows the intention of ‘the party to hold adversely within the mean- ing of the law upon that subject. There is no case to be found which holds that this adverse claim of title must be found in some instrument.” Mutter, J. Probst v. Pres- byterian Church, 129 U. S. 192. Void Deed. “Color of title, even under a void and worthless deed, has always been received as evidence that the person in possession claims for himself; and of course, adversely to the world.” Grier, J. [Pillow wv. Roberts, 13 How. 477. “These [the fact of entering, and the in- tention to usurp possession] are the elements of actual disseisin; and yet one may become a disseisor, though entering peace- ably under a void deed, or a void feoffment, or by fraud; and the intention to disseise may, under circumstances, be im- puted to those who by a general rule of law are in ordinary cases incapable of willing, or not bound by exercise of the will.” Jounson, J. Bradstreet v. Huntington, 5 Pet, 439. Extent of Adverse Possession. “One who enters upon the land of an- other, though under color of title, gives no notice to that other of any claim, except to the extent of his.actual occupancy. The true owner may not know the extent of the defective title asserted against him, and if while he is in actual possession of part o the land, claiming title to the whole, mere constructive possession of another, of which he has no notice, can oust him from that part of which he is not in actual possession, a good title is no better than one which is a mere pretence. Such, we think, is not the law.” Stronc, J. Hunnicutt v. Peyton, 102 U. S. 369. “Tt is true there are cases to the effect that color of title by deed cannot exist as to lands beyond what the deed purports to 51 convey; but where the deed is fairly open to construction as to what it does purport to convey, and at the time it was executed the land was officially surveyed according to the theory of the party claiming under such deed, it is manifest these authorities have no application.” Brown, J. Cameron v. U. S., 148 U. S. 308. Evidence. “Color of title is received in evidence for the purpose of showing the possession ‘to be adverse; and it is difficult to apprehend, why evidence offered and competent to prove that f ct, should be rejected till the fact is otherwise ptoven.” Grier, J. Pillow w Roberts, 13 How. 477. IV. PRESUMPTIONS AS TO POSSES- SION AND TITLE. That Possession Accompanies Ownership. “The law deems every man to be in the legal seizin and possession of land to which he has a perfect and complete title; this seizin and possession is coextensive with his right and continues till he is ousted thereof by an actual possession. This is a settled principle of the common law.” Ba.pwrn, J. U. S. v. Arredondo, 6 Pet. 743. “Where two persons are in possession of land at the same time, under different titles, the law adjudged him to have the seizin of the estate who has the better title. Both canndt be seized, and, therefore, the seizin follows the title.” Story, J. Barr v. Gratz, 4 Wheat. 223. “By the rules of law, possession will be presumed to accompany ownership until the contrary is proved; and constructive pos- session consequent upon legal ownership is sufficient as against mere trespassers, that is, as against those who do not show some right of possession.” Brapiey, J. Gonzales v. Ross, 120 U. S. 629. That Possession Is Lawful. “The law will never construe a possession tortious unless from necessity. On the other hand, it will consider every possession law- ful, the commencement and continuance of which is not proved to be wrongful. And this upon the plain principle, that every man shall be presumed to act in obedience to his duty, until the contrary appears.” ‘Story, J. Ricard v. Williams, 7 Wheat. 107. “When a naked possession is in proof, unaccompanied by evidence, as to its ADVERSE POSSESSION. origin, it will be deemed lawful, and co-ex- tensive with the right set up by the party.” Story, J. Ricard v. Williams, 7 Wheat. 108. That Possessor Holds under a Lawful Grant. “Tt is undoubtedly true that, un- der some circumstances, grants may be pre- sumed from the government, as well as from individuals, in support of a long-continued possession. The presumption in such case arises not merely from the possibilities of the loss of documents by the common accidents of time, but from the general experience of men that property is not usually suffered to remain for long periods in the quiet pos- session of any one but the true owner, and that no other person will deliberately add to the value of the property by permanent im- provements.” Furetp, J. Oaksmith v. Johns- ton, 92 U. S. 345. “A record may in a [Mexican grant] case like this be presumed to have been made, just as well as the existence of a grant may be presumed.” PrckHam, J. U.S. v. Pen- dell, 185 U. S. 199. “Though lapse of time does not, of itself, furnish a conclusive bar to the title of the sovereign, agreeably to the maxim, nullum tempus occurrit regi; yet, if the adverse claim could have a legal commencement, juries are advised or instructed to presume such com- mencement, after many years of uninter- rupted possession and enjoyment.” Syrras, J. U. S. v. Chaves, 159 U. S. 464. “Before a court can instruct a jury to ‘presume a grant or deed for land, time or length of possession must be shown, which, of itself, in certain cases, and in other cases, in connection with circumstances, will induce the presumption of a grant as a matter of law, or as a legal effect from evidence, which the jury is instructed to make, if in its con- sideration of the evidence the jury believe it to be true. Or when the presumption in fact as to a legal title is founded upon the principle of omnia rite esse acta.” WaAyne, J. Hanson v. Eustace, 2 How. 708. What Possession Will Raise Presumption. “What constitutes such possession of a large tract of land [as a basis for presuming a grant] depends to some extent upon cir- cumstances, the fact varying with different conditions, such as the general state of the surrounding country, whether similar land is customarily devoted to pasture or to the raising of crops; to the growth of timber or to mining, or other purposes.” PECKHAM, J. U.S. v. Pendell, 185 U. S. 197. “The presumption of a grant is indulged merely to quiet a long possession, which might otherwise be disturbed by reason of the inability of the possessor to produce the muniments of title, which were actually given at the time of the acquisition of the property by him or those under whom he claims, but have been lost, or which he or they were entitled to have at that time, but had neg- lected to obtain, and of which the witnesses have passed away, or their recollection of the transaction has become dimmed and im- perfect. And hence, as a general rule, it is only where the possession has been actual, open and exclusive for the period prescribed by the statute of limitations to bar an action for the recovery of land, that the presump- tion of a deed can be invoked. But the rea- son for attaching such weight to a possession of this character is the notoriety it gives to the claim of the occupant; and, in coun- tries where land is generally occupied or cul- tivated, it is the most effective mode of as- serting ownership. : There may be acts equally notorious, and therefore equally evincive of ownership, which, taken in con- nection with a long possession, even if that possession has been subject to occasional in- trusion, are as fully suggestive of rightful origin, aS an uninterrupted possession. Where any proprietary right is exercised for a long period, which, if not founded upon a lawful origin, would in the usual course of things be resisted by parties interested, and no such resistance is made, a presumption may be indulged that the proprietary right had a lawful origin.” Fretp, J. Fletcher v. Fuller, 120 U. S. 551. Presumption that Records Once Existed But Have Been Lost. “Upon a long and uninterrupted posses- sion, the law bases presumptions as sufficient for legal judgment in the absence of rebut- ting circumstances, as formal instruments, or records of articulate testimony. Not that formal instruments or records are unneces- sary, but it will be presumed that they once existed and have been lost.” McKenna, J. U. S. uv. Chavez, 175 U. S. 520. Presumption as Against the Government. “Tt is earnestly urged by the learned coun- sel of the appellants that possession and en- joyment by successive occupants for so long a period warrant the presumption of a grant, and authorities are cited to show that such grays grant may arise as well from ADVERSE POSSESSION. the crown or the state as from an individ- ual. As between individuals, this doctrine is well settled and valuable; and it may be that in respect to the ordinary public lands held by the government for the purpose of sale, occupation and settlement, there might exist a possession so long, adverse and exclusive, as to justify a court of equity or a jury in presuming a grant.” Suuiras, J. Morris wv. U. S., 174 U. S. 286. That Title Has Been Abandoned. “When it appears that one who now as- serts a title to property, arising more than the lifetime of a generation ago, has during all these years neglected the property and made no claim of title thereto, a reasonable presumption is that, whatever may be ap- parent on the face of the instrument sup- posed to create the title, were the full facts known, facts which cannot now be known by reason of the death of the parties to the transaction, it would be disclosed that no title was in fact obtained; or, if that be not true, that he considered the property of such little value that he abandoned it to the state which was protecting it. So, if the title being beyond challenge, during these years he pays no taxes thereon, makes no effort to improve or increase its value, and, by the labor and efforts of others, under the protecting power of the state, large value has been. given to it, the state may properly say to him, as may also the individuals who have thus wrought this change in value: You abandoned the property when it was comparatively valueless; you have taken no share in the burdens of taxation or the support of the state; others have toiled, paid taxes, and made the property valuable; therefore, because of your shirking of duties and obligations, you shall not, whatever may have been the nature of your title in the first instance, be permitted to appropriate the value thus produced by others.” Brewer, J. Underwood v. Dugan, 139 U. S. 384. V. RELATIONSHIPS NOT PRECLUD- ING ADVERSE POSSESSION. In General. “An infant, a feme covert, a joint tenant in common, a guardian, and even one getting possession by fraud, may be a disseisor.” Jounson, J. Bradstreet v. Huntington, 5 Pet. 439. “The trustee may disavow and disclaim his trust; the tenant, the title of his landlord after the expiration of his lease; the vendee, the title of his vendor after breach of the contract; and the tenant in common, the title of his cotenant; and drive the respect- ive owners and claimants to their action within tr: period of the statute of limita- tions.” Netson, J. Zeller v. Eckert, 4 How. 295. “There is a0 coud, that in general, the entry of one ficin will enure to the benefit of all, and that if the entry is made as held, and without claim o/ an exclusive title, it will be deemed en entry not adverse to, but im consonance with, the rights of the other heirs.” MarsHart, C. J. Ricard v. Wil- liams, 7 Wheat. 120. Vendor and Purchaser. “The title acquired by a vendee is most peculiarly adverse to that of him from whom he purchases.” MarsHati, C. J. Kirk v. Smith, 9 Wheat. 323. “A purchaser who has obtained a con- veyance, holds adversely to the vendor, and may controvert his title”? M’Lean, J. Wal- den v. Bodley, 14 Pet. 162. “A vendee in fee derives his title from the vendor; but his title, though derivative, is adverse to that of the vendor. He enters and holds possession for himself, and not for the vendor.” Story, J. Society wv. Pawlet, 4 Pet. 506. “That one may hold adversely to him from whom he purchases has long been settled, both in this court and in the courts of the states of the United States; the fact of possession and the quo animo, being still the legal subjects of inquiry.” Jounson, J. Bradstreet v. Huntington, 5 Pet. 448. “A vendee by deed, may, at law, contest the title of the person under whom he bought; though a vendee by executory contract can- not, if he is in possession under, and looks to the vendor for the completion of his title: in the first case he holds adversely, in the second not.” Batpwin, J. Boone v. Chiles, 10 Pet. 227. Mortgagor and Mortgagee., “It is well settled that the possession of the mortgagor is not adverse to that of the mortgagee.” SwaAyne, J. Lewis v. Hawkins, 23 Wall. 127. Landlord and Tenant, “The estoppel which prevents a tenant who has acquired possession as such from claiming title adversely to his landlord, does ADVERSE POSSESSION. not depend on the validity of his landlord’s title.” Futter, C. J. Goode v. Gaines, 145 U.S. 152. VI. PUBLIC LANDS. Mere Occupation Gives No Rights Against. United States. “Mere occupation of the public lands gives no right as against the government.” BREWER, J. Tarpey v. Madsen, 178 U. S. 220. “Occupation of the public lands can never be adverse to the government so as to defeat or affect in any way the title subsequently conferred by its grant or patent.” Frexp, J. Morrow v. Whitney, 95 U. S. 557. “There can be no such thing as good faith in an adverse holding, where the party knows that he has no title, and that, under the law, which he is presumed to know, he can acquire none by his occupation.” Frexp, J. Deffeback v. Hawke, 115 U. S. 407. Voluntary Occupants Are Trespassers. “Tt is a matter of common knowledge that many go on to the public domain, build cabins and establish themselves, temporarily at least, as occupants, but having in view simply prospecting for minerals, hunting, trapping, etc., and with no thought of ac- quiring title to land. Such occupation is often accompanied by buildings and en- closures for housing and care of stock, and sometimes by cultivation of the soil with a view of providing fresh vegetables. These occupants are not in the eye of the law considered as technically trespassers. No individual can interfere with their occupa- tion, or compel them to leave. Their posses- sory rights are recognized as of value and made the subjects of barter and sale. . But notwithstanding this recognition of the rights of individual occupants as against all other individuals, it has been uniformly held that no rights are thus acquired as against the United States.” Brewer, J. Tarpey wu. Madsen, 178 U. S. 221. Possession May Strengthen Claim of Title. “Mere lapse of time and continuance of possession without pretence of title, or under pretence of a void title, cannot, it is true, be set up against the government; but long possession is, nevertheless, a strong weapon of defence in the hands of one who can show reasonable proof that the title of the govern- ment has been parted with, and has devolved to him.” Braptey, J. Hedrick v. Hughes, 15 Wall. 131. Sale of Possessory Rights. “Tt has been held that possessory rights founded upon mere occupation and improve- ments upon government land, though invalid as against the government, may be made the subject of barter and sale, and may be treated under the laws of the state and terri- tory as having all the attributes of property.” Brewer, J. Maish v. Arizona, 164 U. S. 609. VII. ACCOUNTING FOR RENTS ON RECOVERY BY TRUE OWNER. “The practice of a court of equity, in such cases [where there is a bona fide adverse possession of the property tacitly acquiesced in by the true owner], does not permit an account of rents and profits to be carried back beyond the filing of the bill. . .. This principle is applicable where the person in possession is a bona fide purchaser, and there has been some degree of remissness, or negligence, or inattention, on the part of the true owner, in the assertion on his rights.” Netson, J. Williams wv. Gibbes, 20 How. 538. VIII. EFFECT OF ADVERSE POS- SESSION. As Notice to Purchasers. “The general rule [is] that the possession of another than the grantor, puts the pur- chaser upon inquiry as to the nature of such possession.” Brown, J. Kirby v. Tallmadge, 160 U. S. 388. “Tt is conclusively settled in England, that open and notorious adverse possession is evidence of notice; not of the adverse hold- ing only, but of the title under which the possession is held. And in the United States we deem it to be equally set- tled. . nor are we aware that the con- trary doctrine is held in any state of the Union.” Catron, J. Landes v. Brant, 10 How. 375, “Record evidence of a conveyance operates as notice, and so may open possession; the rule being that actual, visible, and open pos- session is equivalent to registry.” CLIFFORD, J. Noyes v. Hall, 97 U. S. 38. “The law is perfectly well settled, both in England and in this country, except perhaps in some of the New England States, that such [open, notorious and continued] possession under apparent claim of ownership, is notice to purchasers of whatever interest the person actually in possession has in the fee, whether such interest be legal or equitable in its 54 AGENCY. nature, and of all facts which the proposed purchaser might have learned by due inquiry.” Brown, J. Kirby wv. Tallmadge, 160 U. S. 383. “There can be no doubt whatever of the proposition that, where the land is occupied by two persons, as for instance, by husband and wife, and there is a recorded title in one of them, such joint occupation is not notice of an unrecorded title in the other. In such case, the purchaser finding title in one, would be thrown off his guard with respect to the title of the other. The rule is universal that if the possession be consistent with the record title, it is no notice of an unrecorded title.” Brown, J. Kirby v. Tallmadge, 160 U. S. 387, As Conferring Title. “Adverse possession] may be considered as tantamount to a conveyance.” McKENNa, J. Toltec Ranch Co. v. Cook, 191 U. S. 538. “Tt seems to be well settled that, in regard to real estate, the undisturbed possession of the wrong-doer for the time necessary to bar the action vests of itself a good title in the party, holding such possession. MULLER, J. Trimble v. Woodhead, 102 U. S. 649. “The holding of property under a claim of ownership for many years operates to confer a title by adverse possession, which the courts, in the interest of the peace of the community and of society generally, will not permit to be disturbed.” Fretp, J. Teall v. Schroder, 158 U. S. 179. “Tt is now well settled that by adverse possession for the period designated by the statute, not only is the remedy of the former owner gone, but his title has passed to the occupant, so that the latter can maintain ejectment for the possession against such former owner should he intrude upon the premises.” Frexp, J. Sharon v. Tucker, 144 UL S. 543. ADVERTISEMENTS. See CoMPETITION ; COPYRIGHT. ADVISE. See ABET. AFFIDAVITS. “The making of an affidavit by an agent or attorney necessarily implies that he may not be able to make it on positive knowledge.” BiatcurorD, J. U.S. v. Bryant, 111 U. 5S. 503. AGENCY. J. AUTHORITY OF AGENT TO REPRE- SENT PRINCIPAL. . Necessity for Authority. 2. Agent Must Act Within Scope of Authority. . Implied Authority. 4. Delegation of Authority. ae oo II. RATIFICATION. III. Lrasiritry oF PRINCIPAL. 1. To Agent. 2. To Third Persons. IV. Lrasryity oF AGENT. . To Principal. 2. To Third Persons. V. Contracts MabDE IN NAME. B AGENT’S VI. DeEcLaRATIONS OF AGENTS AS EvI- DENCE. VII. TERMINATION. CROSS-REFERENCES. See Banxs AND BANKING; Factors AND Brokers; FALSE IMPRISONMENT; INDEPEND- ENT ConTRACTOoRS ; NEGOTIABLE INSTRUMENTS 3 PunitivE DAMAGES; WAR. I. AUTHORITY OF AGENT TO REP- RESENT PRINCIPAL. 1. NECESSITY FoR AUTHORITY. In General. “One man ought not to be permitted to dispose of the property, or to bind the rights of another unless the latter. has authorized the act.” Story, J. Rogers v. Batchelor, 12 Pet. 230. “The very definition of an agent, given by Bouvier, as ‘one who undertakes to trans- act some business, or manage some affair, for another, by the authority and on account oi the latter, and to render an account of it,’ presupposes that the act done by the agent shall be done in the interest of the principal, and that he shall receive his instructions from him.” Brown, J. Knights of Pythias v. Withers, 177 U. S. 268. “No principal can be held to the perform- ance of a contract which he never made, authorized, or ratified. Precxnam, J. Clews v. Jamieson, 182 U. S. 488. AGENCY. Must Be Legal Evidence of Authority. “Before a party can be made responsible for the acts and declarations of another, there must be legal evidence of his authority to act in the matter.” Netson, J. U. S. wv. Boyd, 5 How. 51. Person Dealing with Agent Risks Lack of Authority. “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 the inquiry than any other.’ Watrte, C. J. Anthony v. Jasper County, 101 U. S. 699. “Persons dealing with an agent, knowing that he acts only by virtue of a delegated power, must, at their peril, see in each case that the paper on which they rely ‘comes within the power under which the agent acts.’” CLrrForb, J., dissenting. Merchants’ Nat. Bank v. State Nat. Bank, 10°Wall. 675. “An individual may, instead of signing, with his own hand, the notes and bills which he issues or accepts, appoint an agent to do these things for him. And this appointment may be a general power to draw or accept in all cases as fully as the principal could; or it may be a limited authority to draw or accept under given circumstances, defined in the instrument which confers the power. But, in each case, the person dealing with the agent, knowing that he acts only by virtue of a delegated power, must, at his peril, see that the paper on which he relies comes within the power under which the agent acts. And this applies to every per- son who takes the paper afterwards; for it is to be kept in mind that the protection which commercial usage throws around negotiable paper, cannot be used to establish the authority by which it was originally is- sued. These principles are well established in regard to the transactions of individuals. They are equally applicable to those of the government. Whenever negotiable paper is found in the market purporting to bind the government, it must necessarily be by the signature of an officer of the government, and the purchaser of such paper, whether the first holder or another, must, at his peril, see that the officer had authority to bind the government.” Mutter, J. The Floyd Ac- ceptance, 7 Wall. 676. Services Rendered under Unauthorized Contract Made by Agent. “ Services rendered under a contract ex- ecuted by an unauthorized agent, and never approved or ratified by any competent au- thority, create no equity, unless it appears that the services performed resulted in some benefit to the party for whom they were rendered.” CuirForD, J. Whiteside v. U. S., 92 U. S. 256. Circumstances Tending to Show Agency. “When the question is, whether an in- dividual is acting for himself or for another, the inquiry whether that other directed him to do the work and controlled its per- formance, and whether he promised to pay him for his service, may be important in determining that question.” Hunt, J. Barnes v. District of Columbia, 91 U. S. 546, , Presumption of Authority, “Perhaps it may be assumed that an agent ante bellum, who continues to act as such during the war, in the receipt of money or property on behalf of his principal, where it is the manifest interest of the latter that he should do so, as in the collection of rents and other debts, the assent of the principal will .be presumed unless the con- trary be shown; but that, where it is against his interest, or would impose upon him some new obligation or burden, his assent will snot be presumed but must be proved, either by his subsequent ratification, or in some other manner. In some way, however, it’ must appear, that the alleged agent assumed to act as such, and that the alleged principal consented to his so acting. It is believed that no well-considered case can be found anterior to these life-insurance cases which have out of the late civil war, in which the existence or continuance of an agency, under the circtimstances above referred to, have been established contrary to the assent of the alleged parties to that relation.” Brap- Ley, J. N. Y. Life Ins. Co. v. Davis, 95 U. S, 431. 2. Acent Must Act Wiruin Scope or AUTHORITY. General Rule. “Agents, held out as such by their princi- pals for certain defined purposes, well known to the public, cannot bind their principals by any acts done outside of the scope of their authority, as defined by the well-known pur- poses of their agency.” Cu.rrForp, J., dis- senting. Merchants’ Nat. Bank wv. State Nat. Bank, 10 Wall. 675. “There can, as a rule, be little hardship, and there is generally great benefit, in hold- ing an agent bound to absolute compliance AGENCY. with the explicit instructions of his prin- cipal.” Brewer, J. British North America Bank v. Cooper, 187 U. S., 479. “The plain and simple rule to be found everywhere, from the time of Shower and Lord Holt, down, [is] ‘that if I give my servant money: to purchase for me, and he use it, and purchase on credit, I am not bound, though the article come in fact to my use.”” JouNson, J. Parsons v. Amor, 3 Pet. 429. “Tn view of the manifold contingencies of business transactions, and the wide range of possibilities that attend any act of a commercial nature, few things could be more unfortunate than to incorporate into established law the right of an agent to dis- obey, specific instructions, and to’ make a guess as to results an excuse for relief from accruing loss.” Brewer, J. British North America Bank v. Cooper, 137 U. S. 479. Usual Course of Business Must Be Fol- lowed. “ Agencies are special, general, and uni- versal. Within the sphere of the au- thority conferred, the act of an agent is as binding upon the principal as if it were done by the principal himself. But it is an ele- mentary principle, applicable alike to all kinds of agency, that whatever an agent does can be done only in the way usual in the line of business in which he is act- ing. There is an implication to this effect arising from the nature of his employment, and it is as effectual as if it had been ex- pressed in the most formal terms. It is present whenever his authority is called into activity, and prescribes the manner as well as the limit of its exercise.” Swayne, J. Hoffman v. Hancock Mut. L. Ins. Co. 92 Uz. S. 164. “Authority to buy one class of goods would not be authority to buy another and entirely different class. Authority to buy in the usual course of business would. not be authority to buy outside of that course of business.” Brewer, J. Schutz v. Jor- dan, 141 U. S. 218. “The well-known characteristics of ‘real estate and note brokers,’ indicating, as the words imply, those engaged in negotiating the sale and purchase of real property for the account of others, afford a presumptive limitation upon the scope of the business.” Jackson, J. Latta v. Kilbourn, 150 U. S. 542. ‘ Opinion of Agent as to. Extent of Au- thority. “Tt will be admitted that the opinion of the agent on the extent of his powers will not bind his principals.” MarsHatt, C. J. Clark v. Van Riemsdyk, 9 Cranch 158. Right of Agent to Construe Ambiguous Power. “Tf a construction be in some doubt [where a power to sell or convey is given in writing], not only may usage be resorted, to for explanation, but the agent may do what seems from the instrument plaus- ible and correct; and though it turn out in the end to be wrong, as understood by the principal, the latter is still bound by the conduct of the agent. Because the person who deals with the agent is required like him to look to the instrument to see the extent of the power, and if it be ambiguous, so as to mislead them, the injurious consequences shall fall on the prin- cipal, for not employing clearer terms.” Woopzury, J. Le Roy v. Beard, 8 How. 468. “Tt has been said that special powers are to be constructed strictly. If by this is meant, that neither the agent, nor a third person dealing with him in that character, can claim under the power any authority which they had not a right to understand its language conveyed, and that the authority is not to be extended by mere general words beyond the object in view, the position is correct. But if the words in question touch only the particular mode in which an object, admitted to be within the power, is to be effected, and they are ambiguous, and with a reasonable attention to them would bear the interpretation on which both the agent and a third person have acted, the principal is bound, although upon a more refined and critical examination the court might be of opinion that a different construction would be more correct.” Curtis, J. Very v. Levy, 13 How. 358. Right of Principal to Repudiate Agent’s Acts. “A voluntary agent has the option either to enter upon his agency in strict confor- mity with the instructions of his principal, or with such reservations or conditions as he may think proper to prescribe; and the only consequence is that in the latter case he leaves his principal at liberty to adopt or repudiate his acts.’ JoHNson, J. The Frances, 9 Cranch 189, 87 AGENCY. Consent of Principal to Departure from Authority. “Tn the course of human affairs, it is not unusual for a principal to give, in detail, his ideas of the line of conduct to be ob- served by his agent, and yet to allow a de- parture from that line of conduct, under par- ticular circumstances.” MarsHALt, C. J. Manella, etc., Co. v. Barry, 3 Cranch 444. Power to Sell. “Tt is a general proposition that power to sell gives authority to sell for cash only, and does not uphold a mere exchange.” Brewer, J. Woodward v. Jewell, 140 U. S. 253. Power of Collecting Agent. “That the power of a collecting agent by the general law is limited to receiving for the debt of his principal that which the law declares to be a legal tender, or which is by common consent considered and treated as money, and passes as such at par, is established by all the authorities. The only condition they impose upon the prin- cipal, if anything else is received by his agent, is, that he shall inform the debtor that he refuses to sanction the unauthorized trans- action within a reasonable period after it is brought to his knowledge.” Fre.p, J. Ward v. Smith, 7 Wall. 452. Acts of Public Agents. “The law of agency is not different when applied to the acts of agents of municipal bodies, in a matter so serious and delicate as the contracting of a public debt, and when applied to the acts of agents of private individuals. They must both keep strictly within the limits of their power of attorney or their acts will be invalid. They cannot cure any inherent defect in their action arising from want of power by any extent of recitals that they had the requisite au- thority.” Frevp, J., dissenting. Lynde v. Winnebago County, 16 Wall. 15. “ Although a private agent, acting in vio- lation of specific instructions, yet within the scope of his general authority, may bind his principal, the rule as to the effect of the like act of a public agent is otherwise, for the reason that it is better that an in- dividual should occasionally suffer from the mistakes of public officers or agents, than to adopt a rule which, through improper combinations or collusion, might be turned to the detriment and injury of the public.” CuiFForD, J. Whiteside v. U. S, 93 U. S. 257, 3. IMPLIED AUTHORITY. “ Agents are special, general, or universal. Where written evidence of their appointment is not required, it may be implied from cir- cumstances. These circumstances are the acts of the agent and their recognition, or acquiescence, by the principal. The same considerations fix the category of the agency and the limits of the authority conferred.” Swayne, J. Bronson v. Chappell, 12 Wall. 638. “Authority to act for another may be express, or it may, in certain cases, be im- plied; but an implied authority has its limi- tations as well as that which is express.” CuiFrrorp, J. Angle v. North-Western Mut. L. Ins. Co., 92 U. S. 339. 4. DELEGATION OF AUTHORITY. “The utmost relaxation of the rule po- testas delegata non potest delegare, in re- spect to mercantile persons, is that a consignee or agent for the sale of merchan- dise may employ a broker for that purpose, when such is the usual course of business. ‘ Or where the usual course of the management of the principal’s concerns in the employment of a subagent has been pursued for a length of time, and then rec- ognized by the owners of property, they will be taken to have adopted the acts of the subagent as the acts of the agent himself.” Wayne, J. Warner v. Martin, 11 How. 223. “These authorities fix the rule in the class of cases we are now considering, to-wit, that of attorneys employed, not by the cred- itor, but by a collection agent who under- takes the collection of the debt. They es- tablish that such attorney is the agent of the collecting agent, and not of the credi- tor who employed that agent.” Hunt, J. Hoover v. Wise, 91 U. S. 315. II, RATIFICATION. Ratification Binds Principal. “Where one, without objection, suffers another to do acts which proceed upon the ground of authority from him, or by his conduct adopts and sanctions such acts after they are done, he will be bound, although no previous authority exist, in all respects as if the requisite power had been given in the most formal manner. If he has jus- tified the belief of a third party that the person assuming to be his agent was author- ized to do what was done, it is no answer for him to say that no authority had been 58 AGENCY. given, or that it did not reach so far, and that the third party had acted upon a mis- taken conclusion. He is estopped to take refuge in such a defense. If a loss is to be borne, the author of the error must bear it. If business has béen transacted in certain cases it is implied that the like business may be transacted in others.” Swayne, J. Bronson v. Chapell, 12 Wall. 683. “Tt will not be denied that the acts of an agent, done without authority, may be so ratified and confirmed by his principals as to bind them in like manner as if an orig- inal authority had existed.” MARSHALL, C. J. Clark v. Van Riemsdyk, 9 Cranch 161. “When the principal, upon a full knowl- edge of all the circumstances of the case, deliberately ratifies the act, doings, or omis- sions of his agent, he will be bound thereby fully, to all intents and purposes, as if he had originally given him direct authority in the premises, to the extent which such acts, do- ings, or omissions reach.” CLiFForD, J. Marshall County Supervisors v. Schenck, 5 Wall. 781. “One act of ratification is as complete and perfect in its effect as any number of acts of the same character.” Hunt, J., concur- ring. New Orleans v. Steamship Co., 20 Wall. 401. Principal Cannot Retain Benefits and Re- pudiate Acts. “Tt is in violation of every principle of honesty and of sound morality, that one should retain the benefit of the act of his agent, and at the same time repudiate such act.” Hunt, J., concurring. New Orleans v. Steamship Co., 20 Wall. 401. Ratification Extends to Any Act Principal Might Have Done. “Questions of ratification most frequently arise in respects to the acts or omissions of agents, but the general rule is the same in all cases where the act done was one which it was competent for the party attempted to be charged to do.” CziFForp, J. Mar- shall County Supervisors v. Schenck, 5 Wall. 781. Retention by Principal of Money Received by Agent. “It is a general rule, applicable to all persons and corporations, and is a dictate of plain honesty, that whoever, knowing the facts of the case, retains and uses money received by an agent for his account, cannot repudiate the contract on which it is re- ceived.” Hunt, J. Mayor v. Ray, 19 Wall. 484, “(A] familiar rule [is] that where an agent, even without express authority makes a sale of the property of his principal, and the latter with full knowledge receives the money paid on account thereof, his reten- tion of the purchase price is equivalent to a ratification of the sale.” Brewer, J. Ely’s Administrator v. U. S., 171 U. S. 232. Ratification Must Be with Knowledge. “ Any ratification of an act previously un- authorized must, in order to bind the prin- cipal, be with full knowledge of all the material facts. . . . And no estoppel in pais can be created, except by conduct which the person setting up the estoppel has the right to rely upon, and does in fact rely and act upon.” Gray, J. Bloomfield v. Charter Oak Nat. Bank, 121 U. S. 135. Ratification of Part of Contract. “ A ratification of a part of a contract rat- ifies the whole.” Hunt, J., concurring. New Orleans v. Steamship Co., 20 Wall. 401. “Tf a principal ratifies that which favors him, he ratifies the whole.” Woops, J. Gaines v. Miller, 111 U. S. 398. Ratification by Bringing Suit. “Bringing a suit upon the contract of his [the principal’s] agent which was unauthor- ized at the time and in excess of the author- ity conferred upon the agent is a ratifica- tion of the unauthorized act.” Pecxkuam, J. Clews v. Jamieson, 182 U. S. 483. Presumption of Ratification. “[A principal] must disavow the act of his agent within a reasonable time after the fact has come to his knowledge, or he will be deemed to have ratified it.” Prckuam, J. Clews v. Jamieson, 182 U. S. 483. “Like an individual, a corporation may ratify the acts of its agent done in excess of authority, and such ratification may, in many cases, be inferred from acquiescence in those acts, as well as from express adop- tion. Such ratification may be by express consent, or by acts and conduct of the prin- cipal inconsistent with any other hypothesis than that he approved, and intended to adopt what has been done in his name.” CuiF- rorD, J. Marshall County Supervisors v. Schenck, 5 Wall. 782. 59 AGENCY. “When a contract is made by any agent of a corporation in its behalf, and for a purpose authorized by its charter, and the corporation receives the benefit of the con- tract, without objection, it may be presumed to have authorized or ratified the contract of its agent.” Gray, J. Pittsburgh, etc., R. Co. v. Keokuk Bridge Co., 131 U. S. 381. Ratification Cannot Be Recalled. “A ratification once made, with a knowl- edge of all the material circumstances, can- not be recalled.” Hunt, J., concurring. New Orleans v. Steamship Co., 20 Wall. 401. Ratification of Invalid Contract. “Ratification is inoperative if the party at- tempted to be charged was not competent to make the contract in question when the same was made, nor when the supposed acts of ratification were performed, or if the contract was illegal, immoral, or against public policy.” CiiFForp, J. Marshall Coun- ty Supervisors v. Schenck, 5 Wall 781. III. LIABILITY OF PRINCIPAL. 1. To AGENT. Indemnification and Reimbursement. “Tf in obeying the instructions or orders of the principal, the agent does acts which he does not know at the time to be illegal, the principal is bound to indemnify him, not only for expenses incurred, but also for damages which he may be compelled to pay to third parties. The exception to this rule is where the transaction for which the agent is employed is illegal, or contrary to good morals and public theory.” Jackson, J. Bibb v. Allen, 149 U. S. 498. : “A request to undertake an agency or em- ployment, the proper execution of which does or may involve the loss or expenditure of money on the part of the agent, operates as an implied request on the part of the principal, not only to incur such expenditure, but also as a promise to repay it.” Jacx- son, J. Bibb vw. Allen, 149 U. S, 499. 2. To THIRD PERSONS. Agent’s Acts Deemed Acts of Principal. “Whatever the agent does, within the scope of his authority, binds his principal, and is deemed his act.” Story, J. U.S. v. Gooding, 12 Wheat. 469. 60 “The legal effect of an agreement made by an agent for his principal, whilst the agent is acting within the scope of his au- thority, is, that it is the agreement of the principal.” Barspour, J. Bank of Metrop- olis v. Guttschlick, 14 Pet. 27. “Tt is true that whatever the agent does in the lawful prosecution of the business in- trusted to him, is the act of the principal.” Stronc, J. Union Packet Co. v. Clough, 20 Wall. 540. “Persons dealing with an agent are en- titled to the same protection as if dealing with the principal, to the extent that the agent acts within the scope of his authority.” CuirForp, J. Angle v. North-Western Mut. L. Ins. Co., 92 U. S. 330. “The acts of an agent, within the scope of the authority delegated to him, are deemed the acts of the principal. Whatever he does in the lawful exercise of that authority is imputable to the principal, and may be proven without calling the agent as a witness.” Har- LAN, J. Vicksburg, etc., R. Co. v. O’Brien, 119 U. S. 104, Loss Falls on Principal, Rather than on Third Person. “Tf any one is to be affected by the acts or omissions of persons employed to do a particular service, surely it must be he who ~ gave the employment. Their acts become his, because done in his service and by his di- rection.” Stronc, J. Kentucky Bank v. Adams Ex. Co., 93 U. S. 182. “Where a loss is to be suffered through the misconduct of an agent, it should be borne by those who put it in his power to do the wrong, rather than by a stranger.” Swayne, J. Macon County v. Shores, 97 U. S. 279. “The principle is well settled that when the owner of the property in any form clothes an- other with apparent title or power of dis- position, and third parties are thereby induced to deal with him, they shall be protected.” Fretp, J. Cowdrey v. Vanderburgh, 101 U.S. 575. Liability for Agent’s Fraud. “For a fraud committed by a partner or an agent the principal is not liable criminally; but he is liable in a civil suit if the fraud be committed in the transaction of the very business in which the agent was appointed to a Hunt, J. Hoover v. Wise, 91 U. S. 11, AGENCY. Acts of Public Agents. “ As against a bona fide holder the public is , bound by what its authorized agents have done and stated in the prescribed form.” WalreE, C. J. Anthony v. Jasper County, 101 U. S. 697. Liability in Absence of Control of Agency. “Control of the conduct of an agency is not in all cases essential to liability for the consequences of that conduct.” Strona, J. Kentucky Bank v. Adams Ex. Co., 93 U. S. 182. Knowledge of Agent Is Knowledge of Principal. “Notice to an agent is notice to his prin- cipal. If it were held otherwise, it would cause great inconvenience; and _ notice would be avoided in every case, by employing agents.” THompson, J. Mechanics Bank v. Seton, 1 Pet. 309. “The knowledge of the agent is in law attributed to his principal, as well as that of the partner to all the members of the firm.” Strone, J. Stockwell v. U. S., 13 Wall. 545. “The general doctrine, that the knowledge of an agent is the knowledge of the principal, cannot be doubted. Ilunt, J. Hoover wv. Wise, 91 U. S. 310. “The knowledge of the agent was that of the principal.” Hunt, J. West Phila. Bank v. Dickson, 95 U. S. 181. “The general doctrine that the principal in a transaction is chargeable with notice of matters affecting its validity, coming to the knowledge of his agent pending the proceed- ing, is not questioned.” Fretp, J. Johnston v. Laflin, 103 U. S. 803. “Nothing is better settled than the rule that a purchaser with notice of a trust stands in no better situation than the seller, and it is equally well settled that notice to the agent is notice to the principal.” CxzFForp, e dis- senting. Calias Steamboat Co. v. Van Pelt, 2 Black 389. —Cestui Que Trust Cannot Benefit by Agent’s Fraud. “ A cestui que trust can claim nothing under a deed which is fraudulently obtained by his trustee, or agent, acting by his authority.” MarsHatt, C. J. Brooks v. Marbury, 11 Wheat, 90. — Knowledge Which it Is Agent’s Duty to Communicate. “The general rule that a principal is bound by the knowledge of his agent is based on the 61 principle of law, that it is the agent’s duty to communicate to his principal the knowledge which he has respecting the subject-matter of negotiation, and the presumption that he will perform that duty. When it is not the agent’s duty to communicate such knowledge, when it would be unlawful for him to do so, as, for example, when it has been acquired confiden- tially as attorney for a former client in a prior transaction, the reason of the rule ceases, and in such a case an agent would not be expected to do that which would involve the betrayal of professional confidence, and his principal ought not to be. bound by his agent’s secret and confidential information. This often happened in the case of large estates in England.” Brapiey, J. Distilled Spirits, 11 Wall. 367. “Tt [knowledge of agent] must, however, be knowledge acquired in the transaction of the business of his principal, or knowledge acquired in a prior transaction then ‘present to his mind, and which could properly be communicated to his principal.” Hunt, J. Hoover v, Wise, 91 U. S. 310. “In England the doctrine now seems to be established, that if the agent, at the time of effecting a purchase, has knowledge of any prior lien, trust, or fraud, affecting the property, no matter when he acquired: sich knowledge, his principal is affected thereby. If he acquire the knowledge when he effects the purchase, no question can arise as to his having it at that time; if he acquired it pre- vious to the purchase, the presumption that he still retains it; and has it present to his mind, will depend on the lapse of time and other circumstances. Knowledge commu- nicated to the pyincipal himself he is bound to recollect, but he is not bound by knowl- edge communicated to his agent, unless it is present to the agent’s mind at the time of affecting the purchase. Clear and satisfactory proof that it was so present seems to be the only restriction required by the English rule as now understood. With the qualifica- tion that the agent is at liberty to: communi- cate his knowledge to his principal, it ap- pears to us to be a sound view of the subject.” Braprey, J. Distilled Spirits, 11 Wall. 366. Acts or Knowledge of Subagents. “Where an agent has power to employ a subagent, the acts of the subagent, or notice given to him in the transaction of the busi- ress, have the same effect as if done or received by the principal.” Hunt, J. Hoo- ver v. Wise, 91 U. S. 310. AGENCY. IV. LIABILITY OF AGENT. 1. To PRINCIPAL. In General. “If any agent pay over, after notice, he pays wrongfully, and shall not be excused.” Paterson, J. Penhallow v. Doane’s Adm’rs., 3 Dall. 87. “That an agent is bound to pursue the orders of his principals, and is answerable for any injury consequent on his departing from them, however fair may have been his motives for such departure, is a plain prin- ciple of law.” MarsHatt, C. J. Manella, etc., Co. v. Barry, 3 Cranch 439. “Tt is a general rule of law, that if an in- jury arises to a principal, in consequence of the misconduct of his agent, an action may be sustained against him for the damage.” Tuompson, J. General Interest Ins. Co. v. Ruggles, 12 Wheat. 413. “Whenever an agent violates his duties or obligation to his principal, and loss en- sues to the principal, he is responsible there- for, says Judge Story, and is bound to make a full indemnity.” CLiFFrorp, J. Case v. Lou- isiana Citizens’ Bank, 100 U. S. 449. For Execution of Voidable Contract. “We know of no principle on which the agent can be deprived of a right to his com- missions and advances in the execution of his agency for a principal on the ground that he has not avoided a contract which was not in strict conformity with the statute of frauds, in the absence of any instruction or instruc- tions from the principal not to comply there- with. Contracts not in conformity with the statute are only voidable and not illegal, and an agent may, therefore, execute such void- able contracts without being chargeable with either fraud, misconduct, or disregard of the principal’s rights.” Jackson, J. Bibb wv. Allen, 149 U. S. 497. For Conversion of Goods. “It is certainly competent for an agent abroad, who purchases in pursuance of or- ders, to vest the property in his principal immediately on the purchase. This is the case when he purchases exclusively on the credit of his principal, or makes an absolute appropriation and designation of the property for his principal. But where a merchant abroad, in pursuance of orders, either sells his own goods or purchases goods on his own credit (and thereby, in reality becomes the owner), no property in the goods vests in ~ his correspondent until he has done some no- torious act to devest himself of his title, or has parted with the possession by an actual and unconditional delivery for the use of such correspondent. Until that time he has in legal contemplation the exclusive property, as well as possession; and it is not a wrong- ful act in him to convert them to any use which he pleases. He is at liberty to con- tract upon any new engagements, or sub- stitute any new conditions in relation to the shipment. These principles have been fre- quently recognized in prize causes heretofore decided in this court.” Story, J. The St. Joze Indiano, 1 Wheat. 212. Duty to Preserve Property During Time of War. “Tf the agent has property of the principal in his possession or control, good faith and fidelity to his trust will require him to keep it safely during the war, and to restore it faithfully at its close.” Braptey, J. N. Y. Life Ins. Co. v. Davis, 95 U. S. 430. Agent Representing Both Parties. “ Necessarily, the agent for the buyer can- not be the agent for the seller at the same time.” Futrer, C. J. Kilbourn v. Sunder- land, 130 U. S. 519, Agent Purchasing at His Own Sale. “The law wisely prohibits a party selling on another’s account from becoming a buyer on his own at the sale, and will al- ways condemn transactions of that character whenever their enforcement is attempted.” Fievp, J. Marsh v. Whitmore, 21 Wall. 184. “The law therefore, will always. condemn the transactions of a party on his own be- half when, in respect to the matter concerned, he is the agent of others, and will relieve against them whenever their enforcement is seasonably resisted.” Frevp, J. Wardell v. Union Pac. R. Co., 103 U. S. 658. “Tt is among the rudiments of the law that the same person cannot act for himself and at the same time, with respect to the same matter, as the agent of another whose in- terests are conflicting. Thus a person can- not be a purchaser of property and at the same time the agent of the vendor. The two positions impose different obligations, and their union would at once raise a conflict between interest and duty; and,’ ‘ constituted as humanity is, in the majority of cases duty would be overborne in the struggle.’” Fietp, J. Wardell v. Union Pac. R. Co., 103 U.S. 658. : 62 ' AGENCY. Agent Purchasing Goods in His Own Name. “When an agent acquires property in his own name by the use of the funds of his principal, it thereby becomes the property of the principal by operation of law.” CLIFFoRD, J., dissenting. Calias Steamboat Co. v, Van Pelt, 2 Black 385. Gift by Principal to Agent. “No such doctrine has ever been estab- lished [that a principal can not, under any circumstances whatever, make a valid gift to his agent of property to the latter’s care or management], nor could it be, without im- pairing 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.” Har- LAN, J. Ralston v. Turpin, 129 U. S. 675. 2. To Tutrp PERSONS. Contracts in Name of Principal. “ Now, it is an established rule of law, that an agent who contracts in the name of his principal is not liable to.a suit on such con- tract; much less a public officer, acting for his government. As regards him the rule is, that he is not responsible on any contract he may make in that capacity; and wher- ever his contract or engagement is connected with a subject fairly within the scope of his authority, it shall be intended to have been made officially, and in his public character, unless the contrary appears by satisfactory evidence of an absolute and unqualified en- gagement to be personally liable.” Grizr, J. Parks wv. Ross, 11 How. 374. “When an agent contracts in the name of his principal, the principal contracts and is bound, but the agent is not. When a trustee contracts as such, unless he is bound no one is bound, for he has no principal. The trust estate cannot promise; the contract is there- fore the personal undertaking of the trustee.” Woops, J. Taylor v. Davis, 110 U. S. 335. Contracts in Name of Agent. “An agent or executor who covenants in his own name, and yet describes himself as agent or executor, is personally liable, for the obvious reason that the one has no prin- cipal to bind, and the other substitutes him- self for his principal.” Story, J. Duvall v. Craig, 2 Wheat. 56. -— Descriptio Persone. “The ordinary rule undoubtedly is, that if a person merely adds to the signature of his name the word ‘agent,’ ‘ trustee,’ ‘ treasurer,’ etc., without disclosing his principal, he is personally bound. The appendix is regarded as a mere descriptio persone. It does not of itself make third persons chargeable with notice of any representative relation of the signer. But if he be in fact a mere agent, trustee, or officer of some principal, and is in the habit of expressing, in that way, his representative character in his dealings with a particular party, who recognizes him in that character, it would be contrary to justice and truth to construe the documents thus made and used as his personal obligations, contrary to the intent of the parties.” Brap- LEY, J. Metcalf v. Williams, 104 U. S. 98. V. CONTRACTS MADE IN AGENT’S NAME. “ Where a simple contract, other than a bill or note, is made by an agent, the principal whom he represents may in general maintain an action upon it in his own name, and parol evidence is admissible, although the contract is in writing, to show that the person named in the contract was an agent, and that he was acting for his principal. Such evidence, says Baron Parke, does not deny that the contract binds those whom on its face it pur- ports to bind, but shows that it also binds another, and that principle has been fully adopted by this court.” Ctxrirrorp, J. Nashv. Towne, 5 Wall. 703. “When the question of agency in making a contract arises there is a broad line of dis- tinction between instruments under seal and stipulations in writing not under seal, or by parol. In the former case the contract must be in the name of the principal, must be under seal, and purport to be his deed and not the deed of the agent covenanting for him. In the latter cases the question is always one of intent; and the court, being untrammeled by any other consideration is bound to give it effect.” SwayNeE, J. Whitney v. Wyman, 101 U. S. 395. VI. DECLARATIONS OF AGENTS AS EVIDENCE. When Admissible. “Whatever an agent does, or says, in ref- erence to the business in which he is at the time employed, and within the scope of his authority, is done, or said, by the principal; and may be proved, as well in a criminal as a civil case, in like manner as if the evidence applied personally to the principal.” Strone, J. Stockwell v, U. S., 18 Wall. 550. 63 AGENCY. “The declarations made by an officer or agent of a corporation, in response to timely inquiries, properly addressed to him and re- lating to matters under his charge, in re- spect to which he is authorized in the usual course of business to give information, may be given in evidence against the corpora- tion.” Woops, J. Xenia Bank v. Stewart, 114 U. S. 229. “Tt is because the declaration of an agent is a verbal act and part of the res geste that it is admissible, and whenever what he did is admitted in evidence, then it is competent to prove what he said about the act while he was doing it.” Woops, J. Xenia Bank wv. Stewart, 114 U. S. 228. When Inadmissible. “Tt must be admitted that the declarations of an agent, respecting things done within the scope of his authority, are not evidence to ‘charge his principal, unless they were made at the time the act was done, and formed a part of the transaction.” M’Lean, J. Bar- clay v. Howell, 6 Pet, 503. “ An act done by an agent cannot be varied, qualified, or explained, either by his declara- tions, which amount to no more than a mere narrative of a past occurrence, or by an iso- lated conversation held or an isolated act done at a later period.” Stronc, J. Union Packet Co. v. Clough, 20 Wall. 540. “ Declarations of an agent are, doubtless, in some cases, admissible against his prin- cipal, but only so far as he had authority to make them, atid authority to make them is not necessarily to be inferred from power given to do certain acts.” Strone, J. Union Packet Co. v. Clough, 20 Wall: 540. “ The opinion of an agent, based upon past occurrences, is never to be received as an ad- mission of his principals; and this is doubly true when the agent was not a party to those occurrences.” Srrone, J. American L. Ins. Co. v. Mahone, 21 Wall. 157. Statements Made by Master of Ship as to Occurrences During Voyage. “Statements made by the master of a ship as to what occurred during the voyage, tend- ing to inculpate the owner in the guilty en- terprise of the ship, are not admissible in evidence against the owner, where he is charged with a crime, if the statements were made subsequent to the time when he ceased to be master and the common enterprise has come to an end.” Cuirrorp, J. Dobbins’s Distillery v. U. S., 96 U. S. 402. Laying Foundation for Evidence. “Declarations of the pastor were not com- petent evidence; unless it was proved that he was the agent of the society, and that the declarations or admissions were made in re- ‘spect to matters within the scope of his agency. But it is not absolutely necessary that the proof of agency in every such case should be first introduced. Except in special cases, it is better practice that the fouhdation, in such .a case, should be laid before the declarations or admissions are admitted; but it is com- petent for the presiding judge, if in his judg- ment the ends of justice require it, to relax the rules of practice, and to admit the evi- dence offered before the proper foundation for the admissibility of the same is laid, if he is well assured by the party offering the evidence that the agency in question will be subsequently proved. Czirrorp, J. Chicago First Unitarian Society v. Faulkner, 91 U. S. 417. ‘VII. TERMINATION, See also War. Revocation of Authority. “As the power of one man to act for an- othet depends on the will and license of that ‘other, the pgwer ceases when the will, or this permission, is withdrawn.” MARSHALL, Ca Js Hunt v. Rousmanier, 8 Wheat. 201. “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.” Warrtz, C. J. Anthony v. Jasper County, 101 U. S. 698. na Death of Principal. “The weight of authority is that the death of. one partner or joint owner operates, in the case of a partnership, to dissolve the partnership, and in the case of a joint tenancy to sever the joint interest; and the authority of an agent appointed by a firm or joint owners thereupon ceases, where such. author- ity is not coupled with an interest.” Brown, J. Long wv. Thayer, 150 U. S. 522. Disposition of Subject-Matter of Agency. “Two persons may be employed separately to negotiate the sale of hypothecation of | bonds, and either may thus dispose of them. If a disposition be made by one, of course the other will be unable to exercise the power with which he was clothed; but, until a sale or hypothecation is made, either may make it.” Stronc, J. Hatch v. Coddington, 95 U.S. 56. 64 ALIENS, Revocation Cannot Impair Prior Con- tracts. “ A principal who has authorized his agent to make a contract for him may revoke or restrict the agency before any contract is made, but he is bound by a contract made during the continuance of the agent’s powers, if those powers were not transgressed in making it, he cannot afterwards repudiate its terms or add to them. Srrone, C. J., dissent- ing. Sinking-Fund Cases, 99 U. S. 742. “Tf a person deposit his property in the hands of an agent, he may revoke the agency and withdraw his property at his pleasure. But if he should request third persons to ac- cept the agent’s bills, informing them, at the same time, that he had placed property in the hands of that agent to meet the bills at their maturity, and upon the faith of such assurance the agent’s bills are accepted, the principal cannot, by revoking the agency, ac- quire the right to withdraw his property from the hands of the agent. It is no longer ex- clusively his. They who, on the faith of its deposit, have changed their condition, have acquired rights in it. The matter no longer rests in a mere delegation of a revocable au- thority to an agent, but a contract has arisen between the principal and the third persons from the representation made, and the acts done on the faith of it, and the property can- not be withdrawn without impairing the ob- ligation of that contract.” Curtis, J. Cur- ran v. Arkansas, 15 How. 313. AGREEABLY TO THE PRIN- CIPLES AND USAGES OF LAW. “This court have repeatedly decided, that this [agreeably to the principles and usages of law] means the common law of England, as administered in her courts of law and equity.” Batpwin, J., dissenting. Er p. Crane, 5 Pet. 216. AGREEMENT. “The word ‘agreement,’ does not neces- sarily import any direct and express stipula- tion; nor is it necessary that it should be in writing. If there is a verbal understanding to which both parties have assented, and upon which both are acting, it is an ‘agreement.’” Taney, C. J. Holmes v. Jennison, 14 Pet. 572. And see Compacts; ConTRACTS; STIPULA- TIONS. AID. See In Arp OF. 1 Os, Dia. —5 ALIENS. I. ComparaTIvE Riguts oF ALIENS AND CITIZENS. II. AMENABILITY TO Laws oF CouN- TRY. III. Riot To PrRoTEcTION oF LAws OF COUNTRY. IV. Ricuts as TO REAL PROPERTY. 1. Power of Government to Regulate. 2. Right to Take, Hold, and Transmit. a. May Take by Purchase, but Not by Descent. b. May Take by Purchase, but Cannot Hold. c. Title Acquired by Purchase Not Di- vested until Office Found. d. Right to Hold Cannot Be Ques- tioned Collaterally. V. Power oF GOVERNMENT TO Ex- CLUDE OR DEPORT. 1. Power to Exclude. 2. Power to Deport. 3. Detention and Punishment of Offend- ers. 4. Power of Congress as to Exclusion or Deportation. CROSS-REFERENCES. See ALLEGIANCE; ANTENATI; CHINESE Ex- cLusion Acts; CITIZENS AND CITIZENSHIP; Denizens; DEPORTATION; EscHEAT; IMMI- GRATION; INQUEST OF OFFICE; INTERNA- TIONAL Law; NaTuRALIZATION; PERSONS; Pusiic Lanps; War. I. COMPARATIVE RIGHTS OF ALIENS AND CITIZENS. “They [aliens] differ only from citizens in that they cannot vote or hold any public office” Fretp, J., dissenting. Fong Yue Ting v. U. S., 149 U. S. 754. “By general international law, foreigners who have become domiciled in a country other than their own, acquire rights and must discharge duties in many respects the same as possessed by and imposed upon the cit- izens of that country, and no restriction on the footing upon which such persons stand by reason of their domicil of choice, or com- mercial domicil, is to be presumed.” Futyer, C.J. Lau Ow Bew v. U S., 144 U. S. 61. II. AMENABILITY TO LAWS OF COUNTRY. In General. “Tt can hardly be denied that an alien is 65 ALIENS. completely subject to the political jurisdic- tion of the country in which he resides.” Gray, J. U.S. v. Wong Kim Ark, 169 U. S. 693. “As a foreigner domiciled in the country, he was bound to obey all the laws of the United States not immediately relating to citizenship, and was equally amenable with citizens to the penalties prescribed for their infraction. He owed allegiance to the gov- ernment of the country, so long as he re- sided within its limits, and can claim no ex- emption from the statutes passed to punish treason, or the giving of aid and comfort to the insurgent states. The law on this sub- ject is well settled and universally rec- ognized.” Fietp, J. Radich v. Hutchins, 95 U. S. 212. Liability to Taxation, “Tt seems . . . well settled, that by the laws of national intercourse and as a conse- quence of the protection and hospitality yielded to aliens, they are subject to ordi- nary reasonable taxation in their persons and property by the government where they reside, as fully as citizens.” Woopzury, J., dissent- ing. Passenger Cases, 7 How. 532. Authority over Aliens Not Expressly Dele- gated to Congress. : “ Over aliens, qua aliens, no direct authority has been delegated to Congress by the Con- stitution.” DANIEL, J., dissenting. Passenger Cases, 7 How. 509. III. RIGHT TO PROTECTION OF LAWS OF COUNTRY. “Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection and owe allegiance to the United States, so long as they are permitted by the United States to reside here.” Gray, J. U. S. wv. Wong Kim Ark, 169 U. S. 694. “By the law of nations, doubtless, aliens residing in a country, with the intention of making it a permanent place of abode, ac- quire, in one sense, a domicil there; and, while they are permitted by the nation to retain such a residence and domicil, are subject to its laws, and may invoke its pro- tection against other nations.’ Gray, J. Fong Yue Ting v. U. S., 149 U. S. 724. “ Aliens from countries at peace with us, domiciled within our country by its consent, are entitled to all the guaranties for the pro- tection of their persons and property. which are secured to native-born citizens.” FIsxp, J., dissenting. Fong Yue Ting v. U. S,, 149 UL S. 754. “That those wha have become domiciled in a country are entitled to a more distinct and larger measure of protection than those who are simply passing through, or tempo- rarily in it, has long been recognized by the law of nations.” Brewer, J., dissenting. Fong Yue Ting v. U. S., 149 U. S. 735. “T cannot think it possible that Congress, while providing for the punishment of two or more persons who go on the premises of a citizen, with intent to prevent his free ex- ercise or enjoyment of rights secured by the Constitution or laws of the United States, purposely refrained from providing for the punishment of the same persons going on the premises of one not a citizen, with intent to prevent the enjoyment by the latter of rights secured by the same Constitution and laws.” Haran, J., dissenting. Baldwin v. Franks, 120 U. S. 696. “In my judgment the going of two or more persons, whether openly or in disguise, on the premises of another, whether the latter be a citizen or not, with intent to prevent his free exercise or enjoyment of a right secured by the Constitution or laws of the United States, was made by § 6508 [Rev. Stat.] an offense against the United States.” Haran, J., dissenting. Baldwin v. Franks, 120 U, S. 698, ‘ IV. RIGHTS AS TO REAL PROPERTY. 1. Power oF GOVERNMENT TO REGU- LATE, In General. “Every state or nation may unquestionably refuse to allow an alien to take real or per- sonal property, situated within its limits, either as heir or legatee, and may, if it thinks proper, direct that property so de- scending or bequeathed shall belong to the state. In many of the states of this Union at this day, real property devised to an alien is liable to escheat. And if a state may deny the privilege altogether, it follows that, when it grants it, it may annex to the grant any conditions which it supposes to be required by its interests or policy.” Tansy, C.J. Mager v. Grima, 8 How. 493. “The law of nations recognizes the liberty of every government to give to foreigners only such rights, touching immovable prop- 66 ALIENS. erty within its territory, as it may see fit to concede. . . . In our country, this au- thority is primarily in the states where the property is situated.” Swayne, J. Hauen- stein v, Lynham, 100 U. S. 484. As Affected by Treaty. “A treaty stipulation may be effectual to protect the land of an alien from forfeiture by escheat under the laws of a state.” Swayne, J. Hauenstein v. Lynham, 100 UL S. 489. 2. RicHt To TAKE, HoLp, AND TRANSMIT. a. May Take by Purchase, but Not by De- scent, “The common law as to aliens, except so far as it has been modified by her legislature, is the local law of Virginia. . . . By that law ‘aliens are incapable of taking by descent or inheritance, for they are not allowed to have any inheritable blood in them” ..- . But they may take by grant or devise thoug' not by descent. In other words, they may take by the act of a party, but not by the operation of law; and they may convey or devise to another, but such a title is always liable to be divested at the pleasure of the sovereign by office found, In such cases the - sovereign, until entitled by office found or its equivalent, cannot pass the title to a grantee, In these respects there is no dif- ference between an alien friend and an alien enemy. Swayne, J. Hauenstein v. Lynham, 100 U. §. 484. “Tt is clear by the common law, that an alien may take lands by purchase, though not by descent; or in other words he can- not take by the act of law, but he may by the act of the party. The principle has been set- tled in the year books, and has been uni- formly recognized as sound law from that time. Nor is there any distinction, whether the purchase be by grant or by devise. In either case the estate vests in the alien.” Story, J. Fairfax v. Hunter, 7 Cranch 619. “By the common law, an alien cannot ac- quire real property by operation of law, but may take it by act of the grantor, and hold it until office found, that is, until the fact of alienage is authoritatively established by a public officer, upon an inquest held at the instance of the government.” Fietp, J. Phillips v. Moore, 100 U. S. 212, “ At the time of the adoption of the Con- stitution, in many of the states (and some probably now) aliens could not inherit or. transmit inheritance.” WartE, J. Minor v. Happersett, 21 Wall, 169. “If we were to trust to the doctrines pro- mulgated by elementary writers, it is no less true, that alienage in any mediate ancestor will interrupt the descent between persons, who are capable of taking and transmitting land by descent.” Srory, J. Levy v. M’Car- tee, 6 Pet. 113. Alien Taking under State Grant Does Not Take by Operation of Law. “If there is any view of the subject in which an alien, taking under grant, may be considered as taking by operation of law, it is because the grant issues and takes effect, under a law of the state. But this is by no means the sense of the rule, since attaching to it this idea would be to declare the legis- lative power of the state incompetent to vest in an alien even a defeasible estate.” JoHN- son, J. Doe wv. Robertson, 11 Wheat. 355. b. May Take by Purchase, but Cannot Hold. Statement of Rule. “The general rule is, that an alien may take by purchase, but cannot hold. Yet so fragile or flimsy is the right he acquires, that, if tortiously dispossessed, no one con- tends that he can maintain an action against the evictor. To assert that he has a right, and yet admit that he has no remedy, ap- pears to me rather paradoxical. Yet all admit that the bailiff of the king cannot enter on an alien purchaser until office found.” Jounson, J., dissenting. Fairfax v. Hunter, 7% Cranch 629. Reason for Rule, “The only unexceptionable reason that can be assigned why an alien can take by deed, though he cannot hold, is, that otherwise the proprietor would be restricted in his choice of an alienee; or in other words, in his right of alienation.” JoHNnson, J., dissenting. Fairfax v. Hunter, 7 Cranch 630. c. Title Acquired by Purchase Not Divested until Office Found. See also supra, IV, 2. a.; IV. 2. 8, “Tt is uncontrovertibly settled upon the fullest authority that the title acquired by an alien by purchase, is not divested until office found. The principle is founded upon the ground, that as the freehold is in the alien, and he is tenant to the lord of whom the lands are holden, it cannot be divested out of him but by some notorious act, by 67. ALIENS. which it may appear that the freehold is in another.” Story, J. Fairfax v. Hunter, 7 Cranch 621, “What is the situation of an alien? He can not only take an interest in land, but a freehold interest in the land itself, and may hold it against all the world but the king, and even against him until-office found, and he is not accountable for the rents and profits previously received. In this case the will being valid, and the alien capable of taking under it, there can be no resulting trust to the heir, and the claim of the state is founded solely upon a supposed equity, to have the land by escheat, as if the alien had, or could upon the principles of a court of equity, have elected to take the land instead of the money.” WasHIncTon, J. Craig v. Leslie, 3 Wheat. 589. “An alien, forbidden by the local law to acquire real estate, may take and hold title until office is found.” Swayner, J. Union Nat. Bank v. Matthews, 98 U. S. 628. “Tf an alien enemy can, by devise or purchase from a loyal citizen or subject, take an estate in the country of the other bel- ligerent and hold it until office found, there would seem to be no solid reason for re- fusing a like efficacy to a conveyance from one enemy to another of land similarly situated.” Fretp, J. Conrad v. Waples, 96 U. S. 290. d. Right to Hold Cannot be Questioned Collaterally. “No one has any right to complain {against an alien holding real estate in a foreign country, the Constitution forbidding] in a collateral proceeding, if the sovereign does not enforce his prerogative.” Davis, J. Osterman v. Baldwin, 6 Wall. 121. V. POWER OF GOVERNMENT TO EXCLUDE OR DEPORT. 1. Power to ExcLupe. In General. “Every sovereign nation has the power, as inherent in sovereignty and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such con- ditions as it may see fit to prescribe.” Fut- ter, C. J. Turner v. Williams, 194 U. S. 290. “That the government of the United States, through the action of the legislative department, can exclude aliens from its ter- ritory is a proposition which we do not think open to controversy. Jurisdiction over its territory to that extent is an incident of every independent nation, It is.a part of its independence.” FrieLp, J. The Chinese Exclusion Case, 180 U. S. 603. “The power of the government to exclude foreigners from the country whenever, in its judgment, the public interests require such exclusion, has been asserted in repeated instances, and never denied by the executive or legislative departments.” Fretp, J. The Chinese Exclusion Case, 130 U, S. 606. . “Tt is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essen- tial to self-preservation, to forbid the en- trance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to pre- scribe.” Gray, J. Nishimura Ekiu v. U. S.,, 142 U. S. 659. Alien Who Has Acquired Commercial Domicil In United States. “Ts a-statute passed in execution of that power [to exclude aliens] any less applicable to an alien, who has acquired a commercial © domicil within the United States, but who, having voluntarily left the country, although for a temporary purpose, claims the right under some law or treaty to re-enter it? We think not. The words of the statute are broad and include ‘every case’ of an alien, at least every Chinese alien, who, at the time of its passage, is out of this country, no matter for what reason, and seeks to come back. He is none the Jess an alien because of his having a commercial domicil in this country. While he lawfully remains here he is entitled to the benefit of the guaranties of life, liberty, and property, secured by the Constitution to all persons, of whatever race, within the jurisdiction of the United States. His personal rights when he is in this coun- try and such of his property as is here dur- ing his absence, are as fully protected by the supreme law of the land as if he were a native or naturalized citizen of the United States. But when he has voluntarily gone from the country, and is beyond its juris- diction, being an alien, he cannot re-enter the United States in violation of the will of the government as expressed in enactment of the law-making power. He cannot, by reason merely of his domicil in the United States for purposes of business, demand that his claim to re-enter this country by virtue 68 a. ALIENS. of some statute or treaty, shall be determined ultimately, if not in the first instance, by the courts of the United States, rather than exclusively and finally, in every instance, by executive officers charged by an act of Con- gress with the duty of executing the will of the political department of the govern- ment in respect of a matter wholly political in its character. He left the country subject to the exercise by Congress of every power it possessed under the Constitution.” Har- LAN, J. Lem Moon Sing v. U. S, 158 U. S. 548, 2. PowER To DEPporT. Power of Congress in General. “Chinese laborers, like all other aliens residing in the United States for a shorter or longer time, are entitled, so long as they are permitted by the government of the United States to remain in the country, to the safeguards of the Constitution, and to the protection of the laws, in regard to their rights of person and of property, and to their civil and criminal responsibility. But they continue to be aliens, having taken no steps towards becoming citizens, and incapable of becoming such under the naturalization laws; and therefore remain subject to the power of Congress to expel them, or to order them to be removed and deported from the country, whenever in its judgment their removal is necessary or expedient for the public inter- est.” Gray, J. Fong Yue Ting v. U.S, 149 U. S. 724. Compared with Power to Exclude. “The right of a nation to expel or deport foreigners who have not been naturalized or taken any steps toward becoming citizens of a country, is as absolute and unqualified as the right to prohibit and prevent their entrance into the country.” FuLuer, C. J., dissenting. U. S. v. Wong Kim Ark, 169 U.S. 726. “The power to exclude aliens and the power to expel them rest upon one founda- tion, are derived from one source, are sup- ported by the same reasons, and are in truth but parts of one and the same power.” Gray, J. Fong Yue Ting v. U. S., 149 U. S. 713. “The power of the government to exclude foreigners from this country, that is, to prevent them from entering it, whenever the public interests in its judgment require such exclusion, has been repeatedly asserted by the legislative and executive departments of our government and never denied; but 69 its power to deport from the country persons lawfully domiciled therein by its consent, and engaged in the ordinary pursuits of life, has never been asserted by the legislative or executive departments except for crime, or as an act of war in view of existing or anticipated hostilities, unless the alien act of June 25, 1798, can be considered as recog- nizing that doctrine.” Fue.p, J., dissenting. Fong Yue Ting v. U. S., 149 U. S. 746. Constitutional Restrictions. “The power to remove resident aliens is, confessedly, not expressed [in the Constitu- tion]. Even if it be among the powers im- plied, yet still it can be exercised only in subordination to the limitations and restric- tions imposed by the Constitution.” Brewer, J., dissenting. Fong Yue Ting uv. U. S., 149 U.S. 738. 3. DETENTION AND PUNISHMENT OF OFFENDERS. In General. “Proceedings to exclude or expel [aliens] would be vain if those accused could not be held in custody pending the inquiry into their true character and while arrangements were being made for their deportation. De- tention is a usual feature of every case of arrest on a criminal charge, even when an innocent person is wrongfully accused; but it is not imprisonment in a legal sense.” Suiras, J. Wong Wing v. U. S., 163 U. S. 235. “Given in Congress the absolute power to exclude aliens, it may exclude some and admit others, and the reasons for its dis- crimination are not open to challenge in the courts. Given the power to exclude, it has a right to make that exclusion effective by punishing those who assist in introducing, or attempting to introduce, aliens in viola- tion of its prohibition.” Brewer, J. Lees v. U. S., 150 U.S. 480. “We think it would be plainly competent for Congress to declare the act of an alien in remaining unlawfully within the United States to be an offense, punishable by fine or imprisonment, if such offense were to be established by a judicial trial.” Sutras, J. Wong Wing v. U. S., 163 U. S. 235. Punishment Without Judicial Trial. “It is not consistent with the theory of our government that the legislature should, after having defined an offense as an in- famous crime, find the fact of guilt and adjudge the punishment by one of its own ALIENS. agents.” SHiras, J. Wong Wing v. U. S., 163 U. S. 237. Right to Deport Does Not Include Right to Punish. “Tt does not follow that, because the government may expel aliens or exclude them from coming to this country, it can confine them at hard labor in a penitentiary before deportation or subject them to any. harsh and cruel punishment. If the impris- onment of a human being at hard labor in a penitentiary for any misconduct or offense is not punishment, it is difficult to understand how anything short of the infliction of the death penalty for such misconduct or offence is punishment. It would seem to be not only punishment, but punishment infamous in its character, which, under the provisions of the Constittition of the United States, can only be inflicted upon a person after his due conviction of crime pursuant to the forms and provisions of law.” ‘Fietp, J., dissenting. Wong Wing v. U. S., 163 U. S. 241. 4, Power oF CONGRESS AS TO EXcLu- SION OR DEPORTATION. In General. “No limits can be put by the courts upon the power of Congresg to protect, by sum- mary methods, the country from the advent of aliens whose race or habits render them un- desirable as citizens, or to expel such if they have already found their way into our land and unlawfully remained therein.” Surras, J. Wong Wing v. U. S., 163 U. S. 237. “The immigration of foreigners to this country, and the conditions upon which they shall be permitted to come or remain, are proper subjects both of legislation and of treaty stipulation.” Fretp, J., dissenting. Chew Heong v. U. S., 112 U. S. 563. “The question whether, and upon what conditions, these [Chinese] aliens shall be permitted to remain within the United States being one to be determined by the political departments of the government, the judicial department cannot properly express an opin- ion upon the wisdom, the policy or the justice of the measures enacted by Congress in the exercise of the powers confided to it by the Constitution over this subject.” Gray, J. Fong Yue Ting v. U. S, 149 U. S. 731. “Tt may .. be correctly affirmed, that by no direct delegation of power by the Constitution — not by the power to declare war, not by the power to make reprisals, not by the more general power to puttish offenses against the laws of nations, nor by the power and duty of impelling invasion — has the right been given to Congress to regulate either the admission or the ex- pulsion of alien friends.” Dante, J., dis- senting, Passenger Cases, 7 How. 511. “The right to remain in the United States, in the enjoyment of all the rights, privileges, immunities, and exemptions accorded to the citizens and subjects of the most favored nation, is a valuable right, and certainly a right which cannot be taken away without taking away the liberty of its possessor. This cannot be done by mere legislation.” Futier, C. J., dissenting. Fong Yue Ting v. U. S., 149 UL. S. 762. : In Contravention of Treaty. “This court has already sustained the power of Congress to provide for excluding or expelling Chinese, even in contravention of a treaty; also the power to ittrust the final determination of the facts upon which the individual is to be expelled, to an execu- tive officer.” PrckuHam, J. U. S. v. Gue Lim, 176 U. S, 464. “What injustice could be more marked than, by legislative enactment, to recognize the existence of a right, by treaty, to come within the limits of the United States and, at the same time to prescribe, as the only evidence permissible to establish it, the pos- session of a collector’s certificate, that could not possibly have been obtained by the per- son to whom the right belongs? What incongruity is more evident than to impose upon a collector the duty of going on board of a vessel, about to sail from his district for a foreign port, and making and recording a list of its passengers, of a par- ticular race, showing their individual, fam- ily, and tribal names in full, their age, occu- pation, last place of residence, physical marks and peculiarities, when such vessel has sailed long before the law passed which im- posed that duty on the collector.” Hartan, J. Chew Heong wv. U. S., 112 U. S. 555. Statute Making Decision of Executive Of. ficers Final. “When Congress . . declared that in every case of an alien excluded by the de- cision of the appropriate immigration or cus- toms officers ‘from admission into the United States under any law or treaty,’ such decision should be final, unless reversed by the secretary of the treasury, the authority i) ALTERATION OF INSTRUMENTS. of the court to review the decision of the executive officers was taken away.” HArLan, J. Lem Moon Sing v. U. S., 158 U. S, 549. “Tt is not within the province of the judiciary to order that foreigners who have never been naturalized, nor: acquired any domicil or residence within the United States, nor even been admitted into the coun- try pursuant to law, shall be permitted to enter, in opposition to the constitutional and lawful measures of the legislative and execu- tive branches of the national government. As to such persons, the decision of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.” Gray, J. Nishimura Ekiu v. U. S., 142 U. S. 660. “Tt has been settled that the power to ex- clude or expel aliens belonged to the political department of the Government, and that the order of an executive officer, invested with the power to determine finally the facts upon which an alien’s right to enter this country, or ftemain in it, depended, was ‘due process of law, and no other tribunal, unless express- ly authorized by law to do so, was at liberty to re-examine the evidence on which he acted, or to controvert its stfficiency.’” Hartan, J. The Japanese Immigrant Case, 189 U. S. 100. ALLEGIANCE. “By allegiance is meant the obligation of fidelity and obedience which the individual owes to the government under which he lives, or to his sovereign in return for the protec- tion he receives. It may be an absolute and permanent obligation, or it may be a qualified and temporary one.” Fretp, J. Carlisle v. U. S., 16 Wall. 154. See also CrrizENS AND CITIZENSHIP, ALLOWANCES. See Pay Proper. ALTERATION OF INSTRU- MENTS. See also NecotrapLe INSTRUMENTS. Effect of Alterations in General. “The effect of an alteration or interlinea- tion of a deed, is to be decided by the prin- ciples of the common law.” Story, J. Mil- ler v. Stewart, 9 Wheat. 708. “Nor is it necessary that a surrender or revocation should be by an instrument to \ 71 that effect. It may be by matter in pais, or by operation of law. Every erasure and interlineation in the deed, by the obligee or appointee, without consent, is a surrender and a revocation may be implied by law.” Story, J. Miller wv. Stewart, 9 Wheat. 709. “ An alteration in the description of prop- erty embraced in a deed, so as to make the instrument cover property different from that originally embraced, whether or not it de- stroys the validity of the instrument as a conveyance of the property originally de- scribed, certainly does not give it validity as a conveyance of the property of which the new description is inserted. The old execu- tion and acknowledgment are not continued in existence as to the new property. To give effect to the deed as one of the newly de- - scribed property it should have been re- executed, reacknowledged and _ redelivered. In other words,.a new conveyance should have been made.” Fuiexp, J. Moelle v. Sher- wood, 148 U. S, 27. Confusion of the Law. “As to the principle upon which a rasure avoids a deed, it is not too much to say that the law of the subject appears to have got into some confusion. Modern decisions, particularly of our own courts, lean against the excessive rigor with which some writers and some cases disfigure it.” JoHNson, J. Miller v. Stewart, 9 Wheat. 717. Material Alterations. “The rule is universal that the alteration of an instrument in a material point by the party claiming under it, as by asserting or striking out names without the authority or consent of the other parties concerned, ren- ders the instrument void, unless subsequently approved or ratified.” Ciirorp, J. Smith vw. U. S., 2 Wall. 234. “ After perfecting a deed in one form, no material alteration should be set up unac- companied by a new delivery, and a note or memorandum thereof; otherwise, a bond, which is proved by a subscribing witness to have been actually given for only one hun- dred dollars, may be converted into one for as many thousand, if the obligee can only produce a witness who will say that he understood the obligor as assenting to it.” Livincston, J., dissenting, Speake w. U. S., 9 Cranch 38. “By the common law, the alteration or interlineation of a deed, in a material part, ALTERATION OF INSTRUMENTS. at least, by the holder, without the consent of the other party, ipso facto avoids the deed.” Story, J. Miller v. Stewart, 9 Wheat. 708. —Grounds of Doctrine. “Every material alteration of a written in- strument, according to the old decisions, whether made by a party or a stranger, was fatal to its validity if made after execution, and while the instrument was in the posses- sion and under the control of the party seeking to enforce it, and without the privity of the party to be affected by the alteration. Grounds of the doctrine, as explained in the early cases and by text writers were two- fold. First. That of public policy, which dictates that no man should be permitted to take the chance of committing a fraud without running any risk of losing by the event in case of detection. Secondly. To insure the identity of the instrument and prevent the substitution of another without the privity of the party concerned. Courts of justice have not always adhered to that rule, but the decisions of recent date in the parent country, show that her courts have returned to the old rule in all its vigor.” Cuirrorp, J. Smith v. U. S., 2 Wall. 232. —— Material Alteration Destroys Identity of Contract. “A material alteration of a written con- tract by a party to it discharges a party who - does not authorize or consent to the altera- tion, because it destroys the identity of the contract, and substitutes a different agree- ment for that into which he entered.” Gray, J. Mersman v. Werges, 112 U. S. 141. — What Are Material Alterations. “The addition of a new person as a principal maker of a promissory note, render- ing all the promisors apparently jointly and equally liable, not only to the holder, but also as between themselves, and so far tend- ing to lessen the ultimate liability of the original maker or makers, has been held in the courts of the states to be a material alteration.” Gray, J. Mersman v. Werges, 112 U.S. 141. “ An erasure of the name of one of several obligors is a material alteration of the con- tract of the others, because it increases the amount which each of them may be held to contribute.” Gray, J. Mersman v. Werges, 112 U. S. 141. é “ Any change which alters the defendant’s contract, whether increasing or diminishing 72 his liability, is material, and therefore the substitution of a later date, delaying the time of payment, is a material alteration.” Gray, J. Mersman v. Werges, 112 U. S. 141, Unimportant Alteration Impairs Obliga- tion of Contract. “Does not every alteration of a contract, however unimportant, even though it be manifestly for the interest of the party objecting to it, impair its obligation? If the assent of all the parties to be bound by a contract be of its essence, how is it possible that a new contract, substituted for, or en- grafted on another, without such assent, should not violate the old charter.” WasH- INGTON, J. Dartmouth College v. Woodward, 4 Wheat. 662. As to Holders in Due Course. “Even the holders of negotiable securities, taken in the usual course of business, before the securities fall due, are held chargeable with notice, where the marks on the instru- ment are held of a character to appraise one to whom the same is offered of the alleged defect.” Ciirrorp, J. Angle v. North- Western Mut. L. Ins. Co., 92 U. S. 341. Commercial Paper Annulled by Altera- tion. “To prevent and punish tampering [with commercial paper] the law does not permit the plaintiff to fall back upon the con- tract as it was originally. In pursuance of a stern but wise policy, it annuls the instru- ment, as to the party sought to be wronged.” Swayne, J. Wood vw. Steele, 6 Wall. 82. “The grounds of discharge in cases [of alteration of commercial paper] are obvious. The agreement is no longer the one into which the defendant entered. Its identity is changed; another is substituted without his consent; and by a party who had no author- ity to consent for him, There is no longer the necessary concurrence of minds. If the instrument be under seal, he may well plead that it is not his deed; and if it be not under seal, that he did not so promise. In either case, the issue must necessarily be found for him.” Swayne, J. Wood vw. Steele, 6 Wall. 82. “A material alteration of a note, before its delivery to the payee, by one of two joint makers, without the consent of the other, makes it void as to him.” Gray, J. Mersman v. Werges, 112 U. S. 141. ALTERATION OF INSTRUMENTS. “A material alteration of a promissory note by the payee or holder discharges the maker ; even as against a subsequent innocent indorsee for value.” Gray, J. Mersman vw. Werges, 112 U. S. 141. Surety Released by Alteration of Contract. “A surety is a ‘favored debtor.’ His rights are zealously guarded both at law and in equity. The slightest fraud on the part of the creditor, touching the contract, annuls it. Any alteration after it is made, though beneficial to the surety, has the same effect. His contract exactly as made is the measure of his liability; and, if the case against him be not clearly within it, he is entitled to go acquit.” Swayne, J. Magee v. Manhattan L. Ins. Co., 92 U. S. 98. Alterations with Consent of Parties. “Tt is clear, at the common law, that an alteration or addition in a deed, as by add- ing a new obligor, or an erasure in a deed, as by striking out an old obligor, if done with the consent and concurrence of all the parties to the deed, does not avoid it. And this principle equally applies whether the alteration or erasure be made in pursuance of an agreement and consent prior or sub- sequent to the execution of the deed; and the cases in the books. in which erasures, interlineations and alterations in deeds have been held to avoid them, will be found, on examination, to have been cases in which no such consent had been given.” Srory, J. Speake v. U. S., 9 Cranch 37. “Tf an original appointment is altered by the consent of the parties to the instrument, that very consent implies that something is added to or taken from it. The parties agree that it shall no longer remain as it was at first, but that the same instrument shall be, not what it was, but what the altera- ‘tion makes it. It shall not constitute two separate and distinct instruments, but one consolidated instrument.” Story, J. Miller v. Stewart, 9 Wheat. 705. Party Claiming under Instrument Bound to Explain Alterations. “Frauds or mutilations, to which the parties having the custody of deeds are privy, cannot be taken too strongly against them.” JoHnson, J. Miller v. Stewart, 9 Wheat. 717. “General rule is, that where any suspicion is raised as to the genuineness of an altered instrument, whether it be apparent upon inspection, or is made so by extraneous 73 evidence, the party producing the instrument and claiming under it, is bound to remove the suspicion by accounting for the altera- tion.” CiiFForD, J. Smith v. U. S., 2 Wall. 232, Alteration Must Be Shown to Be Un- lawful. “The fact that there is an erasure or interlineation apparent on the face of the deed does not, of itself, avoid it. To pro- duce this effect, it must be shown to have been made under circumstances that the law does not warrant.” Story, J. Speake vw. U. S., 9 Cranch 37, . Filling Blanks. “The delivery of a signature in blank is in general an authority to the holder to fill it up as he thinks proper.” Cuass, C. J. Davidson v. Lanier, 4 Wall. 457. “Where a party to a negotiable instrument intrusts it to the custody of another with blanks not filled up, whether it be for the purpose to accommodate the person to whom it was entrusted, or to be used for his own benefit, such negotiable instrument carries on its face an implied authority to fill up the blanks and perfect the instrument; and as between such party and innocent third parties, the person to whom it was so intrusted must be deemed the agent of the party who com- mitted such instrument to his custody — or, in other words, it is the act of the principal, and-he is bound by it.” CuzFForp, J. Pitts- burg Bank v. Neal, 22 How. 107. “Between such party [intrusting a blank negotiable instrument to another, with im- plied authority to fill blanks] and innocent third parties, the person to whom the instru- ment was so intrusted must be deemed the agent of the party who committed the in- strument to his custody, in filing the blanks necessary to perfect the instrument.” CxiF- ForD, J. Angle v. North-Western Mut. L. Ins. Co., 92 U. S. 338. Parol Authority to Make Alteration. “T can only say that I am not prepared to admit that every alteration whatever in a deed, after its execution, for such is the ex- tent of the opinion just given, may be proved by parol testimony.” Livineston, J., dissent- ing. Speake v. U. S., 9 Cranch 38. “No change whatever in a sealed instru- ment, after its execution, which may increase the liability or be, in any way, to the preju- dice of the party whose deed it is, (and such AMBASSADORS AND CONSULS. is the case here) should be palined on him by parol testimony; and so, vice versa, that no alteration which may be, in any way, injurious to the grantee or obligee, should be. set up by the other party.” LivinGsTon, jis dissenting. Speake v. U. S. 9 Cranch 38. “ Although it was, at one time doubted whether a parol authority was adequate to authorize an alteration or addition to a sealed instrument, the better opinion, at this day, is that the power is sufficient.” Netson, J. Drury v. Foster, 2 Wall. 33. Plea of Non Est Factum. “Notwithstanding some contrariety of dicta, it is now clearly settled that a rasure must rake a deed void, or it is immaterial; and, therefore, non est factum is held to be the proper plea.” Jounson, J. Miller w Stewart, 9 Wheat. 716. “As to revenue bonds, there is not a court of the United States which has not sustained them against the plea of non est factum, notwithstanding that both sum and parties have been inserted after the execu- tion by one of the obligors, and this in his absence, because the contract’ was not altered, and the good sense of the law prevailed against its technicalities.” JoHN- son, J. Miller v. Stewart, 9 Wheat. 717. AMBASSADORS AND CONSULS. As to the suit of a state against a consul, see CourTs. See also Citizens and Crrizensuip; Con- SULAR Courts; INTERNATIONAL Law. Consul Defined. “A consul is an officer commissioned by his government for the protection of its interests and those of its citizeris or subjects; and whilst he is sometimes allowed, in Chris- tian countries, to engage in commercial pur- suits, he is so far its public agent and com- mercial representative that he is precluded from undertaking any affairs or assuming any position in conflict with its interests or its policy. By some governments he is in- vested —in the absence of a minister or ambassador to represent them— with diplo- matic powers, and, as between theit citizens or subjects, may also exercise judicial func- tions. By all governments his representative character is recognized, and for that reason certain exemptions and privileges are granted to him. In the Constitution of the United States, consuls are classed with ministers and ambassadors in the entumeration of parties whose cases are subject to the otiginal juris- diction of the Supreme Court.” Firtp, J. Oscanyan v, Winchester Repeating Arms Co., 103 U. S. 272. ‘ Who May Act as Consul. “In many countries it is a state maxim that-one of its own subjects or citizens is not to be received as a foreign diplomatic agent, and a refusal to receive, based on that objection, is always. regarded as reasonable. ‘The expediency of avoiding .a possible con- flict between his privileges as such and his obligations as a subject or citizen is con-, sidered reason enough in itself.” Furze, C. J. In re Baiz, 135 U. S. 427. “Neither the adjudged cases nor the prac- tice of this government prevent an American citizen —— not holding an office of profit or trust under. the United States— from ex- ercising in this country the office of consul of a foreign government.” Har an, J. Bors v. Preston, 111 U. S. 263. Duties of Consuls. “TSome of the duties of a consul are]: to take care of American property, either wrecked or belonging to deceased persons; to exercise at times even diplomatic func- tions; to aid his countrymen in scientific researches; to transmit periodical advices on everything beneficial to trade or the arts, and, in all emergencies among strangers, to act as the friend and agent of commercial visitors from his own country.” WoopBury, J. Harrison v. Vose, 9 How. 382. “It is to be conceded that a consul is the chief representative and agent of his country in most foreign ports, and as such is to be resorted to by his countrymen. But when a vessel has arrived so as to be re- quired to deposit her papers with him, it would seem to be reasonable that she must intend to stay long enough to need to allow the exercise of some of his functions, Those functions are principally to watch over our trade — actual exports and imports; to exer- cise jurisdiction in some respects over American vessels and seamen abroad; some- times of a judicial character, when they stop and come ashore, or to transmit information home in relation to them.” Woopzury, J. Harrison v. Vose, 9 How. 382. Diplomatic Powers and Privileges of Con- suls. * Consuls, as such, and unless expressly invested with a diplomatic character in addi-° AMBASSADORS AND CONSULS. tion to their ordinary powers, are not c¢on- sidered as intrusted with authority to repre- sent their sovereign in his intercourse with foreign states ot to vindicate his prerogatives, or entitled by the law of nations to the privileges and immunities of ambassadors or public ministers, but are subject to the jurisdiction, civil and criminal, of the courts of the country in which they reside.” Gray, J. U.S. v. Wong Kim Ark, 169 U. S. 678. “A consul, though a public agent, is sup- posed to be clothed with authority only for commercial purposes. He has an undoubted right to interpose claims for the restitution of property belonging to’ the subjects of his own country ; but he is not considered as a minister, or diplomatic agent of his sover- eign intrusted, by virtue of his office, with authority to represent him in his negotiations with foreign states, or to vindicate his pre- rogatives. There is no doubt that his sover- eign may intrust him with such authority ; but in such case his diplomatic character is superadded to his ordinary powers, and ought to be recognized by the government within whose dominions he assumes to exer- cise it.’ Story, J. The Ante, 3 Wheat. 445, “When a consul is appointed charge d’affaires, he has a double political capacity ; but though invested with full diplomatic privileges, he becomes so invested as charge @affaires and not as consul, and though authorized as consul to communicate directly with the government in which he resides, he does not thereby obtain the diplomatic priv- ileges of a minister.” FuLier, C. J. In re Baiz, 135 U.'S. 424. Consuls to Mohammedan Countries. “A great distinction has always been made between consuls to Mohammedan and con- suls to Christian countries, both in the powers intrusted to them and in the duties with which they are charged. The full reci- procity with which, by the general rule of international law, prevails between Christian states in the exercise of jurisdiction over the subjects or citizens of each other in their respective territories is not admitted between a Christian state and a Mohammedan state in the same circuimstances; and in our treaties with Mohammedan powers, express stipulations are made for the enjoyment of our citizens of certain territorial rights with respect to their persons and property. Whilst therefore, in Christian countries consuls are little more than mere commercial agents, in Mohammedan countries they are clothed with 16 diplomatic and even with judicial powers. Consuls to Christian countries are often al- lowed to engage in business; but consuls to Mohammedan countries are restricted to the duties of their offices, are paid a_ stated salary, and are prohibited from entering into commercial transactions.” Fietp, J. Ma- honey v. U. S., 10 Wall. 66. Vice-consuls. “A vice-consul duly recognized by our government, is a competent party to assert or defend the rights of property of the indi- viduals of his nation, in any court having jurisdiction of causes affected by the ap- plication of international law. To watch over the rights and interests of their sub- jects, wherever the pursuits of commerce may draw them, or the vicissitudes of human affairs may force them, is the great object for which consuls are deputed by their sover- eigns; and in a country where laws govern, and justice is sought for in courts only, it would be a mockery to preclude them from the only avenue through which their course lies to the end of their mission. The long and universal usage of the courts of the United States, has sanctioned the exercise of this right, and it is impossible that any evil or inconvenience can flow from it. Whether the powers of the vice-consul shall in any instance extend to the right to re- ceive, in his national character, the proceeds of property libeled and transferred into the register of a court, is a question resting on other principles. In the absence of specific powers given him by competent authority, such a right would certainly not be recog- nized. Much, in this respect, must ever depend upon the laws of the country from which, and to which, he is deputed.” Joun- son, J. The Bello Corrunes, 6 Wheat. 168. Privileges and Exemptions of Ambassa- dors and Consuls. “A sovereign committing the interests of his nation with a foreign power, to the care of a person whom he has selected for that purpose, cannot intend to subject his min- ister in any degree to that power; and, therefore a consent to receive him, implies a consent that he shall possess those privileges which his principal intended he should re- tain — privileges which are essential to the dignity of his sovereign, and to the duties which he is bound to perform.” MarsHAtt, C. J. Schooner Exchange v. M’Faddon, 7 Cranch 189. “The assent of the sovereign to the vety important and extensive exemptions from AMENDMENTS. territorial jurisdiction which are admitted to attach to foreign ministers, is implied from the considerations that, without such ex- emption, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince, and would be less competent to the objects of his mission.” MarsHALt, C. J. Schooner Ex- change v. M’Faddon, 7 Cranch 138. “Whether the immunity of foreign minis- ters from local allegiance rests on the fiction of extra-territoriality or on the waiver of ter- ritorial jurisdiction by receiving them as rep- resentatives of other sovereignties, the result is the same. They do not owe allegiance otherwise than to their own governments, and their children cannot be regarded as born within any other.” Futur, C. J., dissenting. U. S. v. Wong Kim Ark, 169 U. S. 720. And see CITIZENS AND CITIZENSHIP. “State courts have no jurisdiction what- ever of cases affecting ambassadors, other public ministers, or consuls, nor of cases of admiralty and maritime cognizance. In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the Supreme Court, as the Constitution provides, ‘shall have original jurisdiction.” Curirrorp, J., dis- senting. Tennessee v. Davis, 100 U. S. 285. Waiver of Exemption by Sovereign. “By the consent of his sovereign, a foreign minister may be subjected to the laws of the state near which he resides.” Jounson, J., dissenting. Ex p. Bollman, 4 Cranch 106. Civil and Criminal Liability of Consuls. “Consuls are approved and admitted by the local sovereign. If guilty of illegal or improper conduct, the exequatur which has been given may be revoked, and they may be punished, or sent out of the country, at the option of the offended government. and criminal cases, they are subject to the local law in the same manner with other foreign residents owing a temporary alle- giance to the state. A trading consul, in all that concerns his trade, is liable in the same way as a native merchant. The character of consul does not give any protection to that of merchant when they are united in the same person.” Swayne, J. Coppell v. Hall, 7 Wall. 553. Suits by Foreign Ministers or Consuls in Domestic Courts. “Foreign consuls frequently assert, in our prize courts, the claims of their fellow sub- jects, These suits are maintained by them as In civil , 76 consuls The appellate power of this court has been frequently exercised in such cases, and has never been questioned.” MARSHALL, C. J. Cohen v. Virginia, 6 Wheat. 397. “A claim by a public minister, or in his absence, by a charge d'affaires, in behalf of his sovereign would be good. But in mak- ing this admission, it is not to be under- stood that it can be made in a court of justice without the assent or sanction of the government in whose courts the cause is depending. That is a question of great im- portance, upon which this court expressly reserve their opinion, until the point shall come directly in judgment.” Story, J. The Anne, 3 Wheat. 446. : Legal Effect of Departmental Instructions to Consuls. “These conclusions, being publicly issued by the proper executive department of the government for the instruction and guidance of our consuls, are entitled to the highest respect in construing the statutes and treaties upon which their powers depend.” Bran.ry, J. Dainese v. Hale, 91 U. S. 20. AMBIGUITIES. See INTERPRETATION AND CONSTRUCTION; Parot EVIDENCE. “Sir Francis Bacon, in his elements of common law, is the author usually referred to on this distribution of ambigui- ties, into patent and latent; the former ap- pearing on the face of the instrument, and not to be removed by extrinsic evidence, but only, in the language of the author, ‘to be holpen by construction or election’; the lat- ter raised by reference to extrinsic circum- stances, and remediable by the same means. It would perhaps be a more convenient, and certainly a more intelligible distribution of the doctrine on this subject, if the cases were divided into positive, relative, and mixed; the positive corresponding to the patent; and the relative to the latent ambiguities of the authors who treat of the subject. The mixed would consist of those cases in which, al- though the ambiguity is suggested on the face of the instrument, the face of the in- strument also suggests the medium by which the ambiguity may be removed.” JoHNsOon, J. Barry v. Coombe, 1 Pet. 652. AMENDMENTS. See Courts; EjEcTMENT; PLEADING; Practice; Process; REPLEADER. Power of Courts to Allow. “The power to amend its records, to cor- ANIMALS. rect mistakes of the clerk or other officer of the court, inadvertencies of counsel, or to supply defects or omissions in the records, even after the lapse of the term, is inher- ent in courts of justice. It is also conferred upon courts of the United States by Rev. Stat., secs. 899, 900, and 901.” Brown, J. Gagnon wv. U. S., 193 U. S. 456. “The power of amendment is incident to all judicial administration. Its exercise is vital to the ends of justice.” Swayne, J. Bank v. Sherman, 101 U. S. 406. “The right to correct any mere clerical er- rors, so as to conform the record to the truth, always remains.” Woopsury, J. Bank of U. S. v. Moss, 6 How. 38. “Tn the federal courts the power to amend is given in general language in the final clause of Rev. Stat., section 954.” Brown, J. Gagnon v. U. S., 193 U. S. 457. Discretion of Courts as to Allowance. ‘Allowing amendments is incidental to the exercise of all judicial power, and is indispensable to the ends of justice. Usu- ally, to permit or refuse, rests in the dis- cretion of the court; and the result in either case is not assignable for error.” Swayne, J. Tilton v. Cofield, 93 U. S. 166. “It is frequently stated that amendments are within the discretion of the trial court, and that unless it appears that the discre- tion has been abused no error is shown.” Brewer, J. Kinney v. Columbia Sav., etc, Assoc., 191 U. S. 81. Time at Which Amendments May Be Made. “Any amendments permissible under the statutes of jeofails may be proper at subse- quent terms, and at times even after a writ of error is brought.” Woopsury, J. Bank of U. S. v. Moss, 6 How. 39. Amendment to Show Fraud. “A formal charge of fraud may be added when it is necessary and has been omitted.” Braptey, J. Graffam v. Burgess, 117 U. S. 195. Necessity of Jurisdiction. “ An amendment presupposes jurisdiction of the case.” Taney, C. J. Hodge v. Williams, 22 How. 88. AMITY. See TREATIES. “The word ‘amity’ is not a technical term. It is a word of common use. Web- ee 17 ster defines it ‘friendship, in a general sense, between individuals, societies, or nations; harmony; good understanding; as, a treaty of amity and commerce.’ The last part of this definition shows that the phrase ‘in amity’ is not the equivalent of ‘under treaty.’ A ‘treaty’ implies political relations; ‘amity’ signifies friendship, actual peace. The phrase ‘in amity with the United States’ is one of frequent use in the legislation of Congress in reference to Indians.” BREWER, J. Marks v. U. S., 161 U. S. 301. AMNESTY. “ Amnesty is defined by the lexicographers to be an act of the sovereign power granting oblivion, or a general pardon for a past of- fense, and is rarely, if ever, exercised in favor of single individuals, and is usually exerted in behalf of certain classes of per- sons, who are subject to trial, but have not yet been convicted.” Brown, J. Brown v. Walker, 161 U. S. 601. See also PaRDon. AMONG. “The word ‘among’ means intermingled with. A thing which is among others, is in- termingled with them.” MarsHa.., C. J. Gibbons v7. Ogden, 9 Wheat. 194. AND. See Or. ANIMALS. See CattLte; Porice Power. “ Animals” Signifies Quadrupeds. “Tt is quite manifest that Congress, adopt- ing the popular signification of the word ‘animals,’ applied it to quadrupeds, and placed birds and fowls in a different classification.” Davis, J. Reiche v. Smythe, 13 Wall. 165. Partus Sequitur Ventrem. “According to the maxim partus sequitur ventrem, the brood of all tame and domestic animals belongs to the owner of the dam or mother.” Hartan, J. Arkansas Cattle Co. uv. Mann, 130 U. S. 78. Property in Dogs. “They [dogs] have no intrinsic value, by which we understand a value common to all dogs as such, and independent of the particu- lar breed or individual. Unlike other domes- tic animals, they are useful neither as beasts of burden, for draught (except to a limited ANIMALS. extent), nor for food.” Brown, J. Sentell v. New Orleans, etc, R. Co., 166 U. S. 701. “The very fact that they [dogs] are with- out the protection of the criminal laws shows that property in dogs is of an imperfect or qualified nature, and that ‘they stand, as it were, between animals fere nature, in which, until killed or subdued, there is no prop- erty, and domestic animals, in which the tight of property is perfect and complete. They are not considered as being upon the same plane with horses, cattle, sheep, and other domesticated animals, but rather in the category of cats, monkeys, parrots, sing- ing birds, and similar animals kept for pleas- ure, curiosity, or caprice.’ Brown, J. Sen- tell v. New Orleans, etc., R. Co., 166 U. S. 701. “By the common law, as well as by the law of most, if not all, the states, dogs are so far recognized as property that an action will lie for their conversion or injury, although, in the absence .of.a statute, they are not regarded as the subjects of lar- ceny.” Brown. J. Sentell v. New Orleans, etc, R. Co., 166 U. S. 700. “It is purely within the discretion of the legislature to say how far dogs shall be recognized as property, and under what re- strictions they shall be permitted to roam the streets.” Brown, J. Sentell v. New Orleans, etc., R. Co., 166 U. S. 706. Liability for Injuries by Wild Animals. “Animals fere nature, as a class, are known to be mischievous; and the rule is well settled, that whoever undertakes to keep such an animal in places of public resort is or may be liable for the injuries inflicted by it on a party who is not guilty of negli- gence, and is otherwise without fault.” Cuirrorp, J, Congress, etc., Spring Co. v. Edgar, 99 U. S. 651. . “Certain animals fere nature may doubt- less be domesticated to such an extent as to be classed, in respect to the liability of the owner for injuries they commit, with the class known as tame or domestic animals; but inasmuch as they are liable to relapse into their wild habits and to become mischievous, the rule is that if they do so, and the owner becomes notified of their vicious habit, they are included in the same rule as if they had never been domesticated.” Czrrrorp, J. Congress, etc., Spring Co. v, Edgar, 99 U. S. 653. 78 “Owners of wild beasts or beasts that are in their nature vicious are liable under all or most all circumstances for injuries done by them; and in actions for injuries by such beasts it is not necessary to allege that the owner knew them to be mischievous, for he is presumed to have such knowledge, from which it follows that he is guilty of negli- gence in permitting the same to be at large.” CuiFrForp, J. Congress, etc., Spring Co. vu. Edgar, 99 U. S. 654. Liability for Injuries by Domestic Animals, “Damage may be done by a domestic ani- mal kept for use or convenience, but the rule is that the owner is not liable to an action on the ground of negligence, without proof that he knew that the animal was ac- customed to do mischief. Domestic animals, such as oxen or horses, may injure the person or property of another, but courts of justice invariably hold that if they are rightfully in the place where the injury is inflicted the owner of the animal is not liable for such an injury, unless he knew that the animal was accustomed to be vicious.” CLiF- ForD, J. Congress, etc, Spring Co. v. Edgar, 99 U. S. 654. Police Power as to Dogs. “They [dogs] are peculiar in the fact that they differ among themselves more widely than any other class of animals, and can hardly be said to have a characteristic common to the entire race. While the higher breeds rank among the noblest represent- atives of the animal kingdom, and are’ justly esteemed for their intelligence, sa- gacity, fidelity, watchfulness, affection, and, above all, for their natural companionship with man, others are afflicted with such se- rious infirmities of temper as to be little better than a public nuisance. All are more or less subject to attacks of hydrophobic madness.” Brown, J. Sentell v. New Or- leans, etc., R. Co., 166 U. S, 701, “Acting upon the principle that there is but a qualified property in them [dogs], and that, while private interests require that the valuable ones shall be protected, public interests demand that the worthless shall be exterminated, they have, from time im- memorial, been considered as holding their lives at the will of the legislature, and properly falling within the police powers of the several states.” Brown, J. Sentell wv. New Orleans, etc., R. Co., 166 U. S. 701. “Although dogs are ordinarily harmless, they preserve some of their hereditary walf- APOTHECARIES. ish instincts, which occasionally break forth in the destruction of sheep and other help- less animals. Others, too small to attack these animals, are simply vicious, noisy, and pestilent. As their depredations are often committed at night, it is usuaily impossible to identify the dog or to fix the liability upon the owner, who, moreover, is likely to be pecuniarily irresponsible. In short, the damages are usually such as are beyond the reach of judicial process, and legislation of a drastic nature is necessary to protect per- sons and property from destruction and an- noyance, Such legislation is clearly within the police power of the state. It ordinarily takes the form of a license tax, and the identification of the dog by a collar and tag, upon which the name of the owner is sometimes required to be engraved, but other remedies are not uncommon.” Brown, J. Sentell v. New Orleans, etc, R. Co., 166 Uz. S. 705. —— That Dogs Are Property Does Not Interfere with Police Power. “Even if it were assumed that dogs are property in the fullest sense of the word, they would still be subject to the police power of the state, and might be destroyed or otherwise dealt with, as in the judgment of the legislature is necessary for the pro- tection of its citizens.” Brown, J. Sentell v. New Orleans, etc., R. Co., 166 U. S. 704. “Laws for the protection of domestic ani- mals are regarded as having but a limited application to dogs and cats; and, regardless of statute, a ferocious dog is looked upon as hostis humani generis, and as having no right to his life which man is béund to re- spect.” Brown, J. Sentell vw. New Orleans, etc., R. Co., 166 U. S. 702. ANIMUS FURANDI. See Larceny; Prracy. ANNEXATION. See Citizens AND CITIZENSHIP; Law; GovERNMENT. ANNUITIES. “A simple annuity which is to terminate upon the death of a particular person may be valued by reference to the mortality ta- bles.” PeckHam, J. Dunbar v. Dunbar, 190 U. S. 345. CIvIL “it but for a crime. ANNUITY, WRIT OF. “Tf an annuity is granted to one in fee, although it be a mere personal charge, yet a writ of annuity lies therefor by the com- mon law, not only in favor of the party and his heirs, but of their grantee.” Srory, J. Scott v. Lunt, 7 Pet. 606. “For a rent granted in fee and charged on land, a writ of annuity lies in favor of the assignee, at his election.” Story. I. Scott v. Lunt, 7 Pet. 606. ANTENATI. See ALreNs; ALLEGIANCE; CITIZENS AND CITIZENSHIP. Comparative Rights of Antenati of Amer- ica and England. “We have no doubt that the correct doc- trine of English law is, that the right to inherit depends upon the existing state of allegiance at the time of the descent cast. And that the idea that it depends upon the community of allegiance at the time of birth, is a consequence that follows from the doc- trines that a man can never put off his allegiance, or be deprived of the benefits of Community of allegiance once existing must, upon these principles, exist ever after. Hence it is that the an- tenatt of America may continue to inherit in Great Britain, because we once owed al- legiance to that crown. But the same reason does not extend to the antenati of Great Britain, because they never owed allegiance to our government. If an action be commenced in England by an antenatus of America for the recovery of land, the plea of alien born could not be maintained, be- cause inconsistent with the fact; nor could a plea of the severance of these states avail the defendant, because the act of his gov- ernment, independent of any crime of his own, does not deprive the plaintiff of his “civil rights, although it may release him 79 from the obligation of allegiance. But if a suit of the same kind be instituted here by an antenatus of Great Britain, the plea of alien born could be maintained, for the plain- tiff never owed allegiance to our govern- ment.” Jounson, J. Dawson’s Lessee y, Godfrey, 4 Cranch 323. APOTHECARIES. See Drucaists. APPEAL AND ERROR. APPAREL. See WEARING APPAREL. APPEAL AND ERROR. I. APPELLATE JURISDICTION. II. In Criminar Cases. III. Metuop or Review — Form oF PROCEEDING. 1. In General. 2. Error and Appeal. a. In General. b. Appeal. c. Writ of Error. IV. CertTiFICATE OF DIVISION. V. CERTIFYING QUESTIONS BY CIR- cuit CourT oF APPEALS. 1. In General. - 2. Question of Jurisdiction. VI. Jupcments anp Decrees RE- VIEWABLE, . In General. . Final Judgment or Decree. . Judgment for Costs. . Decision of Judge at Chambers. . Matters Arising After Judgment or Decree. VII. Amount 1Nn DISPUTE. VIII. Review oF JUDGMENTS OF STATE Courts. 1, Right to Review. a. In General. b. Limited Jurisdiction. 2. When Jurisdiction May Be In- voked. a. General Rule. b. What Courts and Judgments Subject to Review. c. Only Federal Questions Re- viewed. d. Application of Rule. (1) Right Claimed Under Con- stitution. (2) Construction of Statute. (3) Impairment of Obligation of Contract. (4) Criminal Cases. (5) Miscellaneous Cases. e. Raising and Deciding Jurisdic- tional Questions. (1) General Rule. (2) Necessity for Decision of Federal Question. oP WD Ee 80 IX. XI. XII. XIII. XIV. XV. XVI. (3) Question Must Have Been Decided Against Plaintiff in Error. 8. Proceedings in Appellate Court. REVIEW OF JUDGMENTS OF TER- RITORIAL Courts. . DEcIsIONsS oF Courts IN Dis- TRICT OF COLUMBIA. PROCEEDINGS TO OsTAIN RE- VIEW. . In General. . Application and Allowance. . Limitations as to Time. Bond. Notice or Citation. . Service of Writ of Error. . Filing Writ of Error. . Filing Transcript. . Form of Writ. . Direction of Writ. SOMNAM AWD HH e ASSIGNMENT OF ERRORS. ParTIESs TO APPELLATE PRo- CEEDINGS. THE Recorp oN APPEAL oR ERRor. JupiciaL Notice. Matters, Decisions, AND RUL- INGS REVIEWABLE. . Jurisdiction. . In Criminal Causes. . Rulings Not Appealed From. . Errors Appearing in the Record. . Matters Not Objected to in Trial Court. . Matters Not Passed on by Lower Court. %. Necessity of Exceptions to Rul- ings Below. 8. Matters Not Prejudicial to Ap- pellant or Plaintiff in Error. 9. Abandonment of Ground Taken at Trial. 10. Admission and Exclusion of Evi- dence. 11. Matters Resting in Discretion of Trial Court. 12, Clerical Errors. 13. Facts, Verdicts, and Findings of Fact. 14. Decisions on Agreed Statements of Fact. 15. Consent Decrees. 16. Judgments by Default. 17. Opinion of Trial Court. 18. Questions as to Costs. oR w YE a APPEAL AND ERROR. 19. Decisions on Motions for New Trials. XVII. ProcEepINcs Court. . In General. . Examination and Decision of All Errors Alleged. . Waiver or Release of Errors. . Change of Law Pending Appeal. . Stipulations of the Parties. Amendments. . Hearing, Rehearing, and Filing of Briefs. 8. Dismissal of Appeal or Writ of Error in General. 9. Dismissal or Reversal for Want of Jurisdiction. 10. Affirmance, Reversal, and Modifi- cation. 11. Effect of Judgment in Appellate Court. 12. Remanding Cause. 13. Effect of Opinion by Majority or by Equally Divided Court. 14. Allowance of Damages as Penalty for Delay. 15. Remittitur. 16. Second Appeal or Writ of Error. XVIII. Supersepeas. IN APPELLATE Ne NOME w CROSS-REFERENCES. See ADMIRALTY ; BANKRUPTCY ; CONTEMPT; Courts; DismissaL anp Nonsuit; Excep- TIONS, Bitts oF; Haseas Corpus; INstruc- TIONS; JuDICcIAL Notice; JupIcIAL SALES; Jurispiction; Manpamus; New Tria; Partizs; Preapinc; Practice; Process; REMOVAL OF CAUSES; SUPERSEDEAS; TRIAL. I. APPELLATE JURISDICTION. Nature in General. : “What is appellate jurisdiction in the sense of the Constitution? Our practice un- der the thirteenth section of the Judiciary Act of 1789 has settled the meaning of the term. It is to re-examine, and to reverse or affirm, the judgment, sentence, order, or de- cree of an inferior court—to pass on that which has been adjudged. Catron, J., dis- senting. U. S. v. Chicago, 7 How. 197. “Tt is the -essential criterion of appellate jurisdiction, that it revives and corrects the proceedings in a catise already instituted, and does not create that cause.” MAarsHALL, C. J. Marbury v. Madison, 1 Cranch 175. “ Appellate power is exercised over the proceedings of subordinate courts and not 1 Os. Dia.—é on those of the appellate court.” CLIFForD, J. Noonan v. Bradley, 12 Wall. 129. “An appellate jurisdiction necessarily im- plies some judicial determination, some judg- ment, decree, or order of an inferior tribu- nal, from which an appeal has been taken.” Cuase, C. J. The Alicia, 7 Wall. 573. “From the very nature of things, the ab- solute right of decision, in the last resort, “must rest somewhere — wherever it may be vested it is susceptible of abuse. In all ques- tions of jurisdiction the inferior or appellate court must pronounce the final judgment; and common sense, as well as legal reason- ing, has conferred it upon the latter.” Story, J. Martin v. Hunter, 1 Wheat. 345, Right to Invoke in Proper Case. “No rule can be a sound one which, by its legitimate operation, will deprive a party of his right to have his case submitted to the appellate court.” CtrFrorp, J. Nations v. Johnson, 24 How. 205. Extends to All Cases Within Judicial Power. “The appellate jurisdiction of this court, conferred by the Constitution, extends to all other cases within the judicial power of the United States.” Case, C. J. Ex p. Yer- ger, 8 Wall. 98. “ Appellate jurisdiction is given by the Con- stitution to the Supreme Court in all cases where it has not original jurisdiction; sub- ject, however, to such exceptions and regu- lations as Congress may prescribe. It is, therefore, capable of embracing every case enumerated in the Constitution which is not exclusively to be decided by way of original jurisdiction. But the exercise of appellate jurisdiction is far from being limited by the terms of the Constitution to the Supreme Court. There can be no doubt that Con- gress may create a succession of inferior tribunals, in each of which it may vest appellate as well as original jurisdiction. The judicial power is delegated by the Con- stitution in the most general terms, and may, therefore, be exercised by Congress under every variety of form, of appellate or origi- nal jurisdiction. And as there is nothing in the Constitution which restrains or limits this power, it must, therefore, in all other cases, subsist in the utmost latitude of which, in its own nature, it is susceptible.” Srory, J. Martin v. Hunter, 1 Wheat. 337. “Tt must, therefore, be conceded that the Constitution not only contemplated, but meant to provide for, cases within the scope of the 1 APPEAL AND ERROR. judicial power of the United States, which might yet depend before state tribunals. It was foreseen that in the exercise of their ordinary jurisdiction, state courts would in- cidentally take cognizance of cases arising under the Constitution, the laws, and treaties of the United States. Yet to all these cases the judicial power, by the very terms of the Constitution, is to extend. It cannot extend by original jurisdiction if that was already rightfully and exclusively attached in the state courts, which (as has been already shown) may occur; it must, therefore, ex- tend by appellate jurisdiction, or not at all. It would seem to follow that the appellate power of the United States must, in such cases, extend to state tribunals; and if in such cases, there is no reason why it should equally attach upon all others within the purview’ of the Constitution.” Story, J. Martin v. Hunter, 1 Wheat. 342. “We cannot. impute to Congress the in- tention of narrowing the appellate jurisdic- tion of this court in a suit, brought by the United States as a sovereign in respect of alleged miscarriage in the exercise of one of its functions as such; deeply concerning the public interests; and not falling within the reason of the limitation of the act.” Fut- Ler, C. J. U.S, v. American Bell Telephone Co., 159 U. S. 555. General Supervisory Power. “Tt is true that the general supervisory power of this court over inferior jurisdic- tions is of great moment in a public point of view, and should not, upon light grounds, be deemed to be taken away in any case.” Brapbiey, J. Jn re Pennsylvania Co., 137 UL S. 454. —— Of Judgments of Circuit Courts. “This. court has jurisdiction by writ of error to revise the final judgment, in any civil action, of a Circuit Court of the United States where the matter in controversy ex- ceeds two thousand dollars. Whether the judgment be obtained by the forms of the civil or the common law is immaterial. The only essential requisites to give jurisdiction are, that it be a civil action, involving a mat- ter in controversy exceeding two thousand dollars; and that the judgment be final.” McLean, J., dissenting. Parsons v. Bedford, 3 Pet. 452. —— Of Judgment of Affirmance of the Circuit Court. “Tf the court for the northern district of New York sat as a Circuit Court when the original judgment was rendered against the 82 plaintiff in error, this court can take juris- diction of the judgment affirming it, which was rendered in the Circuit Court; if the original judgment was rendered by a Dis- trict Court, no writ of error lies to the judgment of affirmance pronounced in the Circuit Court.’ MarsHart, C. J. South- wick v. Postmaster General, 2 Pet. 447. —— Upon Certificate of Question of Juris- diction of Circuit Courts. “ Appeals or writs of error may be taken directly from the Circuit Courts to this court in cases in which the jurisdiction of those courts is in issue, that is, their juris- diction as federal courts, the question alone of jurisdiction being certified to this court.” Futter, C. J. Blythe v. Hinckley, 173 U. S. 506. — Where Judgment of Circuit Court of Appeals Is Final. “The case is not before us on certiorari, but on appeal, and an appeal does not lie in those cases in which the judgments or de- crees of the Circuit Court of Appeals are made final by the statute.” FuLiLer, C. J. Anglo-Californian Bank vw. U. S, 175 U. S. 38. There Must Be an Inferior Court in Pos- session of the Record. “The mandate is the form in which the judgment of this court is given, upon an appeal from an inferior court, and the court can give no judgment, and award no execution, unless there is an inferior court of the United States, in possession of the original record, over which this court has appellate power, and which it may com- pel to execute its judgments. If no such court exists, it could merely express an opinion, which, ‘as we have said before, binds no one, is no judgment in the legal sense of the term, and may or may not be carried into effect at the pleasure of Con- gress.” Taney, C. J. Gordon v. U. S., 117 U.S. 704. “The court has uniformly refused to take jurisdiction where there was not a court of the United States in existence, in possession of the original record, to which we were au- thorized by law to send a mandate to carry into effect the judgment of this court.” Taney, C. J. Gordon wv. U.S, 117 U. S. 704. Law Regulating Practice of Inferior Court. “Any law regulating the practice of an in- ferior court does not confer jurisdiction on APPEAL AND ERROR. an appellate court.” McLean, J., dissenting. Parsons v. Bedford, 3 Pet. 452. Jurisdiction Declined Where It Is Doubt- ful. “There has justly been a leaning in this court to decline jurisdiction in cases’ of de- cisions below where it is doubtful; because the power vested here in such cases, it is believed, was meant to be much more re- stricted than is often practiced, and is in the most favorable view rather an anomaly.” Woopsury, J. U.S. v. Chicago, 7 How. 192. Confined to Cases Prescribed by Statute. “Congress possesses the sole right to say what shall be the forms of proceedings, either in equity or at law, in the courts of the United States; and in what cases an appeal shall be allowed or not.. It is a mat- ter of sound discretion, and to be exercised by Congress in such a manner as shall in their judgment best promote the public con- venience and the true interests of the citi- zens.” Story, J. Ex p. Christy, 3 How. 317. “Finality is a characteristic of the judg- ments of all tribunals, unless the laws pro- vide for a review.” Sutras, J. Louisville, etc. R. Co. wv. Kentucky, 183 U. S. 515. “Tt rests with Congress to determine whether a cause shall be reviewed or not. If no power of review is given, the judgment of the court having jurisdiction to decide is final.” Warrr, C. J. Ex p. Hoard, 105 U. S. 580. “This appellate jurisdiction [of the Su- preme Court] is subject to such exceptions, and must be exercised under such regula- tions, as Congress, in the exercise of its dis- cretion, has made or may see fit to make.” CuaseE, C. J. Ex p. Yerger, 8 Wall. 98. “Tt is . . . ‘undeniable that the ap- pellate jurisdiction of that tribunal [the Su- preme Court of the United States] is granted subject to such exceptions and regu- lations as the Congress may make, from which it follows that appellate jurisdiction can only be exercised by the Supreme Court in such cases and to such extent as the acts of Congress authorize.” CuirForp, J., dis- senting. Tennessee v. Davis, 100 U. S. 290. “Acts of Congress having been passed providing for the exercise of appellate judi- cial power [of the Supreme Court of the United States], the established rule is that the affirmative description of the cases in which the jurisdiction may be exercised 83 implies a negative on the exercise of such power in all other cases.” CzxiFForD, J., dis- senting. Tennessee v. Davis, 100 U. S, 290. “Congtess alone has the power to deter- mine whether the judgment of a court of the United States, of competent jurisdiction, shall be reviewed or not. If it fails to pro- vide for such a review, the judgment stands as the judgment of the court of last resort, and settles finally the rights of the parties which are involved.” Waitz, C. J. Ex p. Pennsylvania, 109 U. S. 176. “In our system the right to a writ of error or to an appeal depends wholly upon statutes granting that right, and not upon any prin- ciple of the common law, or upon any power in any court to review the decisions of any other court which is not also the creation of positive statute, and which in the courts of the United States must necessarily de- pend upon an Act of Congress. ‘So, also, the mode of exercising this right, the con- ditions on which the writ or the appeal may be had, and its effect on the progress of the case, are all prescribed by statute.” MILLER, J., dissenting. Kountze v. Omaha Hotel Co., 107 U. S. 396. “Tf there is jurisdiction, and no provision for appeal or writ of error, the judgment of the trial court is the judgment of the court of last resort, and concludes the parties.” Waite, C, J. Ex p. Detroit River Ferry Co., 104 U. S. 520. “This was the beginning of the rule, which has always been acted on since, that while the appellate power of this court under the Constitution extends to all cases within the judicial power of the United States, actual jurisdiction under the power is con- fined within such limits as Congress sees fit to prescribe.” Warte, C. J. The “ Francis Wright,” 105 U.S. 385. By the Constitution of. the United States, in cases to which the judicial power of the United States extends, and of which original jurisdiction is not conferred on this court, ‘the Supreme Court shall have appellate jurisdiction, with such exceptions and under such regulations as the Congress shall make.’ Constitution, art. 3, sec. 2. This court, there- fore, as it has always held, can exercise no appellate jurisdiction, except in the cases, and in the manner and form, defined and prescribed by Congress. Gray, J. Ameri- can Constr, Co. uv, Jacksonville, ete, Ry. Co., 148 U. S. 378, APPEAL AND ERROR. “ By the Constitution of the United States, the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress.” Taney, C. J. Barry v. Mercein, 5 How. 119. — From Court of Claims. “Undoubtedly the legislature has complete control over the organization and existence of that court [the Court of Claims] and may confer or withhold the right of appeal from its decisions.” CuaAsg, C. J. U.S. v. Klein, 13 Wall. 145. — No Inherent or Prerogative Power. “The appellate powers of the Circuit and Supreme Courts of the United States; are of limited jurisdiction — neces- sarily incompetent to act by any prerogative or inherent power; as the creatures of the Judiciary Act, they are not at liberty to ex- ercise any power over the proceedings of inferior courts, by any general supervisory power, such as has been assumed by the King’s Bench and House of Lords, Their supervision is only by writ of error, or ap- peal, and such writs as Congress have au- thorized them to use; so that in whatever case they act as an appellate court, it is by special authority, and can exercise no other than what is appropriately appellate, as con- tradistinguished from original jurisdiction.” BaLpwin, J., dissenting. Harrison v. Nixon, 9 Pet. 530. Consent Cannot Confer Jurisdiction. See also infra, III. 1. “ Arrangements between parties contra- dictory to their pleadings, and so evidently made for the purpose of enlarging the case sufficiently to bring it within the jurisdiction of this court, cannot be recognized here.” Waite, C. J. Webster v. Buffalo Ins, Co., 110 U. S. 389. II. IN CRIMINAL CASES. No Jurisdiction in Absence of Statute. “Circuit Courts [of the United States] have no common-law jurisdiction of offenses of any grade or description; and it is equally clear that the appellate jurisdiction of the Supreme Court does not extend to any case or any question, in a case not within the ju- risdiction of the subordinate federal courts.” Waite, C. J. U.S. v. Cruikshank, 92 U. S. 564, , “This court has decided in repeated in- stances that a writ of error will not lie, 84 under any circumstances, to a Circuit Court in a criminal case.” CLiFForD, J., dissenting. Ex p. Lange, 18 Wall. 185. “Tt is clear that a writ of error will not lie from this court to a Circuit Court in a criminal case for any purpose, nor will a writ of error coram vobis lie in a Circuit Court to correct any error of law or fact in a Circuit Court.” CC iFForp, J., dissenting. Ex p. Lange, 18 Wall, 196. “Tt seems to me that the refusal of a writ of error in criminal cases is not only idle, but mischievous, if a writ of habeas corpus, which is certainly a very clumsy proceeding for the purpose, may be resorted to, to bring the record of every criminal case of what- ever kind, before this court.” Curtis, J., dissenting. Ex p. Wells, 18 How. 330. —Enxcept in Cases of Error to State Courts. : “ At the time the Judiciary Act was passed no jurisdicti6n to review final judgments in criminal cases was vested in Circuit Courts or in this court, except in cases of error to courts of last resort of a state.” WHITE, J. Ballew v. U. S., 160 U. S. 199. Review Not an Element of Due Process, “A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law and is not now a necessary element of due process of law.” Hartan, J. McKane v. Durston, 153 U. S. 687. . “We have repeatedly decided that the review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is con- victed, is not a necessary element of due process of law, and that the right of appeal may be accorded by the state to the accused upon such conditions as the state deems proper.” Futter, C. J. Murphy v. Massa- chusetts, 177 U. S. 158. Review upon Certificate of Division. See also infra, IV. “This court can take cognizance of a crimi- nal case only upon a certificate of division of opinion.” Swayne, J. New Orleans v. Steamship Co., 20 Wall. 392. “This court have repeatedly decided, that they have no appellate jurisdiction in crimi- nal cases ftom the Circuit Courts of the United States; writs of error and appeals APPEAL AND ERROR. are given from those courts only in civil cases. But, even in those courts, where the judges are divided on any point, in a crimi- nal case, the point may be brought before this court, under a general provision in cases of division of opinion.” McLean, J. Worces- ter v. Georgia, 6 Pet. 569. “Appellate power in criminal cases de- cided in the District and Circuit Courts has not been vested in the Supreme Court by any Act of Congress, and. of course the power of the court in respect to such cases pend- ing in those tribunals is confined to certifi- cates of division of opinion.” CLiFForD, J., dissenting. Tennessee v. Davis, 100 U. S. 283. “A question arising in a criminal case can only be brought before this court for decision upon a certificate of a division of opinion between the judges of the Circuit Court.” Fretp, J., dissenting. U. S. v. Cir- cuit Judges, 3 Wall. 679. Writ of Error Allowed by Statute. “The first Act of Congress which author- ized a criminal case. to be brought from the Circuit Court of the United States to this court, except upon a certificate of division of opinion, was the Act of February 6, 1889, c. 113, § 6, 25 Stat. 655, by which it was enacted that ‘in all cases of conviction’ of a ‘capital crime in any court of the United States,’ the final judgment ‘against the re- spondent’ might, on his application, be re- examined, reversed, or affirmed by this court on writ or error. Up to that time this court had no general authority to review on error or appeal the judgments of Circuit Courts of the United States in cases within their criminal jurisdiction.” Futter, C. J. U. S. v. Rider, 163 U. S. 138. Statute Must Confer Jurisdiction in Clear Terms. “We have, of course, no general authority to review, on error or appeal, the judgments of the Circuit Courts of the United States in cases within their criminal jurisdiction, or those of the Supreme Court of the District of Columbia or of the Territories: and when such jurisdiction is intended to be con- ferred, it should be done in clear and ex- plicit language.” Fuuter, C. J. Cross v. U. S., 145 U. S. 574, Right of State to Review. “Tt is settled by an overwhelming weight of American authority that the state has no right to sue out a writ of error upon a judgment in favor of the defendant in a 85 criminal case, except under and in accord- ance with express statutes, whether that judgment was rendered upon a verdict of acquittal, or upon the determination by the court of a question of law.” Gray, J. U.S. vw. Sanges, 144 U. S. 312. “Tn a few states, decisions denying a writ of error to the state after judgment for the defendant on a verdict of acquittal have proceeded upon the ground that to grant it would be to put him twice in jeopardy, in violation of a constitutional provision.” Gray, J. U.S. v. Sanges, 144 U. S. 313. “The courts of many states, including some of great authority, have denied the right of the state to bring a writ of error in any criminal case whatsoever, even when the discharge of the defendant was upon the decision of an issue of law by the court, as on demurrer to the indictment, mo- tion to quash, special verdict, or motion in arrest of judgment.” Gray, J. U. S. w. Sanges, 144 U. S. 313. “Under the common law, as generally understood and administered in the United States, and in the absence. of any statute expressly giving the right to the state, a writ of error cannot be sued out in a criminal case after a final judgment in favor of the defendant, whether that judgment has been rendered upon a verdict of acquittal, or upon a determination by the court of an issue of law. In either case, the defendant, having been once put upon his trial and discharged by the court, is not to be again vexed for the same cause, unless the legislature, acting within its constitutional authority, has made express provision for a review of the judg- ment at the instance of the government.” Gray, J. U.S. v. Sanges, 144 U. S. 318. III. METHOD OF REVIEW — FORM OF PROCEEDING. 1. IN GENERAL, Confined to Method Prescribed by Law. “The agreement of parties cannot author- ize this court to revise a judgment of an in- ferior court in any other mode of proceed- ing than that which the law prescribes.” Taney, C. J. Kelsey v. Forsyth, 21 How. 88 “[The appellate power of the Supreme Court cannot] be exercised in any other form, or by any other mode of proceeding, than that which the law _ prescribes.” Taney, C. J. Barry v. Mercein, 5 How. 119. APPEAL AND ERROR. “ Circuit-court judgments or decrees must be removed into the Supreme Court by writ of error or appeal, and they cannot be removed here in any other way which will give this court jurisdiction to reverse or affirm the judgment or decrée.” CLIFFORD, J., dissenting. Dow wv. Johnson, 100 U. S. 1%, “Neither the consent of the parties nor the allowance of the appeal in the court ap- pealed from can enable this court to review the judgment of that court in any other form of proceeding than the law prescribes.” Gray, J. U. S. v. Emholt, 105 U. S. 416. See also supra, I. “This court have no appellate power over the judgment of the court below, unless the judgment is brought here according to the act of Congress — that is, by writ of error; = this writ is not mere matter of form, but matter of substance, prescribed by law, and essential to the jurisdiction of this court.” Taney, C. J. Hodge v. Williams, 22 How. 88. Forms in England Not Adopted. “The forms of proceeding in the English courts of error have never been adopted or followed in this court.” Taney, C. J. Brooks v. Norris, 11 How. 208. Grant of New Remedy. “While it is undoubtedly true that leg- islatures cannot set aside the judgments of courts, compel them to grant new trials, order the discharge of offenders, or direct what steps shall be-taken in the progress of a judicial inquiry, the grant of a new remedy by way of review has been often sustained under particular circumstances.” FULLER, C. J. Stephens v. Cherokee Nation, 174 U. S. 478. Various Methods of Exercising Appellate Power. “That jurisdiction [U. S. Supreme Court] may, however, be called into exercise in va- rious ways. The term ‘appellate’ in the Constitution is not used in a restricted sense, but in the broadest sense, as embracing the power to review and correct the proceed- ings of subordinate tribunals brought before it for examination in the modes provided by law. Congress has prescribed the mode or process by which such proceedings shall be brought before the court. In equity cases, it is by a simple notice that an appeal is taken from the decree or proceeding sought to be reviewed; in common-law cases, it is 86 generally by writ of error; in some cases it is by writ of prohibition, and in some by that of certiorari, or of mandamus. The mode is one resting entirely in the discre- tion of Congress. The Judiciary Act of 1789, passed at the first session of Congress after the adoption of the Constitution, de- clared that the Supreme Court should have appellate jurisdiction from the Circuit Courts and from courts of the several states in cer- tain cases, and should ‘have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of manda- mus in cases warranted by the principles and usages of law, to any courts appointed or persons holding office under the authority of the United States.” Frerp, J. Vir- ginia v. Rives, 100 U. S. 327. 2. ERROR AND APPEAL. a. In General. The Two Methods Generally. “There are two principal methods known to English jurisprudence, and to the juris- prudence of the federal courts, by which cases may be removed from an inferior to an appellate court for review. These are the writ of error and the appeal.” Mutter, J. Murdock v. Memphis, 20 Wall. 621. “Tt is observed, that a writ of error is a process more limited in its effects than an appeal; but, whatever may be the operation, if an appellate jurisdiction can only be exer- cised by this court conformably to such regu- lations as are made by the Congress, and if Congress has prescribed a writ of error, and no other mode, by which it can be exercised, still, I say, we are bound to pursue that mode, and can neither make nor adopt an- other.” Extswortu, C. J. Wiscart v. Dau- chy, 3 Dall. 328. “ Appellate jurisdiction is invoked as well through the instrumentality of writs of error as of appeals. Whether the one form of proceeding is to be used or another depends ordinarily on the character of the suit be- low; but the one as well as the other brings into action the appellate powers of the court whose jurisdiction is reached by what is done. What the powers shall be, and to what extent they shall be exercised, are, and always have been, proper subjects of leg- islative control. Authority to limit the ju- risdiction necessarily carries with it authority to limit the use of the jurisdiction. Not only may whole classes of cases be kept out of the jurisdiction altogether, but the par- APPEAL AND ERROR. ticular classes of questions may be subjected to re-examination and review, while others are not.” Waite, C. J. The “Francis Wright,” 105 U. S. 386. “They [appeals and writs of error] are to be understood, when used, according to their ordinary acceptation, unless something appears in the act itself, to control, modify, or change the fixed and technical sense which they have previously borne.” Extsworru, C. J. Wiscart v. Dauchy, 3 Dall 327. “Appeals under the additional act ‘to amend the judicial system’ are subject to the same rules, regulations,:and restrictions as are prescribed in case of writs of error.” CirForp, J. The Maria Martin, 12 Wall. 40. “In many jurisdictions an appeal from a court of general jurisdiction is in the nature of a writ of error, but that is not so in re- spect of the Circuit Courts of the United States, as to which the distinction between the two modes of review has generally, if not always, been observed in the acts of Con- gress.” Futter, .C. J. Deland vw. Platte County, 155 U. S, 222. The Two Methods Distinguished. “Tn the legislation of Congress, from the foundation of the government, a writ of er- ror, which brings up matter of law only, has always been distinguished from an appeal, which, unless expressly restricted, brings up both law-and fact.” Gray, J. Dower vw. Richards, 151 U. S. 663. “In the first Judiciary Act, the whole ap- pellate jurisdiction of this court was limited to matters of law. While an appeal lay from the District Court to the Circuit Court in ad- -miralty cases, neither the judgments nor de- crees of the Circuit Court, whether in law, equity, or admiralty, nor judgments nor de- crees of the highest court of a State, could be reviewed. by this court, except by writ of error.” Gray, J. Dower v. Richards, 151 U. S. 663. “Tn 1803, Congress substituted an appeal from the Circuit Court to this court, instead of a writ of error, in cases of equity and in admiralty; and upon such an appeal the facts as well as the law were open to re- view in both those classes of cases until 1875, when the appeal in admiralty was re- stricted to questions of law.” Gray, J. Dower v. Richards, 151 U. S. 664. “Judgments of the Circuit Court in actions at law have remained reviewable by writ of error only.” Gray, J. Dower vw. Richards, 151 U. S. 664. “The appeal, which is the only mode by which a decree in chancery or in admiralty can be brought from an inferior federal court to ‘this court, does bring up the whole case for re-examination on all the merits, whether of law or fact, and for considera- tion on these, as though no decree had ever been rendered. The writ of error is used to bring up for review all other cases, and when thus brought here the cases are not. open for re-examination on their whole merits, but every controverted question of fact is ex- cluded from consideration, and only such errors as this court can see that the inferior court committed, and not all of these, can be the subject of this court’s corrective power.” Mutier, J. Murdock v. Memphis, 20 Wall. 621. b. Appeal. ‘Original Scope of Remedy. “The remedy by appeal in its original sense was confined to causes in equity, ec- clesiastical and admiralty jurisdiction.” Fut- LER, C. J. U.S. uv. Coe, 155 U. S. 83. Not Commencement of Suit. “The defendant who appeals from a judg- ment rendered against him is never said to commence or prosecute a suit against the plaintiff who has obtained the judgment.” MarsHalt, C. J. Cohen v. Virginia, 6 Wheat. 410. Facts and Law Reviewable. “Tn all acts of Congress regulating judi- cial proceedings, the very word ‘appeal,’ un- less restricted by the context, indicates that the facts, as well as the law, involved in the judgment below, may be reviewed in the ap- pellate court.” Gray, J. Capital Traction Co, v. Hof., 174 U. S. 37. “The laws of the’ United States have al- ways proceeded on the supposition, that in revising decrees in chancery, the facts, as well as the law, should be laid before this court.” Marswatt, C. J. Conn v. Penn, & Wheat. 425. “Where the appeal involves a question of fact, the burden in such a case is on the appellant to show that the decree in the sub- ordinate court is erroneous; but it is mis- take to suppose that this court will not re- examine the whole testitnony in the case, as the express requirement of the act of Congress is that the Supreme Court shall hear and determine such appeals, and it is APPEAL AND ERROR. as much the duty of the court to reverse the decree from which the appeal is taken for error of fact, if clearly established, as for error of law.” Czirrorp, J. The City of Hartford, 97 U. S. 328. “Such an appeal [from a final decree] brings up the whole case.” CLIFFORD, J., con- curring. Johnson v. Harmon, 94 U. S. 378. “On appeal in an equity suit, the whole case is before us, and we are bound to de- cide it so far as it is in a condition to be decided.” Braptey, J. Ridings v. Johnson, 128 U. S. 218. “An appeal is a process of civil law ori- gin, and removes a cause entirely; subject- ing the fact as well as the law, to a review and retrial.” ExttswortH, C. J. Wiscart v. Dauchy, 3 Dall. 327. Remedy in Equity. “The writ of error, from its form and the Principles which govern it, is peculiarly ap- propriate to judgments at common law, and is inconvenient and embarrassing when used as process to remove decrees in chancery and admiralty to a superior court. The ordi- nary and uniform mode of removing such decrees to the appellate and revising court, wherever such jurisdictions have been estab- lished, has been by appeal, with the single exception of this Act of Congress [the Judi- ciary Act of 1789].” Tawney, C. J. Hem- menway wv. Fisher, 20 How. 258. “A decree of a Circuit Court upon the merits can be reviewed here only by appeal.” Waite, J. Covington v. Covington First Nat. Bank, 185 U. S. 27%. - * By the Judiciary Act of 1789, there was no appeal, in the judicial sense of that word, to this court in any case. Decrees in suits in equity and admiralty were brought up by writs of error only, until the Act of 1803.” Miter, J. Murdock v. Memphis, 20 Wall. 624. —In Proceedings in Territorial Courts. “In all proccedings in the territorial courts in the nature of suits of equity as well in those proceedings in the nature of actions at common law in which no trial by jury is had, (either because a jury has been duly waived, or because the issues tried are issues of law only) the appellate juris- diction of this court must be invoked by ap- peal, and not by writ of error.” Gray, J. Idaho & etc, Land Co. v. Bradbury, 132 U.S. 514. 88 Transfer for Trial de Novo Is Not an Appeal. “The suit in the District Court is to be regarded as_an original proceeding, the re- moval of the transcript, papers, and evidence into it from the board of commissioners being but a mode of providing for the in- stitution of the suit in that court. The trans- fer, it is true, is called an appeal; we must not, however, be misled by a name, but look to the substance and intent of the pro- ceeding. The District Court is not confined to a mere re-examination of the case as heard and decided before the board of com- missioners, but hears the case de novo, upon the papers and testimony which had been used before the board, they being made evi- dence in the District Court; and also upon such further evidence as either party may see fit to produce.” Nexson, J. U. S. uv Ritchie, 17 How. 534. c. Writ of Error. Definition and Nature in General. “Common-law writers define a writ of er- ror as a commission by which the judges of one court are authorized to examine a record upon which a judgment is given in another court, and on such examination to affirm or reverse the same according to law.” CLiF- FoRD, J., dissenting. Underwood vw. McVeigh, 131 U. S, CXX. “A writ of error is defined to be a com- mission by which the judges of one court are authorized to examine a record upon which a judgment was given in another court, and on such examination, to affirm or reverse the same according to law.” MarsHatt, C. J. Cohen v. Virginia, 6 Wheat. 408. : “The writ of error is a common-law writ, and is almost as old as the common law it- self.” McLean, J. U. S. vw. Addison, 22 How. 183. “A writ of error is an original writ, and lies only when a party is aggrieved by some error in the foundation, proceedings, judg- ment, or execution, of a suit in a court of record, and is defined to be a commission, by which the judges of one court are authorized to examine a record upon which a judg- ment was given in another court, and, on such examination, to affirm or reverse.” Cuirrorp, J. Suydam wv. Williamson, 20 How. 437. “A writ of error is, indeed, but a process which removes the record of one court to the possession of another court, and enables APPEAL AND ERROR. the latter to inspect the proceedings, and give such judgment as its own opinion of the law and justice of the case may war- rant.” Story, J. Martin v. Hunter, 1 Wheat. 349, Original Writ Out of Chancery. “A writ of error is said to be an original writ, because, at common law, it was issued out of the Court of Chancery; but its opera- tion is rather upon the record, than the per- son.” C.iFForD, J. Nations v. Johnson, 24 How. 204. Act of Court. “The writ of error is the act of the court; its object is to cite the parties to this court, and to bring up the record.” JouNson, J. Buel v. Van Ness, 8 Wheat. 320. “ Action” or “Cause of Action.” “The words ‘action’ and ‘cause of ac- tion’ are not ordinarily applicable to writs of error.” Fuxter, C. J. Bradford v. South- ern R. Co., 195 U. S. 248. “ Where a state obtains a judg- ment against an individual, and the court, rendering such judgment, overrules a de- fense set up under the Constitution and laws of the United States, the transfer of this record into the Supreme Court, for the sole purpose of inquiring whether the judgment violates the Constitution or laws of the United States, can with no pro- priety, we think, be denominated a suit commenced and prosecuted against the state whose judgment is so far re-examined.” MarsHaLt, C. J. Cohen wv. Virginia, 6 Wheat. 410. “The defendant who removes a judgment rendered against him by a state court into this court, for the purpose of re-examining the question, whether that judgment be in violation of the Constitution or laws of the United States, does not commence or prose- cute a suit against the state.” MARSHALL, C. J. Cohen v. Virginia, 6 Wheat. 412. “Suits cannot, under the Judiciary Act, be commenced against the United States; and yet writs of error, accompanied by citations, have uniformily issued for the removal of judgments recovered in favor of the United States into this court for re-examination. Such cases are of daily occunrence, and the judgments here reversed or affirmed, as they are with or without error; and it has never been supposed that the writ of error in such cases, though sometimes involving large amounts, was a suit against the United States. 89 Plainly, therefore, there is a distinction be- tween a writ of error and the original suit. According to practice in this court, it is rather a continuation of the original litiga- tion than the commencement of a new ac- tion; and such, it is believed, is the general understanding of the legal profession in the United States.” Cuirrorp, J. Nations wv. Johnson, 24 How. 204. “ According to the practice of this court a writ of error has been treated rather as a continuation of the original litigation than the commencement of a new action.” Fut- LER, C. J. In re Chetwood, 165 U. S. 461. — When Object Is to Restore Posses- sion. “A writ of error, is in the nature of a suit or action when it is to restore the party who obtains it to the possession of any- thing which is withheld from him, not when its operation is entirely defensive.” Mar- SHALL, C. J. Cohen v. Virginia, 6 Wheat. 409. Error Governed by Common Law. “Writs of error to remove the judgment of an inferior tribunal to this court are, under the acts of Congress, governed by the principles and usages of the common law.” Taney, C. J. Payne v. Niles, 20 How. 221. Exclusive Remedy at Law. “We have repeatedly held that the writ of error in cases at law is essential to the exercise of the appellate jurisdiction of this court. And it is undoubtedly true that this court has gone very far in requiring strict compliance with the acts of congress under which cases are transfered from inferior tribunals to this court.” Mrtier, J. Mus- sina v. Cavazos, 6 Wall. 358. “[In] a case at common law . . the judgment could not be brought before this. court but by a writ of error.” MarsHALL, C. J. The Sarah, 8 Wheat. 395. “Judgments of law must be removed by writ of error.” McLean, J. U. S. gv, Nourse, 6 Pet 495. “This court having separate distinction, both in equity and law, is compelled to distin- guish. They can review cases in common law by writ of error only, and on bills of exception presenting questions of law, GrIER, J. Graham v. Bayne, 18 How. 61. In Equity. “It is, of course, undisputed that a final decree in equity, in the court below, cannot APPEAL AND ERROR. be reviewed here by means of a writ of error. But a proceeding involving the origi- nal probate of a last will and testament is not strictly a proceeding in equity, although rights arising out of, or dependent upon, such probate have often been determined by suits in equity.” Hartan, J. Ormsby w. Webb, 134 U. S. 64. “A writ of error in equity proceeding is not peculiar. The twenty-second section of the Judiciary Act of 1789 gave a writ of er- ror in chancery cases, and so the law con- tinued until 1803.” Catron, J. Erwin v. Lowry, 7 How. 184. Effect — Simply Removes Record. “Under the Judiciary Act, the effect of a writ of error is simply to bring the record into court, and submit the judgment of the inferior tribunal to re-examination. It does not in any manner act upon the parties; it acts only on the record.” MarsHatt, C. J. Cohen v. Virginia, 6 Wheat. 410. — Removes Entire Record. “A writ of error always brings up to the superior court the whole record of the pro- ceedings in the court below. Tawney, C. J. Scott wv. Sandford, 19 How. 403. — Only Law Reviewable. “A writ of error is a process of common- law origin, and it removes nothing for re- examination but the law.” Exisworry, C. J. Wiscart v. Dauchy, 3 Dall. 327. “A writ of error can bring up nothing but questions of law. It does not bring up ques- tions of equity arising out of the rules and practice of the courts.” Taney, C. J. Mor- sell v. Hall, 13 How. 215. IV. CERTIFICATE OF DIVISION. Provisions For. “The Act of April 10, 1869, c. 22, 16 Stat. 44, provided for the appointment of a Cir- cuit Judge in each circuit, but this did not repeal the Act of 1802, as the same neces- sity existed as before for the power to certify questions.” Futter, C. J. U. S. uw. Rider, 163 U. S. 136. “By the Act of June 1, 1872, c 255, 17 Stat. 196, whenever in any proceedings or suit in a Circuit Court there occurred any dif- ference of opinion between the judges, the opinion of the presiding judge was to pre- vail for the time being; but upon the entry of a final judgment, decree or order, and a certificate of division of opinion as under the Act of 1802, either party might remove the case to this court on writ of error or appeal, according to the nature of the case. This act continued in force about two years, when it was supplanted by sections 650, 652, and 693 of the Revised Statutes, by which its provisions were restricted to civil suits and proceedings; and by sections 651 and 697 the provisions of section 6 of the Act of 1802 were re-enacted as to criminal cases.” Fuuter, C. J. U. S. v. Rider, 163 U. S. 136. “The appellate jurisdiction of this court is defined by the Acts of Congress. By section 6 of the act of April 29, 1802, c. 31, 2 Stat. 156, 159, whenever there was a division of opinion in the Circuit Court upon a ques- tion of law, the question might be certified to this court for decision; provided that the case might proceed in the Circuit Court if in its opinion further proceedings could be had without prejudice to the merits; and that no imprisonment should be allowed or punishment inflicted upon which the judges were divided in opinion.” Futter, C. J. U.S. v. Rider, 163 U. S. 135. “Judges of the Circuit Court are required’ to certify, at the request of either party. or their counsel, any division of opinion oc- curring between them on the trial or hear- ing-of such a suit, and the provision is that such certificate shall be entered of record.” Currrorp, J., dissenting. Dow v. Johnson, 100 U. S. 175. Office Of. “The office and object of a certificate of division of opinion are to bring to this court for determination a question of law upon which the opinions of two judges, compe- tent to take part in the judgment of the Circuit Court, are opposed to each other.” Gray, J. U.S. v, Emholt, 105 U. S. 415. “The office of a certificate of a division of opinion between two judges in the Circuit Court is to submit to this court one or more points of law, and not the whole case.” Gray, J. State Bank v. St. Louis Rail Fastening Co., 122 U. S. 28. “Cases of real doubt and difficulty, or of extensive consequence as to principle and application, and furnishing matter for every 90 grave deliberation, are those alone which can be reasonably presumed to have been within the purview of the legislature in al- lowing an appeal to this court upon certi- ficates of division.” Story, J. U. S. ». Gooding, 12 Wheat. 468. APPEAL AND ERROR. “Under the Revised Statutes, as to civil cases, the danger of the wheels of justice being blocked by difference of opinion was entirely obviated, and the provision for a certificate operated to give the benefit of re- view where the amount in controversy was less than that prescribed as essential to our jurisdiction, while as to criminal cases a certificate of division was the only mode in which alleged errors could be reviewed.” Futter, C. J. U.S. uv. Rider, 163 U. S. 187. What May Be Certified — Distinct Points of Law and Not Whole Case, “Under the acts of Congress, authorizing questions arising on a trial or hearing be- fore two judges in the Circuit Court, and upon which they are divided in ‘opinion, to be certified to this court for decision, it has always been held that each question certi- fied must be one of law, and not of fact,. nor of mixed law and fact, and that it must be a distinct point or proposition, clearly stated, and not the whole case, nor the ques- tion whether upon the evidence the judgment should be for one party or for the other.” Gray, J. Williamsport Bank v. Knapp, 119 U. S. 360. “In civil cases, prior to March 3, 1891, the appellate jurisdiction [of the U. S. Su- preme Court] was limited by the sum or value of the matter in dispute, and, after final judgment or decree, if the amount in controversy reached the jurisdictional amount, the whole case was open for consid- eration on error or appeal, while, if it fell below that, only the questions certified could be examined. It has always been held that the whole case could not be cer- tified.” Futter, C. J. U. S. uv. Rider, 163 Uz. S. 187. “The question must not be general nor abstract, nor a mixed one of law and fact. If it be either, this court cannot take juris- diction.” Swayne, J. Daniels v. Rock Is- land R. Co., 3 Wall. 256. “Where it appears the whole case has been divided into points—some of which may never arise, if those which precede them in the certificate are decided in a particular way — the case will be dismissed for want of jurisdiction.” Swayne, J. Daniels v. Rock Island R. Co., 3 Wall. 256. “Certificates of division of opinion be- tween the judges of the Circuit Court under a former act gave the Supreme Court juris- diction of the questions certified, but the uni- versal rule was that the Supreme Court 91 would only consider the single question or questions certified. Nothing could come before the court under such certificate except the single question or questions certi- fied here by the circuit judges, in respect to which they were divided in opinion. & Jurisdiction acquired in that mode of pro. ceeding was limited to the points certified, and could not be extended by a certificate of division to anything except what would be open to revision here under a writ of error or appeal. CuirForp, J., dissenting. Dow v. Johnson, 100 U. S. 173. oo. “This court will not entertain any ab- stract question, upon a certificate of divi- sion of opinion, which does not arise in the cause. The question must occur before the Circuit Court, according to the express terms of the Act of Congress, in order to come here upon such division of opinion.” THomp- son, J. New York v. Miln, 11 Pet. 144. “The question of fraud or no fraud is one necessarily compounded of fact and of law, and the fact must be distinctly found be- fore this court can decide the law upon a certificate of division of opinion.” Gray, J. Jewell v. Knight, 123 U. S. 482. Must Be Actual Division. “Tt was long ago settled, under the stat~- utes authorizing questions upon which two judges of the Circuit Court were divided in opinion to be certified to this court, that each question so certified must be a dis- tinct point or proposition of law, clearly stated, so that it could be definitely an- swered, and that if it appeared upon the record that no division of opinion actual- ly existed among the judges of the Circuit Court, this court would not consider a ques- tion as certified even though it were certified in form.” Futter, C. J. Columbus Watch Co. v. Robbins, 148 U. S. 269. What Is Brought Up. “The judges of the Circuit Court have sent up with the certificate of their division of opinion the entire record of the proceed- ings in that court, including the evidence on the trial and the agreed statement of facts by counsel. Such matters outside of the certificate, not constituting part of the pleading in the case or of the public stat- utes or treaties bearing upon the point certi- fied, cannot be considered by us in disposing of the questions presented. The division of opinion arose on the motion to set aside the verdict and for a new trial, the judges differ- ing as to the jurisdiction of the court under the Act of Congress upon the facts present- APPEAL AND ERROR. ed. Until this question is disposed of there can be no further proceedings in the case; and: as it arises upon the statute as applied to the facts, this court may very properly consider and answer it, although irrelevant matter, which will not be regarded, is also embraced in the certificate.” Fretp, J. U.S. v. Thomas, 151 U. S. 580. “While we have the power to require the whole record and cause to be sent up to us for consideration and decision, the sixth section of the Judiciary Act of March 3, 1891, does not contemplate that questions or propositions of law shall be propounded and the entire record thereupon transmitted for us to answer such questions or propositions are certified, accompanied by a proper state- ment of the facts on which they arise, to determine whether we will answer them as propounded or direct the whole record to be placed before us in order to decide the matter in controversy in the same manner as if the case had been brought up by writ of error or appeal.” Furzer, C. J. Cincin- nati, etc., R. Co. v. McKeen, 149 U. S. 261. “Of course, according to the well known practice of this court, and the mandates of the law, we can look only to the question certified to us, and to it, in the very form, in which it is certified.” Story, J., dissent- ing. New York v. Miln, 11 Pet. 153. — Original Cause Not Removed. “Tt is clear that the statute [the Act of 1802, ch. 31, sec. 6] does not, upon the certificate of division, remove the original cause into this court; on the contrary, it is left in the possession of the court below for the purpose of further proceedings, if they can be had without prejudice to the merits; so that, in effect, the certified questions only, and not the original cause, are removed to this court.” Story, J. Veazie v. Wadleigh, 11 Pet. 60. — On Matters of Discretion. “The general rule undoubtedly is, that this court cannot, upon a certificate of division of opinion, acquire jurisdiction of questions relating to matters of pure discretion in the Circuit Court. Thus, it has been held that this court will not determine upon a certifi- cate of division of opinion, whether or not a new trial shall be granted, or whether a plaintiff in ejectment shall be permitted to enlarge the term in the demise, or any ques- tion in any equity cause relating to the practice in the circuit court, and depending on the exercise of sound discretion in the 92 application of the rules which regulate the course of equity to the circumstances of the particular cause.” CHaAsE, C. J. U.S. v. Rosenburgh, 7 Wall. 581. — On Motion for New Trial. “Tt is the general doctrine that there can be no certificate of a division of opinion be- tween the judges of the Circuit Court on a motion for a new trial, as such motion usually rests in the discretion of the court, and, therefore, properly presents no questions for our determination. But such is not always the case. Sometimes a motion of the kind or of a similar kind may pre- sent for consideration a question going di- rectly to the merits and a decision of which may determine the point in controversy. In such instances the court will consider the question submitted on a certificate of division of opinion between the judges of the court below.” Fretp, J. U. S. wv. Thomas, 151 U. S. 581. Before or After Final Judgment Rendered. “Under the original act the judges of the Circuit Court were required to make the certificate and cause it to be certified to the Supreme Court before final judgment was rendered, but under the new act the final judgment in civil cases is required to precede the certificate.” Cizrrorp, J., dissenting. Dow v. Johnson, 100 U. S. 179. Amount in Controversy. “Differences of opinion between the cir- cuit judges may be certified by them when they sit together, irrespective of the amount, and the effect is that the certificate becomes part of the record.” Cz1FForp, J., dissenting. Dow wv. Johnson, 100 U. S. 179. Seal of Court. “ There [is no] requirement that the difference of opinion shall ever be certi- fied to the Supreme Court under the seal of the Circuit Court.” Ctrrrorp, J., dissent- ing. Dow wv. Johnson, 100 U. S. 179. . V. CERTIFYING QUESTIONS BY CIRCUIT COURT OF APPEALS. 1. In GENERAL, “In every case within its appellate juris- diction, the Circuit Court of Appeals may certify to this court any questions or propo- sitions of law in respect of which it desires instruction, and this court may then require the whole record and cause to be sent up.” Futter, C. J. Lau Ow Bew v. U. S., 144 UL S. 58. : APPEAL AND ERROR. 2 QUESTION OF JURISDICTION. “Tn order to maintain the appellate juris- diction of this court under this clause [of the Act of March 3, 1891, c. 517, § 5] the record must distinctly and unequivocally show that the court below sends up for consideration a single and definite question of jurisdiction. This may appear in either of two ways; by the terms of the decree ap- pealed from and of the order allowing the appeal; or by a separate certificate of the court below.” Gray, J. Huntington v. Laidley, 176 U. S. 676. “The Circuit Court of the United States cannot, by treating a question of merits as a question of jurisdiction, enable this court, upon a direct appeal on the question of juris- diction only, to decide the question of merits, except in so far as it bears upon the ques- tion whether the court below had or had not jurisdiction of the case.” Gray, J. Hunting- ton v, Laidley, 176 U. S. 679. “Tt is settled that the question of jurisdic- tion which the Act of March 3, 1891, pro- vides may be certified to this court directly, must be one involving the jurisdiction of the Circuit Court as a federal court.” FULLER, C. J. Bache v. Hunt, 193 U. S. 525. “Of course, everybody knows that when there has been in separate actions in courts of law and equity final determination as to both the legal and equitable title there is no excuse for further litigation, and I think that we Sacrifice substance to form when we hold that the federal court should not, when these facts are disclosed, act promptly, but must wait until the issues presented by pleadings have been attempted to be sup- ported by testimony and the case is already for final hearing.” Brewer, J., dissenting. Huntington v. Laidley, 176 U. S. 680. “Of course, the power to certify assumes the power to decide.” Futter, C. J. U.S. v. Jahn, 155 U. S. 113. VI. JUDGMENTS AND DECREES REVIEWABLE. 1. In GENERAL. “A reservation of the right to appeal has no effect if there is no decree from which an appeal such as has been reserved will lie.” Farmer’s L. & T. Co. v. Waterman, 106 U. S. 269. “The forms of proceeding adopted under the Louisiana practice, in the District Court, constitute no objection to a revision of its 93 final judgment by writ of error”’ M’LEAN, J., dissenting. Parsons v. Bedford, 3 Pet. 453. “Express determination of this court is, that the jurisdiction of a court is not ex- hausted by the rendition of the judgment, but continues until that. judgment shall be satisfied. Consequently a writ of error will lie when a party is aggrieved in the founda- tion, proceedings, judgment, or execution of a suit in a court of record.” CuiFForD, J. Riggs v. Johnson County, 6 Wall. 187. 2. FINAL JUDGMENT OR DECREE. Finality Necessary. “From the very foundation of our judicial system the object and policy of the Acts of Congress in relation to appeals and writs of error, (with the single exception of a provision in the Act of 1875 in relation to cases of removal, which was repealed by the Act of 1887,) have been to save the expense and delays of repeated appeals in the same suit, and to have the whole case and every matter in controversy in it decided in a single appeal.” Lamar, J. McLish v. Roff, 141 U. S. 665. “ Appeals to the House of Lords may be taken from an interlocutory order of the chancellor, which decides a right of property in dispute. But the case is otherwise in the courts of the United States, where the right to appeal is by law limited to final decrees.” Taney, J. Forgay wv. Conrad, 6 How. (U. S.) 205. “Final judgments only should be brought before this court for re-examination.” Mar- SHALL, C. J. Bank of Columbia v. Sweeny, 1 Pet. 569. “Our. jurisdiction cannot be invoked until after a final judgment, and, until such a judgment has been rendered, the cause re- mains in the full judicial control of the court in which it is pending.” Warts, C. J. New York El. R. Co v. New York Fifth Nat. Bank, 118 U. S. 609. “Tt has been the object of this court at all times, though an accidental deviation may be found, to restrict the cases which have been brought to this court, either by appeal or by writ of error, to those in which the rights of the parties have been fully and finally determined by judgments or decrees in the court below, whether they were cases in admiralty, in equity, or common law.” Wayne, J. Beebe v. Russell, 19 How, 284. APPEAL AND ERROR. “We feel very confident no case has been decided by it [this court] when the question of the finality of a decree or judgment has been brought to its notice, in which the dis- tinction between final and interlocutory de- crees has not been regarded as it was meant to be by the legislation of Congress, and as it was understood by the courts in England and in this country, before Congress acted upon the subject.’ Wayne, J. Beebe v. Russell, 19 How. 284. “By the 22d section of the Judiciary Act of 1789, it is provided, that final decrees of the Circuit Court, where the amount in con- troversy exceeds two thousand dollars, may be brought before this court by an appeal. The law intended that one appeal should settle the matter in controversy between the parties; and this would be the result in all cases where the appeal is taken on a final decree, unless it should be reversed or modi- fied by this court.” McLean, J. Craighead v. Wilson, 18 How. 200. “Tf an interlocutory judgment or decree could be brought into this court, the same case might be brought after a final decision; and all the delays and expense incident to a repeated revision of the same cause, be incurred. So if the whole cause, instead of an insulated point, could be adjourned, the judgment of decree which could be finally given by the Circuit Court, might be brought up by writ of error or appeal, and the whole subject be re-examined.” MarsHatt, C. J. U. S. uv. Bailey, 9 Pet. 273. “In limiting the right of appeal to final decrees, it was obviously the object of the law to save the unnecessary expense and delay of repeated appeals in the same suit; and to have the whole case and every matter in controversy in it decided in a single appeal.” Taney, C. J. Forgay v. Conrad, 6 How. 205. “ Appeals here can only be sustained where the decree is final.” CtizFForp, J., concurring. Johnson v. Harmon, 94 U. S. 378. “Cases cannot be brought to this court upon appeal in parcels. We must have the whole of a case or none. The court below must settle all the merits before we can accept jurisdiction. Appeals will lie, as has been frequently held, when nothing remains to be done except to enforce and give effect to what has been decreed, but until all the rights of the parties have been finally passed upon and settled this cannot be the condition of a cause. Nothing must be left below 94 when an appeal is taken but to execute the decree.” Warts, C. J. Crosby v. Buchanan, 23 Wall. 453. “Under the judicial system of the United States, from the beginning until the passage of the Act of 1891 establishing Circuit Courts of Appeals, appeals from the Circuit Courts of the United States in equity or in admiralty, like writs of error at common law, would lie only after final judgment or decree.” Gray, J. Smith v. Vulcan Iron Works, 165 UL S. 524. i “Circuit Court judgments or decrees in civil actions or suits in equity, in order that they may be re-examinable in the Supreme Court, must be final.” CLirrorp, J., dissent- ing. Dow wv. Johnson, 100 U. S. 177. “TAn appeal from a decree of a- Circuit Court] cannot be taken until after a final decree has been made disposing of the whole cause.” Wuutr, J. Covington v. Coving- ton First Nat. Bank, 185 U. S. 271. “Final judgments and decrees only of a state court are re-examinable in this court.” Currrorp, J. Steines v. Franklin County, 14 Wall. 20. “It is true that this court has always de- sired that appeals be taken only from de- crees which are not only final but complete; and has, upon one occasion, at least, directed the attention of the Circuit Courts to the expediency and importance of refraining from making final decrees on any part of a cause, however important, until prepared to dispose of it completely. Such a course would undoubtedly save much inconvenience, both to the Circuit Courts and this court, and diminish largely the expense of litigation to suitors. And it may be true, that under the influence of these considerations the degree of finality essential to the right of appeal has been sometimes pushed to the limit of construction. CHasr, C. J. Thom- son v. Dean, 7 Wall. 345. “ Parties aggrieved by any order, judgment, or decree made or pronounced at a special term, may, if the same involve the merits of the action or proceeding appeal therefrom to the general term; but the same section provides that the justice holding the special term may, in his discretion, order any mo- tion or suit to be heard in the first instance at a general term. Cxirrorp, J. Baltimore, etc, R. Co. v. Sixth Presbyterian Church, 91 U. S. 133. “No point is better settled in this court, than that an appeal may be prosecuted only APPEAL AND ERROR. from a final decree.” M’LEan, J. Barnard v. Gibson, 7 How. 656. “A decree in chancery may have a dozen different parts, some of which may stand good and be executed, while others may be litigated on appeal.” Grier, J., dissenting. U. S. uv. Dashiel, 3 Wall. 703. “Whatever discrepancies may be found in decisions on this subject, we think a writ of error will not lie on any judgment, under the Act of 1789, which is not final, in what- ever form it shall be given.” McLean, J. McCargo v. Chapman, 20 How. 557. “Even at the common law, error lies only from a final judgment.” BaLpwin, J. Holmes v. Jennison, 14 Pet. 627. “Error lies only on a final judgment which determines the whole subject matter in a ” ms cause.” Batpwin, J. Holmes v. Jennison, 14 Pet. 626. “At common law, error only lies from a final judgment.” Barzour, J.. Toland v. Sprague, 12 Pet. 331. “It is the settled practice of this court, and the same in the King’s Bench in Eng- land, that the writ [of error] will not lie until the whole of the matters in controversy in the suit below are disposed of.” NELSON, J. Holcombe v. McKusick, 20 How. 554. What Are Final Judgments or Decrees — General Rule. “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.” Warre, C. J. Bostwick v. Brinkerhoff, 106 U. S. 4. “Final decrees in suits in equity passed in a Circuit Court, where the matter in dis- pute exceeds the sum or value of two thou- sand dollars exclusive of costs, may be re- examined in this court, but the Act of Con- gress does not define what is meant by the phrase ‘final decree.’” Cuirrorbd, J. French v. Shoemaker, 12 Wall. 97. “There are cases in equity in which a decree, disposing of every ground of con- tention between the parties, except as to the 95 ascertainment of an amount in a matter sep- arable from the other subjects of controversy, and relating only to some of the defendants, may be treated as final, though retained for the determination of such severable matter.” Futter, C. J. Hohorst v. Hamburg-Amer- ican Packet Co., 148 U. S. 265. “Scarcely an order is imaginable which does not finally dispose of some particular point arising in the case; but that does not justify a review of such order, until the action itself has been finally disposed of.” Brown, J. Cincinnati St. R. Co. v. Snell, 179 U. S. 397. “A decree upon the coming in of the master’s report on a bill for specific perform- ance, aScertaining the quantity of land to be conveyed, and the balance of the money to be paid, and that the conveyance should be executed on such balance being tendered, is a final decree.” Wayne, J. Beebe v. Rus- sell, 19 How. 287, “ An appeal may be taken from a decree of foreclosure and sale when the rights of the parties have all been settled and nothing re- mains to be done by the court but to make the sale and pay out the proceeds. This has long been settled. The sale in such a case is the execution of the decree. By means of it the rights of the parties, as settled, are enforced.” Warts, C. J. North Carolina R. Co. v. Swasey, 23 Wall. 409. — Only Ministerial Duties Left. “The decree is final when ministerial du- ties are only to be done to ascertain a sum due.” Wayne, J. Beebe v. Russell, 19 How. 286. 7 — Decree Directing Reference. “A decree may be final, although it directs a reference to a master, if all the conse- quential directions depending upon the re- sult of the master’s report are contained in the decree, so that no further decree of the court will be necessary, upon the confirmation of the report, to give the parties the entire and full benefit of the previous decision of the court.” Wayne, J. Beebe v. Russell, 19 How. 285. — Face of Judgment Test of Finality. “We have always made the face of the judgment the test of its finality, and refused to inquire whether, in case of a new trial, the defeated party would stand in a position to make a better case.” Brown, J. Haseltine v, Springfield Cent. Bank, 183 U. S. 131. APPEAL AND ERROR. — What Is in Controversy Test of Finality. “In order to determine whether a judg- ment is final or not, we must first inquire what is in controversy.” Taney, C. J. Holmes v. Jennison, 14 Pet. 562. What Are Not Final Judgments or De- crees —In General. “Tf every order were final, which finally passes upon some motion made by one or the other of the parties to a cause, it might in some cases require a dozen writs of error to dispose finally of the case.” Brown, J. Cincinnati St. R. Co. v. Snell, 179 U. S. 397. “No judgment is final which does not terminate the litigation between the parties to the suit. If anything substantial remain to be done to this end, the judgment is not final.” McKenna, J. Clark v. Kansas City, 172 U. S. 338. “Under the Judiciary Act of 1879 and other acts embodied in the Revised Statutes, the appellate jurisdiction of this court from the Circuit Court of the United States was limited to final judgments at law, and final decrees in equity or admiralty. No appeal, therefore, lay to this court for an order of the Circuit Court, granting or re- fusing an injunction, or appointing or declin- ing to appoint a receiver pendente lite, or other interlocutory order, until after final decree.” Gray, J. American Constr. Co. wv. Jacksonville, etc., Ry. Co., 148 U. S. 378. “This court has decided that a refusal to enter into an exoneretur on a bail bond, that judgments awarding or refusing to award or setting aside writs of restitution in ac- tions of ejectment, that a judgment on a writ of error coram nobis, that a judgment refusing a writ of venditiont exponas, that a refusal to quash an execution or to quash a forthcoming bond, were not final judgments, to which a writ of error should lie.” Woops, J. U.S. v. Abatoir Place, 106 U. S. 162. —Pending Motion for Rehearing or New Trial. “Tf a motion or petition for rehearing is made or presented in season and entertained by the court, the time limited for a writ of error or appeal does not begin to run until the motion or petition is disposed of. Until then the judgment or decree does not take final effect for the purposes of the writ of error or appeal.” Futter, C. J. Kingman v. Western Mfg. Co., 170 U. S. 678. “Tt is true that a writ of error does not lie from this court or the Court of Appeals 96 ! to review an order denying a motion for a new trial, nor can error be assigned on such an order: because the disposition of the mo- tion is discretionary; but the court below while such a motion is pending has not lost its jurisdiction over the case, and, having power to grant the motion, the judgment is not final for the purpose of taking out the writ. The effect of the judgment, entered at once on the return of the verdict, in other respects is open for consideration.” FuLier, C. J. Kingman v. Western Mfg. Co., 170 U. S. 680. “Tt is well settled that if a motion or pe- tition for rehearing is made or presented in season and entertained by the court, the time limited for a writ of error or appeal does not begin to run until the motion or petition is disposed of. Until then the judg- ment or decree does not take final effect for the purposes of the writ of error or appeal.” Futter, C. J. Northern Pac. R. R. wu. Holmes, 155 U. S. 138. —— Judgment of Reversal. “We have frequently held that a judgment reversing that of the court below, and re- manding the case for further proceedings, is not one to which a writ of error will lie.” Brown, J. Haseltine v. Springfield Cent. Bank, 183 U. S. 181. “An order remanding a cause is not a final judgment or decree, from which ordi- narily an appeal or writ of error can be taken.” Warre, C. J. Ex p. Hoard, 105 U.S. 579. “We have held in too many eases even to justify citation, that a judgment reversing a case and remanding it for a new trial, or for further proceedings of a judicial charac- ter, is totally wanting in the requisite finality required to support a writ of error from this court.” Brown, J. Cincinnati St. R. Co. v. Snell, 179 U. S. 397. —— Affirmance of Interlocutory Order. “As a judgment of reversal by a state court with leave for further proceedings in the court of original jurisdiction is not sub- ject to review here, this is also true of a judgment merely affirming an inter- locutory order, however apparently decisive of the merits.” Fuuter, C. J. Meagher »v. Minnesota Thresher Mfg. Co., 145 U. S. 611. ——Interlocutory Decrees. “Tt is equally well settled that a decree in admiralty determining the question of liabil- ity for a collision or other tort, or eo. APPEAL AND ERROR. in equity establishing the validity of a patent and referring the case to a master to com- pute and report the damages, is interlocutory merely.” Brown, J. McGourkey v. Toledo, etc, R. Co. 146 U. S. 545. “Tt is well settled by the decisions of this court that where the purpose of the suit is to obtain an account, such as that prayed for by the bill in this case and directed by the order of October 27, 1886, the decree is of such an interlocutory character that no appeal will lie therefrom.” Jackson, J. Latta v. Kilbourn, 150 U. S. 539. “ By the practice in equity, as administered in the Court of Chaneery and the House of Lords in England, and in the Courts of Chancery and Courts of Error in the states of New York and New Jersey, appeals lay from interlocutory, as well as from final, orders or decrees; and upon an appeal from an interlocutory order or decree the appel- late court had the power of examining the merits of the case, and, upon deciding them in favor of the defendant, of dismissing the bill, and thus saving both parties the need- less expense of a further prosecution of the suit.” Gray, J. Smith v. Vulcan Iron Works, 165 U. S. 523. — Ruling on Demurrer. “TI know that the statutes of some states permit the taking of a case to the appellate court upon a ruling made on a demurrer, but we have always held that the decree or judgment must be final before we are called upon to review it.” Brewer, J., dissenting. Missouri Pac. R. Co. v. U. S., 189 U. S. 288. 3. JUDGMENT FoR Costs. Not Appealable. “That an appeal does not lie from a de- cree in equity as to the costs merely, is well settled.” Brapiey, J. Russell v. Farley, 105 U. S. 437. “The fact that the various statutes fixing the jurisdiction of the Circuit Courts of the United States, and of this court, which from the original Judiciary Act of 1789 have, where the amount involved was made the test of jurisdiction, uniformly used the words ‘exclusive of cost,’ would indicate so far as the federal courts are concerned, that a mere judgment for costs could not ordinarily be made the basis of an appeal to this court.” Brown, J. Smith v. Indiana, 191 U. S. 149. 4, DECISION OF JUDGE AT CHAMBERS. “This court can exercise no power, in the appellate form, over decisions made at 1 Os. Dic.—7 his chambers by a justice of this court, of a judge of the District Court.” McLean, ‘J. In the matter of Metzger, 5 How. 191. To the same effect, see the language of BaLp- win, J., in Holmes v. Jennison, 14 Pet, 621. 5. Matters ARISING AFTER JUDGMENT OR DECREE— AFTER REMAND BY APPELLATE COURT. “ Although , this court has frequently de- cided that where the act complained of was a mere ministerial duty, necessarily growing out of the decree which was being carried into effect, no appeal would lie, it has never decided that in no case arising after a decree, which is final only in the sense which would allow it to be appealed, will an appeal be allowed from an order of the court, however it might affect important interests, or decide matters not before the court when the first decree was rendered. Such a doctrine would place a very large proportion of the most important matters adjudged by courts of chancery beyond the reach of an appeal. On the contrary, this court has repeatedly con- sidered appeals from the decrees of the Cir- cuit Courts, upon matters arising after the case had been here, and the courts below had entered decrees in accordance with the directions of this court.” Murer, J. Blos- som v. Milwaukee, etc., R. Co., 1 Wall. 657. Order of Sale. “An order of sale in execution of an original decree is not a final decree, on which an appeal will lie.” McLean, J. McMicken v. Perin, 20 How. 135. Erroneous Award of Execution. “Te there is an erroneous award of execution, not warranted by the judgment, or erroneous proceedings under the execu- tion, a writ of error will lie to redress the grievance.” Story, J. Boyle v. Zacharie, 6 Pet. 656. VII. AMOUNT IN DISPUTE. Controlling Right to Review. “The Judiciary Act of 1789 only provides for a review upon a writ of error of the final judgments and decrees of the Circuit Court where the matter in dispute exceeds the sum or value of two thousand dollars.” Fietp, J., dissenting. U.S. v. Circuit Judges, 3 Wall. 679. “This court has jurisdiction over final judgments and decrees of the Circuit Court where the matter in dispute exceeds the sum APPEAL AND ERROR. or value of two thousand dollars.” Mar- SHALL, C. J. Gordon v. Ogden, 3 Pet. 34. See also supra, this title, IV. “Tt is the Act of 1803 which extends the appellate power of the court to a review of final judgments and decrees brought up on appeal when the matter in dispute is of the like amount of value; and it limits the review to judgments and decrees rendered in ‘cases of equity, of admiralty, and mari- time jurisdiction, and of prize or no prize.’” Fietp, J., dissenting. U.S. uv. Circuit Judges, 3 Wall. 679. “Tn order that [Circuit Court judgments or decrees] may be re-examinable in the Supreme Court, the matter in dispute must exceed the sum or value of $5,000, exclusive of costs.” CLIFForRD, J., dis- senting. Dow v. Johnson, 100 U. S. 177. “ Although in a doubtful case we shall not disturb the ruling of a Circuit Court granting or vacating an appeal, yet when we are fully satisfied that the amount in controversy is not sufficient to give us jurisdiction, we ought not to attempt an inquiry into the merits of a case which is sought tc be appealed.” Brewer, J. Rector v. Lipscomb, 141 U. S. 559. _ “Our jurisdiction is to be determined by the amount of money to be paid, and not the kind.” Warrte, C. J. Thompson v. Butler, 95 U. S. 697. “Prior to the Act of the 16th of February, 1875, all judgments or decrees of the cir- cuit courts in civil actions at common law or suits in equity, where the matter in dispute exceeded the sum or value of $2,000, exclu- sive of costs, might be re-examined in the Supreme Court by a writ of error or appeal. 1 Stat. 84; 2 id. 244; 17 id. 196. Alterations of great moment in the mode of removing certain final judgments and decrees from the Circuit Court to the Supreme Court had been made before the passage of that act; but the Congress on that day enacted that ‘such judgments and decrees hereafter rendered shall not be re-examined in the Supreme Court, unless the matter in dispute shall ex- ceed the sum or value of $5,000, exclusive of costs.’” CLiFForD, J., dissenting. Dow v. Johnson, 100 U. S. 174. “In all cases in which the judgments of a Circuit Court of Appeals are not made final by the Act of March 3, 1891, c. 517, there is of right an appeal or writ of error to this court where the matter in controversy ‘ exceeds one thousand dollars in value be- sides costs.” Harian, J. Howard v. U. S.,, 184 U. S. 680. — Jurisdictional. “Tt cannot be doubted that the Judiciary Act of 1879 made the value of the matter in dispute jurisdictional, even in suits of a civil nature brought by the United States in the Circuit Courts of the United States.” Haran, J. U. S. v. Sayward, 160 U. S. 496, “We have no jurisdiction if the sum or value of the matter in dispute does not ex- ceed $5,000.” Waite, C. J. Thompson v. Butler, 95 U. S. 696. New Trial Only Remedy. “Tf the amount in dispute is insufficient for that purpose, then the only remedy for the losing party is a motion for new trial in the Circuit Court.” CLIFFoRD, J., dissent- ing. Dow wv. Johnson, 100 U. S. 178. How Determined — Amount Really in Dis- pute. “The sum or value really in dispute be- tween the parties in the case before the court, as shown by the whole record, is the test of its appellate jurisdiction, without re- gard to the collateral effect of the judgment in another suit between the same or other parties.” Gray, J. Gibson v. Shufeldt, 122 Uz. S. 29. — Value as Ascertained in Court Below. “The value of the subject of the contro- versy, as ascertained in the court below, supplies the only safe and uniform rule as to jurisdiction, in cases wherein the jurisdiction is dependent on value.” DanzeEt, J., dis- senting. Bennett v. Butterworth, 8 How. 133. —— Allegation of Damage. “Tt certainly would not be pretended that this court would hear a case where the plaintiff counted solely upon a promissory note of two hundred dollars, simply because he concluded his declaration with an aver- ment that he had sustained damages from its nonpayment of over two thousand, and prayed judgment for the latter sum.” Fiexp, J. Lee v. Watson, 1 Wall. 339. “It is now well settled that our jurisdiction in an action upon a money demand is gov- erned by the value of the actual matter in dispute in this court, as shown by the whole record, and not by the damages claimed or the prayer for judgment alone.” Warts, C. J. Bowman v. Chicago, etc. R. Co., 115 U. S. 613. 98 “Tt is true as a general rule that where the judgment goes for the defendant, the amount of the plaintiff’s claim is the test of jurisdiction; but this rule is subject to the qualification that the demand shall ap- pear to have been made in good faith for such amount. If it appear clearly from the whole record that under no aspect of the case the plaintiff could recover the full amount of his claim, this court will decline to assume jurisdiction of the case. If, for instance, a greater amount than $5,000 were claimed in the ad damnum clause of the declaration, and the bill of particulars showed the actual claim to be less, the latter would determine the jurisdiction.” Brown, J. Gorman v. Havird, 141 U. S. 208. —— When Admission of Parties Sufficient. “Though consent cannot give jurisdiction to this court by way of appeal, where the matter in dispute is less than two thousand dollars; yet an admission of a sufficient value by the parties is presumed to be correct, where the record. does not establish the con- trary.” Story, J. Oliver v. Alexander, 6 Pet. 148. —— Judgment for Plaintiff or Defendant. “Tf the judgment below be for the plain- tiff, that judgment ascertains the value of the matter in dispute; but where the judg- ment below is rendered for the defendant, this court has not, by any rule or practice, fixed the mode of ascertaining that value.” MarsHall, C. J. Cooke v. Woodrow, 5 Cranch 14. “We have jurisdiction of a writ of error or appeal by a plaintiff below when he sues for such as or more than our jurisdiction requires and recovers nothing, or recovers only a sum which, being deducted from the amount or value sued for, leaves a sum equal to or more than our jurisdictional limit, for which he failed to get a judgment or decree.” Warts, C. J. Hilton v. Dickinson, 108 U. S. 175. “As the writ of error was sued out by the defendant below, the amount in contro- versy was fixed by the judgment.” Waite, C. J. Thompson v. Butler, 95 U. S. 695. — Set-off or Counterclaim. “We have jurisdiction of a writ of error or appeal by a defendant when the recovery against him is as much in amount or value as is required to bring a case here, and when, having pleaded a set-off or counterclaim for enough to give us jurisdiction, he is de- feated upon his plea altogether, or recovers 99 APPEAL, AND ERROR. only an amount or value which, being de- ducted from his claim as pleaded, leaves enough to give us jurisdiction, which has not been allowed.” Warts, C. J. Hilton ». Dickinson, 108 U. S. 175. ——Amount of Debt or Value of Prop- erty. “When the object of a suit is to apply property worth more, to the payment of a debt for less, than the jurisdictional amount. it is the amount of the debt, and not the value of the property that determines the jurisdiction of the court.” Gray, J. Gibson v. Schufeldt, 122 U. S. 29. — Property Replevied. “In replevin ... if the action is brought as a means of trying the title to property, the value of the property replevied is the matter in dispute; but if the replevin is of prop- erty distrained for rent, the amount of which avowry is made is the real matter in dispute, and the limit of jurisdiction.” Gray, J. Gib- son v. Schufeldt, 122 U. S. 29. -— Interests of Several Parties. “Neither co-defendants nor co-plaintiffs can unite their separate and distinct interests for the purpose of making up the amount necessary to give this court jurisdiction upon writ of error or appeal.” Woops, J. Hen- derson v. Wadsworth, 115 U. S. 276. To the same effect see the language of Waits, C. J., in Ballard Pav. Co. v. Mulford, 100 U. S. 148. “Tt is well settled in this court that when two or more plaintiffs, having several inter- ests, unite for the convenience of litigation in a single suit, it can only be sustained in the court of original jurisdiction, or on appeal in this court, as to those whose claims ex- ceed the jurisdictional amount; and that when two or more defendants are sued by the same plaintiff in one suit the test of jurisdiction is the point or several character of the liability to the plaintiff.” Brown, J. Walter wv. Northeastern R. Co., 147 U. S. 373. “The claim of each plaintiff being for less than $5,000, is insufficient of itself * to give this court jurisdiction.” Gray, J. Jewell v. Knight, 123 U. S. 432. “The joinder in one suit of several plain- tiffs or defendants, who might have sued or been sued in separate actions, does not en- large the appellate jurisdiction; ... when property or money is claimed by several suing together, the test is whether they claim it under one common right, the adverse APPEAL AND ERROR. party having no apportionment or distribu- tion among them, or claim it under separate and distinct rights, each of which is con- tested by the adverse party; when two persons are sued, or two parcels of property are sought to be recovered or charged, by one person in one suit the test is whether the defendants’ alleged liability to the plaintiff, or claim to the property, is joint or several; and so far as af- fected by any such joinder, the right of appeal is mutual, because the matter in dis- pute between the parties is that which is asserted on the one side and denied on the other.” Gray, J. Gibson v. Shufeldt, 122 U. S. 30. “Tn equity, as in admiralty, when the sum sued for is one in which the plaintiffs have a joint and common interest, and the de- fendant has nothing to do with its distribu- tion among them, the whole sum sued for is the test of the jurisdiction.” Gray, J. Gib- son v. Shufeldt, 122 U. S. 33. “Neither party can appeal from a decree upon a bill by a single plaintiff to enforce separate and distinct liabilities against sev- eral defendants, if the sum for which each is alleged or fraud to be liable is less than the jurisdictional amount.” Gray, J. Gib- son v. Shufeldt, 122 U. S. 37, “Tn ejectment against two defendants for two parcels of land, if each defendant claims only one parcel, the value of each parcel is the limit of appellate jurisdiction.” Gray, J. Gibson v. Shufeldt, 122 U. S. 38. “Tf both defendants jointly claim both parcels, the value of both is the test.” Gray, J. Gibson v. Shufeldt, 122 U. S. 38. “Tt is like a contract with several to pay a sum of money. It may be that the money, when recovered, is to be divided be- tween them in equal or unequal proportions. yet, if a controversy arises on the contract, and the sum in dispute upon it exceeds two thousand dollars, an appeal would clearly lie to this court, although the interest of each individual was less than that sum.” Taney, C. J. Shields v. Thomas, 17 How. 5. “Undoubtedly, it is the well-settled rule of this court that, in a suit in equity brought in the Circuit Court by two or more persons on several and distinct demands, the defend- ant can appeal to this court as to those plaintiffs only to each of whom more than five thousand dollars is decreed.” Snrras, J. Ogden City v. Armstrong, 168 U. S. 232. — [Interest and Costs. “In determining the jurisdictional sum or amount it is obvious that neither interest on the judgment nor costs can enter into the computation, for costs form no part of the matter in dispute, and interest on the judgment can only arise after rendition, while the jurisdictional amount, if determined by the judgment, is fixed at rendition.” CHASE, C.J. Walker v. U.S. 4 Wall. 164. “Our jurisdiction depends on the amount of the judgment, exclusive of interest there- on.” Waits, C. J. New York El. R. Co. v. New York Fifth Nat. Bank, 118 U. S. 610. “The amount in controversy is to be de- cided by the sum in controversy at the time of the judgment, and not by any subsequent additions thereto, such as interest.” Story, J. Knapp v. Banks, 2 How. 73. “And the effect on future taxation of a decision that the particular taxation is in- valid cannot be availed of to add to the sum or value of the matter in dispute.” Futter, C. J. Holt v. Indiana Mfg. Co., 176 U. S. 72. Affidavits to Show Value. “ Affidavits can only be used to furnish evidence of value not appearing in the face of the record when the nature of the matter in dispute is such as to admit of an estimate of its value in money.” Warrtz, C. J. Youngstown Bank v. Hughes, 106 U. S. 525. “There are cases—such, for instance, as an ejectment, or a suit for dower —in which the value does not, according to the usual forms of proceeding, appear in the pleadings or evidence in the record. In such cases, affidavits of value have been received here, in order to show that the value is large enough to give jurisdiction to this court.” Taney, C. J. Richmond v, Milwaukee, 21 How. 392. Reduction of Verdict to Defeat Review. “The trial court may refuse to permit a verdict to be reduced by a plaintiff upon his own motion; and, if the object of the re- duction is to deprive an appellate court of jurisdiction in a meritorious case, it is to be presumed the trial court will not allow it to be done. If, however, the reduction is permitted the errors in the record will be shut out from our re-examination in cases where our jurisdiction depends upon the amount in controversy.” Warre, C. J. Thompson v. Butler, 95 U. S. 696. 100 APPEAL AND ERROR. “Our jurisdiction cannot be invoked until the final judgment below has been rendered ; and we cannot open the record to look for errors until jurisdiction has been established. The court below retains full control of a cause until final judgment has been entered; and it follows that, if for any reason a judg- ment is given against a defendant in a case involving the plaintiff's cause of action alone, unaffected by counterclaim or set-off, for a sum less than our jurisdictional amount, we have no power, at the instance of the defend- ant, to correct errors that may have been committed in settling the amount. We can only look at a verdict through the record; and, if the record is closed to us; so neces- sarily must be the verdict.” Warre C. J. Thompson v. Butler, 95 U. S. 695. Exceptions — Writs to State Courts. “There is not @ limitation as to the value in controversy in writs to the state courts as there is to the Circuit Courts.” Mutter, J. Murdock v. Memphis, 20 Wall. (U. S.) 629. “Where the matter in dispute is sufficient in value, the common-law writ of error to the Circuit Court will lie in every case, if the judgment is final in the court to which the writ of error is addressed; but the writ of error to the state court will not lie at all, unless the construction of some clause of the Constitution, or some Act of Congress, or treaty, is drawn in question, and the de- cision was adverse to the party setting up such right or title. If those conditions con- cur, the writ will lie, irrespective of the amount in dispute, provided it appears that the right or title set up depends on the con- struction of the Constitution, an Act of Con- gress, or some constitutional treaty.” Cu1F- FORD, J., dissenting. Tennessee v. Davis, 100 U. S. 284. — Judgments under Revenue Laws. “ Judgments rendered in the Circuit Court, in any civil action against a collector or other officer of the revenue, for any act done by him in the performance of his official duty, or for the recovery of any money exacted by ot paid to him, which shall have been paid into the treasury, may, at the instance of either party, be re-examined and reversed or affirmed in this court upon writ of error, without regard to the sum or value in con- troversy in such action.” C1rrForp, J. Aver- ill v. Smith. 17 Wall. 88. — Informations under Revenue Laws. “Information under the revenue laws for the forfeiture of goods, seeking no judg- ment of fine or imprisenrert\against any person, are not strictly criminal cases, in which the decisions of the Circuit Court are final, unless a division of opinion is certified ; but they are civil actions, of which this court has jurisdiction in error, without regard to the sum or value in dispute.” Gray, J. Snyder v. U. S., 112 U. S. 216. —— Habeas Corpus, “A case of habeas corpus is not one in which the matter in controversy involves a money value.” FuLrer, C. J. Lau Ow Bew v. U.S, 144 U. S. 58. VIII. REVIEW OF JUDGMENTS OF STATE COURTS. 1. Ricut to Review. a. In General. “The right of this court to review the decisions of the highest court of a state has long been well settled, and is circumscribed by the rules established by law.” Day, J. Giles v. Teasley, 193 U. S. 167. “Final judgments or decrees in any suit in the highest court of law or equity of a state, in which a decision in the suit could be had, may be removed here for re-examin- ation if they involve some one or more of the questions specified in the section conferring the jurisdiction, and otherwise come within the rules which regulate that jurisdiction.” CuiFrorD, J. Slaughter-house Cases, 10 Wall. 298. “On the whole, the court are of opinion that the appellate power of the United States does extend to cases pending in the state courts; and that the 25th section of the Judiciary Act, which authorizes the exer- cise of this jurisdiction in the specified cases, by a writ of error, is supported by the letter and spirit of the Constitution.” Story, J. Martin v. Hunter, 1 Wheat. 351. “No power is more clearly conferred by the Constitution and laws of the United States, than the power of this court to de- cide, ultimately and finally, all cases arising under such Constitution and laws; and for that purpose to bring here for revision, by writ of error, the judgment of a state court, where such questions have arisen, and the right claimed under them denied by the high- est tribunal in the state” Taney, C. J. Ableman v. Booth, 21 How. 525, b. Limited Jurisdiction. In General. “Our jurisdiction over the decisions of the 101 APPEAL AND ERROR. state courts is limited. It is not derived from the citizenship of the parties, but from the questions involved and decided.” WaAITE, C. J. New York L. Ins. Co. v. Hendren, 92 U. S. 287. “This court can exercig,, no appellate power over the Supreme Courtafa State, ex- cept in a few specified cases; and the ground of jurisdiction must be stated with precision.” McLean, J Poydras v. Treas- urer, 18 How. 196. “The twenty-fifth section of the Judiciary Act declares that where is drawn in question the construction of any statute of the United States, and the decision is against the right set up or claimed by either party under the Act of Congress, such decision may be re- sxamined, and reversed or affirmed, in the Supreme Court, on writ of error.” CATRON, }. Springfield Tp. v. Quick, 22 How. 68. “It was never intended that the court should, as the effect of the amendment [the \ourteenth], be transformed into a court of yppeal, where all decisions of state courts duvolving merely questions of general justice and equitable considerations in the taking of property should be submitted to this court for its determination. The final jurisdiction of the courts of the states would thereby be enormously reduced and a corresponding increase of the jurisdiction of this court would result, and it would be a great mis- fortune in each case.” PrcxHam, J. Fall- brook Irrigation Dist. v. Bradley, 164 U. S. 157. No Appellate Relations Between Circuit Courts and State Courts. “Appellate relations exist in a class of cases, between the state courts and this court, but there are no such relations be- tween the state courts and the Circuit Courts.” Cuirrorp, J. Riggs v. Tohnson County, 6 Wall. 196. By Writ of Error Only. “The only appellate jurisdiction which has ever been conferred by Congress upon this court to review the judgments or decrees, at law or in equity, of the highest court of a State, has been by writ of error.” Gray, J. Dower v. Richards, 151 U. 5S. 666. 2. WHEN JurRispicTion May BE INVOKED. a. General Rule. Federal Questions in General. “This court has no jurisdiction, under the 25th section of the Judiciary Act of 1789, but in a case where a final judgment or de- cree has been rendered in the highest court of law or equity of a state, in which a de- cision in the suit could be had, 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 their validity, etc., or where is drawn in question, the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption, specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission.” MarsHALL, C. J. Gordon v. Caldcleugh, 3 Cranch 269. “Tf state legislation impairs the obligations of a contract, or deprives of property with- out due process of law, or denies the equal protection of the laws, . remedies are found in the first section of the Act of August 18, 1888, 25 Stat. 433, c. 866, giving to the Circuit Courts jurisdiction of all cases arising under the Constitution and laws of the United States; and in § 709 of the Re- vised Statutes, which gives a review on writ of error to the judgments of the state courts - whenever they sustain the validity of a state statute or of an authority exercised under a state, alleged to be repugnant to the Con- stitution or laws of the United States.” Futter, C. J. Holt v. Indiana Mfg. Co., 176 UL S. 72. “Tt has been held frequently by this court that a case arises under the Constitution and laws of the United States, whenever the party plaintiff sets up a right to which he is entitled under such laws, which the parties defendant deny to him, and the correct de- cision of the case depends upon the construc- tion of such laws.” Brown, J. In re Len- non, 166 U. S. 553. “The inquiry is whether the validity of the statute or authority has been drawn in question ‘in a suit’ in the state court and a ‘final judgment’ has been rendered in favor of its validity. If so, we have juris- diction to review that judgment.” Futter, C. J., dissenting. Tyler v. Judges of Court of Registration, 179 U. S. 411. Territorial Statute. “Territories are not states, within the meaning of Revised Statutes, sec. 709, per~ mitting writs of error from this court in cases where the validity of a state statute is drawn in question.” Brown, J. Downes v. Bidwell, 182 U. S. 270. 102 APPEAL AND ERROR. “Tt seems to me that if a case in a terri- torial court turns upon the validity of an act which is authorized by a statute of the territorial legislature deriving its existence and powers from the United States, and if that statute is itself drawn in question as being repugnant to the Constitution of the United States, then we have a case in which is ‘drawn in question the validity of an authority exercised under the United States.” Haran, J., dissenting. Linford v. Ellison, 155 U. S. 512. Ascertainment of What Is Drawn in Ques- tion. “What is draws. 1n question in any case depends on the facts and the law applicable to that particular case.” Woopsury, J., dis- senting. Henderson v. Tennessee, 10 How. 325. Waiver of Right under Constitution. “A person may by his acts or omission to act waive a right which he might otherwise have under the Constitution of the United States as well as. under a statute, and the question whether he has or not lost such right by his failure to act or by his action, is not a federal one.” Prcxuam, J. Pierce v. Somerset Ry. Co., 171 U. S. 648. “We have held that the question whether a party has by laches and acquiescence waived the right to insist that a state statute im- paired the obligation of a contract is not a federal question.” FuLer, C. J., dissenting. Meyer v. Richmond, 172 U. S. 101. b. What Courts and Judgments Subject to Review. Judgment of Court of Last Resort. “Tt has long been settled that if a cause cannot be taken to the highest court of a state, except by leave of the court itself, a refusal of the court upon proper application made to grant the leave is equivalent to a judgment of affirmance, and is such a final judgment as may be made the basis of pro- ceedings under the appellate jurisdiction of this court.” Watts, C. J. Gregory v. Mc- Veigh, 23 Wall. 306. “T£ a decision of a suit could be had in that court [the highest court of the state], we must wait for such a decision before we can take jurisdiction, and then can only ex- amine the judgment of that court. If, how- ever, the suit is one of which that court can- not take jurisdiction, we may re-examine the judgment of the highest court which, under laws of the state, could decide it.” Warts, C. J. Gregory v. McVeigh, 23 Wall. 306. “A writ of error from this court can only go to the highest court of a state.” Brown, J. McKnight v. James, 155 U. S. 687. “A writ of error can only issue from this court to the highest court of a state for a review of the final: judgment of decree of that court in a suit. In other words, it is only the last judgment or the last decree which the state courts can give in a suit, until that judgment or decree is set aside or reversed, that this court can, even in the prescribed cases, bring here for re-examina- tion.” Warts, C. J. Parcels v. Johnson, 20 Wall. 654. “Tt is enuwgh for our jurisdiction that the judgment is by the highest tribunal of the state in which a decision could be had in the suit. When such a judgment is brought before us for review, involving in its rendi- tion a decision upon a federal question, we do not look beyond the action of that court.” Fietp, J. Hartman v. Greenhow, 102 U. S. 676. c. Only Federal Questions Reviewed. “On a writ of error to a state court we can review only decisions of federal ques- tions.” Srronc, J. Smith v. Adsit, 23 Wall. 374, “This court is not intrusted with the duty af supervising all decisions of state courts to the end that we may see to it that such decisions are never inconsistent, contradictory, or conflicting. We supervise those decisions only when a federal question arises.” Prcx- Ham, J., dissenting. McCullough wv. Vir- ginia, 172 U. S. 129. “Our jurisdiction cannot be invoked unless some right claimed under the Constitution, laws, or treaties of the United States is in- vaded. This court is not a harbor where refuge can be found from every act of ill- advised and oppressive state legislation.” Fretp, J. Missouri Pac. R. Co. v. Humes, 115 U. S. 520. “This court is not the Mecca to which all dissatisfied suitors in the state courts may turn for the correction of all the errors said to have been committed by the state tri- bunals.” PecxHam, J. McCullough v. Vir- ginia, 172 U. S. 130. “Our jurisdiction to revise such a judg- ment [of the Supreme Court of a state] is very strictly limited to cases where some right or title was set up by a party under 108 APPEAL AND ERROR. the general government —its Constitution, treaties, or laws—and was overruled. It is this federal character of the claim decided against which furnishes some justification for a revision of a state judgment in a federal court; and unless it be clearly of that char- acter, the foundation as well as the policy for our interference entirely fails.” Woopzury, J. Doe v. Eslava, 9 How. 443. “In order to give this court jurisdiction of a case decided in the courts of a state there must be some question arising under the Constitution of the United States; some alleged denial of a right or immunity secured by that Constitution.” Brewer, J. Hancock Nat. Bank v. Farnum, 176 U. S. 641. “We have no jurisdiction over the judg- ment of a state court upon a writ of error, except in the cases specified in that sec- tion [the 25th section of the Act of 1789, c. 20]. And the jurisdiction of this court is there limited with great care and in plain terms. It gives a writ of error to this court where a party claims a right or exemption under a law of Congress, and the decision is against the right claimed.” Tawney, C. J. Linton v. Stanton, 12 How. 425. Real, Not Merely Formal Federal Ques- tion. “Tt is settled that not every mere allega- tion of a federal question will suffice to give jurisdiction. ‘There must be a real, sub- stantive question on which the case may be made to turn,’ that is, ‘a real and not a merely formal federal question is essential to the jurisdiction of this court”” Wuiute, J. Equitable L. Assur. Sac. uv. Brown, 187 U. S. 311. To the same effect see the language of Suiras, J., in St. Joseph, etc, R. Co. w. Steele, 167 U. S. 662; of Waite, J., in New- buryport Water Co. v. Newburyport, 193 U. S. 576; of Brewer, J., in Hamlin vw. West- ern Land Co., 147 U. S. 532; of Brown, J., in Ilinois Cent. R. Co. v. Chicago, 176 U. S. 656. General and Local Law. “Whether the right of selection recognized as between mortgagor and mortgagee is also applicable as between a purchaser upon exe- cution and the mortgagee, is not a federal question, if no discrimination be made against executions from federal courts. This was a question either of local law or of general law. If of local law, of course the decision of the Supreme Court of Texas is binding upon us. If of general law, as it involves no federal element, it is equally binding in this proceeding, since only federal rights are capable of being raised upon writs of error to state courts. Conceding that, if the ques- tion had arisen on appeal from a Circuit Court of the United States, we might have come to a different conclusion, it by no means follows that we can do so upon a writ of error to a state court, whose opinion upon a question of general law is not reviewable here.” Brown, J. Avery vw. Popper, 179 UL S. 315. ‘ —— Except When Necessary in Determi- nation of Federal Question. “For instance, if a marshal of the United States takes personal property upon attach- ment on mesne process issued by a court of the United States, and is sued in an action of trespass in a state court by one claiming title in the property, and sets up his authority under the United States, and judgment is rendered against him in the highest court of the state, he may bring the case by writ of error to this court; and, as his justification depends upon the question whether the title to the property was in the defendant in attachment, or in the plaintiff in the action of trespass, this court, upon the writ of error, has the power to decide that question, so far as it is one of law, even if it depends upon local law, or upon general principles.” Gray, J. Stanley wv. Schwalby, 162 U. S. 279, Questions of General Justice. “[The United States Supreme] Court can- not reverse the decisions of state courts in regard to questions of general justice and equitable considerations in the taking of property.” Furrer, C. J. Hooker v. Los Angeles, 188 U. S. 320. Questions of Fact. “A court of equity will enjoin a corpora- tion not to proceed under an amendment to their charter passed by their consent, as where the effect would be to enable the cor- poration to violate their contracts with third persons, but no such question is here pre- sented for the decision of this court, nor can it ever be under a writ of error to a state court. Questions of that kind are addressed very largely to the judicial discretion of the court and create the necessity for inquiry into the facts of the case and for an examination into all the surrounding circumstances.” CuirrorD, J. Pennsylvania College Cases, 13 Wall. 219. “The decision below [New York court] that he [appellant] was not in possession in volved no federal question, or any oth~ 104 APPEAL AND ERROR. question of law, but a mere inference of fact from the evidence, which this court is not authorized to review on writ of error.” Gray, J. Turner v, New York, 168 U. S: 95. To the same effect see the language of Gray, J., in Dower v. Richards, 151 U. S. 666. “Tt has been held that the last clause of the Seventh Amendment, which provides that 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, is not confined to trials by jury in federal courts, but applies equally to a cause tried before a jury in a state court and brought thence before a federal court.” PEcKHAM, J. Maxwell v. Dow, 176 U. S. 598. “In this court we are concluded by the findings of fact made in a state court in a suit in equity, as well as in an action at law.” PEeckHAM, J. Bement v. National Harrow Co., 186 U. S. 83. “Tt is well established that on error to a state court this court cannot re-examine the evidence, and when the facts are found we are concluded by such finding.” McKenna, J. Minnesota, etc., R. Co. v. Minnesota, 193 U. S. 64. Competency of Evidence on Question of Federal Law. “When, indeed, the question decided by the state court is not merely of the weight or sufficiency of the evidence to prove a fact, but of the competency and legal effect of the evidence as bearing upon a question of fed- eral law, the decision may be reviewed by this court.” Gray, J. Dower wv. Richards, 151 U. S. 667. Mere Existence of Error Does Not Con- stitute Violation of Law of the Land. “The decisions of state tribunals in re- spect of matters of general law cannot be re- viewed on the theory that the law of the land is violated unless their conclusions are absolutely free from error.” Futter, C. J. Sayward v. Denny, 158 U. S. 186. d. Application of Rule. (1) RicHt CLAIMED UNDER CoNSTITUTION. Provision Set Up in Bar, “When [a defendant] sued in a state court, specifically sets up certain sections of the Federal Constitution as a bar to the pro- ceedings against him, and the judgment of the state court was that they constituted no such bar, it is not open to question that this court has jurisdiction [on his appeal] and the motion to dismiss must therefore be overruled.” Brewer, J. Williams v. Eggles- ton, 170 U. S. 308. Power to Make Bonds Payable in Money According to Constitution. s “The power to borrow money [conferred on a corporation] simply, meant the power to borrow whatever was money according to the Constitution of the United States and the laws passed in pursuance thereof, and the power to issue negotiable bonds therefor in- cluded the power to make them payable in such money. This the law presumed, and to proceed on an implication to the contrary was to deny to the holders of these bonds, subsequent to their purchase, a right arising under the Constitution and laws of the United States.” Futter, C. J. Woodruff v. Mississippi, 162 U. S. 302. Rights Denied to Taxpayer. “A taxpayer denied rights secured to him by the Constitution and laws of the United States, and specially set up by him, could bring the case here by writ of error from the highest courts of the state.” Hotmes, J. Chandler v. Dix, 194 U. S. 592. Title Claimed under Act of Congress, “We exercise jurisdiction to revise errors committed by state courts, where the plain- tiff in error claims title by force of an Act by Congress, and the title has been rejected on the ground that the act did not support it.” Catron, J. Maxwell v. Moore, 22 How. 191, “This court has frequently been vainly asked to hold that controversies in respect to lands, one of the parties to which had de- rived his title directly under an Act of Con- gress, for that reason alone presented a federal question.” Sutras, J. Blackburn v. Portland Gold Min. Co., 175 U. S. 579. ° “In ordinary cases, it would not be doubtful that a party entering upon vacant land, the title to which had been conveyed from the general government by patent to an individual, could not create a federal question such as to give this court juris- diction of the judgment of the highest court of the state, by simply averring that such possession was taken with a view of entering the land under the homestead laws of the United States, and that he went through © the form of making application to the local land office for permission to make such entry. In order that such claim of the party in possession may raise a genuine federal question, there must be some reason to be- 105 APPEAL AND ERROR. lieve that the apparent legal title transferred by the patent from the United States was wrongfully conveyed, and that the real title in fact remains in the government.” Brewer, J. Hamblin v. Western Land Co., 147 U. S. 533. Right Asserted by United States. “The United States are in the same condi- tion as other litigants, in the sense that neither can invoke the jurisdiction of this court by writ of error to a state court, unless that court has decided against a right claimed under the Constitution, laws or treaties of the United States. But surely the United States have, and may assert, a right, privilege or immunity under the Constitution of the United States, which private parties could not have.” Gray, J. Stanley v. Schwalby, 162 U. S. 278. Determining Whether Case Arises under U. S. Constitution or Laws. “The character of a case is determined by the questions involved. If from the questions it appears that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construc- tion or a law of the United States, or sus- tained by the opposite construction, the case will be one arising under the Constitution or laws of the United States, within the mean- ing of that term as used in the Act of 1875; otherwise not. Such is the effect of the de- cisions on this subject.” Warts, C. J. Starin v. New York, 115 U. S. 257. (2) ConstrucTION oF STATUTE. In General. “We have repeatedly held that the con- struction of state statutes belongs to the state courts, and is not a federal question which we can revise in a writ of error to a state court.” Brapiey, J. Phoenix Ins. Co. v. The Treasurer, 11 Wall. 208. “When. . a state court decides that a particular formality was or was not essen- tial under the state statute, such decision presents no federal question, providing al- ways the statute as thus construed does not violate the Constitution of the United States, by depriving of property without due process of law.” Wuute, J. Castillo v. McConnico, 168 U. S. 683. “We are of opinion that the question whether the ruling of the Supreme Court, that a repealable exemption has been in fact repealed by a subsequent statute, is one which turns upon the construction of a state law, and is not reviewable here, although if the exemption were irrepealable and thus con- stituted a contract, it would be our duty to decide for ourselves whether the subsequent act had repealed it or impaired its obligation.” Brown, J. Gulf, etc, R. Co. v. Hewes, 183 Uz. S. 74. Construction of Statute to Make it Con- flict with U. S. Constitution or Laws. “Where a state court gives such a con- struction to a state statute as to make it conflict with the Constitution or laws of the United States, and sustains its validity after giving it such construction,.and thereby de- prives a party of his rights under the said Constitution or law, it is settled law that a federal question does arise in such a case, and that this court can review the decision of the state court as to the validity of such a statute.” CxirForD, J., concurring. Hall v. DeCuir, 95 U. S. 500. “Tf the state court gives such a con- struction to a state statute as to make it conflict with the Constitution or laws of the United States, and sustains its validity after giving it such construction, and thereby de- prives a party of his rights under the said Constitution or laws, then a federal question is raised, and we can review the decision on the point of the validity of the statute.” Brab.ey, J. Phoenix Ins. Co. v. The Treas- urer, 11 Wall. 208. “Whether that judgment of the state court was right or wrong, it is reviewable here, if it necessarily drew in question the valid- ity of a state statute, or of an authority exercised under it, on the ground of the repugnancy of the statute to the Constitution of the United States.” Davis, J. Furman v. Nichol, 8 Wall. 58. “Where a defense [in a state court] is distinctly made, resting on local statutes, we should not, in order to reach a federal ques- tion, resort to critical conjecture as to the action of the court in the disposition of such defence.” Futter, C. J. Johnson v. Risk, 137 U. S. 307. “Upon a writ of error to review the judg- ment of the highest court of a state upon the ground that the judgment was against a right claimed under the Constitution of the United States, this court is no more bound by that court’s construction of a statute of the territory, or of a state, when the ques- tion is whether the statute provided for the notice required to constitute due process of law, than when the question is whether the 106 APPEAL AND ERROR. statute created a contract which has been impaired by a subsequent law of the state, or whether the original liability created by the state was such that a judgment upon it has not been given due faith and credit in the courts of another state. In every such case, this court must decide for itself the true construction of the statute.” Gray, J. Scott v. McNeal, 154 U. S. 45. (3) IMPAIRMENT OF OBLIGATION OF CONTRACT. Duty to Construe State Law. “Tt is one of the duties cast upon this court by the Constitution and laws of the United States to inquire whether a state has passed any law impairing the obligation of a prior contract. No duty is more solemn and imperative than this, and it seems to us that we should be recreant to that duty if we would permit the form in which a state court expresses its conclusions to override the necessary effect of its decision.” BREwER, J. McCullough v. Virginia, 172 U. S. 122. “Suppose, for illustration, a state legisla- ture should pass an act exempting the prop- erty of a particular corporation from all taxation, and that a subsequent legislature should pass an act subjecting that corporation to the taxes imposed by the city in which its property was located, and that, on the first presentation to the highest court of the state of the question of the validity of taxes levied under and by virtue of this last act, that court should in terms hold these city taxes valid notwithstanding the gen- eral clause of exemption found in the prior statute. In that event no one would question that this court had jurisdiction to review such judgment, and inquire as to the scope of the contract of exemption created by the first statute.’ Brewer, J. McCullough v. Virginia, 172 U. S. 117. Construction of Statute and Contract. “This court, even on writ of error to a state court, will construe for itself the mean- ing of a statute as affecting an alleged con- tract where it is claimed that a subsequent statute passed by the state has impaired the obligations of the contract as claimed by the party, and where such subsequent statute has by the judgment of the state court in some way been brought into play and effect been given to some or all of its provisions. In such a case this court construes the con- tract in order to determine whether the later statute impairs its obligation.” PrckHam, J. Bacon v. Texas, 163 U. S. 219. “When the state court holds that there was a contract conferring certain rights, and that a subsequent law did not impair those rights, this court has jurisdiction to con- sider the true construction of the supposed contract, and, if it is of opinion that it did not confer the rights affirmed by the state court, and therefore its obligation was not impaired by the subsequent law, may on that ground affirm the judgment.” Gray, J. New Orleans Waterworks Co. v. Louisiana Sugar Refining Co., 125 U. S. 38. “When the state court upholds the subse- quent law, on the ground that the contract did not confer the right claimed, this court may inquire whether the supposed contract did give the right, because, if it did, the subsequent law cannot be upheld.” Gray, J. New Orleans Waterworks Co. v. Louisiana Sugar Refining Co,, 125 U. S. 38. Subsequent Law Upheld by State Court. “When the existence and the construction of a contract are undisputed, and the state court upholds a subsequent law, on the ground that it did not impair the obligation of the admitted contract, it is . clear that this court has jurisdiction.” Gray, J. New Orleans Waterworks Co. uv. Louisiana Sugar Refining Co., 125 U. S. 38. Determination of Existence of Contract. “Where the judgment of the highest court of a state, by its terms or necessary opera- tion, gives effect to some provisions of the state law which is claimed by the unsuccess- ful party to impair the contract set out and relied on, this court has jurisdiction to de- termine the question whether such a contract exists as claimed, and whether the state law complained of impairs its obligation.” Jacx- son, J. Mobile, etc, R. Co. v. Tennessee, 153 U. S. 493. “Tt has never been denied, nor is it now, that the Supreme Court of the United States has an appellate power to revise the judg- ment of the Supreme Court of a state, when- ever such a court shall adjudge that not to be a contract which has been alleged, in the forms of legal proceedings, by a litigant, to be one, within the meaning of that clause of the Constitution of the United States which inhibits the states from passing any law impairing the obligation of contracts.” Wayne, J. Jefferson Branch Bank v. Skelly, 1 Black 443. “In determining whether, in any given case, a contract exists, protected from impair- ment by the Constitution of the United States, this court forms an independent judg- ment.” Wuite, J. Citizens’ Savings Bank v. Owensboro, 173 U. S. 648. 107 APPEAL AND ERROR. “While the question of contract or no con- tract in a particular case is one which must be determined by ourselves, every such al- leged contract is presumed to have been entered into upon the basis, and in contem- plation of, the existing constitution and stat- utes, and upon the established construction theretofore put upon them by the highest judicial authority of the state.” Brown, J. Gulf, etc., R. Co. v. Hewes, 183 U. S. 71. “We have often had occasion to say that this court, when reviewing the final judgment of a state court upholding a state enactment alleged to be in violation of the contract clause of the Constitution, possess paramount authority to determine for itself the existence or the non-existence of the contract set up, and whether its obligation has been impaired by the state enactment.” Surras, J. Chi- cago, etc., R. Co. v. Nebraska, 170 U. S. 68, Effect Must Be Given to Some Subse- quent Statute. “This court does not obtain jurisdiction to review a judgment of a state court be- cause that judgment impairs or fails to give effect to a contract. The state court must give effect to some subsequent statute or state constitution which impairs the obligation of the contract, and the judgment of that court must rest on the statute either expressly or by necessary implication.” Preckuam, J. New Orleans Waterworks Co. v. Louisiana, 185 U. S. 350. “When the state court decides against a right claimed under a contract, and there was no law subsequent to the contract, this court clearly has no jurisdiction.” Gray, J. New Orleans Waterworks Co. v. Louisiana Sugar Refining Co., 125 U. S. 38. “Where the federal question upon which the jurisdiction of this court is based grows out of an alleged impairment of the obliga- tion of a contract, it is now definitely settled ' that the contract can only be impaired with- in the meaning of this clause in the Constitu- tion, and so as to give this court jurisdic- tion on writ of error to a state court, by some subsequent statute of the state which has been upheld or effect given it by the state court.” Prcxuam, J. Bacon vw. Texas, 163 U. S. 216, “This court has repeatedly held that we cannot revise the judgment of the highest court of a state unless, by its terms, or necessary operation, it gives effect to some provision of a state constitution or law which, as thus construed, impairs the obligation of a precedent contract.” Brown, J. Gulf, etc, R. Co. vw Hewes, 183 U. S. 75. Reversal of Former Judgment. “It [is not]confided to this court to super- vise the judgments of a state court in all cases where we may think that court has by its later decision invalidated a contract which it had once held to be lawful, and the judg- ment in which this court has upheld. The right of the state court in another case to reverse its former ruling is wholly unaffected by the fact that its former judgment had been affirmed here. Unless the federal question exists in this case there is no ground of jurisdiction founded upon any prior deci- sions.” Prcxuam, J., dissenting. McCul- lough w Virginia, 172 U. S. 130. Change in Construction of Statute. “We have no jurisdiction, because a state court changes its views in regard to the proper construction of its state statute, al- though the effect of such judgment may be to impair the value of what the state court had before that held to be a valid contract.” Peckuam, J. Bacon v. Texas, 163 U. S. 221, “The argument involves the claim that jurisdiction exists in this court to review a judgment of a state court on a writ of error when such jurisdiction is based upon an alleged impairment of a contract by reason of the alteration by a state court of a construc- tion theretofore given by it to such contract or to a particular statute or series of statutes in existence when the contract was entered into. Such a foundation for our jurisdiction does not exist.” Prckuam, J. Bacon w Texas, 163 U. S. 220. (4) Crrminat CAsEs. Jurisdiction in General. “It is more important that jurisdiction should be given to this court in criminal than in civil cases, under the twenty-fifth section of the Judiciary Act. Would it not be inconsistent, both with the spirit and letter of this law, to revise the judgment of a state court, in a matter of controversy re- specting damages, where the decision is against a right asserted under the Constitu- tion or a law of the United States; but to deny the jurisdiction, in a case where the property, the character, the liberty and life of a citizen may be destroyed, though pro- tected by the solemn guarantees of the Con- stitution? But this is not an open question; it has long since been settled by the solemn adjudications of this court.” M’Lran, T Worcester v, Georgia, 6 Pet, 567. 108 APPEAL AND ERROR. “Doubts have been expressed whether a writ of error to a state court is not limited to civil cases. These doubts could not have arisen from reading the above section [the 25th section of the Judiciary Act]. Is not a criminal case as much a suit as a civil case? What is a suit, but a prosecution; and can any one suppose that it was the intention of Congress, in using the word ‘suit,’ to make a distinction between a civil prosecution and a criminal one?” M’LEaAn, J. Worcester v. Georgia, 6 Pet. 567. “The conduct of a criminal trial in a state court [cannot] be reviewed by this court unless the trial is had under some statute repugnant to the Constitution of the United States, or was so conducted as to deprive the accused of some rights or im- munity secured to him by that instrument.” McKenna, J. Williams v. Mississippi, 170 U. S. 219. “We concede the proposition . . that by the Fourteenth Amendment it is made the right and the consequent duty of this court, when a case has been duly brought before it, to inquire whether, in the enactment and administration of the criminal laws of a state, it is sought to arbitrarily deprive any person of his life, liberty or property, or to refuse him the equal protection of the laws, and that inquiry is not precluded or ended by the mere fact that the judgment complained of was reached by proceedings in a state court in pursuance of the provi- sions of a state statute.” Sutras, J. Hodg- son v. Vermont, 168 U. S. 272. “ Power to re-examine final judgments of the state courts rendered in criminal prose- cutions, as well as those rendered in civil suits, is conferred upon the Supreme Court when it appears that the judgment was ren- dered in the highest court of law in which a decision in the case could be had, and that there was drawn in question the validity of a statute of a state, on the ground of its being repugnant to the Constitution of the United States, and that the decision of the state court was in favor of the validity of the statute.” CxirFrorpD, J. Ward v. Mary- land, 12 Wall. 423. “Federal judicial power extends to all cases in law or equity arising under the Con- stitution, the laws of the United States, and treaties made or which shall be made under their authority, and every such question may be re-examined by writ of error in the Su- preme Court under the Act of Congress passed as a substitute for the before-men- tioned section of the Judiciary Act. Cases which involve some one or more of those questions are often presented in the state courts; and where that occurs and the de- cision is adverse to the party setting up the title, right, or exemption, whether the suit be a civil or criminal one, he may, when the case is determined by the highest court of the state, sue out a writ of error and remove the cause into the Supreme Court for re- examination.” CLirForD, J., dissenting. Tennessee v. Davis, 100 U. S. 283. “Undoubtedly, if in the progress of a criminal prosecution, as well as in the prog- ress of a civil action, a question arise as to any matter under the Constitution and laws of the United States, upon which the defendant may claim protection, or any bene- fit in the case, the decision thereon may be reviewed by the federal judiciary, which can examine the case so far, and so far only, as to determine the correctness of the ruling. If the decision be erroneous in that respect, it may be reversed and a new trial had. Provision for such revision was made in the twenty-fifth section of the Judiciary Act of 1789, and is retained in the Revised Statutes.” Frevp, J. Virginia v. Rives, 100 U. S. 338. Illustrations. “ Suppose a state should make it penal for an officer of the United States to discharge his duties within its jurisdiction; as, for instance, a land officer, an officer of the cus- toms, or a postmaster, and punish the of- fender by confinement in the penitentiary; could not the Supreme Court of the United States interpose their power, and arrest or reverse the state proceedings? Cases of this kind are so palpable, that they need only to be stated to gain the assent of every judicious mind. And would not this be an interference with the administration of the criminal laws of a state?” M’Lzan, J. Worcester v. Georgia, 6 Pet. 568. Does Not Interfere with Enforcement of Criminal Laws. “Tt has been said, that this court can have no power to arrest the proceedings of a state tribunal in the enforcement of the criminal laws of the state. This is undoubtedly true, so long as a state court, in the execution of its penal laws, shall not infringe upon the constitution of the United States, or some treaty or law of the Union.” M’Lean, J. Worcester v. Georgia, 6 Pet. 567. (5) MISCELLANEOUS CASES. Title of Bankrupt. “We have repeatedly held that, when the 109 APPEAL AND ERROR. question in a state court is not whether, if the bankrupt had title, it would pass to his assignee, but whether he had a title at all, and the state court decided that he had not, no federal question is presented.” Brown, J. Cramer v. Wilson, 195 U. S. 416. Case Arising From or Growing Out of Treaty. “As a case arises under the Constitution or laws of the United States, whenever its decision depends upon the correct construc- tion of either . . [a] case arising from or growing out of a treaty is one involving rights given or protected by a treaty.” Fut- ter, C. J. U.S. uv. Old Settlers, 148 U. S. 468. Suit on Bond of Marshal or Clerk. “This court has heretofore decided that a suit upon a bond of a marshal of the United States was one arising under the laws of the United States. . . . The same principle must be held to be applicable to suits upon the bond of a clerk of a court of the United States. It could not be that a suit upon the bond of a marshal was one arising under the laws of the United States, and that a suit upon the bond of a clerk of court of the United States was not of that class.” Hartan, J. Howard v. U. S., 184 UL S. 681. What Amounts to a Trust. “What amounts to a trust, or out of what facts a trust may spring, are not federal questions.” Srronc, J. Smith v. Adsit, 23 Wall. 374, Whether State Court Has Given Effect to Judgment of Federal Court. “Whether due effect has been given by a state court to a judgment or decree of a court of the United States is a federal ques- tion within the jurisdiction of this court, on a writ of error to the Supreme Court of the state.” Surras, J. Central Nat. Bank w. Stevens, 169 U. S. 460. “Where a state court refuses to give ef- fect to the judgment of a court of the United States, rendered upon a point in dis- pute, and with jurisdiction of the case and the parties, it denies the validity of an au- thority exercised under the United States; and where a state court refuses to give ef- fect to the judgment of a court of another state, it refuses to give full faith and credit to that judgment.” Futier, C. J. Mutual L. Ins. Co. v. McGrew, 188 U. S. 311. ' “Tt is true that for some purposes and within certain limits it is only required that the judgments of the courts of the United States shall be given the same force and effect as are given the judgments of the courts of the states wherein they are ren- dered; but it is equally true that whether a federal judgment has been given due force and effect in the state court is a federal question reviewable by this court, which will determine for itself whether such judgment has been given due weight or otherwise.” Day, J. Deposit Bank v, Frankfort, 191 U.S. 514. “The question whether a state court has given due effect to the judgment of a court of the United States is a question arising under the Constitution and laws of the United States, and comes within the jurisdiction of the federal courts by proper process. Mat- THEWS, J. Crescent Live Stock Co. v. Butch- ers’ Union Slaughter-House Co., 120 U. S. 146. “ Although no higher sanctity or effect can be claimed for the judgment of a federal court than is due under the same circum- stances to judgments of state courts in like cases, yet in the case of a judgment of the former court the Constitution provides that full faith and credit shall be given it, and whether it has or has not been given it by a state court is a federal question, while if the state court erroneously decides a ques- tion of law regarding the weight to be given one of its own judgments in its own courts and among its citizens, that error is not sub- ject to review by this court, because it con- stitutes no federal question.” PrckHam, J. Phenix Ins. Co. v. Tennessee, 161 U. S. 185. Administration of Law by Officers or Courts of State. “The administration of the law by the offi- cers or the courts of the state involves no questions of which we can take jurisdiction. The law being valid, the courts of the State have exclusive jurisdiction, appellate or other- wise, of all cases brought before them involv- ing proceedings for its enforcement.” WaAlIrE, C. J. Southwestern R. Co. v. Wright, 116 UL S. 237. Due Process of Law — Judgment of Ouster. : "As I understand the law, this court has jurisdiction to review a judgment of the highest court of a state ousting one from his office, and giving it to another, a right to 110 APPEAL AND ERROR. inquire whether that judgment is right or wrong in respect to any federal question such as due process of law.” Brewer, J., dissent- ing. Taylor v. Beckham, 178 U. S. 585. Exemption from Contract by Existence of War. “When a citizen of the United States claims exemption from the ordinary obliga- tions of a contract by reason of the exist- ence of a war between his government and that of the other parties to it, the claim is made under the laws of the United States by which trade and intercourse with the enemy are forbidden.”, Bran ey, J., dissent- ing. New York L. Ins. Co. v. Hendren, 92 Uz S. 287. “The case of claiming dissolution or extinction of a contract on the ground of the existence of a war, is precisely a case within the meaning of the law which gives a writ of error to this court from the judgment of a state court where a right or immunity is claimed under the Constitution of the United States, or under an authority exercised under the United States.. The power is given by the Constitution by Con- gress to declare war, and the authority of the general government in carrying on the same, are the grounds on which the exemp- tion or immunity is claimed. It is under the authority of the government of the United States that the party is not only shielded, but prevented, from the execution of his contracts. If he performed them, it would be a violation of his obligations to his government.” Brabtey, J., dissenting. New York L. Ins. Co. v. Hendren, 92 U. S. 288. Judgment Dependent upon Constitution of State. “The jurisdiction of this court, as is well understood, does not extend to a review of the judgment of the state court, so far as it depended upon the Constitution of the state.” Gray, J. Spencer v. Merchant, 125 U. S. 352. “On a writ of error to a state court, this court had jurisdiction to review and reverse the judgment, if that judgment was based wholly upon the state Constitution; but . . . df it was based on the previous law of the state, this court had no jurisdiction to review it, although the view taken by the state court was adverse to the view taken by this court of the United States.” Gray, J. New Orleans Waterworks Co. v. Louisiana Sugar Refining Co., 125 U. S. 35. Validity of Patent Controverted. “In an action for royalties, if the validity and infringement of the patent are controvert- ed, the case is considered as one ‘touching patent rights,’ for the purposes of an appeal to this court under Rev. Stat., section 699.” Brown, J. Pratt v. Paris Gas Light, etc., Co., 168 U. S. 260. e. Raising and Deciding Jurisdictional Questions. (1) GENERAL RULE. Record Must Show Question Raised and Decided. “Tt has long been settled that we have no jurisdiction unless it distinctly appears that a question under the Constitution or a law of the United States not only might have been but actually was raised and decided.” Waite, C. J. Kansas Endowment Assoc. v. Kansas, 120 U. S. 104. “Tt is well settled that in order to justify a writ of error from this court to review the judgment of a state court, the record must show that the judgment rested upon the dis- position of a federal question.” FULLER, C. J. Marsh v. Nichols, etc., Co., 140 U. S. 354. “Tf the conflict of a state law with the Constitution and the decision by the state court in favor of its validity are relied on, such decision must appear on the face of the record before the judgment can be re-exam- ined in this court.” Futter, C. J., dissenting. Meyer v. Richmond, 172 U. S. 100. “The validity of a statute is drawn in question when the power to enact it is de- nied, and a definite issue in that regard must be distinctly deducible from the record in order for this court to hold that state courts have adjudicated as to the validity of the enactment under the Constitution.” Fuczer, C. J., dissenting. Meyer v. Richmond, 172 U. S. 99. “This court cannot be called upon to con- jecture that defenses existed which were not made-and to decide that proceedings in a state court have denied due process of law because defenses were denied, when they were not presented. And especially must that be so where the court of last resort of the state, on review of all the proceedings, has held that full opportunity to make each de- fense was afforded.” Wauutz, J. Louisville, etc., R. Co. v. Schmidt, 177 U. S. 239. ‘“Where a case is brought to this court on writ of error or appeal from a judgment of a state court, unless it appears in the record that a federal question was raised in the 111 APPEAL AND ERROR. state court before the entry of final judgment in the case, this court is without jurisdic- tion.” PrecxkHam, J. Fowler v. Lamson, 164 UL S. 255. “Tt is well settled that where our jurisdiction depends upon the denial by a state court of a title, right, privilege, or im- munity claimed under the Constitution, or any treaty or statute of the United States, it must appear on the record that such title, right, privilege, or immunity was specially set up or claimed at the proper time and in the proper way, and that the decision was against the right so set up or claimed.” Fut- Ler, C. J. California Powder Works v. Davis, 151 U. S. 393. “When the jurisdiction of this court is in- voked for-the protection, against the final judgment of the highest court of a state, of some title, right, privilege or immunity se- cured by the Constitution or Jaws of the United States, it must appear expressly or by necessary intendment, from, the record, that such right, title, privilege or immunity was ‘specially set up or claimed’ under such Constitution or laws. Our jurisdic- tion cannot arise in such case from inference, but only from averments so distinct and posi- tive as to place it beyond question that the party bringing the case up intended to assert a federal right.” Haruan, J. Kipley v. Illinois, 170 U..S. 186. “Tf a party to an action in a state court intends to invoke for the protection of his rights the Constitution of the United States, or some treaty, statute, commission or au- thority of the United States, he must so de- clare.” Futter, C. J. Chapin v. Fye, 179 U. S. 129, “Nothing is better settled than that to enable us to take jurisdiction on the ground of the denial by a state court of a right claimed under a statute of the United States, the record must show that the right was specially set up or claimed at the proper time and in the proper way, and that the decision was against the right so set up or claimed.” Futter, C. J. Northern Pac. R. Co. v. Aus- tin, 1385 U. S. 318. “The conflict of a state law with the Con- stitution of the United States, and a decision by a state court in favor of its validity, must appear on the face of the record, before it can be re-examined in this court. It must appear in the pleadings of the suit, or from the evidence in the course of trial, in the in- structions asked for, or from exceptions taken to the ruling of the court.” Wayne, J. Law- ler v. Walker, 14 How. 152. “Tt must appear in the record, or we can- not proceed. We act upon questions actual- ly presented to the court below, not upon such as might have been presented or brought into the case, but were not.” Warts, C. J. New York L. Ins. Co. v. Hendren, 92 U. S. 287, “In order to give this court jurisdiction the record must show, that the point was brought to the attention of the state court and decided by it. It is not sufficient that the point was in the case, and might have been raised and decided. It must appear that the validity of the state law was drawn in question and the judgment founded upon its validity. This is evidently the meaning of the 25th section of the Act of 1789, which gives the writ of error. And the reason is obvious. The party is authorized to bring his case before this court, because a state court has refused to him a right to which he is entitled under the Constitution and laws of the United States. But if he omits to claim it in the state court there is no reason for permitting him to harass the adverse party by a writ of error to this court, when, for anything that appears in the record the judgment of the state court might have been in his favor if its attention had been drawn to the question.” Tangy, C. J. Grand Gulf R,, ete, Co. v. Marshall, 12 How. 167. “To justify our taking jurisdiction, the federal question must be specially set up or claimed in the state court; the party must have the intent to invoke for the protection of his rights the Constitution or some statute or treaty of the United States, and such in- tention must be declared in some unmistaka- ble manner.” Futrer, C. J. Keokuk, etc., Bridge Co. v. Illinois, 175 U. S. 633. “Questions not decided in the state court, because not raised or presented by the com- plaining party, will not be re-examined in this court on a writ of error sued out under the twenty-fifth section of the Judiciary Act.” CuirForp, J. Caperton v. Bowyer, 14 Wall. 237. “Tt is also clear that where it is disclosed that an asserted federal question was not presented to the state court or called in any way to its attention, and where it is not neces- sarily involved in the decision of the state court, such question will not be considered by this court. Warts, J. Citizens’ Saving Bank v. Owensboro, 173 U. S. 643. 112 APPEAL AND ERROR. “ is not enough that there may be some- were hidden in the record a question which, if raised, would be of a federal nature. In order to be available in this court some claim or right must have been asserted in the court below by which it would appear that the party asserting the right founded it in some degreé upon the Constitution or laws or treaties of the United States. In such case, if the court below denied the right claimed, it would be enough; or if it did not in terms deny such tight, if the necessary effect of its judgment was to deny it, then it would be enough. But the denial, whether expressed or implied, must be of some right or claim founded upon the Constitution or the laws or treaties of the United States which had in some manner been brought to the at- tention of the court below.” PrcxHam, J. Dewey v. Des Moines, 173 U. S. 199. “A claim or tight which has never been made or asserted cannot be said to have been denied by a judgment which does not refer to it. A point that was never raised cannot be said to have been decided adversely to a party, who never set it up or in any way alluded to it. Nor can it be said that the necessary effect in law of a judgment, which is silent upon the question, is the denial of a claim or right which might have been in- volved therein, but which in fact was never in any way set up or spoken of.” PEcKHAM, J. Dewey v. Des Moines, 173 U.S. 200. “And we repeat, as has often been said before, that a case may be said to involve the construction or application of the Consti- tution of the United States when a title, right, privilege or immunity is claimed under that instrument, but a definite issue in respect to the possession of the right must be dis- tinctly deducible from the record before the judgment of the court below can be revised on the ground of error in the disposal of such claim by its decision.” Futzer, C. J. Filhiol v. Maurice, 185 U. S. 110. Question First Raised After Decision of State Court. “But after a decision by the court of last resort of a state the attempt to raise a fed- eral question for the first time is too late.” Wuirtt, J. Citizens’ Savings Bank v. Owens- boro, 173 U. S. 643, : Question First Raised in Petition for Re- hearing. “Tt has been repeatedly decided by this court that to suggest or set up a federal question for the first time in a petition fot a rehearing in the highest court of a state is 1 Os. Dic.—8 not in time.” McKenna, J. Meyer vu Rich- mond, 172 U. S. 92. “Tf the highest court of a state entertains a petition for rehearing, which raises federal questions, and decides them, that will be suffi- cient; or if the court decides a fed- eral question which it assumes is distinctly presented to it in some way.” Futter, C. NM Mutual L. Ins. Co. v. McGrew, 188 U. 308. Question First Raised in State Court of Last Resort. “Tf the highest court of the state, by its final judgment, sustains the validity of a state enactment drawn in question there as re- pugnant to the Constitution, treaties or laws of the United States, or denies a right, privi- lege or immunity specially set up or claimed in that court for the first time under the Constitution or any treaty, statute or author- ity exercised under the United States, this court could review that judgment, although no federal question was distinctly raised or insisted upon in the trial court.” Hartan, J. Erie R. Co. v. Purdy, 185 U. S. 153. ——Expressly or by Necessary Implica- tion, “The rule in‘ telation to our jurisdiction is that it must either appear from the rec- ord in express terms that there has been a decision against the right claimed under the Constitution, laws, or tteaties of the United States, or that the judgment or decree com- plained of could not have been given with= out so deciding.” Warts, C. J. Dugger v. Bocock, 104 U. S. 603. “To give us jurisdiction of a writ of error for the review of the judgment of a state court, it must appear affirmatively, not only ‘that a federal question was raised and pre- sented for decision to the highest court of the state having jurisdiction, but that it was decided, or that its decision was necessary to the judgment that was rendered.” Warts, C. J. Adams County v. Burlington, etc., R. Co., 112 U. S. 127. “The general rule undoubtedly is that those federal questions which are required to be specially set up and claimed must be so distinctly asserted below as to place it beyond question that the party bringing the case here from the state court intended to and did assert such a federal right in the state court. But it is equally true that even although the allegations of federal right made in the state court were so general and ambiguous in their character that they would 118 APPEAL AND ERROR. not in and of themselves necessitate the con- clusion that a right of a federal nature was brought to the attention of the state court, yet if the state court in deciding the case has actually considered and determined a federal question, although arising on am- biguous averments, then a federal contro- versy having been actually decided the right of this court to review obtains. . . . All that is essential is that the federal questions must be presented in the state court in such a manner as to bring them to the attention of that tribunal. And of course, where it is shown-by the record that the state court considered and decided the federal question, the purpose of the statute is subserved. And so controlling as to the existence of the federal question is the fact that it was actually considered and decided by the state court, that it has been held, although the general rule is that the raising of a federal question in a petition for rehearing in the highest court of the state is too late, yet when a question is thus raised and it is actually considered and decided by the state court, the right to review exists.” WHITE, J. Missouri, etc., R. Co. v. Elliott, 184 U. S. 533. “In order to give this court jurisdiction to review the judgment of a state court on the ground that the validity of a statute of, or an authority exercised under, any state, was drawn in question for repugnancy to the Constitution or laws of the United States, and that its validity was sustained, it is enough that a definite issue as to the validity of a statute is distinctly deducible from the record; that the state court entertained the suit; and that its judgment rested on the con- clusion that the statute was valid.” FuLter, C. J., dissenting. Tyler v. Judges of Court of Registration, 179 U. S. 411. “ Jurisdiction may be maintained where a definite issue as to the possession of the right is distinctly deducible from the record and necessarily disposed of, but this cannot be made out by resort to judicial knowledge.” Futier, C. J. Mutual L. Ins. Co. v. Mc- Grew, 168 U. S. 309. “Although there are other decisions in which it is said that the point raised must appear on the record, and that the particular act of Congress or part of the Constitution supposed to be infringed by the state law, ought to be pointed out, it has never been held that this should be done in express words. But the true and rational rule is, that the court must be able to see clearly, from the whole record, that a certain provision of the Constitution or act of Congress was re- lied on by the party who brings the writ of error, and that the right thus claimed by him was denied.” Mutter, J. Bridge Proprietors v. Hoboken Land, etc., 1 Wall. 143. “Tn questions relating to our jurisdiction, undue importance is often attributed to the inquiry whether the pleadings in the state court expressly assert a right under the Fed- eral Constitution. The true test is not whether the record exhibits an express state- ment that a federal question was presented, but whether such a question was decided, and decided adversely to the federal right.” Stronc, J. Murray v. Charleston, 96 U. S. 441. Exception to Rule. “Tt is generally true, that a party claiming a right under an Act of Congress, must avail himself of some legal means to place on the record that claim, and the facts on which it rests; otherwise he cannot have the benefit of a re-examination of the judgment upon a writ of error. But this duty does not exist in a case in which he cannot perform it with- out surrendering some part of the right which the act secured to him, and in which the court, where the matter is depending, is expressly prohibited from taking any further proceeding.” Curtis, J. Kanouse v. Martin, 15 How. 209. How Raised. “ Although no particular form of words is necessary to be used in order that the fed- eral question may be said to be involved, within the meaning of the cases on this sub- ject, there yet must be something in the case before the state court which at least would call attention to the federal question as one that was relied on by the party, and then, if the decision of the court, while not noticing the question, was such that the judgment was by its necessary effect a denial of the right claimed or referred to, it would be sufficient. It must appear from the record that the right set up or claimed was denied by the judg- ment or that such was its necessary effect in law. PrecxHam, J. Dewey v. Des Moines, 173 U. S. 199. —Averments Must Be Positive. “Jurisdiction [cannot] be inferred argu- mentatively from"the averments in the plead- ings, but the averments must be positive.” Suiras, J. St. Joseph, etc., R. Co. v. Steele, 167 U. S. 662, — Title, Right, etc., Must Be “Specially Set up or Claimed.” “This court has no authority to review the 114 APPEAL AND ERROR. final judgment of the highest court of a state in which a decision of the case could be had, and to determine whether that judgment is in derogation of a title, right, privilege or immunity protected by the Constitution of the United States, unless the party, against whom such judgment was rendered, ‘specially set up or claimed’ such right under that instru- ment.” Hartan, J. Chicago, ete, R. Co. v. Chicago, 164 U. S. 457. “Tt is true that this court has sometimes held that, if a federal question appear ‘in the record and was decided, or such decision was necessarily involved in the case, and that such case could not have been determined without deciding such question, the fact that it was not specially set up and claimed is not conclusive against a review here; but such cases have usually, if not always, arisen under the first or second clauses of section 709, and have involved the validity of a treaty, statute or authority exercised under the United States, or the validity of a stat- ute or authority exercised under a State, where such statute or authority is alleged to be repugnant to the Constitution or the laws cf the United States.” Brown, J. Bolln v. Nebraska, 176 U. S. 91. “We have repeatedly decided that an ap- peal to the jurisdiction of this court must not be a mere afterthought, and that if any tight, privilege or immunity is asserted under the Constitution or laws of the United States it must be specially set up and claimed before the final adjudication of the case in the court from which the appeal is sought to be main- tained.” Brown, J. Bolln v. Nebraska, 176 U.S. 91. — Sufficiency of Allegation Open in Federal Court. “When a party specially sets up and claims a right or privilege under the Constitution and laws of the United States, the question of the sufficiency of allegations to present that issue is not concluded by the view ex-: pressed by the state court.” HArLan, J. Covington, etc., Turnpike Co. v. Sandford, 164 U. S. 595. Defense Asserted by Defendant. “There can be no question as to the im- port of the words ‘arising under the Con- stitution or laws of the United States,’ to be found in the Acts of 1875 and 1887. It has long been settled that a suit was of that class if it necessarily involved a title, right, privilege or immunity asserted, by either party, under the Constitution or laws of the United States, If the defense was based tpon the Constitution or laws of the United States, the suit was one arising under that Constitution or those laws, although the plaintiff may not have asserted, in his plead- ing, any claim whatever of a federal nature.” Harray, J., dissenting. Tennessee v. Union, etc., Bank, 152 U. S. 468. (2) Necessity For Dscision oF FEDERAL QUESTION. Judgment Sustained If Maintainable upon Other Grounds. “Tt is axiomatic that, in order to give this court jurisdiction on writ of error to the highest cowrt of a state in which a decision in the suit could be had, it must appear af- firmatively not only that a federal question was presented for decision by the highest court of the state having jurisdiction, but that its decision was necessary to the deter- mination of the cause, and that it was actually decided or that the judgment as rendered could not have been given without deciding it. And where the decision complained of rests on an independent ground, not involv- ing a federal question and broad enough to maintain the judgment, the writ of error will be dismissed by this court without consider- ing any federal question that may also have been presented.” Futrer, C. J. California Powder Works v. Davis, 151 U. S. 393. To the same effect see the language of Brown, J., in Walter A. Wood Mowing, etc., Mach. Co. v. Skinner, 139 U. S. 295; of Brewer, J., in Snell v. Chicago, 152 U. S. 196; of Pecx- HAM, J., in Fowler v. Lamson, 164 U. S. 255; Bacon v. Texas, 163 U. S. 216; McCullough v. Virginia, 172 U. S. 128; of Gray, J., in New Orleans Waterworks Co. v. Louisiana Sugar Refining Co., 125 U. S. 38. “The purposes of examining to see wheth- er there is not some question other than a federal one, decided in the case, is to sustain thereon the judgment under review.” Prcx- HAM, J. Bank of Commerce v. Tennessee, 163 U. S. 421. “A judgment of the highest court of the state which failed to recognize a federal right, specially set up and claimed, ought not to be disturbed, unless its necessary effect was to deny that right. Harvan, J., dissent- ing. O’Neil v. Vermont, 144 U. S. 368. “Tt is thoroughly settled that if the record of the state courts discloses that a federal question has been raised and decided, and another question, not federal, broad enough to sustain the judgment, has also been raised and decided, this court will not review the judgment; that this is so, even when it does 115 APPEAL AND ERROR. not appear on which of the two grounds the judgment was based, if the independent ground on which it might have been based was a good and valid one; and also where the record shows the existence of non-fed- eral grounds of decision though silent as to what particular ground was pressed and pro- ceeded on. In other words, the rule is that the record must so present a federal question that, even if the reasons for decision are not given, this court can properly conclude that it was disposed of by the state courts.” Fut- LER, C. J., dissenting. Meyer v. Richmond, 172 U.S. 100. “TA] case having originated in a state court, we have ho jurisdiction to re-examine its judgment unless’ there is some federal question invoked therein, the decision of which by the court below was unfavorable to the claim set up, and its decision was nec- essary to the determination of the case, or the judgment as rendered could not have been given without deciding it.’ Prcxnam, J., dissenting. McCullough v. Virginia, 172 U.S. 125. Erroneous Decision of Unnecessary Fed- eral Question. “It has been the uniform doctrine of this court that, where it appears that the judg- ment of the state court must be affirmed on other grounds disclosed in the record, it will not be reversed for an erroneous ruling of the state court on a federal question not necessary to the decision of the cause.” Mart- THEWS, J. Crescent Live Stock Co. v. Butch- ers’ Union Slaughter-House Co., 120 U. S. 156. To the same effect see.the language of Waits, ji, in Castillo 7 McConnico, 168 U. S. 679; of Nexson, J.; in Williams 2. Oliver, 12 How. 124; of Haran, J., dissent- ing, in O’Neil v. Vermont, 144 U. S. 368. (3) Question Must Have Bren Decrpep Acainst PLarinttrr In Error. General Rule. “This being a writ of error to the highest court of a state, a federal question must have been decided by that court against the plaintiff in error; else this court has no juris- diction to:review the judgment.” Gray, J. New. Orleans Waterwork Co. v, Louisiana Sugar Refining Co., 125 U. S. 29. “To give us jurisdiction in a writ of error to a state court a federal question must not only exist in the record, but it must have been decided against the party who sues out the writ.” Waite, C.J. Weatherby v. Bowie, 131 U. S. ecxv. Te the same effect see the language of Brewer, J., in Snell w Chicago, 152 U. S. 196, and of Peckuam, J., in Fow- ler v. Lamson, 164 U. S. 255. “In order that the validity of a state stat- ute may be ‘drawn in question’ under the second clause of section 709, Rev. Stat., it must appear that the plaintiff in error has a right to draw it in question by reason of an in- terest in the litigation which has suffered, or may suffer, by the decision of the state court in favor of the validity of the statute. This principle has been announced in so many cases in this court that it may not be con- sidered an open question.” Brown, J. Tyler v. Judges of Court of Registration, 179 U.S. 407. “Tt is true that under the third clause of section 709, where a title, right, privilege or immunity is claimed under federal law, such title, etc, must be ‘specially set up or claimed,’ and that no such provision is made as to cases within the second clause, involving the constitutionality of state statutes or aw- thorities, but it none the less is true that the authority of such statute must ‘be drawn in question’ by some one who has been affected by the decision of a state court in favor of its validity, and that in this particular the three clauses of the section are practically identical.” Brown, J. Tyler v. Judges of Court of Registration, 179 U. S. 408. “It is well settled that, in order to give this court jurisdiction to review a judgnient of a state court against a title or right set up or claimed under a statute of, or an authority exercised under, the United States, that title or right must be one of the plaintiff in error, and not of a third person only.” Gray, J. Giles v. Little, 134 U. S. 650. “By the settled law of this court a suggestion of one party, that the other will or may set up a claim under the Constitution or laws of the United States, does not make the suit one arising under that Constitution or those laws.” Gray, J. Tennessee v. Union, etc., Bank, 152 U. S. 464. Decision Against Validity of Authority under United States. “When the validity of a statute of, or au- thority exercised under, the United States, is drawn in question in a state court, the decision of the latter must be against its va- lidity in otder to justify a review of such de- cision.” Futter, C. J. Baltimore, etc., R. Co. v. Hopkins, 130 U. S. 222. “To raise a federal question the right must be one claimed under a particular statute of 116 APPEAL AND ERROR. the United States, the validity, construction er application ef which was made the sub- ject of dispute in the state court; and the decision upon such statute must have keen adverse to the plaintiff in error.” Brown, J. De Lamar’s, etc, Gold Min. Go. z Nes- bitt, 177 U. S. 527. a “Our jurisdiction being invoked upon, the ground that a right or immunity, specially set up and claimed under the Constitution or authority of the United States, has been denied by the judgment sought to be re- viewed, it must appear from the record of the case either that the right, so set up and claimed, was expressly denied or that such was the necessary effect in law of the judg- ment.” Haran, J. Roby v. Colehour, 146 UL. S. 159. “The validity of a statute is not drawn in question every time rights claimed under such statute are controverted, nor is the validity of am authority, every time an act done by such authority is disputed. The validity of a ‘statute or the validity of an authority is drawn in question when the existence, or constitutionality, or legality of such statute or authority is denied, and the denial forms the subject of dizect inquiry.” Futusr,. C. J. U.S. uv, Lynch, 137 U. S, 285. “From the earliest organization, of the courts, of the United States, final judgments, whether- in, civil or in criminal cases, rendered by the highest court, of a state in which a decision in the case could be had, against the right specially set up or claimed under the Constitution, laws or. treaties of the United States, may be re-examined and reversed or affirmed by this court on writ of error. . . . Such appellate jurisdiction is ex- pressly limited to cases in which the decision of the state court is: against the right claimed under the Constitution, laws or treaties of the. United States, because, when the deci= sion of that court is in favor of such a right, no revision by this court is necessary to. pro- tect the nationali government in the exercise of its rightful. powers.” Gray; J. Whitten v. Tomlinson, 160 U. S. 238. “ A writ of error [to a: state court] can be sustained only when the decision of, the state court is against a right claimed under the constitution and laws of the United States.” Gray, J. Dower wv. Richards, 151 U. S. 666. 3. PrRocEEDINGS IN APPELLATE COURT. Question of Fact. “his is.» writ of error to the state court, and whatever was a question of fact there is ’ aqutestion of fact here”” McKenna, J. East- ern Building, ete, Assoc. v: Ebamgh, 185 U.S. 121, Reference to Opinion af Lawer Caurt. “Tt is the settled course of decisions that this court may examine opinions . . . de- livered and recorded to ascertain the ground of the judgment of the state court.” FULLER, C. J. Dibble w. Bellingham Bay Land Ca., 163 U. S. 69: “Tt has long been the practice im this court in cases coming from a state court to refer to its opinion made part of the record for the purpose of ascertaining whether any fed- eral right, specially set up or claimed, had been denied to the plaintiff in error, or whether the judgment rested upon any ground of local law sufficient to dispose of the case without reference to any question of a fed- eral character. And we have done this with- out stopping to inquire whether there was any statute of the state: requiring the opinion of the court to, be filed in the case as part of the record.” Haran, J. Loeb v. Colum- bia Tp. Trustees, 179. U. S.. 484, Opinion Not Controlling. “Can it be that the mere language in which the state: court phrases its opinion takes. from or adds to the jurisdiction of this. court to review its judgment? Such. a construction would always place it in the power of a state court to determine our jurisdiction, Such, certainly, has not been the understand- ing, and’ such, certainly would seem to set at naught: the purpose of the Federal Constitu- tion to prevent a state from nullifying by its legislation a contract which it has made, or authorized to be made.” Brewer, J. Mc- Cullough v. Virginia, 172 U. S. 117. “When the case before the state: court could have been decided upon two distinct grounds, one only: of which embraced a fed- eral question, the sole way of determining upon which of those grounds the judgment was rested would be to examine the: lan- guage used in the opinion of the state court. If that language showed the judgment: was founded wholly upon a: non-federal question; this court would be without power to review it.” Peckuam, J., dissenting. McCullough v. Virginia, 172 U. S. 127. Where Federal Question: Was Properly Decided. ; “Tf we find the federal‘ questions properly decided as to one class of persons affected by the judgment: we must sustain. that’ part of it, although we come to that conclusion: for APPEAL AND ERROR. ; a different reason from that expressed by the state court, and one which upon that point is in conflict with its opinion but not with its judgment.” PrckHam, J. Bank of Commerce v. Tennessee, 163 U. S. 421. Effect of Decisions of State Court. “The decisions of the highest court of a state are always entitled to respect in this tribunal, and should not be overruled under our constitutional power of review, except for imperative reasons.” Waite, C. J., dis- senting. Keith v. Clark, 97 U. S. 468. See also Courts. Error Must Appear. “A's the state tribunals are presumed to do their duty, we should not disturb their decisions, even on matters connected with the general government, unless very mani- festly improper or erroneous.” Woopsury, J. Doe v. Eslava, 9 How. 444. — On Question of Federal Law. “We ought not to reverse the judgment of a state court upon a question of federal law, unless it is clearly wrong.” Warre, C. J., dissenting. Keith v. Clark, 97 U. S. 468. Extent of Examination and Review. “Tf when we once get jurisdiction, every- thing in the case is open to re-examination, it follows that every case tried in any state court, from that of a justice of the peace to the highest court of the state, may be brought to this court for final decision of all the points involved in it.’ Mutter, J. Murdock v. Memphis, 20 Wall. 628. “We have no right on a writ of error from a state court, under the Act of Congress, to inquire into the legal correctness of the rule by which the damages were ascertained and assessed. There is no law of the United States which interferes with, or touches, the question of damages. It is a question de- pending altogether upon the common law; and the Act of Congress has expressly pre- cluded us from a consideration of such a question. Whether such a restriction can be defended upon public policy, or principle, may well admit of most serious doubts.” Story, J. Gelston v. Hoyt, 3 Wheat. 325. Judgment. “In relation to appeals from a state court, there is a special provision in the Act of 1789, authorizing in certain contingencies, a judgment and execution by this court.” Taney, C. J. Gordon wv. U. S, 117 U. S. 705. Mandate. “ State courts have no power to deny the jurisdiction of this court in a case brought here for decision and sent back with the man- date of the court, which is its judgment.” CuirForD, J. Tyler v. Magwire, 17 Wall. 284. “Tt is an historical fact that this exposi- tion of the Constitution, extending its ap- pellate power to state courts, was, previous to its adoption, uniformly and publicly avowed by its friends, and admitted by its enemies, as the basis of their respective rea- sonings, both in and out of the state conven- tions. It is an historical fact that at the time when the Judiciary Act was submitted to the deliberations of the first Congress, composed, as it was, not only of men of great learning and ability, but of men who had acted a principal part in framing, support- ing, or opposing that Constitution, the same exposition was explicitly declared and ad- mitted by the friends and by the opponents of that system. It is an historical fact that the Supreme Court of the United States have, from time to time, sustained this ap- pellate jurisdiction in a great variety of cases, brought from the tribunals of many of the most important states in the Union, and that no state tribunal has ever breathed a judicial doubt on the subject, or declined to obey the mandate of the Supreme Court, until the present occasion.” Story, J. Mar- tin v. Hunter, 1 Wheat. 351. IX. REVIEW OF JUDGMENTS OF TERRITORIAL COURTS. “Tt has been frequently held that the au- thority of this court on appeal from the Su- preme Court of a territory is limited to determining whether the court’s findings of fact support its judgment or decree, and whether there is any error in rulings duly excepted to in the admission or rejection of evidence.” Sutras, J. Salina Stock Co. v. Salina Creek Co., 163 U. S. 118. “The authority of this court, on appeal from a territorial court, is limited to deter- mining whether the court’s findings of fact support its judgment or decree, and whether there is any error in rulings, duly excepted to, on the admission or rejection of evidence; and does not extend to a consideration of the weight of evidence, or its sufficiency to sup- port the conclusions of the court.” Gray, J. Idaho, etc., Land Co. v. Bradbury, 132 U. S. 514, 118 APPEAL AND ERROR. X. DECISIONS OF COURTS IN DIS- TRICT OF COLUMBIA. Only Judgments of Supreme Court. “Our province is to exercise appellate ju- risdiction touching the proceedings of the Supreme Court of the District. We can ex- amine those of the District Court only after they have been’the subject of review by the Supreme Court, and then only in connection with the action of that court in affirming or reversing them. We cannot regard them un- til they have received the impress of the judgment of the higher local court.” SwAYNE, J. Garnett v. U. S., 11 Wall. 258. In Criminal Cases and on Habeas Corpus. “This court has no appellate jurisdiction over the judgments of the Supreme Court of the District of Columbia in criminal cases or on habeas corpus.” Futter, C. J. In re Chapman, Petitioner, 156 U. S. 215. “We have repeatedly decided that this act [an act ‘regulating appeals from the Supreme Court of the District of Columbia and the Supreme Courts of the several territories,’ 23 Stat. 443, c. 355], did not apply, in either section, to any criminal case, and that it was only applicable to judgments and decrees in suits at law or in equity in which there was a pecuniary matter in dispute. Hence, that, as it was well settled that a proceeding in habeas. corpus was a civil and not.a criminal pro- ceeding, and was only availed of to assert the civil right of personal liberty, the matter in dispute had no money value, and an appeal would not lie.” Futter, C. J. Gonzales v. Cunningham, 164 U. S. 617. “We have held that this court has no ju- risdiction to grant a writ of error to review the judgments of the Supreme Court of the District in criminal cases, either under the Judiciary Act of March 3, 1891 (26 Stat. 826, c. 517): or under the Act of Congress ‘of February 6, 1889 (25 Stat. 655, c. 113), or any other.” Futter, C. J. Cross v. Burke, 146 U. S. 84. Effect of Decisions of the Lower Courts. “Apart from the inconsistencies in the opinions delivered in the courts of the Dis- trict of Columbia, it is quite clear that the decisions of those courts, especially when they involve questions of the interpretation of the Constitution of the United States, and of the constitutionality and effect of acts of Congress, cannot be considered as establish- ing the law, or as relieving this court from the responsibility of exercising its own judg- ment.” Gray, J. Capital Traction Co. v. Hof, 174 U. S. 41. Error to Criminal Court. “A writ of error lies from the Circuit Court to this criminal court, and, doubtless, does from the present Supreme Court to the criminal court of the district.” NeEtson, J. Ex p. Bradley, 7 Wall. 371. XI. PROCEEDINGS TO OBTAIN REVIEW. 1. In GENERAL. Dependent upon Acts of Congress and Rules of Practice. “What is necessary to be done in a Cir- cuit Court, even in civil cases, in order that its action upon any particular question or matter may be reviewed or revised in this court, depends upon the action of Congress and the rules of practice which this court recognizes as essential in the administration of justice. Such is the result of our deci- sions.” Haran, J. St. Clair v. U. S., 154 U.S. 153. Essentials. “What is essential to an appeal is allow- a.ce, citation to the appellees, or equivalent notice or waiver, and the bringing of the record at the next term of this court.” Cuasg, C. J. Seymour v. Freer, 5 Wall. 822. Requirements Cannot Be Dispensed With. “This court has never deemed the tribunals of the United States authorized to dispense with the express provisions of the acts of Congress regulating appeals and writs of. error, upon any equitable ground. No such power is given to them by law.” Taney, C. J. Saltmarsh v. Tuthill, 12 How. 389. “This court has repeatedly dismissed writs of error because tested by a wrong officer, or made returnable on a day other than the first day of the term, or because they did not embrace all the parties to the record; and when it has been urged that the objections taken to them were extremely narrow and unsubstantial, the answer has been that noth- ing could be treated as narrow and unsub- stantial, and for that reason disregarded, which was prescribed by law as the mode of exercising the appellate jurisdiction of the court.” Fretp, J. dissenting. Tyler v. De- frees, 11 Wall. 353. Mere Technical Omission Not Fatal. “While we have always been careful to see that the required order of procedure has been complied with before any case shall be considered as transferred from a lower to a higher court, that the party seeking a re- 119 APPEAL AND ERROR. view must act in time and must make a substantial compliance with all that the stat- ute prescribes, at the same time we have been equally careful to hold that no mere technical omission which did not prejudice the rights of the defendant in error should be made available to oust the appellate court of juris- diction.” Brewer, J. Mutual Life Ins. Co. v. Phinney, 178 U. S. 337. “When the judge has done all that is nec- essary for him to do to perfect the transmis- sion of the case to the appellate court and the party seeking review has done all that is re- quired of him, can it be that the omission of a clerk (if there was such an omission) can prevent the jurisdiction attaching to the ap- pellate court? Obviously not.” Brewer, J. Mutual Life Ins. Co. v. Phinney, 178 U. S. 336. % 2. APPLICATION AND ALLOWANCE. Error — To Circuit Court. “No formal allowance by the Circuit Court of a writ of error from this court to review a judgment of that court is required. - The writ issues in a proper case as a matter of right.” Watts, C. J. Ex p. Virginia Com’rs, 112 U. S. 178. —— Writ of Right. In these respects [as to requirements for security] the writ of error is said to be a writ of right, though regulated by statute.” McLean, J. U. S. v. Addison, 22 How. 184. —To State Courts. . “It is essential to the exercise by this court of revisory jurisdiction over the final judg- ments or decrees of the courts of the states that the writ of error should be allowed ‘either by a justice of this court, or by the proper judge of the state court, after ascer- taining by an examination of the record, that a question cognizable here was made and decided in the state court, and, that such al- lowance was justified.” Futier, C. J. But- ler v. Gage, 138 U. S. 55, “Process to remove the judgment or de- cree. from the state court to the Supreme Court is not allowed as a matter .of right. Instead of that, the practice is to submit the record of the state court to a justice of the Supreme Court, whose duty it is .to ascertain whether, in his opinion, any question cogniza- ble in the appellate tribunal is involved and was decided by the proper:state court in a way to justify the allowance of the writ, and if not, to refuse to direct that it shall be is- sued.” CLzFForD, J., dissenting. Tennessee v, _ Davis, 100 U, S. 284. | Appeal — Matter of Right in Proper Case. “An appeal in a proper case is a matter of right,” Watts, C. J. Richards v. Mack- all, 113 U. S. 541. 4 “An appeal is a matter of right, and, if prayed, must be allowed; but should never be prayed without some expectation of rever- sal.” ‘Case, C. J. The Douro, 3 Wall. 566. “Tn a doubtful case we shall not disturb the ruling of the Circuit Court in granting an appeal. Unless we exer- cise a supervising power over these matters, many cases might be thrust upon our consid- eration through the inattention of the trial court, or the mistake or wrong of the defeat- ed party, which are not, in fact, within our jurisdiction.” Brewer, J. Rector v. Lips- comb, 141 U. S. 559. —— Application. “A party wishing an appeal should make an application for its allowance in open court, or to the judge at his chambers, and should name his securities. And the bond should be prepared for the approval of the judge, and the citation for his signature, unless the appeal was prayed in open court and entered upon the record.” McLean, J. Mussina v. Cavazos, 20 How. 289. “Where there are inferior and superior jurisdictions, and an appeal is allowed from the former to the latter, and it is the express duty of the party praying an appeal, to apply in the first instance, to the inferior court . . . I must presume that the court is prima facie to judge whether it is applied for in a proper manner, and whether all the requisites previous to his being fully en- titled to it, are complied with.” TIRepettz, J., concurring. Penhallow vw. Doane’s Adm’rs, 3 Dall. (U. S.) 105. Appeal and Error Distinguished. “An appeal to this court in a proper case is matter of right, and its allowance is in reality nothing more than the doing of those things which are necessary to give the appel- lant the means of invoking our jurisdiction. A writ of error is the process of this court, and it is issued, therefore, only upon our authority; but an appeal can be taken with- “out any action by this court. All that need be done to get an appeal is for the appellant to cite his adversary in the proper way to appear before this court, and for him to docket the case here at the proper time.” Waite, C. J. Brown v. McConnel, 124 U, S, 490. APPEAL AND ERROR. 8. LIMITATIONS AS TO TIME, See also infra, XI. 7. Waiting for Settlement of Decree. “Where the decree is special, and its terms to be settled, there is a propriety in waiting for its settlement before taking the appeal,” Nexson, J. Silsby v. Foote, 20 How. 295. Limitations Run from Entry of Judg- ment. “Tt is the record of the judicial decision or order of the court found in the record book of the court’s proceedings which con- stitutes the evidence of the judgment, and from the date of its entry in that book the statute of limitation begins to run.” MULLER, J. Polleys v. Black River Co., 113 U. S. 84. When Error Is Brought or Appeal Taken. “No decree in any action in equity can be reviewed by this court on appeal, unless the appeal is taken within two years after the entry of such decree. And appeals are subject to the same rules, regulations and restrictions as are or may be prescribed in law in cases of writs of error. As it is the filing of the writ of error in the court which rendered the judgment that removes the record, the writ of error is not brought in the legal meaning of the term until it is so filed .; nor is an appeal ‘taken’ until it is in some way presented to the court which made the decree appealed from.” Fut- LER, C. J. Farrar v. Churchill, 135 U. S. 612. Practice in State Courts. “The circumstances that Congress, in cre- ating a new court of the United States, af- fixed a different limitation as to the time for prosecuting error to such court and left un- changed the limitation as to the time within which error might be prosecuted to the courts whose practice in this particular governed the practice in state courts, irresistibly war- rants the inference that it was intended that the practice in the state courts as to the time of suing out writs of error should continue unaltered.” Wuutsr, J. . Allen v. Southern Pacific R. Co., 173 U. S. 488. 4, Bono. See also imfra, XVIII. Nature of Requirement. “The bond and security given on the writ of error cannot be regarded as an idle cere- mony. It was designed as an indemnity to the defendant in error, should the plaintiff fail to prosecute with effect his writ of er- ror.” McLean, J. U. S. uv. Addison, 22 How. 185. “When [a writ of error is] sued out [to the Circuit Court] security must be given.” Waite, C. J. Ex p, Virginia Com’rs, 112 U.S. 178, Compliance with Statute. “ As an appeal bond, or bond in error, is a formal instrument required by the law, and governed by the law, and has, by nearly a century’s use, become a formula in legal pro- ceedings, with a fixed and definite meaning, and as the important right of appeal is great- ly affected by it, we think that it is not al- lowable, in practice, by a change in its phraseology, to give to it an effect contrary to what the statute intended. It would be against the policy of the law to allow such deviations and irregularities to creep in.” Braptey, J. Kountze v. Omaha Hotel Co, 107 U. S. 395. Amount— Judgment for Money Not Otherwise Secured. “Where the judgment or decree is for the recovery of money, not otherwise secured, the indemnity must be for the whole amount of the judgment or decree, including just damages for delay, and costs and interest on the appeal.” Cziirrorp, J. French v. Shoe- maker, 12 Wall. 99. —— Where Property Follows Event of Suit. “Tn all suits where the property in contro- versy necessarily follows the event of the suit, as in real actions, replevin, and in suits on mortgages, indemnity is only required in an amount sufficient to secure the sum recov- ered for the use or detention of the property and the other incidental items, as in cases where the judgment or decree is for money.” CuirForD, J. French v. Shoemaker, 12 Wall. 99. —— In Cases of Dower and Ejectment. “Tn the case of money judgments, bail in error was required to secure (1) the amount of the original judgment; (2) the costs and damages occasioned by the delay of execu- tion. In the case of dower and ejectment, where the main thing in controversy was land, bail was required to secure only such costs, damages, and money as should be awarded after affrmance of judgment, for mesne profits and waste pending the appeal.” BrabLey, J. Kountze v. Omaha Hotel Co., 107 U. S. 383. sf Even in ejectment it has at least been questioned by this court whether the bond in 121 APPEAL AND ERROR. error covers rents and profits accruing pend- ing the writ. And yet there is a material difference between the case of ejectment and a suit for the foreclosure of a mortgage. The difference is this: in ejectment the property of the land is in question, and if the plaintiff has the right, he is entitled to immediate pos- session and to the perception of the rents and profits, which belong to him, and for which the defendant in possession is account- able to him. Every dollar, or dollar’s worth, is so much of the plaintiff’s property of which he is deprived. And the same is true in dower. But in the case of a mortgage, the land is in the nature of a pledge; and it is only the land itself—the specific thing — which is pledged. The rents and profits are not pledged: they belong to the tenant in pos- session, whether the mortgagor or a third person claiming under him.” Braptey, J. Kountze v. Omaha Hotel Co., 107 U. S. 392. ——In Foreclosure. “The taking of the rents and profits prior to the sale does not injure the mortgagee, for the simple reason that they do not be- long to him. Waste, that is, destruction or injury to the land itself, as before stated, is an injury to the mortgagee. It diminishes the value of the pledge; and for such injury no doubt he might recover on the appeal bond. Other deteriorations, such as occur by want of repairs, accumulation of taxes, fires not covered by reasonable insurance, and the like, probably might also be fairly covered by the bond. But perception of rents and profits is the mortgagor’s right until a final deter- mination of the right to sell, and a sale made accordingly.” Brapiry, J. Kountze v. Oma- ha Hotel Co., 107 U. S. 393. ——For Costs. “When no supersedeas is required, secur- ity for the costs of the Supreme Court must be entered.” McLean, J. U.S. v. Addison, 22 How. 184. “All that is required in a case where the writ of error is not a supersedeas is that the bond shall be in an amount sufficient to answer the costs in case the judgment or decree is affirmed.” Czr1FForD, J. French vz. Shoemaker, 12 Wall. 99. “The object of the statutory require- ment [Rev. Stat. U. S., § 1000] is to secure to the opposite party his damages and costs, in case the judgment or decree shall not be reversed, and that, we think, is the le- gal effect of this bond. If, on the final disposition of a writ of error or appeal, the judgment or decree brought under review and signs the citation.” is not substantially reversed, it is affirmed and the writ of error or appeal, has not been prosecuted with effect.” Warts, C. J. Gay uv. Parpart, 101 U.S. 392. By Whom Taken. “Upon a writ of error in a civil case, the requisite security is ordinarily taken by the justice or judge who allows the writ Gray, J. Hudson v. Parker, 156 U. S. 287. Remedy When Bond Is Insufficient. “Where the bond taken is insufficient in law, this court in the exercise of its in- herent jurisdiction as a court of error, may direct that the writ be dismissed, unless the plaintiff in error gives security sufficient in this respect, to be taken and approved by any justice or judge who is authorized to allow the writ of error and citation.” Gray, J. Hudson v, Parker, 156 U. S. 287. “Security for prosecution should be taken by the judge on signing the citation, but if this duty be omitted or defectively performed, a remedy can be applied here on ‘motion.” Cuase, C. J. Seymour v. Freer, 5 Wall. 822. Liability On. “Sureties in a bond for an appeal from the special term to the general term are fixed in their liability when the judgment rendered in the special term is affirmed at the general term, but such sureties are not liable for costs in the appeal from the general term to the Court of Appeals, as the costs of such an appeal are not within the undertak- ing of the sureties in a bond given to pros- ecute the appeal from the special term to the general term.” C.iFForD, J. Babbitt v. Finn, 101 U. S. 13. “Where the bond is given in a subordinate court to prosecute an appeal to effect in a superior court, the sureties become liable if the judgment is affirmed in a superior court; nor are they discharged in case the judg- ment of the superior court is removed into a higher court for a re-examination and a new bond is given to prosecute the appeal, if the judgment is affirmed in the court of the last resort. Nothing will discharge the sureties given to prosecute the appeal from the court of the original jurisdiction but the reversal of the judgment in some court hav- ing jurisdiction to correct the alleged error.” CuirrorD, J. Babbitt v. Finn, 101 U.S. 13. “At common law, the sureties on the [appeal] bond would be liable to a suit with- out issuing an execution against the prin- APPEAL AND ERROR. cipal. The fact that the judgment appealed from was affirmed and was unpaid would be sufficient.” Mutter, J. Smith v. Gaines, 93 U. S. 342. Judgment Against Surety. “A party who enters his name as surety ‘on an appeal bond does it with a full knowl- edge of the responsibilities incurred. In view of the law relating to the subject it is equiv- alent to a consent that judgment shall be entered up against him if the appellant fails to sustain his appeal.” Braptey, J. Beall v. New Mexico, 16 Wall. 539. 5. Notice or CITATION. On Error to Circuit Court. “When [a writ of error is] sued out [to the Circuit Court] citation [must is- sue] to the adverse party signed.” WalrrE, C.J. Ex p. Virginia Comr’s, 112 U. S. 178. On Appeal. “When an appeal is taken notice of the fact is usually given to the opposite party, or a citation is served on him.” Fretp, J. Parker, 131 U. S. 225. After Term. “A citation is one of the necessary ele- ments of an appeal taken after the term, and if it is not issued and served before the end of the term to which it must be made returnable the appeal becomes inoperative.” Waite, C. J. Hewitt v. Filbert, 116 U. S. 145. From Supreme Court of District of Co- lumbia. “Even if the citation [on appeal from the Supreme Court of the District of Colum- bia] was not served in time, which we do not decide, the failure to serve wil] not work a dismissal of the appeal.” Waite, C. J. Richards v. Mackall, 113 U. S. 542. Appeal Taken in Open Court. “Notice to the opposite party is required in every case when a writ of error is sued or an appeal is taken to remove a cause into an appellate court, except when the appeal is allowed in open court.” CxiFForD, J. Bab- bitt v. Finn, 101 U. S. 11. “The appeal was allowed in open court during the term at which the decree was rendered. No citation was, therefore, neces- sary.” Waite, C. J. Milner v. Meek, 95 U.S, 258. Sufficiency of Notice. “The latter [proceedings in an appellate tribunal] may be taken upon such notice, per- sonal or constructive, as the state creating the tribunal may provide. They are con- sidered as rather a continuation of the orig- inal litigation than the commencement of a new action.” Fuetp, J. Pennoyer v. Neff, 95 U. S. 734. “Actual notice ought to be given in all cases where it is practicable, even in ap- pellate tribunals; but whenever personal ser- vice has been rendered impossible by the removal of the appellee or defendant in er- ror from the jurisdiction, service by publi- cation is sufficient to give the appellate tribunal jurisdiction of the subject and the person, provided it appears in the record that personal notice was given in the subordinate court, and that the party there appeared, and litigated the merits of the controversy.” CuiFForD, J. Nations v. Johnson, 24 How. 204. Waiver by Appearance. “Undoubtedly the appearance of the de- fendants at the last term, without making a motion to dismiss, cures the defect in the citation. The citation is nothing more than notice to the party to appear at the time specified for the return of the writ of error. And if he appears, it shows that he had no- tice; and if he makes no objection during the first term to the want of notice, or to any defect in the citation, he must be re- garded as having waived it.” Taney, C. J. Carroll v. Dorsey, 20 How. 207. “The appearance of the party in this court, without making a motion to dismiss during the first term, is a waiver of any irregularity in the citation, and is an admission that he has received notice to appear to the writ of error.” Taney, C. J. Chaffee v, Hayward, 20 How. 210. 6. SERVICE OF WRIT oF ERRor. What Is. “Service of a writ of error, in the prac- tice of this court, is a lodging of a copy of the same in the clerk’s office where the record remains.” CLiFForD, J. U. S. v. Dashiel, 3 Wall. 701. To the same effect see the lan- guage of MarsHALL, C. J., in Wood v. Lide, 4 Cranch 181. %. FILING WRIT OF ERROR. “A writ of error, allowed out of court, is neither considered as brought, even for the purpose of computing the time of limitation of suing it out, nor does it operate as a su- persedeas, until it has been filed in the clerk’s 123 APPEAL AND ERROR. office of the court to which it is addressed.” Gray, J. Hudson » Parker, 156. U. S, 288 See also supra, XI. 8. 8. Firinc TRANSCRIPT, Jurisdictional. “Tn order to give this jurisdiction of an appeal or writ of error, ‘an authenticated transcript of the record’ of the court below must doubtless be filed in this court at the return term.” Gray, J. Idaho, etc, Land Co. vw Bradbury, 182 U. S. 512, Removal of Record. “A writ of error here, as in England, is supposed to remove the record of the court to which it is directed into the superior tri- bunal. But this is a mere fiction. In neither country is the record itself actually sent up. A transcript only is sent.’ Strone, J. Hun- nicutt v. Peyton, 102 U. S. 356. “That the writ of error [to a state court] shall have the same effect as if directed to a Circuit Court can mean no more than that it shalt transfer the case to the Supreme Court, and with it the record of the proceed- ings in the court below. This is the effect of the writ and its function and purpose.” Miiusr, J. Murdock v. Memphis, 20 Wall. 623. 9. Form or WRIT, Duty of Plaintiff. “Tt is the duty of the party who desires to bring a case before this court, to see that proper and legal process is sued out for that purpose; and if he fails to do so, he has no right to treat the defect as a mere clerical error, for which he is not to be held respon- sible.” Tanzy, C. J. Hodge v. Williams, 22 How. 89. Seal. “We have decided in this court that a writ of error is void for want of a seal, though the clerk had returned the transcript in obe- dience to the writ.” Mutter, J. Etna Ins. Co. v. Hallock, 6 Wall. 558, Description of Parties. “Tt is well settled that this court cannot take jurisdiction of a writ of error which describes the parties by the name of a firm, or which designates some of the parties by the expression ‘& Co. or the expression ‘and others,’ or in any other way than by their individual names.” BratcHrorp, J. Estis v. Trabue, 128 U. S, 228. “Tt [this court] has repeatedly refused to amend [a writ of error] where the partner- ship name of a firm was used instead of the proper names of the parties; and in like man- ner it has refused to amend where the name of one or more of the parties were given, and the rest designated as others joined with them, without setting out the names of those intended to be included as others.” Taney, C J. Hodge v. Williams, 22 How. 88. : 10. DrREcTION OF WRIT. To Court Retaining Record. “Tf the law requires the highest court [of the state] to retain its own records, and they are not in practice sent down to the in- ferior court, our writ can only go to the highest court.’ Waite, C. J. Atherton w. Fowler, 91 U. S. 148. “T£ we are in any way judicially informed, that, under the laws and practice of a state, the highest ‘court is not the custodian of its own records, we may send to the highest court, and seek through its instrumentality to obtain the record we require from the inferior court having it in keeping, or we may call directly upon the inferior court itself. But if the highest court is the legal custodian of its own records, and actually re- tains them, we can only send there. This, we think, has always been the rule of prac- tice.” Warte, J. Atherton v. Fowler, 91 U.S. 147. “A writ will never be dismissed for want of jurisdiction because it is directed to the highest court in which a decision was and could be had. We may not be able in all cases to reach the record by such a writ, and may be compelled to send out another to a different court before our object can be ac- complished; but that is no ground for dis- missal.” Warts, C. J. Atherton v. Fowler, 91 U. S. 146. “For the purposes of such a re-examination [of a judgment of a State Court} we require the record upon which the judgment or de- cree was given, and we send out our writ of error to bring it here. That writ is to oper- ate on the court having the record, and not upon the parties.” Waite, C. J. Atherton v. Fowler, 91 U. S. 146. “A petition for a writ of error to the Court of Civil Appeals having been presented to the Supreme Court of the state, and de- nied, the present writ of error from this court was properly addressed to the Court of Civil Appeals, in which the record remained. Gray, J. Stanley v. Schwalby, 162 U. S. 269, 124 APPEAL AND ERROR. “Where the appellate court requires the whole record to be sent up and executes its own judgments, it may well be held that the writ of error should be directed to that tri- bunal, as no other can obey the commands of the writ, and send the record, which is the subject of complaint, into the appellate court for re-examination. But where only a part of the record is sent to the appellate court, or where, whatever is sent up, whether the whole or a part, the transcript is imme- diately returned to the subordinate court, to- gether with the judgment of the appellate court, for record, it is equally plain that the writ of error from this court should be di- rected to.the subordinate court, as the only tribunal which can execute the commands of the writ.” C.rirrorp, J., dissenting, Un- derwood v. McViegh, 131 U. S. cxxi. XII. ASSIGNMENT OF ERRORS. Necessity. “The practice of this court does not re- quire a technical assignment of errors.” Cur- Ts, J., dissenting. Scott v. Sandford, 19 How, 566. “Tt is not necessary, by the practice of this court, for the party who brings a cause here to specify upon the record the errors he com- plains of, and they are not even informally brought to our notice until the argument is heard. Want of jurisdiction and irregularity of the writ are the only grounds for dis- missal. Where a judgment appears to have been rendered which the party is entitled to have revised in this court, and it is also seen that it comes here for such revision upon proper process, duly issued, all other ques- tions must await the final hearing.” Tawney, C. J. Hecker v. Fowler, 1 Black 95. “Inasmuch as the assignment of errots does not call in question any ruling of the court in admitting or excluding evidence, the re-examination of the record will be con- fined to the instructions of the court given to the jury, and the exceptions of the defend- ants to the rulings of the court in refusing the requests for instruction which they pre- sented.” ‘CxirForD, J. Trenier v. Stewart, 101 U. S. 805. “No reasons are assigned of record in this court on motions to quash, or errors assigned on a judgment. They are stated to the court, and in my opinion whenever a motion is made in any court to quash any proceeding, the party moving may urge any reason showing it to be void without speci- fying them’on record, unless it is required by ‘some rule.” Batpwin, J., dissenting. Fisher v. Cockerell, 5 Pet. 262. Construction. “Like every other pleading, an assignment of error is subject to a reasonable, construc- tion.” Ciirrorp, J. Edwards wv. Elliott, 21 Wall. 550. Who May Assign Errors. “ Both parties in a civil action may sue out a writ of error to a final judgment, but where one patty only exetcises the tight the other cannot’ assign error in the appellate court. CuirrorD, J. The Maria Martin, 12 Wall. 40. “ Where each party appeals each may assign error, but where only one party appeals the other is bound by the decree in the court below, and he cannot assign error in the ap- pellate court, nor can he be heard if the pro- ceedings in the appeal are correct, except in support of the decree from which the appeal of the other party is taken.” C.trrorp, J. The Maria Martin, 12 Wall. 40. XIII. PARTIES TO APPELLATE PROCEEDINGS. Who May Appeal or Take Writ of Error — Parties to the Suit. “No one but a patty to the suit can bring a writ of error.” Grier, J. Connor vw. Peugh, 18 How. 395. “Only parties, or those who represent them, can appeal.” Warts, C. J. Ex p. Cut- ting, 94 U. S, 22. “Only parties to a decree can appeal.” Waite, C. J. Farmers’ L. & T. Co. v. Water- man, 106 U. S. 269. — Government and Private Suitor. “Tn judicial proceedings, no exclusive rights are given to the government in this re- spect [as to appeal] over other suitors, ex- cept by statutory provisions.” M’Lran, J. U.S. v. Nourse, 6 Pet. 494. —— Party Aggrieved by the Decree. “The law gives the party aggrieved an appeal from a final decree of an inferior court. But it does not give the party who is not aggrieved an appeal from a decree in his favor because the judge has given fio rea+ sons, or recited insufficient ones for a judg- ment admitted by the appellant to be ¢cot- tect.” Gritr, J. Corning v. The Troy Iron, etc., Factory, 15 How. 465. “That writ, [of error] from its nature and character, must be sted out by the party 126 APPEAL AND ERROR. who alleges error in the judgment of the inferior court.” Tangy, C. J. Hodge v. Williams, 22 How, 88, “ An appeal brings up for review only that which was decided adversely to the appel- lant.” Wartz, C. J. Loudon wv. Taxing District, 104 U. S. 774. “In order to give this court jurisdiction of a writ of error of review a judgment of a state court against a right claimed under a statute of the United States, that right must be one of the plaintiff in error, and not of a third person only.” Gray, J. Ludeling v. Chaffe, 143 U. S. 305. “If a party comes into the Circuit Court alleging that a state law is unconstitutional, and the Circuit Court decides for him on that point, the mere fact that there was such a question in the casé does not authorize him to appeal to this court on grounds that otherwise would not support an appeal.” Hotmes, J. Anglo-American Prov. Co, wv. Davis Prov. Co. No. 2, 191 U. S. 378. —— Parties Not Affected by the Decree. “Tf a party to the suit is in no manner affected by what is decreed, he cannot be said to be a party to the decree.” WaAITE, C. J. Farmers’ L. & T. Co. v. Waterman, 106 U. S. 269, “In equity, where interventions pro in- teresse suo have been permitted to those affected by the proceeding, but not parties to the original controversy, or where the original parties have distinct and separable interests, the same general rule as to appeals applies to joint decrees; but it has always been held that, where the decree is final and separate or separable, those not affected by it are not necessary parties to the appeal.” MattHews, J. Hanrick wv. Patrick, 119 U. S. 164. — Plaintiff Who Has Recovered Judg- ment For Part of Claim. “The plaintiff cannot divide his claim into parts, and when he obtains judgment for part, accept that part, and prosecute his suit for more. Having a right to elect to pursue his judgment or his writ of error he cannot elect to have both.” Grier, J., dissenting. U.S. v. Dashiel, 3 Wall. 703. Escaped Convict as Plaintiff in Error. “It is much more becoming to its dignity that the court should prescribe the conditions upon which an escaped convict should be permitted to appear and prosecute his writ [of error] than that the latter should dictate the terms upon which he will consent to sur- render himself to its custody.” Brown, J. Allen v. Georgia, 166 U. S. 141. Severance and Appeal by One of Several Defendants. “Defendants in certain cases may sever, after final judgment, for the purpose of prosecuting an appeal or writ of error, which is effected by a proceeding usually called summons and severance, which will enable one of several defendants, or any number less than the whole, to sue out a writ of error or take an appeal in a case where the other defendants or respondents refuse to join in the petition for the same. Modes of effecting a severance among executors, so that less than the whole number may sue, were also known at common law, but in such a case it was necessary that such a proceed- ing should be perfected before the suit was instituted.” CiurForp, J. Sewing Mach. Co.’s Case, 18 Wall. 579. “Cases arise beyond all doubt where only one of several defendants is affected by the judgment or decree, and it is well settled that in such cases the party whose interest only is affected by the alleged error may carry up the case without joining the others in the appeal or writ of error.” CLrFrorD, J. Simpson v. Greeley, 20 Wall. 157. “When a judgment against defendants is joint, all the parties affected thereby must join in the writ of error, or there must be a summons and severance, or its equivalent.” MartrTuHeEws, J. Hanrick v. Patrick, 119 U. S. 163. “Tf judgment in an action of trespass be rendered against one defendant by default, and in favor of the other defendant upon a plea, the former may alone bring a writ of error.” WaAsHINGTON, J. Macker v. Thom- as, 7 Wheat. 532. Cross-appeals. “(When the defendant appeals] if the complainant desires a more favorable de- cree, he must enter a cross-appeal, that, when the decree comes before the appellate court, he may be heard. For, when the decree is either affirmed or reversed by the appellate court, it becomes the decree of that court, and cannot be the subject of another ap- peal.” Grier, J. Corning v. The Troy Iron etc., Factory, 15 How. 466. “Tt often happens that a court may decree in favor of a complainant, but not to the extent prayed for in his bill, and he may 126 APPEAL AND ERROR. have just cause of appeal on that account.” Grier, J. Corning v. The Troy Iron, etc., Factory, 15 How, 464, “Subject to the same rules and ‘regula- tions as in case of writs of error, both par- ties may appeal, in an equity, admiralty, or prize suit, from the final decree of the subor- dinate court, but the appeal when entered in the appellate court is also subject to the same restrictions as are prescribed in case of writs of error.” CtxiFForp, J. The Maria Martin, 12 Wall. 40. “The same right to remove the cause from the subordinate to the appellate court for re-examination is secured to both parties by the Act of Congress allowing appeals, in- stead of writs of error, in cases of equity or of admiralty and maritime jurisdiction, or of prize or no prize, as provided in the second section of the act allowing such ap- peals.” CxirForp, J. The Maria Martin, 12 Wall. 40. Intervention by Third Persons. “Tf the general creditors of a mortgagor are suffered to intervene in an appellate tribunal, the court would become the triers of questions of fact outside of the record, and that too on ex parte affidavits — by no means the best mode of ascertaining truth.” Davis, J. Bronson v. La Crosse, etc., R. Co., 2 Black 528. Transfer of Party’s Interest. “The transfer of the interest of one of the parties by assignment or by a judicial pro- ceeding in another court, as in bankruptcy or otherwise, is brought to the attention of the court by evidence outside of the original record, and acted on.” Mutter, J. Dakota County v. Glidden, 113 U. S. 225. Appointment of Representative for De- ceased Party. “The death of one of the parties after a writ of error or appeal requires a new pro- ceeding to supply his place.” Mrter, J. Dakota County v. Glidden, 113 U. S. 225. “Undoubtedly cases may arise in which the presence of the representatives of a de- ceased appellant will be required for the due prosecution of an appeal, notwithstand- ing the survivorship of others. If that should be so, the court can, with propriety, direct that the appeal be dismissed, unless it be properly revived within a limited time.” Warts, C. J. Moses v. Wooster, 115 Uz. S. 287. e XIV. THE RECORD ON APPEAL OR ERROR. Necessity. “When a party is dissatisfied with the de- cision of his cause in an inferior court, and intends to seek a revision of the law ap- plied to the case in a superior jurisdiction, he must take care to raise the questions of law to be revised, and put the facts on the record for the information of the appellate tribunal; and if he omits to do so in any of the methods known to the practice of such courts, he must be content to abide the consequences of his own negligence.” CLiF- ForD, J. Suydam v. Williamson, 20 How. 433. For substantially the same language see Pomeroy v. Indiana State Bank, 1 Wall. 600, per CLiFFoRD, J.; Baltimore, etc., R. Co. v. Sixth Presbyterian Church, 91 U. S. 130, per CLIFForD, J. “Nothing can be considered upon a writ of error except what appears upon the rec- ord.” CuirForp, J. Suydam v. Williamson, 20 How. 439. “Questions of facts will not be reviewed by this court in common-law actions, nor can the questions of law presented in such cases be re-examined here unless the mat- ters of fact out of which they arise are, in some authorized form, given in the record.” CurrForp, J. Crews v. Brewer, 19 Wall. 72. Contents. “A record is substantially a written his- tory of the proceedings from the beginning to the end of the case, but nothing which is not matter of record can be made such by inserting it therein. In several of the states the matters properly incorporated in judgment rolls are enumerated by statute.” Brown, J. U.S. v. Taylor, 147 U. S. 698. “When the practice of a particular state or district requires a judgment record to be made up in each case, of course the clerk is entitled to his fees for services actually and necessarily performed in that connec- tion. But as to what shall be in- corporated in such record, there is not set- tled practice and some diversity of opinion.” Brown, J. U.S. wv. Taylor, 147 U. S. 697. “The mere fact of a paper being found amongst the files of a cause, does not of itself constitute it a part of the record of the cause. In order to render it a part of the record it should form some part of the plead- ings in the cause, or to be brought under and ingrafted upon the action of the court by some rnotion from the parties. Without 127 APPEAL AND ERROR. this, such a paper can no more be a portion of the record than would the knowledge of facts on the part of a witness, who had been summoned and not examined, or the oral testimony given to a jury, and not noted by exception or otherwise.’ DaAnreL, J. Sar- geant v. Indiana State Bank, 12 How. 384. “A judgment of a court appealed from is never incorporated into a bill of exceptions, It is always a part of the record of the case, and, like the plea and the verdict, it needs no bill of exceptions, but is simply to be transcribed as a part of the record.” Mutter, J. Clinton v. Missouri, etc., Railway, 122 U.S. 474, “As a petition for rehearing forms no part of the record, it cannot be noticed. The jurisdiction of the court depends on the matter disclosed in the bill of exceptions.” MarsuHal.t, C. J. Lagrange vw. Chouteau, 4 Pet. 288. Presumptions as to Matters Not Set Out. “On a writ of error, many things will always be presumed or intended, in law as well as fact, to have happened, which are not ipsissimis verbis or substantively so set out on the record, but are plainly to be inferred to have happened from what is set out.” Woovzury, J. Townserd v. Jem- ison, ? How. 719. “In ordinary adversary actions, . . . it is presumed after verdict, that the plaintiff has proved evety fact which is indispen- sable to his recovery, though no evidence appears on the record to show it; and the ptinciple is of more tuniversal application in proceedings in rem after a final decree by a court of competent jurisdiction over the subject-matter.” BALpwin, J. Grighon v. Astor, 2 How. 340. Record Must Show Jurisdictional Facts. “This court will not proceed in any case, unless its right and duty to do so are ap- parent upon the face of this record.” Mat- tHEws, J. Elgin v. Marshall, 106 U. S. 580. “As the jurisdiction of the [federal] Cir- cuit Court fs limited, in the sense that {t has no other jurisdiction than that conferred by the Constitution and laws of the United States, the presumption is that a cause is without its jurisdiction unless the contrary affirmatively appears.” Hartan, J. Grace v. American Cent. Ins, Co., 109 UL S. 283. “The rule, springing from the nature and limits of the judicial power of the United States, is inflexible and without exception, which requires this court, of its own motion, to deny its own jufisdiction, and, in. the ex- ercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirma- tively appear in the record on which, in the exercise of that power, it is called to act.” Matruews, J. Mansfield, etc, R. Co. v. Swan, 111 U. S. 382. “Unless the contrary appears affirm- atively from the record, the presumption, upon writ of error or appeal, is that the court below was without jurisdiction.” Har- LAN, J. King Iron Bridge Co. v. Otoe County, 120 U. S. 226. “The rule is without, exception that the facts upon which the jurisdiction of the courts of the United States rests must appear in the record of all suits prosecuted before them.” Futter, C. J. Fishback v, Western Union Tel. Co., 161 U. S. 100. “Tt is the settled doctrine of this court that the jurisdiction of the Circuit Courts of the United States must appear affirma- tively from the record, and that it is not sufficient that it tmay be inferred argumen- tatively from the facts stated. Hence, the averment that a party resides in a particular state does not import that he is a citizén of that state.’ Harzan, eo Oxley Stave Co. v. Butler County, 166 U. S. 655. Evidence Not Considered Unless Part of Record. “We may indeed conjecture, how these tatters were, by general surmise or pef- sonal informations but judicially we can know nothing beyond what the record pre- sents of the facts.” Srory, J. M’Lanahan v. Universal Ins. Co., 1 Pet. 187, “Evidence, whether written or oral, and whether given to the court or the jury, does not become a part of the record unless made so by some regular proceeding at the time of the trial and before the rendition of the judgment.” Cuirrorp, J. Baltimore, ete. R. Co. v. Sixth Presbyterian Church, 91 U. S. 130. “It has been often held by state courts that evidence of the contents of legislative journals, which has not been produced and made a part of the case in the court below, will not be considered on appeal.” Futter, Cc. Jy Im re Duncan, 139 U. S. 457, Conclusions of Fact, “Repeated decisions of this court have determined that every special verdict, in order 128 APPEAL AND ERROR. to enable the appellate court to act upon it, must find the facts and not merely state the evidence of facts, as where it states the evidence merely without stating the conclu- sions of the jury a court of errors cannot act upon such matters even though the evi- dence reported may be sufficient to justify the assumed conclusion. Jurisdiction to adjudi- cate upon evidence in a suit brought here under the twenty-second section of the Ju- diciary Act is not conferred upon this court, nor can this court perform the office of a jury by drawing the conclusions of fact from the evidence given at the trial, nor is it in the power of the parties to impose such a jurisdiction upon this court, as the jurisdic- tion and power of the court are settled and defined by the Constitution and the laws of Congress. Nothing short of conclusions of fact will answer the requirement of the law in a court of errors, whether the founda- tion of the judgment is an agreed statement, a special verdict, or a special finding under the recent act of Congress.” CuLtFForp, J., dissenting. Smith v. Sac County, 11 Wall. 161. Instructions Need Not Be Set Out in Entirety. “The principal arguments at the bar have been urged against the charge given by the Circuit Court in summing up the cause to the jury. The charge is spread in extenso upon the record, a practice which is unnecessary and inconvenient, and may give rise to minute criticisms and observa- tions upon points incidentally introduced, for the purposes of argument or illustration, and by no means essential to the merits of the cause.” Storey, J. Evans wv. Eaton, 7 Wheat. 426. Record Conclusive as to Evidence. “We take a case on appeal as it comes to us in the record, and receive no new evi- dence.” Wartte, C. J. Pacific R. Co. wv. Ketchum, 101 U. S. 296. Record in Criminal Causes. “Tn all cases touching life or liberty I deem it the duty of this court, when once it has jurisdiction of a case, to enforce these restraints [against abridging the privi- leges and immunities of citizens and de- priving persons of life, liberty or property without due process of law] for the protec- tion of the citizen where they have been disregarded in the court below, though called to its attention. I do not pretend that this court should take up questions not arising upon the record, but I do contend that it is 1 Os. Dic.—9 competent for the court when once it has acquired jurisdiction of a case to see that the life or liberty of the citizen is not wantonly sacrificed because of some imper- fect statement of the party’s rights.” Frexp, J., dissenting. O’Neil v. Vermont, 144 U. S. 359. “Neither sound reason nor public policy justifies any departure from settled prin- ciples applicable in criminal prosecutions for infamous crimes. Even if there were a wide divergence among the authorities upon this subject, safety lies in adhering to established modes of procedure devised for the security of life and liberty. Nor ought the courts, in their abhorrence of crime nor because of their anxiety to enforce the law against crim- inals, to countenance the careless manner in which the records of cases involving the life or liberty of an accused are often prepared. Before a court of last resort affirms a judg- ment of conviction of, at least, an infamous crime, it should appear, affirmatively, from the record that every step necessary to the validity of the sentence has been taken. That cannot be predicated of the record now before us.” Haran, J. Crain v. U. S., 162 U. S. 644. “We are of opinion that the rule requir- ing the record of a trial for an infamous crime to show affirmatively that it was de- manded of the accused to plead to the in- dictment, or that he did so plead, is not a matter of form only, but of substance in the administration of the criminal law.” Har- LAN, J. Crain v. U. S., 162 U. S. 645, “There is no presumption in favor of a defendant upon a criminal trial, except- ing that of innocence. Error in the record is not presumed, but must be shown. A pre- sumption that proper forms were omitted is not to be made. There must be at least some evidence to show it.” PEcKHAM, J., dissenting. Crain v. U. S., 162 U. S. 646. Authentication, “So far as the authentication of the record is concerned, it is impossible to make a distinction between a civil and a criminal case. What may be sufficient to authenticate the proceedings in a civil case, must be equally so in a criminal one. The verity of the record is of as much importance in the one case as the other. This is a question of practice; and it would seem that, if any one point in the practice of the court can be con- sidered as settled, this one must be so con- sidered.” M’LEan, J. Worcester v, Georgia, 6 Pet. 566, 129 APPEAL AND ERROR. Amendment. “Considering the character and position of this tribunal, as one of the last resort in ad- ministering justice, and considering the in- creased disposition of the age in which we live to eviscerate the truth, and decide ulti- mately only on the real merits in controversy between parties, or in the words of Justice Story as to ‘technical niceties,’ con- sidering ‘the days for such subtilties in a great measure passed away,’ it seems a duty of our own motion to give all reasonable facility to get the record in an intelligible and proper shape before we render final judgment.” Woopsury, J. Garland v. Davis, 4 How. 152. “Tf, when an appeal is taken or a writ of error is sued out, the record has not been made up, it may be made up in due form. If any obvious mistake has occurred,. it may be corrected; as where the jury by mistake has given damages in a penal ac- tion, or has given damages for a larger sum than the declaration demanded, the plaintiff may enter a remittitur of the damages on the record, after a writ of error is brought.” Braviey, J. Hovey v. McDonald, 109 U. S. 157. “Tt is laid down as a general rule, at law (the principle of which is equally applicable to chancery proceedings) that those things which are amendable before error brought, are amendable afterwards, so long as dimi- nution may be alleged and certiorari awarded —provided, of course, that the time for amendment has not passed by.” BRaDLEy, J. Hovey v. McDonald, 109 U. S. 157. XV. JUDICIAL NOTICE. See also Jupictat NOTICE. “In the exercise of its general appellate ju- risdiction from a lower court of the United States, this court takes judicial notice of the jaws of every state of the Union, because those laws are known to the court below as laws alone, needing no averment or proof.” Gray, J. Hanley v. Donoghue, 116 U. S. 6. “When exercising an original jurisdiction under the Constitution and laws of the United States, this court, as well as every other court of the national government, doubtless takes notice, without proof, of the Jaws of each of the United States. But in this court, exercising an appellate jurisdic- tion, whatever was matter of law in the court appealed from is matter of law here, and whatever was matter of fact in the court appealed from is matter of fact here.” Gray, J. Hanley v. Donoghue, 116 U. S. 6. “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.” MatrHews, J. Renaud v. Abbott, 116 U. S. 285. “When it is ordinarily true that this court takes notice of only such facts as are found by the court below, it may take notice of matters of common observation, of statutes, records or public documents, which are not called to its attention, or other similar mat- ters of judicial cognizance.” Brown, J New York Indians v. U. S., 170 U. S. 32. XVI. MATTERS, DECISIONS, AND RULINGS REVIEWABLE. 1. JURISDICTION. Of Appellate Court. “According to the adjudged cases, the first inquiry which this court should make as to any case before it from an inferior federal court is as to its own jurisdiction.” Hartan, J., dissenting. Giles v. Harris, 189 U.S. 501. Of Lower Court. “One of our essential functions [is] the determination of the jurisdiction of the courts below.” Futier, C. J. Defiance Water Co. v. Defiance, 191 U. S. 195. “On every writ of error or appeal, the first and fundamental question is that of ju- risdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and an- swer for itself, even when not otherwise sug- gested, and without respect to the relation of the parties to it.” Matruews, J. Mansfield, etc., R. Co. v. Swan, 111 U. S. 382. “There are a multitude of cases where this court have entertained a writ of error for the purpose of reversing the judgment of the court below, upon the ground that the Circuit Court had not jurisdiction of the case, for the want of the proper averments in re- lation to the citizenship of .the parties.” Taney, C. J., dissenting. Kendall v. U. S., 12 Pet. 640. “The want of jurisdiction in the court below may appear on the record without 130 APPEAL AND ERROR. any plea in abatement. This is familiarly the case where the plaintiff had a plain and adequate remedy at law, and it so appears by the transcript when brought here by appeal. So also where it appears that a court of ad- miralty has exercised jurisdiction in a case belonging exclusively to a court of common law. In these cases there is no plea in abatement. And for the same reason, and upon the same principles, where the defect of jurisdiction is patent on the record, this court is bound to reverse the judgment, al- though the defendant has not pleaded in abatement to the jurisdiction of the inferior court.” Taney, C. J. Scott v. Sandford, 19 How. 429. “When the Circuit Court assumes juris- diction of the cause, the party denying its authority to do so, may, after final decree and by a direct appeal therefrom, bring the case here for review upon the question of jurisdiction, the amount of the dispute being sufficient for that purpose.” Haran, J. Turner v. Farmers’ L. & T. Co., 106 U. S. 556. “This court has uniformly acted upon the principle that in order to protect itself from collusive agreements between parties who wish to litigate their controversies in the federal courts, it would, on its own motion, take the objection of the want of jurisdiction in the Circuit Court as re- gards citizenship.” Mutter, J. Cameron vz. Hodges, 127 U. S. 325. “Tn all cases, if it appears that the Circuit Court had no jurisdiction, it is the duty of this court to so declare and enter judg- ment accordingly.” Futter, C. J. Holt w. *Indiana Mfg. Co., 176 U. S. 71. “Whether that court had or had not ju- risdiction, is a question which we must ex- amine and determine, even if the parties forbear to make it, or consent that the case be considered upon its merits.” Harvan, J. Metcalf v. Watertown, 128 U. S. 587. 2. In CrimmnAL CAUSES. “ Necessarily where the accused is deprived of a substantial right by the action of the trial court, such action, having been prop- erly objected to, is revisable on error.” Fut- LER, C. J. McElroy v. U. S., 164 U. S. 80. 3. Rutrincs Not APPEALED From. “We wish it to be distinctly understood, as a matter of practice in like cases, that this court cannot express any opinion in matters tuled in any other court, or side of the court than that appealed from; and if it be necessary to go into other courts to get ver- dicts or decisions on any portion of the case in its progress below, any objections to rul- ings on the points arising in those trials or decisions must be presented for revision to the court which orders the issue, and be acted upon there, if we are expected to take cognizance of them here.” Woopsury, J. McLaughlin v. Potomac Bank, 7 How. 227. 4, Errors APPEARING IN THE RECORD. Error Must Be Apparent of Record. “ At common law, a writ of error lay for error in law apparent on the record, but not for an error in law not apparent on the record. If a party alleged any matter of law at the trial, and was overruled by the judge, he was without redress, the error not appearing on the record.” MarsHatt, C. J. Ex. p. Crane, 5 Pet. 199. “In cases at law, this court can only review the errors of the court below in matters of law appearing on the record. If the facts upon which that court pronounced their judgment do not appear on the record, it is impossible for this court to say that their judgment is erroneous in law.” GriIER, J. Prentice v. Zane, 8 How. 485. “Whatever the error may be, and in| whatever stage of the cause it may have oc- curred, it must appear in the record, else it cannot be revised in a court of error exercis- ing jurisdiction according to the course of the common law.” CtiFForD, J. Baltimore, etc., R. Co. uv. Sixth Presbyterian Church, 91 ‘U.S. 131. “Tf the transcript does not show that any error exists in the record, the judgment must in all cases be affirmed, except where it ap- pears that there has been a mistrial.” Curr- ForD, J. Baltimore, etc, R. Co. v. Sixth Presbyterian Church, 91 U. S. 131. “Our right of review is limited to ques- tions of law appearing on the face of the record.” Futter, C. J. Fishburn v. Chicago, etc, R. Co., 137 U. S. 61. “Neither the assignment of errors, nor the plea of in nullo est erratum, can give this court jurisdiction of errors not appearing on the face of the record.” Gray, J. Claassen v. U. S., 142 U.S. 148. “Congress has provided that the final judg- ment of the highest court of a state in cases of which this court may take cognizance, shall be re-examined upon writ of error, a 131 APPEAL AND ERROR. process of common law origin, which removes nothing for re-examination but questions of law arising upon the record.” Haran, J. Chicago, etc., R. Co. v. Chicago, 166 U. S. 246, “The general rule is that, upon a writ of error, only matters of law appearing upon the face of the record can be considered.” Sutras, J. Wetmore v. Rymer, 169, U. S. 119. “Undoubtedly, the general rule is that, upon a writ of error, only matters of law appearing on the face of the record can be considered, and that evidence, whether writ- ten or oral, and whether given to the court or to the jury, does not become a part of the record unless made so by some regular pro- ceeding at the time of the trial and before the rendition of judgment. Whatever the error may be, and in whatever stage of the cause it may have occurred, it must appear in the record, else it cannot be revised in a court of error exercising jurisdiction according to the course of the common law.” Sxrras, J. Wetmore v. Rymer, 169 U. S. 119. Error Must Appear Affirmatively. “As this case comes on after a general verdict, on an exception to a charge given by the court to the jury, it is incumbent on the person taking the exception to show that the charge is erroneous.” MARSHALL, C. J. Kirk v. Smith, 9 Wheat. 274. “To warrant a reversal it must be clear that the lower courts have committed an er- ror, and that a wrong has been done to the appellants.” Swayne, J. The Grace Gird- ler, 7 Wall. 204. “Tt is hardly necessary to refer to the familiar fact that in criminal, as in civil cases, the presumption is in favor of the reg- ularity of the proceedings in the trial court, and that error must affirmatively appear.” Brewer, J., dissenting. Lewis v. U. S., 146 U. S. 383. “There is always a presumption in favor of that which has once been decided, and that presumption is often relied upon to justify an appellate court in sustaining the decision be- low.” Brewer, J. Morgan v. Daniels, 153 U.S. 123. “The party alleging error should clearly show it, and where it is of a kind that is not to carry a reversal of the whole judg- ment because of it, he should in that case show the amount of the error and extent to which it affected the judgment.” PrckHam, J. Bear Lake, etc., Water Works, etc., Co. v. Garland, 164 U. S. 24. —— Error Cannot Be Presumed. “Error must appear in the record and can- not be presumed.” Prckuam, J. Sharp v. ‘U.S., 191 U. S. 353. “We are bound to presume everything in favor of the court below, until the contrary appears.” TRIMBLE, J. Carroll v. Peake, 1 Pet. 22. “In a court of error every presumption is in favor of the validity of the judgment brought under consideration. Error must ap- pear affirmatively before there can be a re- versal.” WartE, C. J. Boley wv. Griswold, 20 Wall. 488. “Where no exceptions are taken during the trial, the presumption must be that the tulings of the court were correct.” CLIFFoRD, J. Crim v. Handley, 94 U. S. 656. “A paper may be filed in proper office and yet not brought to the attention of the court while sitting in judgment, but when what it calls for appears on the minute of actual proceedings, it must be presumed that the court, in some form, gave it judicial at- tention, and it preserited in some regular way.” WartE, C. J. Goddard v. Ordway, 101 U. S. 751. “When a case is heard in an appellate court on a writ of error, it is a principle equally well settled in law and necessary in the administration of justice, that only such errors as are made to appear can be grounds of reversal, and that every presumption con- sistent with the record is to be made in favor of the action of the inferior court.” Mutter, J. Loring v. Frue, 104 U. S, 224. “We can only reverse a judgment for er- ror actually appearing. Every presumption is in favor of the correctness of the ruling below.” Waite, C. J. Jones v. Grover, etc. Sewing Mach. Co., 131 U. S. cl. t “When did it become a rule of law that a court of error should presume that the jury in a trial court were ignorant? When before was it ever heard that a verdict was to be set aside by an appellate court on the ground that a juror may have been misled by an instruction of the trial court, when that instruction it is conceded is strictly ac- curate and applicable to the case?” BREWER, J., dissenting. Allen v. U. S., 150 U. S. 566. 132 APPEAL AND ERROR. Entire Record Is Open to Inspection. “Upon a writ of error, the whole record is open for inspection; and if any error be found in it, the judgment is _ reversed.” Curtis, J., dissenting. Scott. v. Sandford, 19 How. 566. “Writs of error, it is true, bring up the whole record, and it is undeniably compe- tent for the court to reverse the judgment for any apparent error, whether it appear in the -bill of exceptions or in any other part of the record.” C.iFForp, J. Pomeroy v. In- diana State Bank, 1 Wall. 600. “Errors apparent in other parts of the rec- ord may be re-examined, as well as those which are shown in the bill or bills of ex- ceptions, and it is too plain for argument that the verdict and judgment are a part of the record. Whenever the error is apparent in the record the rule is that it is open to re-examination, whether it be made to appear by bill of exceptions or in any other man- ner; and it is everywhere admitted that a writ of error will lie when a party is ag- grieved by an error in the foundation, pro- ceedings, judgment, or execution of a suit in a court of record.” CtiFForp, J. New Orleans Ins. Co. v. Piaggio, 16 Wall. 386. “Tt is the duty of the court to give judg- ment on the whole record, and not merely on the points stated by counsel.” Woopsury, J. Garland v. Davis, 4 How. 143. 5. Matters Not OBJECTED TO IN TRIAL Court. “When the opportunity of objection is passed by in the court below, it is taken to have been waived; . unless the de- fect in the record is one which could not have been cured, or amended in the court below, if the objection had been made before it was removed.” Batpwin, J., dissenting. Harrison v. Nixon, 9 Pet. 535. “Tt is an established rule, founded on the soundest principle of justice, that a party shall not be permitted to reverse a judg- ment or decree, on an objection not made in the court below.” Batpwin, J., dissenting. Harrison v. Nixon, 9 Pet. 535. “T will never, while sitting in this court, reverse a decree upon objections which a Court of Chancery or Exchequer, on a cause regularly before them, would not in the exercise of their original jurisdiction; or the House of Lords or the Court of Er- rors and Appeals in New York would not permit counsel to argue on appeal. Nor will I in any way admit, that any appellate court can, in the legitimate exercise of their juris- diction, render a judgment of reversal on any ground, on which they would not be bound to hear an argument of counsel. It is a great hardship on parties, to have their judgments set aside on technical objections raised at the bar; but the grievance will become intoler- able, if the court should be such as to do it when they are first suggested from the Bench.” Batpwin, J., dissenting. Harrison v. Nixon, 9 Pet. 536. “Tt is a general rule of practice, that no point arising on the pleadings or evidence in an appellate court shall be made which was not brought to the notice of the inferior courts.” McLean, J. Brockett v. Brockett, 3 How. 692. “Mere formal defect in the proceedings, not objected to in the court of original juris- diction, cannot be assigned in an appellate tribunal as error to reverse either a judg- ment at law or decree in equity.” CLiFForD, J. Brown wv. Pierce, 7 Wall. 212. “The objection [as to notice] not having been made in the court below, according to the settled rule and practice of this court, it can not be made here.” Swayne, J., dissent- ing. Blanchard v. Putnam, 8 Wall. 430. “To be available here an objection must have been taken in the court below. Un- less so taken it will not be heard here. It is not competent to a party to assent to a proceeding in the court below, take his chance of success, and, upon failure, come here and object that the court below had no authority to take the proceeding.” Hunt, J. Mays wv. Fritton, 20 Wall. 418. “Unless it appears that the objection to the ruling of the court was taken at the trial, the bill of exceptions drawn up and signed subsequently to the judgment, if it has no other foundation than a ruling of the court not objected to at the time, can- not properly be regarded as a part of the record.” C.iFForD, J., dissenting. A®tna Fire Ins. Co. v. Boon, 95 U. S. 137. “The rule is universal that nothing which occurred in the progress of the trial can be assigned for error here, unless it was brought to the attention of the court below, and passed upon directly or indirectly.’ Watts, C. J. Wood v, Weimar, 104 U. S. 795. “When a party excepts to the admission of testimony he is bound to state his objec- tion specifically, and in a proceeding for er- 133 APPEAL AND ERROR. ror he is confined to the objection so taken.” Woops, J. Stebbins v. Duncan, 108 U. S. 46. “The rule in this court is not to consider questions other than those of jurisdiction, which were not presented to the court whose judgment we are asked to examine.” Brew- ER, J. Bassett v. U. S., 187 U. S. 501. “Tt seems to me that great injustice is be- ing done to the government and wrong to the public when verdicts of guilty are set aside by reason of an omission from the charge, which probably did not mislead the jury, which would unquestionably have been cor- rected if called to the attention of the court, which was not specially excepted to, which affects but one proposition among many, all of which were challenged by only a single exception running to them as an entirety, which was not noticed in the motion for a new trial or in the assignment of errors, and is evidently an afterthought of counsel, with the record before them studying up some ground for a reversal.” Brewer, J., dissent- ing. Hicks v. U. S., 150 U. S. 455. “Tt is well settled in this court that an ob- jection that the evidence does not support a joint action against all the defendants — in other words, a variance between the pleadings and proofs—is one which should be taken at the trial, and cannot be raised for the first time in the appellate court.” Brown, J. Pine River Logging Co. v. U. S.,.186 U. S. 287. 6. Marters Not Passep ON BY LOWER Court. “Whatever has not been adjudged or passed upon by an inferior tribunal, cannot be embraced in a general judgment, either of affirmance or reversal, upon an appeal from its opinion.” Dantet, J. Irvine v. Marshall, 20 How. 560. Y. Necessity OF EXCEPTIONS TO Rutincs BELow. Rulings Duly Excepted to May Be Re- viewed. “Exceptions may be taken to the rulings of the court made in the progress of the trial, and, if duly taken at the time, the rul- ings may be reviewed here, provided the questions are properly presented by a bill of exceptions. CurFrorp, J. Tyng wv. Grinnell, 92 U. S. 469. Only Matters Excepted to Will Be Re- viewed. “So essential is the propriety and policy, in jurisprudence, of putting an end to further controversy after a judgment rendered, though there may be a surplusage in it, that no instance can be found in our books, nor in the English reports, of a judgment set aside, in a court of review, which distinctly finds the issue between the parties, on ac- count of other matter in it, unless upon ex- ceptions taken to the court’s ruling of the law in the case applicable to the issue.” Wayne, J., dissenting. U. S. vw. King, 7 How. 87%. : “Exceptions may be taken by the opposite party to the introduction of depositions or affidavits; and the party introducing such evidence in a subordinate court may insist that the court shall give due effect to the evidence, and, in case of refusal to comply with such request, may except to the ruling of the court, if it be one prejudicial to his rights. Where neither party excepts to the ruling of the court, either in respect to its admissibility or legal effect, the fact that such a deposition or affidavit is exhibited in the transcript is not of the slightest im- portance in the appellate court, as nothing of the kind can ever constitute the proper foundation for an assignment of error.” CutFForD, J. Baltimore, etc., R. Co. v. Sixth Presbyterian Church, 91 U. S. 130. “Proper instructions, it must be assumed, were given to the jury in respect to all the issues in-the case not made the subject of complaint in the bill of exceptions, and that all questions involved in the pleadings, ex- cept those presented by the assignment of errors, are correctly settled by the verdict.” CuirrorD, J. Sessions v. Johnson, 95 U. S. 354, “A trial court may, in the exercise of its judicial discretion, grant a new trial, if con- vinced that its charge was wrong, even though its attention was not called to the er- ror complained of before the case was finally submitted to the jury. But not so with us. Our power is confined to exceptions actually taken at the trial. Waste, C.J. Railway Co. v. Heck, 102 U. S. 120. “Tf there is any one thing which may be considered as ‘settled in all appellate courts it is that an error in the admission of testi- mony will not be considered unless there was a specific objection and exception at the trial.” Brewer, J., dissenting. Bram v. U. S.,, 168 U. S. 571. Exceptions Must Be Specific. “A bill of exceptions is not to draw the whole matter into examination again; it is APPEAL AND ERROR. only for a single point, and the truth of it can never be doubted after the bill is sealed. If an exception may be taken in such form as to bring the whole charge of the judge before the court, a charge in which he not only states the results from the facts, but sums up all the evidence, the exception will not be on a single point; it will not bring up some matter of arising upon a fact not denied; it will draw the whole matter into examination again.” MarsHALL, C. J. Er p. Crane, 5 Pet. 199. “Exceptions, to be of any avail, must pre- sent distinctly and specifically the ruling objected to.” Warts, C. J. Springfield F. & M. Ins. Co. v. Sea, 21 Wall. 162. “The excepting party, in order to entitle himself to such revision must not only allege exceptions at the trial of hearing, but he must afterwards draw up and hand to the presiding judge those exceptions in writing, stating distinctly and specifically the rulings or instructions of which he complains.” Gray, J. Hanna v. Maas, 122 U. S. 26. Exceptions Must Have Been Taken Sea- sonably. “We hold now, as we have always holden, that when bills of exceptions are necessary to bring any matter upon record so that it can be reviewed in error, it must appear by the record that the exception was taken at the trial. A judge cannot afterwards al- low one taken in time.” Strone, J. tna Fire Ins. Co. v. Boon, 95 U.S. 127. “Undoubtedly the rule is that the record must show that the exception relied on was taken and reserved by the party at the trial.” CurrForD, J. Dredge v. Forsyth, 2 Black 568. “Tt has been repeatedly ruled by this court, as will appear by the cases reported, that no instruction to the jury given or refused by the court below can be brought here for revision by writ of error ,unless the record shows that the exception to it was taken or reserved while the jury were at the bar.” Taney, C. J. Barton v. Forsyth, 20 How. 533. “To authorize any objection to the admis- sion or exclusion of evidence, or to the giv- ing or refusal of any instructions to the jury, to be heard in this court, the record must disclose not merely the fact that the objec- tion was taken in the court below, but that the parties excepted at the time to the ac- tion of the court thereon.” Fretp, J. Hutch- ins v, King, 1 Wall. 60. “The losing party in case of judgment in a special case can not except to the rulings of the court during the trial, unless he seasonably reserved the right to turn the special case into a bill of exceptions, because the court has no power, unless otherwise agreed, to render any judgment except upon the verdict of the jury.” Cxirrorp, J. Mum- ford v. Wardwell, 6 Wall. 433. “Repeated decisions of this court have settled the rule that the exception must show that it was taken and reserved by the party at the trial, but that it may be drawn out and signed or sealed by the judge after- wards.” CLiFForD, J., dissenting, A®tna Fire Ins. Co. v. Boon, 95 U. S. 137. “The rule is well established and of long standing that an exception to be of any avail must be taken at the trial It may be re- duced to form and signed afterwards, but the fact that it was seasonably taken must ap- pear affirmatively in the record by a bill of exceptions duly allowed or otherwise.” Warts, C. J. U. S. uv. Carey, 110 U. S. 51. Errors Otherwise Apparent of Record. “An exception to the opinion of the court is only necessary when the alleged error could not otherwise appear upon the rec- ord.” Wasuincton, J. Macker v. Thom- as, 7 Wheat, 532. 8. Matters Not Preyupic1aL To Ap- PELLANT OF PLAINTIFF IN ERROR. Harmless Error. “Tt is true, as a general rule, that the court will not allow a party to rely on any- thing as cause for reversing a judgment, which was for his advantage. In this, we follow an ancient rule of the common law. But so careful was the law of the preserva- tion of the course of its courts, that it made an exception out of that general rule, and al- lowed a party to assign for error that which was for his advantage, if it were a depar- ture by the court from its settled course of procedure.” Curtis, J., dissenting. Scott v. Sandford, 19 How. 566. “A party cannot be allowed to complain of an error which has done him no harm.” Swayne, J. Johnston v. Jones, 1 Black 222. “Where the case is brought here by 2 writ of error to a state court for re-examina- tion the court is not inclined to reverse the judgment unless there is some substantial er- ror to the prejudice of the complaining pariy, and especially not where it appears that the 185 APPEAL AND ERROR. error has become immaterial and that the same party will be entitled to judgment if a new trial is granted.” C.iFForD, J. Pugh v. McCormick, 14 Wall. 374. “A judgment is not to be reversed be- cause evidence was admitted at the trial which could have had no bearing upon the issue unless it appears that it was misleading in its tendency.” Stronc, J. Home Ins. Co, w. Baltimore Warehouse Co., 93 U. S. 548. “T had supposed the rule was settled that the inquiry in this court was simply whether that which was adjudged by the triai court was erroneous, and not whether the reasons given therefor were good or bad, and that a correct judgment was always sustained, even if the reasons given therefor were erro- neous.” Brewer, J., dissenting. Interstate Commerce Comm. v. Brimson, 155 U. S. 4. “The settled doctrine is that even if er- ror has been committed, yet if it appear clearly from the record that such error was not prejudicial, the judgment cannot be dis- turbed.” Wurtz, J. Fidelity, etc, Co. wv. Courtney, 186 U. S. 351. “While this court will not disturb a judg- ment for an error that did not operate to the substantial injury of the party against whom it was committed, it is well settled that a reversal will be directed unless it appears, beyond doubt, that the error complained of did not and could not have prejudiced the rights of the party. Hartan, J. Vicksburg,’ etc., R. Co. v. O’Brien, 119 U. S. 103. Error Prejudicial Only to Appellee or Defendant in Error. “Tt is undoubtedly the general rule that a verdict or judgment for a less sum for the plaintiff than he is entitled to under the evi- dence is matter of complaint for him alone, and if acquiesced in by him tke defendant has no cause to complain that he is charged for a less sum than he ought to have been.” PecxHam, J. Postal Telegraph-Cable Co. v. New Hope, 192 U. S. 62. Error Due to Appellant’s Fault. “It has been decided, that a writ of error will not lie for one’s own neglect or irregular- ity.’ Woovsury, J. Townsend v. Jemison, 7 How. 718. 9. ABANDONMENT OF GROUND TAKEN AT TRIAL. “A judgment cannot be affirmed upon a ground not taken at the trial, unless it is made clear beyond doubt that this could not prejudice the rights of the plaintiff in er- ror.” Gray, J. Peck vw. Heurich, 167 U. S. 629, “The bill, then, having been framed upon the theory of the necessity of the specific relief referred to, which could not be af- forded without the presence of the other lienholders, the cause, it seems to me, ought not now to be decided upon a wholly dif- ferent theory, and relief, inconsistent with that specifically prayed for, be awarded to the complainant upon that changed basis.” Wuitsz, J., dissenting. South Dakota v. North Carolina, 192 U. S. 352. “The prosecution cannot on the one hand offer evidence to prove guilt, and which by the very offer is vouched for as tending to that end, and on the other hand for the pur- pose of avoiding the consequences of the er- ror, caused by its wrongful admission, be heard to assert that the matter offered as a confession was not prejudicial because it did not tend to prove guilt.” Wuurs, J. Bram v. U. S., 168 U. S. 541. 10. ADMISSION AND EXCLUSION OF EVIDENCE. “The case of the refusal of proper evi- dence on the trial is subject to very different considerations from those applicable to the improper admission of it. The exclusion of the evidence might change the legal features of the cause, and lead to a determination of it upon principles wholly inapplicable, in case the evidence had been admitted; nor can we assume that the testimony offered and rejected would have been proved, if it had not been excluded, and revise the judgment of the court upon that assumption; because the offer of evidence to prove a fact, and the ability to make the proof, are very different matters. If the court, instead of rejecting had allowed the evidence, the party might have failed in the proof, and the case in the result remain the same as before the improper exclusion. Netson, J. Arthurs v. Hart, 17 How. 12. “A party who complains of the rejection of evidence must show that he was injured by the rejection. His bill of exceptions must make it appear that if it had been admitted it might have led the jury to a different verdict.” Stronc, J. Union Packet Co. v. Clough, 20 Wall. 542. “Where the court decides the fact and the law without the intervention of a jury, the admission of illegal testimony, even if material, is not of itself a ground for re- 136 s APPEAL AND ERROR. versing the judgment, nor is it properly the subject of a bill of exceptions. If evidence appears to have been improperly admitted, the appellate court will. reject it, and pro- ceed to decide the case as if it was not in the record. It is certainly proper, where evidence supposed not to be legal is received by the court, to enter on the record that it was objected to. But this is done to show that it was not received by consent, and a formal bill of exceptions is not re- quired to bring it to the notice of the superior court. It may, however, be done in that form, if the parties and the court think proper to adopt it.” Taney, C. J. U. S. wu. King, 7 How. 854. “The modern tendency, both of legislation and of the decision of courts, is to give as wide a scope as possible to the investigation of facts. Courts of error are especially un- willing to reverse cases because unimpor- tant and possibly irrelevant testimony may have crept in, unless there is reason to think that practical injustice has been there- by caused.” Sutras, J. Holmes v. Gold- smith, 147 U. S, 164. “Tt is manifestly proper for the court to, require, that all the evidence, which is ex- planatory of the true points of the excep- tions should be brought before the appellate court, to assist it in forming a correct judg- ment.” Story, C. J. Douglass v. Rey- nolds, 7 Pet. 121. 11. Matrers Restinc In DISCRETION OF TRIAL Court. “The refusal of the court below to allow a plea to be amended, or a new plea to be filed, or to grant a new trial, or to con- tinue a cause, cannot be assigned as a cause of reversal or a writ of error.” TRIMBLE, J. Wright v. Hollingsworth, 1 Pet. 168. “No principle is, or can be better settled by this court, than that no writ of error lies upon any proceeding in a cause, depending on the discretion of the court.’ Batpwin, J. Holmes v. Jennison, 14 Pet. 626, “The universal practice is, that matters resting entirely in discretion are not re-ex- aminable in a court of errors, and there can be no departure from that rule in this court without overruling its settled practice from the organization of the court to the present time.” CurFForD, J. Pomeroy wv. Indiana State Bank, 1 Wall. 598. “Decisions which rest in the discretion of a court of original jurisdiction, cannot be re- examined in an appellate court upon a writ of error.” CuxiFForD, J. Cook v. Burnley, 11 Wall. 676. “Matters resting in the discretion of a subordinate court cannot be assigned for er- ror in an appellate court.” CLrFForpD, J. Steines v. Franklin County, 14 Wall. 22. “There is undoubtedly a large class of cases involving the procedure merely in a cause, in which the court acts as in its dis- cretion it thinks best, and where no appeal can be taken from its decision.” Hunt, J. Fuller v. Claflin, 93 U. S. 15. “Being a matter resting in the discretion of the trial court, the action of that court in the premises [overruling a demurrer to the evidence] is not assignable for error.” Lamar, J. Van Stone v. Stillwell, etc., M’f’g Co., 142 U. S. 134. “Tt is well settled that mere matters of procedure, such as the granting or refusing of motions for new trials, and questions respecting amendments to the pleadings, are purely discretionary matters for the consider- ation of the trial court, and, unless there has been gross abuse of that discretion, they are not reviewable in this court on writ of error.” Jackson, J. Mexican Central R. Co. v. Pinkney, 149 U. S. 201. “Tt is not unusual for a court to .an- nounce that a new trial will be granted unless a part of a verdict shall be remitted, and to enter judgment upon the reduced amount if the suggestion is followed. All such matters may properly be left to the sound judicial discretion of the court in which the trial is had; and errors commit- ted under this power can only be corrected by an appellate court in the same manner that other errors are.” Warre, C. J. Thompson v. Butler, 95 U. S. 695. 12. CLERICAL Errors. “Tt is well settled at common law, that a misprision by a clerk, if the case be clearly that alone, though it consists of the omis- sion of an important word or expression, is not a good ground to reverse a judgment, where substance enough appears to show that all which was proper and required was properly done. The statutes of jeo- fails usually goes still further in remedying defects after verdicts and judgments.” Woonsury, J. Townsend v. Jemison, 7 How. 720. 137 APPEAL AND ERROR. 13. Facts, VERDICTS, AND FINDINGS OF Fact. Supreme Court of United States Cannot Make Findings of Facts. “ All matters of fact must be found by the Circuit Court, which, by the agreement of the parties, is substituted for a jury, and cannot be drawn by this court, which sits as a court of errors.” CLiFForD, J. Miller v. Brooklyn L. Ins. Co., 12 Wall. 300. “Tnferences of fact must be drawn by the Circuit Court, which, by the agreement of the parties, is substituted for a jury, and cannot be drawn by this court, which sits as a court of errors.. Conclusions of fact cannot be found by this court when sitting as a court of errors under the act of Con- gress authorizing the Circuit Courts to try and determine issues of fact in civil cases, as in the case before’ the court.” CLIFFORD, J. Miller v. Brooklyn L. Ins. Co., 12 Wall. 301. “Tssues of fact carfnot be found by this court, as the Act of Congress requires that such issues shall be found by the Circuit Court.” CuiirForp, J. Cooper v. Omohun- dro, 19 Wall. 70. “Matters of fact under such a submis- sion [to the court] must be found by the Circuit Court and not by the Supreme Court, as the Act of Congress pro- vides that the issue of fact may be tried and determined by the Circuit Court where the suit is brought.” CtirForp, J, dissent- ing. AZtna Fire Ins. Co. v. Boon, 95 U. S. 134. “We have no authority to examine the testimony in any case, and from it make a finding of the ultimate facts.” Brewer, J. Lehnen v. Dickson, 148 U. S. 77. — Determination of Weight of Evi- dence and Mixed Questions of Law and Fact. “This court cannot determine the weight or effect of evidence, nor decide mixed ques- tions of law and fact.” CampBELL, J. York, etc. R. Co. v. Myers, 18 How. 252. “We have no concern, on a writ of er- ror, with questions of fact, or whether the finding of the jury accords with the weight of the evidence. The law has provided an- other remedy for errors of this description, namely, a motion in the court below for a new trial, on a case made.” Nexson, J. Zeller v. Eckert, 4 How. 298. 188 “The general verdict of a jury concludes mixed questions of law and fact, except so far as they may be saved by some excep- tion which the party has taken to the ruling of the court upon a question of law.” Woops, J. Martinton v. Fairbanks, 112 U. S. 674, — Superior Opportunity of Trial Court to Weigh Evidence. “There are many circumstances connected with a trial, the pertinency of which a judge who has listened to the testimony, and ob- served the conduct of the parties and wit- nesses, is better able to estimate the value of than an appellate court, which is confined in its examination to the very words of the witnesses, perhaps imperfectly taken down by the reporter.” Brown, J. Moore v. U. S., 150 U. S. 60. “We do not forget the weight that is given to the findings of a master or com- missioner upon matters of fact. But this weight is largely, although not wholly, due to the opportunity, which we do not share, of seeing the witnesses. So far as the com- missioner disregarded the testimony of the witnesses whom he saw we should hesitate to overrule his conclusion, although it seems too -absolute on the grounds set forth. But the result reached is based on documentary evidence which is before us, and as to which we have equal opportunities for forming a judgment. Hotmes, J. The Paquete Ha- bana, 189 U. S. 466. Verdicts. “Facts found by a jury cannot be re-ex- amined in this court.” CiFForp, J. Fowler v. Rathbones, 12 Wall. 119. “Courts of error have nothing to do with the verdict of the jury, if it is general and in due form, except to ascertain, if they can, whether improper evidence was admitted to the jury, or whether the jury were misdi- rected by the presiding judge.” CzzFForD, J. Chicago First Unitarian Society v. Faulk- ner, 91 U. S. 423. “Matters of fact are determined by the verdict of the jury.” C.zrrorp, J. Treiner v. Stewart, 101 U. S. 805. “The verdict of a jury settles all ques- tions of fact.” Brewer, J. Lehnen v. Dick- son, 148 U. S. 72. “Matters of fact are settled by a verdict of a jury or the general finding of a court, and if there be testimony fairly tending to support the finding, it is conclusive in this 1 APPEAL AND ERROR. court.” Brewer, J. Lindsay, etc., Co. v. Mullen, 176 U. S. 142. “The verdict of a jury will not be dis- turbed if there is evidence to support it, un- less it seems to have been the result of pas- sion or prejudice.” Gray, -J.. Kennon v. Gilmer, 131 U. S. 28. — Effect of Seventh Amendment. “One of the objections made to the ac- ceptance of the Constitution as it came from the hands of the Convention of 1787 was that it did not, in express words, preserve the right of trial by jury, and that under it, facts tried by a jury could be re-examined by the courts of the United States other- wise than according to the rules of the common law. The Seventh Amendment was intended to meet these objections, and to | deprive the courts of the United States of any such authority. It could not have been intended thus to restrict the power of the courts of the United States to re-exam- ine facts tried by juries in the courts of the Union, and leave it open for those courts to re-examine, in disregard of the rules of the common law, facts tried by juries em- panelled in the state courts in cases which, by reason of the questions involved in them, could be brought under the cognizance of the courts of the United States.” Haran, J. Chicago, etc, R. Co. v. Chicago, 166 UL. S. 248. “The Seventh Amendment could not be in- voked in a state court to prohibit it from re-examining, on a writ of error, facts that had been tried by a jury in court below.” Netson, J. Justices v. Murray, 9 Wall. 278. —— Presumption in Favor of Verdict. “We must assume the most favorable statement of the plaintiff’s case to be true, unless some particular request for instruc- tions makes it necessary to deal with con- flicting evidence.” Hoimes, J. Texas, etc. R. Co., v. Behymer, 189 U. S. 469. “Tt must be assumed that the constitu- tional tribunal [jury] does its duty and finds facts only because they are _ proved.” Howes, J. Aikens v. Wisconsin, 195 U. S. 206, Rulings Directing or Refusing to Direct Verdicts, “Tt is seldom that an appellate court reverses the action of a trial court in de- clining to give a peremptory instruction for a verdict one way or the other.” Brewer, J. Patton v. Texas, etc, R. Co., 179 U. S. 660. “Where the bill of exceptions, as here, sets forth all the evidence in the case, [upon which a verdict was directed] this court, if concurring with the court below in its views on the questions of law presented by the bill of exceptions and the record, will af- firm the judgment.” Biatcurorp, J. An- derson County Com’rs v. Beal, 113 U. S. 241, _ “It is undoubtedly true that a case may be presented in which the refusal to direct a verdict for the defendant at the close of the plaintiff’s testimony will be good ground for the reversal of a judgment on a verdict in favor of the plaintiff, if the defendant rests his case on such testimony and intro- duces none in his own behalf.” Warts, C. J. Grand Trunk R. Co. v. Cummings, 106 U. S. 701. “As the bill of exceptions contains all the evidence, and in addition, sets forth the ex- ceptions reserved by the plaintiffs, in the progress of the trial, to the admission of testimony, it is competent for this court to determine whether the exceptions were well taken, and, also whether there was error in directing a verdict for the defendants.” Haran, J. Bryan v. Kennett, 113 U. S. 190. “The plaintiff, having duly excepted to the ruling [directing a verdict for defendant] in a bill of exceptions, setting .out all the evidence, upon a writ of error, would have been entitled to the judgment of this court, whether, as a matter of law, the ruling against him was erroneous.” Matruews, J. Baylis v. Travellers’ Ins. Co., 113 U. S. 320. “Tf in the present case, a verdict having been taken for the plaintiff by direction of the court, subject to its opinion whether the evidence was sufficient to sustain it, the court had subsequently granted a motion on behalf of the defendant for a new trial, and set aside the verdict, on the ground of the insufficiency of the evidence, it would have followed a common practice, in re- spect to which error could not have been alleged, or it might with propriety, have reserved the question, what judgment should be rendered, and in favor of what party, upon an agreed statement of facts and after- wards rendered judgment upon its conclu- sions of law.” Matruews, J. Baylis vw. Travellers’ Ins. Co., 113 U. S. 320. Facts Found by the Trial Court — Con- clusive on Appeal. “No point has been more repeatedly and authoritatively settled, than that this court 189 ‘APPEAL AND ERROR. will not, upon a writ of error, revise or give judgment as to the facts, but take them as found by the court below, and as they are exhibited by the record.” Wayne, J., dis- senting. U. S. v. King, 7 How. 865. “Where the finding is general the losing party cannot claim the right to review any questions of law arising in the case, except such as grow out of the rulings of the Cir- cuit Court in the progress of the trial, which do not in any proper sense include the general finding of the Circuit Court nor the conclusions of the Circuit Court embodied in such general finding, as such findings are in the nature of a general verdict and constitute the foundation of the judgment.” CuirForD, J. New York Mercantile Mut. Ins. Co. v. Folsom, 18 Wall. 254. “When a court sits in the place of a jury, and finds the facts, this court cannot review that finding. If there is any error in such a case, shown by the record, in admitting or rejecting testimony, it can be reviewed here; but when the court, by permission of the parties, takes the place of the jury, its finding of facts is conclusive, precisely as if a jury has found them by verdict.” CuiF- ForD, J., dissenting. ‘tna Fire Ins. Co. v. Boon, 95 U. S. 134. “Tt is clear that the general finding in such a case [of submission to the court] _ concludes the right of the parties, unless there is some proper exception to the rul- ing of the court in the progress of the trial.” CuiFForD, J., dissenting. Etna Fire Ins. Co. v. Boon, 95 U. S. 139. “Where the finding is general, nothing is open to review here except such rul- ings of the court in the progress of the trial as are duly presented in a bill of exceptions, and, even when the finding is special, the re-examination can only extend to the ques- tion whether the facts found are sufficient to support the judgment. Propositions of fact found by the Circuit Court in such a case are equivalent to a special verdict, and, consequenily, are irreviewable here except for the purpose of determining the single question whether they are sufficient to war- rant the judgment; nor is the Circuit Court required to make a special finding.” CLIF- ForD, J., dissenting. Etna Fire Ins. Co. v. Boon, 95 U. S. 139. “Exceptions are allowed to the rulings of the court in the progress of the trial, and the provision is, that the review, ‘if the find- ing is special, may also extend to the deter- mination of the sufficiency of the facts found to support the judgment; but if there be no exceptions to the rulings of the court in the progress of the trial, and no special finding of the facts, the judgment must be affirmed, as the court has no power to re-examine any question decided by the Circuit Court.” CuirForD, J., dissenting. Aétna Fire Ins. Co. v. Boon, 95 U. S. 139. “No review of judgment in such a case {where the finding is general] can be made here under the writ of error, unless it is accompanied by a special finding or an au- thorized statement of facts, without impos- ing upon this court the duty of hearing the whole case, law and fact, as on appeal in equity or admiralty, which would operate as a repeal of the act of Congress authorizing parties to waive a trial by jury, and also would violate the provision of the Judiciary Act, which prohibits the Supreme Court from reversing any case, for any error in fact.” CuirForD, J., dissenting. Attna Fire Ins. Co. v. Boon, 95 U. S. 140. “We have often held that the act of 1865 (sects. 649, 700, Rev. Stat.) does not per- mit us to consider the effect of the evidence in the case, but only to determine whether the facts found on the trial below are suf- ficient to support the judgment, and to pass on the rulings of the court in the progress of the trial presented by a bill of exceptions. For all the purposes of our review the facts as found and stated by the court below are conclusive.” Warts, C. J. Boogher v. New York L. Ins. Co., 103 U. S. 97. “In an ordinary suit at law the facts are settled in the trial court, and only questions of law are carried to the appellate court for review. Upon writs of error we hear the case only on findings of fact or exceptions to rulings of the court in the progress of the trial. Generally, in suits at law there is but one trial upon questions of fact.” Warts, C. J. Union Pac. R. Co. v. U. S, 116 U. S. 15%. “This court has repeatedly held that un- der the act of February 16, 1875, 18 Stat. 315, ‘to facilitate the disposition of cases in the Supreme Court of the United States, and for other purposes,’ we are no longer at lib- erty to pass upon disputed questions of fact, but are bound to accept the findings of the Circuit Court as conclusive, and are limited to a determination of questions of law and to the validity of such rulings, excepted to at the time, as may be presented by a bill of exceptions prepared as in actions at law.” 140 APPEAL AND ERROR. Brown, J. The E. A. Packer, 140 U. S. 363. “This court has repeatedly held that the findings of the Court of Claims in an action at law determines all matters of fact, like the verdict of a jury, and that where there is any evidence of a fact which they find, and no exception is taken, their finding is final.” Brown, J. U. S. v. New York In- dians, 173 U. S. 470. “An exception to a general finding of the court on a trial without a jury brings up no question for review. The finding is con- clusive, and there must be exceptions taken to the rulings of the court, during the trial in order to permit a review thereof.” PreckHAM, J. Wilson v. Merchant’s L. & T. Co., 183 J. S. 127. ‘When a case is tried by the court with- out a jury, its findings on questions of fact are conclusive, although open to the conten- tion that there was no evidence on which they could be based.” Futter, C. J. Ward v. Joslin, 186 U. S. 147. —— Ordinarily Court, “ When, a case rests upon a mere question of fact, and especially when that fact is to be ascertained by the uncertain evidence of opinion, the appellate court ought to place much reliance upon the decision of the court below, and not reverse a decree, unless it is very satisfactorily shown to be against the weight of evidence.” THomp- son, J. U.S. v. 112 Casks of Sugar, 8 Pet. 279. Followed by Appellate “Ordinarily such findings [findings of the court below] as to matters of fact are fol- lowed in this court.” Day, J. The South- wark, 191 U. S. 13. — Decisions in Equity. “In the examination and weighing of matters of fact, a court of equity performs the like functions as a jury; and we should not incline, as an appellate court, to review the decision to which the court below ar- rived, ‘unless under circumstances of a pe- culiar and urgent nature.” Story, J. Dade v. Irwin, 2 How. 391. “The rule in relation to the findings and conclusions of a master is that they are to be taken as presumptively correct, and _ unless some obvious error has intervened in the application of the law, or some serious or important mistake has been. made in the consideration of the evidence, the decree should be permitted to stand.” Futzsr, C. J. Fisher v. Shropshire, 147 U. S. 146. —— Construction of Findings. “Findings are not to be construed with the strictness of special pleadings. It is suf- ficient if from them all, taken together with the pleadings, we can see enough upon a fair construction to justify the judgment of the court, notwithstanding their want of precision and the occasional intermixture of matters of fact and conclusions of law.” Fretp, J. O’Reilly v. Campbell, 116 U. S. 421. , “While the finding might have been more definite and therefore more satisfactory, yet within the well-known rules governing the construction of findings of facts by trial courts, we cannot so construe it as to render the result arrived at by the court below erroneous, when another construction much more reasonable and natural may be given it, and the judgment thus rendered valid.” PecKkHAM, J. U. S. uv. Andrews, 179 U. S. 99. — Finding Cannot Be Enlarged by In- tendment. “The Supreme Court, as a court of errors, cannot import into the special finding by intendment anything which the finding does not contain.” CuirForp, J., dissenting. Smith v. Sac County, 11 Wall. 160. “Mere evidence of fraud cannot be taken into consideration by this court in a case brought here by a writ of error under that Act of Congress, as the jurisdiction of the court is expressly limited to a review or re- examination of the questions whether the findings of the Circuit Court are sufficient to support the legal conclusion adopted by the Circuit Court. Such findings cannot be enlarged by intendment any more than a special verdict, and it is the very essence of a special verdict that the jury should find the facts on which the appellate court is to pronounce the judgment according to law, and the court in giving judgment is con- fined to the facts so found.” CtiFForp, J., dissenting. Smith v. Sac County, 11 Wall. 161. — Finding Not Supported By Any Evi- dence. “Tt is undoubtedly true that if the Cir- cuit Court neglects or refuses, on request, to make a finding one way or the other on a question of fact material to the determi- nation of the cause, when evidence has been 141 APPEAL AND ERROR. adduced on the subject, an exception to such refusal taken in time and properly presented by a bill of exceptions may be considered here on appeal. So, too, if that court, against remonstrance, finds a material fact which is not supported by any evidence what- ever, an exception is taken, a bill of excep- tions may be used to bring up for review the ruling in that particular. In the one refusal to find would be equivalent to a ruling that the fact was material; and in the other that there was some evidence to prove what was found when in truth there was none. Both these are questions of law, and proper sub- jects for review in an appellate court. But this rule does not apply to mere incidental facts, which only amount to evidence bear- ing upon the ultimate facts of the case. Questions depending on the weight of evi- dence are, under the law as it now stands, to be conclusively settled below and the fact in respect to which such an exception may be taken must be one of the material and ultimate facts on which the correct de- termination of the cause depends.” Walrte, C. J. The “Francis Wright,” 105 U. S. 387. —— Finding in the Nature of Legal Con- clusion. “Whether an act provides for the issuing of warrants that were intended to circulate as money is in reality a question of law arising upon the construction of the legis- lative act, and a finding by the court that warrants issued under and by virtue of certain acts of the legislature were issued with such intention is in the nature of a legal conclusion and not a finding of fact, and therefore it can be reviewed by this court.” Pecxuam, J. Houston, etc, R. Co. v. Texas, 177 U. S. 80. Facts Found by Two Lower Courts. “The settled doctrine of this court is that the concurrent decisions of two courts upon a question of fact will be followed unless showed to be clearly erroneous.” Wauiute, J. The Carib Prince, 170 U. S. 658. “Parties to suits in admiralty have now the right to two trials on questions of fact, —once in the District Court, and again on appeal in the Circuit Court. There seems no good reason why they should be en- titled to a third trial here. At law there is but one trial, except by leave of the court in the exercise of its supervisory power over verdicts, and in equity only one before an appeal to this court.” Warts, C. J. The Abbotsford, 98 U. S. 445. “United judgment [of the lower courts on a question of fact] this court accepts unless there is a clear showing to the con- trary.” McKenna, J. Busch wv. Jones, 184 U. S. 604, “The rule is firmly established that suc- cessive decisions of two courts in the same case, on questions of fact are not to be re- versed, unless clearly shown to be erro- neous. And when the evidence is conflicting, there being evidence to sustain the decree, this court will not ordinarily in- terfere.” Furiter, C. J. Smith v. Burnett, 173 U. S. 436, “Tt is well settled that when the trial and the appellate courts agree as to the facts es- tablished on the trial, this court will accept their conclusion and not attempt to weigh conflicting testimony. And this rule of concurrence with the conclusions of the trial and appellate courts is given more weight when in the first instance the facts are found by a master ora jury. . . . At the same time there has always been rec- ognized the right and the duty of this court to examine the record, and if it finds that the conclusions are wholly unwarranted by the testimony it will set the verdict or report aside and direct a re-examination.” Brewer, J. Beyer v. LeFevre, 186 U. S. 119, “(The] usual rule [of the court is] not to review the unanimous finding upon ques- tions of fact of two courts, unless such find- ing is plainly erroneous.” PrckHam, J. Hy-Yu-Tse-Mil-Kin v. Smith, 194 U. S. 412. “The judge is primarily responsible for the just outcome of the trial. He is not a mere moderator of a town meeting, submit- ting questions to the jury for determina- tion, not simply ruling on the admissibility of testimony, but one who in our jurispru- dence stands charged with full responsibility. He has the same opportunity that jurors have for seeing the witnesses, for noting all those matters in a trial not capable of record, and when in his deliberate opinion there is no excuse for a verdict save in favor of one party, and he so rules by instructions to that effect, an appellate court will pay large re- spect to his judgment. And if such* judg- ment is approved by the proper appellate court, this court, when called upon to review the proceedings of both courts, will right- fully be influenced by their concurrent opin- ions.” Brewer, J. Patton v. Texas, etc, R. Co., 179 U. S. 660, Remedy for Erroneous Finding of Facts. “The remedy, in case the Court of Claims 142 APPEAL AND ERROR. falls into a mistake as to the finding of the facts, is familiar. It is by an application to this court to remit the case back for cor- rection, if it be shown, satisfactorily, that a mistake has been committed.” NeEtson, J. U. S. v. Adams, 9 Wall. 559. Sufficiency of Verdict or Finding of Facts to Support Judgment. “Tn the case of a special verdict, the ques- tion is presented as it would be if tried by a jury, whether the facts thus found re- quire a judgment for the plaintiff or de- fendant; and this being matter of law, the ruling of the court on it can be reviewed in this court on that record. If there were such special verdict here, we could examine its sufficiency to sustain the judgment.” Mitier, J. Norris v. Jackson, 9 Wall. 127. “Like a special verdict, a special finding furnishes the means of reviewing such ques- tions of law arising in the case as respect the sufficiency of the facts found to support the judgment.” CtiFForD, J. New York Mer- cantile Mut. Ins. Co. v. Folsom, 18 Wall. 254, “Where a jury is waived, and the issues of fact are submitted to the court, the find- ing of the court may be either general or spe- cial, as in cases where the issues of fact are tried by jury; but, where the finding is general, the parties are concluded by the determination of the court, subject to the right to bring error to review any rulings of the court to which exception was taken during the trial. Whether the finding is general or special, the rulings of the court during the progress of the trial, if duly ex- cepted to at the time and presented by a bill of exceptions, may be reviewed in this court; and, in a case where the finding is special, the review, even without a bill of exceptions, may extend to the question, whether the facts found are sufficient to support the judgment.” CzriFrorp, J. Tyng v. Grinnell, 92 U. S. 469. “Whether general or special, the finding fof the court below] has the same effect as the verdict of a jury; and its sufficiency to sustain the judgment is the only matter for review in this court.” Davis, J. Ryan v. Carter, 93 U. S. 81. “Power is vested in this court, where the finding is special, to inquire and determine, on writ of error, whether the facts found are sufficient to support the judgment; but a report of:the evidence, without such special finding, will not give this court jurisdiction to re-examine that question; nor will the fact that the court below stated some of the facts in an opinion accompanying the judg- ment alter things in the least, it appearing that the facts exhibited in the opinion were stated, not as a special finding, but rather as a ground to show why the judge came to the conclusion set forth in the record. CLIF- ForD, J., dissenting. /&tna Fire Ins. Co. wv. Boon, 95 U. S. 141. “ Findings of fact in the form called special findings, like a special verdict, furnish the means of reviewing such questions of law arising in the case as respect the sufficiency of the facts found to support the judgment; but, where the finding is general, the losing party cannot claim the right to review any question of law arising in the case, except such as grow out of the rulings of the Cir- cuit Court in the progress of the trial, which do not in any case whatever include the general finding, nor the conclusions of the Circuit Court embodied in the general find- ing, as the general finding is in the nature of a general verdict, and constitutes the foundation of the judgment.” CzrFrorp, J. dissenting. Etna Fire Ins. Co. v. Boon, 95 U. S. 140. “When a jury is waived in writing, and the case tried by the court, the court’s finding of facts, whether general or special, has the same effect as the verdict of a jury; and although a bill of exceptions is the only way of presenting rulings made in the prog- ress of the trial, the question whether the facts set forth in a special finding of the court, which is equivalent to a special ver- dict, are sufficient in law to support the judgment, may be reviewed on writ of error without any bill of exceptions.” Gray, J. Allen v. St. Louis Nat. Bank, 120 U.S. 30. “This is an appellate court, and parties have a right to a determination of the facts in the first instance by the trial court. Doubt- less if such determination is challenged on appeal it becomes our duty to examine the testimony and see if it sustains the findings, but if the facts found are not challenged by either party then this court need not go beyond its ordinary appellate duty of con- sidering whether such facts justified the decree.” BREWER, J. Chicago, etc, R. Co. 2. Tompkins, 176 U. S. 179. —— What Constitutes Sufficiency. “Strictly speaking, evidence is said to be insufficient in law only in those cases where there is a total absence of such proof, either 143 APPEAL AND ERROR. as to its quantity or kind, as in the particu- lar case some rule of law requires as es- sential to the establishment of the fact. Such, for instance, would be the case where a fact was attested by one witness only, when the law required two; or when the al- leged agreement was proven to be verbal, when the law required it to be in writing. In such cases, a verdict might be said to be against law, because founded on insufficient evidence.” Matruews, J. Metropolitan R. Co. v. Moore, 121 U. S. 568. “Insufficiency in point of fact may exist in cases where there is no insufficiency in point of law; that is, there may be some evidence to sustain every element of the case, competent both in quantity and quality in law to sustain it, and yet it may be met by countervailing proof so potent as to leave no reasonable doubt of the opposing con- clusion.” Matruews, J. Metropolitan R. Co. v. Moore, 121 U. S. 569. “In many cases, the evidence is insufficient in law, because insufficient in fact.” MatrHews, J. Metropolitan R. Co. v. Moore, 121 U. S. 570. 14. Decisions ON AGREED STATE- MENTS OF Fact. Decisions Reviewable for Errors of Law. “Decisions of this court establish the rule that writs of error will lie where the judg- ment in the court below was founded upon an agreed statement of facts, as well as when founded upon the verdict of a jury. . . . Judgments of the Circuit Court may also be revised here upon writ of error, in cases where they were founded upon a special verdict, or upon demurrer to evi- dence.” C.iFForD, J. Pomeroy v. Indiana State Bank, 1 Wall. 602. “Where the facts are without dispute, and agreed between the parties, a statement of the same may be drawn up and entered on the record, and submitted directly to the court, for its decision, without the interven- tion of a jury; or a general verdict may be taken, subject to the opinion of the court upon the facts so agreed; and in either case, the aggrieved party may bring error after final judgment, and have the questions of law, arising upon the facts thus spread upon the record, re-examined, as in the case of a special verdict.” C.irForp, J. Suydam, v, Williamson, 20 How. 434. “A judgment upon an agreed statement of facts or case stated, signed by the parties or their counsel, and entered: of record, leaving no question of fact to be tried, and presenting nothing but a question of law, may be reviewed on error.” Gray, J. Bond v. Dustin, 112 U. S. 607. Agreed Statement Equivalent to Special Finding. “Tt is true, if there be an agreed state- ment of facts submitted to the trial court and upon which its judgment is founded, such agreed statement will be taken as the equivalent of a special finding of facts. Doubtless, also, cases may arise in which, without a formal special finding of facts, there is presented a ruling of the court, which is distinctly a ruling upon a matter of law, and in no manner a determination of facts, or of inferences from facts in which this court ought to and will review the rul- ing.” Brewer, J. Lehnen v. Dickson, 148 U. S. 73. Sufficiency of Statement. “The statement of facts on which this court will inquire, if there is or is not error in the application of the law to them, is a statement of the ultimate facts or proposi- tions which the evidence is intended to es- tablish, and not the evidence on which those ultimate facts are supposed to rest. The statement must be sufficient in itself, with- out inferences or comparisons, or balancing of testimony, or weighing evidence, to justify the application of the legal principles which must determine the case. It must leave none of the functions of a jury to be discharged by this court, but must have all the suffi- ciency, fulness, and perspicuity of a special verdict. If it requires of the court to weigh conflicting testimony, or to balance admitted facts, and deduce from these the proposi- tions of fact on which alone a legal con- clusion can rest, then it is not such a state- ment as this court can act upon.” MItter, J. Burr v. Des Moines R., etc., Co., 1 Wall. 102. “Tt has been held that where there was an agreed statement of facts sub- mitted to the trial court and upon which its judgment was founded, such agreed state- ment would be taken as an equivalent of a special finding of facts. But as such equivalent, there must of course be a find- ing or an agreement upon all ultimate facts and the statement must not merely present evidence from which such facts or any of them may be inferred.” Pecxuam, J. Wilson v. Merchant’s L. & T. Co.,183 U. S. 127. APPEAL AND ERROR. Formal Requirements. “Tt is very clear that a paper not signed by counsel, nor entered on the record of the court, nor made part of the record of the case by bill of exceptions, or in any other manner, cannot be considered by this court as the foundation on which it is to affirm or reverse the case.” Mutter, J. Burr v. Des Moines R., etc, Co., 1 Wall. 101. “The agreed statement of facts must, in some manner in the court below, be made a part of the record of the case.” Mutter, J. Burr v. Des Moines, R., etc., Co., 1 Wall. 102. “ Agreed statements rest upon the consent of the parties, and, consequently, the action of the revising tribunal must be confined to the agreed facts, and the facts cannot be said to be agreed while the parties are at issue as to the admissibility or competency of the evidence” CLirForpD, J. Pomeroy v. Indiana State Bank, 1 Wall. 603. “It cannot be permitted for the parties, by consent to make up a case for this court after it has passed from the control of the court below.” Murer, J. Kearney v. Case, 12 Wall. 280. “A statement of facts signed by counsel [cannot] be noticed upon error.” CHASE, C. J. Bethel v. Mathews, 13 Wall. 2. 15. Consent DECREES. “A decree, which appears by the record to have been rendered by consent, is always affirmed, without considering the merits of the cause.” Gray, J. Nashville, etc, R. Co. v. U. S., 113 U. S. 266. 16. JupcMENTs By DEFAULT. “In reviewing the decision of the Circuit Court, it should be borne in mind, as a rule to guide and control our examination, that the judgment impugned before that court was a judgment by default, and that in all judg- ments by default, whatever may affect their competency or regularity, every proceeding indeed, from the writ and indorsements thereon, down to the judgment itself, inclu- sive, is part of the record, and is open to ex- amination. That such cases differ essentially, in this respect, from those in which there is an appearance and a contestatio litis, in which the parties have elected the grounds on which they choose to place the contro- versy, expressly or impliedly waiving all others. In support of the rule just stated, many authorities might be adduced. Dan- tEL, J. Harris v. Hardeman, 14 How. 338. 1 Or, Dic.—10 17. OPINION OF TRIAL Court. “The writ of error brings in question the judgment, not the opinion, of the court be- low.” Gray, J. Smith v. Whitney, 116 U. S. 175. 18. QUESTIONS As TO Costs. “ Appeals in matter of costs only are not usually entertained; but when the entire case is before the appellate court, it has con- trol of the subject of costs, as well as of the merits.” Braptey, J. The Scotland, 118 UL S. 519. “Ordinarily a decree will not be reviewed by this court on a question of costs merely in a suit of equity, although the court has entire control of costs, as well as the merits, when it has possession of the cause on ap- peal from the final decree.” Braptey, J. Internal Imp. Fund v. Greenough, 105 U. S. 527. 19. DeEctstions oN Motions ror NEw TRIALS. Decisions Not Reviewable. e Refusal of the court below to grant a new trial is not matter for which a writ of error lies.” Trimpte, T. Wright v. Hol- lingsworth, 1 Pet. 168. “Although a court may sometimes grant a new trial where the judge has not accorded to a party certain rights to which, by the tules of practice of the court, he may be justly entitled, we are of opinion that the ruling of the court below on such a point is not the proper object of a bill of excep- tions or a writ of error.” Grier, J. Day v. Woodworth, 13 How. 370. m Exceptions to the order of the court in granting a new trial do not lie in any case.” CurrrorD, J. Mumford v. Wardell, 6 Wall. 433. “Exceptions do not lie to the granting or refusing a new trial in a suit at law.” Cuirrorp, J. Steines v. Franklin County, 14 Wall. 22. “We have many times decided that the rulings of the Circuit Courts on motions for a new trial are not reviewable here on writ of error.” Warts, C. J. Boogher v. New York L. Ins. Co., 103 U. S. 97. “The vacating of a judgment and grant- ing a new trial, in the exercise of an ac- knowledged jurisdiction, leaves no judgment in force to be reviewed.” Martruews, J. Phillips v. Negley, 117 U. S. 671. 5 APPEAL AND ERROR. “The overruling of the motion for a new trial is not a subject of exception.” Gray, J. Hanna v. Maas, 122 U. S. 26. “The granting or refusing of a new trial in a Circuit Court of the United States is not subject to review by this court.” Har- LAN, J. Arkansas Cattle Co. v. Mann, 130 U. S. 75. “The action of the court in overruling a motion for a new trial is not assignable as error.” Brewer, J. Clune v. U. S., 159 U. S. 591. “This court has no authority to pass upon any question of fact involved in the con- sideration of the motion for a new trial.” Gray, J. Kennon v. Gilmer, 131 U. S. 29. Order Granted Without Jurisdiction. “Tt . the order [granting a new trial] made was without jurisdiction on the part of the court making it, then it is a proceeding which must be the subject of review by an appellate court.” MatTHEws, J. Phillips v. Negley, 117 U. S. 671. Discretion of Trial Court Not Revisable. “This court has always considered such [applications to grant new trials] as resting in the sound discretion of the court where the cause is depending, and not a matter for a mandamus or writ of error.” MARSHALL, C. J. Ex p. Roberts, 6 Pet. 217. “The granting or refusing of new trials, rests in the sound discretion of the court below; and is not the subject of reversal in this Court.” Barpour, J. Zacharie vw. Franklin, 12 Pet. 163. “A motion for a new trial in the courts of the United States is addressed to the sound discretion of the tribunal which tried the case, and to grant or refuse it cannot be made the subject of exception.” Swayne, J. Schuchardt v. Allens, 1 Wall. 371. “Settled rule of the court is that a mo- tion for a new trial is addressed to the discretion of the court, and that the ruling of the court in granting or denying such a motion is not the proper subject of excep- tions.” C.irrorp, J. Ewing v. Howard, 7 Wall. 502. “The allowance or refusal of a new trial rests in the sound discretion of the court to which the application is addressed, and the result cannot be made the subject of review by writ of error.” Furier, C. J. ‘Clyde Mattox v. U. S., 146 U. S. 147, “Tt is true that motions to grant a new trial, upon the ground that the verdict is against the weight of the evidence, are, in a certain sense, addressed to the discretion of the court, and can be more satisfactorily dealt with by the judge who tried the cause and who had the opportunity of seeing the witnesses and hearing them testify. Ordinarily a writ of error or an appeal will not lie for the purpose of revising and con- trolling the exercise of that discretion by an appellate tribunal; yet in some of the states a contrary practice prevails, and a writ of error is authorized to bring up for re- view the proceedings and judgment of an inferior court, on which it may be as- signed as an error in law, upon a bill of exceptions setting forth the whole evidence, that the court below erred in not granting a new trial because the verdict was against the weight of the evidence.” Matruews, J. Metropolitan R. Co. v. Moore, 121 U. S. 572. XVII. PROCEEDINGS IN APPEL- LATE COURT. 1. IN GENERAL. Parties Entitled to Conscientious Judg- ment. “Where the law gives a party an appeal, he has a right to demand the conscientious judgment of the appellate court on every question arising in the cause.” Grier, J. Post v. Jones, 19 How. 160. “The right of appeal to this court is a substantial right, and not a shadow. It in- volves examination, thought, and judgment. Where our convictions are clear, and differ from those of the learned judges below, we may not abdicate the performance of the duty which the law imposes upon us by de- clining to give our own judicial effect.” Swayne, J. The Ariadne, 13 Wall. 479. Rules of Practice. “Where such [appellate] court has juris- diction of the case, it must be governed in its decision by the rules of practice in the court below.” McLean, J., dissenting. Par- sons v, Bedford, 3 Pet. 452. 2. EXAMINATION AND DECISION OF ALL Errors ALLEGED. “When a case is presented to an appellate court it is not obliged to considef and de- cide all the questions then suggested or which may be supposed likely to arise in the further progress of the litigation. If it finds that in one respect an error has been committed 146 APPEAL AND ERROR. so substantial as to require a reversal of the judgment, it may order a reversal without entering into an inquiry or determination of other questions.” BREWER, J. Mutual Ins. Co. v. Hill, 193 U. S. 553. “Tt requires but slight examination of the reports of the decisions or familiarity with the practice of this court, to know that it does not examine into or decide all the er- rors, or matter assigned for error, of the most of the cases before them. Many of these are found to be immaterial, the case being reversed or affirmed on some important point which requires of itself a judgment without regard to other matters. There are errors also which may be sufficiently manifest which the appellate court has no jurisdiction.” Mitter, J. Murdock v. Memphis, 20 Wall. 623. “Tt is the daily practice of this court, and of all appellate courts :where they reverse the judgment of an inferior court for error, to correct by its opinions whatever errors may appear on the record material to the case; and they have always held it to be their duty to do so where the silence of the court might lead to misconstruction or future con- troversy, and the point has been relied on by either side, and argued before the court.” Taney, C. J. Scott v. Sandford, 19 How. 429, “There are other exceptions in the record, which, though not pressed, have not been waived. It was, therefore, the duty of the court to examine them.” Marswat, C. J. Kirk v. Smith, 9 Wheat. 294. 38. WAIVER OR RELEASE OF ERRORS. “ No waiver or release of errors, operating as a bar to the further prosecution of an ap- peal or writ of error, can be implied, except from conduct which is inconsistent with the claim of a right to reverse the judgment or decree, which it is sought to bring into re- view. If the release is not expressed, it can arise only upon the principle of an estoppel.” MatrHews, J. Embry v. Palmer, 107 U.S. 8. “A release of errors may be filed as a bar to the writ [of error].” Mutier, J. Dakota County v. Glidden, 113 U. S. 2285. “Neither the decisions of the courts : nor text writers, afford any counte- nance to the theory that partial satisfaction of the execution operates as an extinguish- ment of the judgment, or a release of errors, or that it takes away or impairs the juris- diction of this court.” Currrorp, J. U. S. v. Dashiel, 3 Wall. 708. 4, CHANGE OF Law PENDING APPEAL. “Tt is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was er- roneous or not. But if subsequent to the judgment and before the decision of the ap- pellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied.” MarsuHalt, C. J. U.S. v. Schooner Peggy, 1 Cranch 110, “In mere private cases between individu- als, a court will and ought to struggle hard against a construction which will, by a re- trospective operation, affect the rights of parties, but in great national concerns where individual rights, acquired by war, are sacri- ficed for national purposes, the contract, mak- ing the sacrifice, ought always to receive a construction conforming to its manifest im- port; but if the nation has given up the vested rights of its citizens, it is not for the court, but for the government, to consider whether it be a case proper for compensa- tion.” MarsHatt, C, J. U. S. v. Schooner Peggy, 1 Cranch 110. “T am also of opinion that whenever a case is brought up to this Court under that section [sec. XXV of the Judiciary Act], the title of the parties litigant must neces- sarily be inquired into, and that such an inquiry must, in the nature of things, precede the consideration how far the law, treaty, and so forth, is applicable to it; otherwise an appeal to this Court would be worse than nugatory. And that in ejectment at least, if not in every possible case, the decision of this court must conform to the state of rights of the parties at the time of its own judg- ment; so that a treaty, although ratified sub- sequent to the decision of the Court appealed from, becomes a part of the law of the case and must control our decision.” JoHnson, J., dissenting. Fairfax v. Hunter, 7 Cranch 632. 5. STIPULATIONS OF THE PARTIES. “A settlement of the controversy, with an agreement to dismiss the appeal or writ of error signed by the parties, will be enforced. Mitter, J. Dakota County vw. Glidden, 113 U. S. 225. “Any stipulation as to proceedings in this court, signed by the parties, will be enforced, as an agreement to submit the case on printed argument alone, within the time allowed by 147 APPEAL AND ERROR. the rule of this court.” Mutter, J. Dakota County v. Glidden, 113 U. S. 225. 6. AMENDMENTS. May Be Allowed. “There is nothing in the nature of an ap- pellate jurisdiction, proceeding according to the common law, which forbids the granting of amendments.” McLean, J. Kennedy v. Georgia State Bank, 8 How. 610. “Nothing is more common than motions to amend the record after a writ of error has been brought; nay after a writ of error has been argued in the court above, and sometimes even after judgment in the court of error, pending its session. Especially in cases of misjoinder of counts, which are in- compatible with each other, as well as in cases where there are several counts, some of which are bad and some good, and a gen- eral verdict given for the plaintiff, such ap- plications, when made within a reasonable time, are usually granted after error brought and the verdict allowed to be amended so as to be entered upon the good counts, or upon the counts not incompatible with each other. This is most usually done upon the judge’s notes of the evidence at the trial, establishing upon what counts the evidence was in fact given or to which it was prop- erly addressed or limited. But it may be done upon any other evidence equally clear and satisfactory, which may be submitted to the consideration of the court.” Story, J. Matheson v. Grant, 2 How. 281. Not Allowed as Matter of Course. “Undoubtedly appellate courts proceed- ing according to the course of the civil law may allow parties to introduce new allega- tions and further proofs, and such has been the settled practice of the ecclesiastical courts in England and of the admiralty courts in this country. Nevertheless, orders allowing this to be done are not granted as matter of course, but made with extreme caution, and only on satisfactory grounds.” Futter, C. J. U.S. v. Coe, 155 U. S. 83. Amendments by Consent of Parties. “Tt has not been the practice of this court to allow amendments, except by the consent of parties.” McLean, J. Udall v. Steamship Ohio, 17 How. 18. Amendments Conferring Jurisdiction. “Tf amendments be allowed, so as to give jurisdiction to this court, where there was no jurisdiction when the trial was had and the appeal taken, parties would be taken by surprise, and litigation would be encouraged. The plaintiff, under such circumstances, would never fail to sustain the jurisdiction of this court, on his appeal.” McLean, J. Udall v. Steamship Ohio, 17 How. 19. Remanding to Lower Court for Amend- ment. “When the facts of the case show the plaintiff to have an equitable title to relief, this court, while it may be unable to afford such relief upon the case made by the bill, has in several instances asserted its power to remand the case to the court below for an amendment of the pleadings and such further proceedings as may be consonant with jus- tice.” Brown, J. Wiggins Ferry Co. v. Ohio, etc., R. Co., 142 U. S. 413. 7%. HEARING, REHEARING, AND FILING oF BRIEFS. Cases on Calendar Heard Order. “Cases regularly on the calendar, whether brought here by writ of error or appeal, if within the jurisdiction of the court are re- quired to be heard when reached in the regu- lar call of the docket, and they cannot be heard before they are reached except when they are advanced by the order of the court.” CuirForD, J. The Eutaw, 12 Wall. 139. in Regular Modification of Injunction in Advance of Final Hearing. “This court no doubt has the power to modify an injunction granted by a decree below in advance of a final hearing of an ap- peal of its merits.’ Warts, C. J. Leonard v. Ozark Land Co., 115 U. S. 468. Rehearing — In General. “Even in cases involving only private rights, if convinced we had made a mistake, we would hear another argument and cor- rect our error.” Stronc, J. Legal Tender Cases, 12 Wall. 554, “Tt is the well-settled rule of this court, to which it has steadily adhered, that no rehear- ing is granted unless some member of the court who concurred in the judgment ex- pressed a desire for it, and not then unless the proposition receives the support of a majority of the court.” Murtier, J. Ambler v, Whipple, 23 Wall. 281. “An application for a reconsideration of a question but lately decided by this court is usually based upon a statement that some of the arguments employed on the original hearing of the question have been overlooked 148 APPEAL AND ERROR. or misunderstood, or that some controlling authority has been either misapplied by the court or passed over without discussion or notice.” PreckHam, J. U. S. v. Joint Traf- fic Assoc., 171 U. S. 573. “While an erroneous decision might be in some cases properly reconsidered and over- ruled, yet it is clear that the first necessity is to convince the court that the decision was erroneous. It is scarcely to be assumed that such a result could be secured by the pres- entation for a third time of the same argu- ments which had twice before been unsuc- cessfully urged upon the attention of the court.” Prcxuam, J. U. S. v. Joint Traf- fic Assoc., 171 U. S. 574. “There is certainly nothing in the history of the English Court of Chancery to induce this court to adopt rules in relation to re- arguments, analogous to the chancery practice upon applications for a rehearing. Accord- ing to the general practice of that court, one rehearing, where the application. has been sanctioned by the signature of two counsel, is a matter of course.” Taney, C. J. Brown v. Aspden, 14 How. 27. —— At Subsequent Term. “Repeated decisions of this court have es- tablished the rule that a final judgment or decree of this court is conclusive upon the parties, and that it cannot be re-examined at a subsequent term, as there is no act of Congress which confers any such authority.” CurFrorD, J. Noonan v. Bradley, 12 Wall. 129. “Rehearings are never granted where a final decree has been entered and the man- date sent down, unless the application is made at the same term, except in cases of fraud.” CutrForD, J. Noonan v. Bradley, 12 Wall. 129. “Repeated decisions of this court have es- tablished the rule that a final judgment or decree of this court is conclusive upon the parties, and that it cannot be re-examined at a subsequent term except in cases of fraud, as there is no act of Congress which confers any such authority. Rehearings are never granted where a final decree has been entered and the mandate set down, unless the application is made at the same term, except in cases of fraud. Appellate power is exer-, cised over the proceedings of subordinate courts, and not over the judgments or decrees of the appellate court, and the express de- cision of this court in several cases is that ‘the court has no power to review its de- cisions, whether in a case at law or in equity, and that a final decree in equity is as con- clusive as a judgment at law,’ which is all that need be said upon the subject.” C.iF- ForD, J. Tyler v. Magwire, 17 Wall. 283. Filing Briefs. “Where in a pending case application to file briefs is made by counsel not employed therein, but interested in some other pending case involving similar questions, and consent is given, the court has always exercised great liberality in permitting this to be done. And doubtless it is within our discretion to allow it in any case when justified by the circum- stances.” Futier, C. J. Northern Securities Co. v. U. S., 191 U. S. 555. “A pamphlet has been sent to the judges touching the questions in controversy in this cause. The court desire it to be understood, that the practice of the court is not to receive or examine such papers, unless they have been presented in court, and shown to the opposite counsel.” MarsHALt, C. J. Mitchell v. U. S., 8 Pet. 307. 8. DisMissAL oF APPEAL OR WRIT OF Error IN GENERAL, Filing and Preference. “Motions to dismiss are non-enumerated motions, and they may be filed by leave of court in any case on the calendar before the case is reached in the regular call of the docket, and they are entitled to preference on Friday in each week during the sitting of the court, as provided in the twenty-seventh rule, but they do not give either party any right to be heard upon the merits of the con- troversy.” CiiFForD, J. The Eutaw, 12 Wall. 139. Motion to Affirm Judgment. “The practice of not entertaining a motion to affirm [the judgment below] unless there is some color of right to a dismissal [of the writ of error] has been frequently sustained by this court.” BLatcurorp, J. Chanute City v. Trader, 132 U. S. 213. Motion to Quash Writ of Error. “This writ [of error] is the act of the court, and if it has issued improvidently, the question is open on a motion to quash it. No one is precluded by the emanation of the writ; and the right of the party who demands it, ought not to be finally passed upon by a judge at his chambers. It is a writ of com- mon right in the cases to which the jurisdic- tion of an appellate court extends.” JoHn- son, J. Buel v. Van Ness, 8 Wheat. 321. 9 APPEAL AND ERROR. Grounds for Dismissal. “Appeals are subject to the samme rules, regulations, and restrictions as are prescribed in law in case of writs of error, and it is well-settled law that it is no sufficient cause to dismiss a writ of error that the record does not present any question of law for the revision of this court, as the writ of error when sued out under the twenty-second sec- tion of the Judiciary Act brings up the whole record, and it is the right of the plaintiff in error to be heard and have an opportunity to show, if he can, that there is error in any part of the record.” Cuirrorp, J. The Eutaw, 12 Wall. 141. “Express jurisdiction is conferred upon this court by the twenty-second section of the Judiciary Act to re-examine, upon writ of error, and reverse or affirm final judg- ments in civil actions rendered in a Circuit Court, where the matter in dispute, ex- clusive of costs, exceeds the sum or value of two thousand dollars, whether the same was brought there by original process or was removed there from courts of the sev- eral states, or from a District Court. Such a writ of error, when issued to a Circuit Court removes the whole record into this court, and if all the proceedings in the suit were correct, it follows, if not from the very words of the section, certainly from the necessary construction of the same, that the judgment must be affirmed. Error may be shown in such a case by a bill of exceptions or by a demurrer to the declaration, or a material pleading, or it may appear by an agreed statement of facts, if made a part of the record, or in a special verdict, if put in due form; but even when all these are wanting it is no cause for dismissing the suit, because the writ of error issued to a Circuit Court under that section brings up the whole record, and their absence only shows that there is no error in the proceed- ings; and if there is no error in any part of the record the prevailing party in the Circuit Court is entitled to an affiirmance of the judgment. Cases brought here by writ of error to a state court, issued under the twenty-fifth section of the Judiciary Act, stand upon a very different footing, as in such case it must appear on the fact of the record’ in express terms or by necessary implication, that some one, at least, of the questions described’ in that section did arise in the state court, and that the question sO appeating in the record was decided in the state court, as required in that section; and if it does not so appear in the record, then this court has no jurisdiction of the case, and in that event the writ of error must be dismissed ; as this court, under those circumstances, has no power either to re- verse or affirm the judgment rendered in the state court.” Cziirrorb, J. New Orleans R. Co. v. Morgan, 10 Wall. 260. Effect of Dismissal. “Tt is proper~. to add in order to prevent mistake on this subject, that the only effect of docketing and dismissing a case under this rule [63d rule], is to enable the party to proceed to execute his judg- ment in the court below. It removes the bar to further proceedings in that court, which the appeal created, and does nothing, more. And after the case has been dock- eted and dismissed, the party against whom the decree was rendered, may still, at any time within five years from the date of the decree take a new appeal in the inferior court; and if he files the transcript of the record in this court within the first six days of the term next ensuing his appeal, the appeal will be valid, and the case as fully before this court, as if it had been brought here at the first term.” Tangy, C. J. U.S. v. Pacheco, 20 How. 263. 9. DISMISSAL OR REVERSAL FOR WANT OF JURISDICTION. Dismissal on Motion. “Undoubtedly upon a writ of error to a state court, unless the record shows a case that gives jurisdiction, the case must be dismissed for want of jurisdiction in this court. And if it is dismissed on that ground, we have no right to examine and decide upon any question presented in the bill of exceptions, or any other part of the record.” Taney, C. J. Scott v. Sandford, 19 How. 428. “Where the case is one not within the jurisdiction of the court the writ of error ot appeal may be dismissed on motion, and certain defects in removing the cause from the subordinate court into this court en- title the party who prevailed in the court below to the same remedy.” Ctirrorp, J. The Eutaw, 12 Wall. 139. —- Reservation of Decision on Motion. “Tn all cases of a motion to dismiss the writ of error for want of jurisdiction, the court must necessarily examine the record to find the questions decided by the state court. But in many cases the question of jurisdiction is so involved with the other questions decided in the case, that this court can not eliminate it without the ex- 150 APPEAL AND ERROR. amination of a voluminous record, and pass- ing on the whole merits of the case. In such instances, the court will reserve the question of jurisdiction till the case is heard on the final argument on the merits.” Grigr, J. Semple v. Hagar, 4 Wall. 433. —— Disinclination of Court to Dismiss. “Upon such a motion [to dismiss], as upon a demurrer, a court will not incline to dis- miss for want of jurisdiction unless the facts appearing of record create a legal certainty of that conclusion.” Sutras, J. Blackburn v. Portland Gold Min. Co., 175 U. S. 574. Reversal for Want of Jurisdiction in Lower Court. “The usual direction, in cases where this court determines that the court below acted without jurisdiction in the matters before it, - . . is to reverse the decree and remit the case, with directions that the court dis- miss the proceedings.” NeELson, J. Benner v. Porter, 9 How. 248. “In a case brought to this court, by appeal or by writ of error from a Circuit Court of the United States, we begin a re- view of it, not by inquiring if this court has jurisdiction, but if that court has it. If the case has been decided by that court upon its merits, but the record shows it to be deficient in those averments which by the law of the United States must be made by the plaintiff in the action, to give the court jurisdiction of his case, we sent it back to the court from which it is brought, with directions to be dismissed, though it has been decided upon its merits. So, in a case containing the averments by the plaintiff which are necessary to give the Circuit Court jurisdiction, if the defendant shall file his plea in abatement denying the truth of them, and the plaintiff shall demur to it, and the court should erroneously sustain the plain- tiff’s demurrer, or declare the plea to be insufficient, and by doing so require the defendant to answer over by a plea to the merits, and shall decide the case upon such pleading, this court has the same authority to inquire into the jurisdiction of that court to do so, and to correct its error in that regard, that it had in the other case to cor- rect its error in trying a case in which the plaintiff had not made those averments which were necessary to give the court jurisdiction. In both cases the record is resorted to, to determine the point of jurisdiction; but, as the power of review of cases from a federal court, by this court, is not limited by the law. to a part of the case, this court may correct an error upon the merits; and there is the same reason for correcting an erroneous judgment of the Circuit Court, where the want of jurisdiction appears from any part of the record, that there is for declaring a want of jurisdiction for a want of necessary averments. Any attempt to control the court from doing so by the technical common-law rules of pleading in cases of jurisdiction, when a defendant has been denied his plea to it, would tend to enlarge the jurisdiction of the Circuit Court, by limiting this court’s review of its judgments in that particular.” Waynkg, J. Scott v. Sandford, 19 How. 456. “The twenty-second section of the Judi- ciary Act of 1789, which allows a writ of error from final judgments of Circuit Courts, provides that there shall be no reversal in this court, on such writ of error, for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court. Ac- cordingly it has been held, from the origin of the court to the present day, that Cir- cuit Courts have not been made by Congress the final judges of their own jurisdiction in civil cases. And that when a record comes here upon a writ of error or appeal, and, on its inspection, it appears to this court that the Circuit Court had not jurisdiction, its judgment must be reversed, and the cause remanded, to be dismissed for want of juris- diction.” Curtis, J., dissenting. Scott vw. Sandford, 19 How. 565. “When both the Circuit Court and this court are without jurisdiction it is in general irregular to make any order or decree in the case, except to dismiss the suit, but that rule does not apply to a case where the Cir- cuit Court renders a judgment or decree in favor of the party instituting the suit, but in such a case the court here will reverse the judgment or decree in the court below, and remand the course with directions to dis- miss the suit.” Cxzrrorp, J. Stickney vw. Wilt, 23 Wall. 162. “Want of jurisdiction to hear and deter- mine the merits in such a case does not show that this court may not correct the erroneous judgment or decree of the Circuit Court, -but if the Circuit Court is also without juris- diction this court cannot direct a new trial or a new hearing, as it may do in a case where the want of jurisdiction in this court is occasioned by a mistrial in the court be- low, which has led to an erroneous removal of the cause from the Circuit Court into this court, as by appeal instead of a writ of error, or by a writ of error, when it should have been by appeal. Cases wrongly brought 151 APPEAL AND ERROR. ap, it may be admitted, should, as a general rule, be dismissed by the appellate tribunal, but a necessary exception exists to that rule where the consequence of a decree of dismissal will be to give full effect to an ir- regular and erroneous decree of the subor- dinate court in a case where the decree is en- tered without jurisdiction, and in violation of any legal or constitutional right.” Cutr- ForD, J. Stickney v. Wilt, 23 Wall. 162. “Where the court below has no jurisdic- tion of the case in any form of proceeding, the regular course, if the judgment or de- cree is for the defendant or respondent, is to direct the cause to be dismissed, but if the judgment or decree is for the plaintiff or petitioner, as in this case, the court here will reverse the judgment or decree and re- mand the cause with proper directions, which in the case supposed must be to dismiss the writ, libel, or petition, as the subordinate court cannot properly hear and determine the matter in controversy.” CLIFFoRD, J. Stick- ney v. Wilt, 23 Wall. 163. “Cases occasionally arise in which the pro- ceedings in the lower court are so irregular that a mere affirmance or reversal upon the merits would work very great injustice, and in such cases it is competent for the appel- late court to reverse the judgment or decree in question and to remand the cause with such directions, if it be practicable, as will do justice to both parties.” CxiFForp, J. Stickney v. Wilt, 23 Wall. 163. “ Appellate courts, where there is no de- fect in bringing up a cause, usually affirm or reverse the judgment or decree of the court below; but cases occasionally arise where the proceedings of the subordinate court are so unusual and irregular that the appellate court can neither reverse nor affirm the merits of the case without doing great injustice, and in such cases the appellate ° court never hesitates to remand thé case for a new trial or rehearing, first reversing the judgment or decree in order to open the case for that purpose.” CLiFForD, J., dissenting. Cleveland Ins. Co. v. Globe Ins. Co., 98 U. S. 374. “Cases wrongly brought up, it may be ad- mitted, should, as a general rule, be dis- missed by the appellate tribunal; but a necessary exception exists to that rule where the effect of a judgment or decree of dis- missa! will be to give full operation to an ir- regular and erroneous judgment or decree of the subordinate court in a case where the judgment or decree of such a court is ren- dered without jurisdiction, or in violation of some legal constitutional right of the losing party.” C.irForD, J., dissenting. Cleveland Ins. Co. v. Globe Ins. Co., 98 U. S. 374. “Want of jurisdiction in the court below does not prevent this court from assuming jurisdiction, on appeal, for the pur- pose of reversing the decree rendered by the Circuit Court in order to vacate any unwar- ranted proceedings in a case where, in the judgment of this court, other proceedings ought to take place in consequence of the irregularity in either of the subordinate courts.” CLIFFoRD, J., dissenting. .Cleveland Ins. Co, v. Globe Ins. Co., 98 U. S. 375. “Admiralty cases have more than once been appealed to this court in which it ap- peared that the Circuit Court had no juris- diction of the case, in consequence of ir- regularities in the District Court; and in such cases it has been held by this court that it is the regular course to reverse the decree of the Circuit Court, and to direct the Circuit Court to remand the cause to the District Court for further proceedings.” CuirForD, J., dissenting. Cleveland Ins. Co. v. Globe Ins. Co., 98 U. S. 375. “Beyond question, the general rule is that, where the Circuit Court is without juris- diction, it is irregular to make any order in the cause except to dismiss the suit; but that rule does not apply to the action of the court in setting aside such orders as had been improperly made before the want of jurisdiction was discovered, especially if it appears that the effect of the dismissal would be to leave the moving party in possession of judgment rendered, without jurisdiction or authority of law.” Czr1rForp, J., dissenting. Cleveland Ins, Co. v. Globe Ins. Co., 98 U.S. 377. “Cases wrongly brought up, it may be admitted, should, as a general rule, be dis- missed by the appellate tribunal; but a necessary exception exists to that rule where the consequence of a dismissal will be to give full effect to an irregular and erroneous decree of the subordinate court in a case where the court was without jurisdiction, and acted in violation of some legal or constitu- tional right of the party against whom the decree was entered.” CLiFForD, J., dissent- ing. Cleveland Ins. Co. v. Globe Ins. Co., 98 U. S. 378. Question Not Raised by Parties. “In view of the adjudged cases, I cannot agree that the failure of parties to raise a 152 APPEAL AND ERROR. question of jurisdiction will relieve this court of its duty to raise it upon its own mo- tion. The contrary view cannot be justified. This court may not assume jurisdiction to do that which it has no authority to do.” Haran, J., dissenting. Giles v. Harris, 189 U. S. 502. “The true question is, whether this court will affirm or reverse a judgment of the Circuit Court on the merits, when it appears on the record, by a plea to the ju- risdiction, that it is a case to which the judicial power of the United States does not extend. The course of the court is, where no motion is made by either party, on its own motion, to reverse such a judg- ment for want of jurisdiction, not only in cases where it is shown, negatively, by a plea to the jurisdiction, that jurisdiction does not exist, but even where it does not ap- pear, affirmatively that it does. . . . It acts upon the principle that the judicial power of the United States must not be exerted in a case to which it does not ex- tend, even if both parties desire to have it exerted.” Curtis, J., dissenting. Scott v. Sandford, 19 How. 567. Jurisdictional Facts May Be Proved by Extrinsic Evidence. “From the necessity of the case, this court is compelled, as all other courts are, to al- low facts which affect its right and its duty to proceed in the exercise of its appellate jurisdiction, but which do not appear upon the record before it, to be proved by ex- trinsic evidence.” Gray, J. Kimball vw. Kimball, 174 U. S. 162. 10. AFFIRMANCE, REVERSAL, AND MobpIFICATION. Obligation of Court to Affirm, Reverse, or Modify. “Writs of error or appeals sued out under the twenty-second section of the Judiciary Act may be dismissed for irregularities in bringing the case up; but if the proceedings in bringing the case up are regular, the court here is always bound to affirm, modify, or reverse the judgment or decree, except in a limited class of cases, where there has been a mistrial, and even in that class of cases it is usually necessary to reverse the judg- ment or decree in order to open the pleadings to a new trial.” Cuiirrorp, J., dissenting. Stewart v. Salamon, 97 U. S. 364. Judgment Free from Error Will Be Af- firmed. “When a case is brought into this: court from the Circuit Courts by a writ of error, regular in form, if there is no error in the record the judgment will.-: affirmed.” CutF- ForD, J. Barton v. Forsyth, 5 Wall. 194. Supreme Court Not Bound to Affirm Cir- cuit Court Decision Affirming District Court. “ Suggestion is sometimes made that this court will, as a matter of course, affirm the decree of the Circuit Court where the de- cree of the Circuit Court affirms the de- cree of the District Court; but the court has never adopted any such rule of practice.” CuirForD, J. The City of Hartford, 97 U. S. 328. Affirmance in Part and Reversal in Part. “Tt is our duty to look at the whole judg- ment as it comes before us, and if any por- tion of it be correct and is so stated as to be separable from and independent of the other portion which we find to be erroneous, it is our duty to affirm that portion in which we find no error and reverse that portion which we decide to be wrong.” PrecxHaM, J. Bank of Commerce v. Tennessee, 163 U. S. 420. Judgment Will Be Reversed Which Should Have Been Arrested Below. “No authority need be cited, to establish, that whatever judgment ought to have been arrested below, this Court is bound to re- verse for error.” JoHNsoN, J., dissenting. Minor v. Mechanics’ Bank, 1 Pet. 81. Awarding New Trial. “Tt was for a long time denied that a court of error could award a venire facias de novo.” MILLER, J. Insurance Co. v. Boykin, 12 Wall. 438. “Where, as in a special verdict, the es- sential facts are not distinctly found by the jury, although there is sufficient evidence to establish them, the court will not render a judgment upon such an imperfect special finding, but will remand the cause to the court below with directions to award a new venire.” CLIFFORD, J., dissenting. Cleveland Ins. Co. v. Globe Ins. Co., 98 U. S. 374. “Tt is true that in cases tried by the court, where all the facts are specifically found or agreed to, it is within the power of this court, in reversing, to direct the judgment which shall be entered upon such findings. At the same time if for any reasons justice seems to require it, the court may simply reverse and direct a new trial. Indeed, this has been done, under special circumstances, 153 APPEAL AND ERROR. in cases where there were no findings of facts or agreed statement, or where that which was presented was obviously de- fective.” BREWER, J. St. Louis v. Western Union Tel, Co., 148 U. S. 104. “ After. the reversal here, we should, in my opinion, remand the case to the Circuit Court, not to have judgment entered there either way on this imperfect verdict, but to have a venire de novo ordered so as to cor- rect it.” Woopzsury, J., dissenting. Prentice v. Zane, 8 How. 487. Modification of Decree. “In a civil law court, I befieve, it is the constant practice to modify a decree upon: an appeal, as the justice of the case re- quires.” IREDELL, J., concurring. Penhallow v. Doane’s Adm’rs, 3 Dall. 108. 11. ErFect oF JUDGMENT IN APPEL- ‘LATE Court. Effect of Affirmance. “No final decree of a court which en- forces its own judgments ought to be left in such condition that the record of another court is the only evidence of the amount re- covered by the successful party. An order affirming a decree in another court is neither in express terms nor ‘by necessary implica- tion a judgment or decree for the amount of the judgment or decree in that court. The costs of the lower court, and the in- terest on its judgment to the date of the decree or judgment on appeal, are to be added to it, and, though they may be com- puted by the clerk, they should have the judicial consideration of the court.” Mu- LER, J. The Lucille, 19 Wall. 75. Effect of Reversal. “The reversal of the judgment cannot have a retrospective operation, and make void that which was lawful when done.” Tuompson, J. U. S. Bank v. Washington Bank, 6 Pet. 19. “The reversal of the judgment gives a new right or cause of action against the parties to the judgment, and creates a legal obligation on their part to restore what the other party has lost, by reason of the erro- neous judgment; and as between the parties to the judgment, there is all the privity neces- sary to sustain and enforce such right; but as to strangers there is no such privity; and if no legal right existed, when the money was paid, to recover it back, no such right could be created by notice of an intention so to do.” TxHompson, J. U. S. Bank vw. Washington Bank, 6 Pet. 19. “The action of an appellate court on a judgment at law, or a decree in equity, can be of no middle character. A reversal annuls it to all intents and purposes: it can no longer be given in evidence in support of any right, or as proof of any fact in favor of the party in whose favour it was ren- dered, or against the opposite party; no one thing remains a res adjudicata, but every question of law and fact is as entirely open, as if the court had never given a judg- ment or decree. It is inconsistent with the constitution of appellate courts in England, or the states of this Union, to modify a general reversal of a judgment or decree; it is absolute, and must be attended with all legal consequences, ‘which no court can avert by any salvo or declaration that it is re- versed only pro forma; the decree or judg- ment cannot be in any part carried into ef- fect in the court below, or come again in an appellate court, till a new one is ren- dered.” Batpwin, J., dissenting. Harrison v. Nixon, 9 Pet. 506. Conclusiveness of Decision — Question Cannot Be Subsequently Re-examined. “No question, once considered and de- cided by this court, can be re-examined at any subsequent stage of the same case.” Gray, J. Jn re Sanford Fork & Tool Co., 160 U. S. 259. “A judgment of reversal is not neces- sarily an adjudication by the appellate court of other than the questions in terms dis- cussed and decided. An actual decision of any question settles the law in respect thereto for future action in the case.” Brewer, J. Mut. L. Ins. Co. uv, Hill, 193 U. S. 553. — Second Appeal on Same Question Not Allowed. “Two appeals are not allowed in the same case on the same question.” Cuasg, C. J. Wheeler v. Harris, 13 Wall. 56. “A second appeal lies only when the court below, in carrying out the mandate of this court, is alleged to have committed an er- ror. But, on an appeal from the mandate, it is well settled, that nothing is before the court but the proceedings subsequent to the mandate. Whatever was formerly be- fore the court, and was disposed of it by its decree, is considered as finally disposed of.” Grier, J. Corning v. The Troy Iron, etc, Factory, 15 How. 466. —— Decision Not Reversed Unless Clear- ly Erroneous. “When this court, in a real contest, has APPEAL AND ERROR. decided questions of fact on the most care- ful investigation, and after a full argument by able counsel, it will be presumed a cor- rect conclusion was reached, and before a decision thus rendered will be reversed, it must very clearly appear that error was committed.” Davis, J. Gaines v. New Or- leans, 6 Wall. 698. Question Left Open May Be Decided by Lower Court. “The inferior court is justified in con- sidering and deciding any question left open by the mandate and opinion of this court, cs and the opinion of this court may be consulted to ascertain exactly what was decided and settled.” Brown, J. Ex p. The Union Steamboat Co., 178 U. S. 319. Subsequent Proceedings in Lower Court. “The principle has been well established, in numerous cases, that, on a mandate from this court, containing a specific direction to the inferior court to enter a specific judg- ment, the latter court has no authority to do anything but to execute the mandate.” Bratcurorp, J. Jn re Washington, etc., R. Co., 140 U. S. 96. “When a case has once been decided by this court no further proceedings can be had in the trial court except upon our direc- tion.” Brewer, J., dissenting. Missouri Pac. R. Co. v. U. S., 189 U. S. 288. “Undoubtedly it is the duty of all inferior courts to yield a prompt obedience to the mandate of this court, in other words, to treat as conclusive the judgment of this ccurt upon the law and facts presented to it in appropriate form for consideration. Any other conduct would be subversive of the relation which the Constitution intends that inferior tribunals shall hold to this court. But the obedience thus due is not a blind obedience, acting upon the letter of the judg- ment affirmed, or mandate ordered, without any consideration of the rights of persons not parties to the litigation in which the judgment was entered.” Fretp, J. In re Howard, 9 Wall. 183. Power of Supreme Court to Revise Its Decrees. “This Court has no power to revise its own decrees after the term expires, unless for clerical errors.” BA tpwin, J., dissenting. Harrison v. Nixon, 9 Pet. 531. 12. REMANDING CAUSE. Remanding Cause for Further Proceed- ings. : “As upon this appeal in equity the whole case is before us, we can render such de- cree as under all the circumstances may be proper. . . If it appears that injustice may be done by proceeding to a final decree upon the record as it is presented to us, we have the power to forbear a determination of the merits and remand the cause for further preparation.” Hartan, J. U. S. wu. Rio Grande Irrigation Co. 184 U. S. 423. Entry of Judgment on Reversal or Re- manding Cause for Entry. “Tt conclusively appears that the authority of this court to reverse, and re- mand with directions to render such proper judgments as the case might require, upon writs or error in criminal cases, to state courts and to the Circuit Courts in capital cases, was confessedly conferred by express statutory provisions, and that a like power was conferred upon the Circuit Courts of Appeals and Circuit Courts in cases where they exercised jurisdiction by error in crim- inal cases over the District Court.” WdHHte, J. Ballew v. U. S. 160 U. S. 201. “Usually, when a case in chancery has been heard, and a final decree rendered, this court, if it reverses that decree, will direct such decree as the court below should have rendered.” Mruer, J. Dainese v. Cooke, 91 U. S. 584, “As the case was heard upon a stipula- tion waiving a jury and upon an agreed statement of facts, it is our duty, in revers- ing, to direct that the proper judgment be entered below.” WuttE, J. Meyer v. Rich- ards, 163 U. S. 415. “Tt was held in England that at-com- mon law a reviewing court upon a writ of error in a criminal case had not the power, upon a reversal, to enter a proper judgment or to remand the cause for that purpose.” Warr, J. Ballew v. U. S., 160 U. S. 198. The Mandate — Duty of Lower Court to Obey. “Final process is never issued by this court in the exercise of its appellate juris- diction, except in cases where a state has once refused to execute the mandate of the court. Instead of that the mandate is trans- mitted to the subordinate court, and where the directions contained in the mandate are precise and unambiguous, it is the duty of the subordinate court to carry it into execu- tion, and not to look elsewhere to change its meaning.” CuiFrorp, J. Cook v. Burn- ley, 11 Wall. 675. . “On receipt of the mandate it is the duty of the subordinate court to carry it into 155 APPEAL AND ERROR. execution even though the jurisdiction do not appear in the pleadings.” C.iFForp, J. Tyler v. Magwire, 17 Wall. 283. —— Form. “Tt is not usual in remanding a case to state in the opinion of this court the par- ticular maner in which the instructions to the jury should have been framed, but to state in the opinion the principles of law which govern the case as it appears in the record, and leave it to the Circuit Court to apply them to the case, as it may appear in evidence upon the second trial, in such man- ner and form as it may think advisable.” Taney, C. J. Bank of Metropolis v. New England Bank, 6 How. 226. — Revocation of Mistaken Entry. “A mistaken entry of a mandate, in a case where the parties were not at all before the court, may be revoked at a subsequent term, the hearing having been irregular and a nullity.” Woopgury, J. Bank of U. S. v. Moss, 6 How. 39. -—In Cases Brought from Circuit Court of Appeals. “When cases are brought here from the Circuit Courts of Appeals, we are, of course, called on to review the judgments of those courts below, but our mandate goes to the court of first instance, and is there carried into effect, though the Court of Appeals may have sent its own mandate down be- fore the case was brought to this court by appeal, writ of error or certiorari.” FUuLuEr, C. J. Louisville, etc, R. Co. v. Behlmer, 169 U. S. 648. 13. Errect oF OPINION BY MAJORITY oR BY EguaLiy DivipEp Court. Judgment of Majority Is Judgment of Whole Court. “When this court gives a judgment by the opinion of a majority, it is the judgment, in a legal sense, of the whole court.” IreE- DELL, J., concurring. Penhallow v. Doane’s Admr’s, 3 Dall. 94. When Court Is Equally Divided, Lower Court’s Judgment Is Affirmed. “Tt is settled, that when this court is equally divided upon a writ of error or ap- neal, the judgment of the court below stands affirmed.” Wayne, J. Washington Bridge Co. v. Stewart, 3 How. 424. “Tt has long been the doctrine in this country and in England, where courts consist of several members, that no affirmative ac- tion can be had in a cause where the judges are equally divided in opinion as to the judg- ment to be rendered or order to be made. If affirmative action is necessary for the further progress of the cause, the division operates as a stay of proceedings. If the affirmative action sought is to set aside or. modify an existing judgment or order, the division operates as a denial of the applica- tion, and the judgment, or order, stands in full force, to be carried into effect by the ordinary means.” Fuietp, J. Durant v. Es- sex Co., 7 Wall. 110. “In cases of appeal or writ of error in this court, the appellant or plaintiff in error is always the moving party. It is affirmative action which he asks. The question pre- sented is, shall the judgment, or decree, be reversed? If the judges are divided, the reversal cannot be had, for no order can be made. The judgment of the court below, therefore, stands in full force. It is, indeed, the settled practice in such case to enter a judgment of affrmance; but this is only the most convenient mode of expressing the fact that the cause is finally disposed of in con- formity with the action of the court below, and that that court can proceed to enforce its judgment. The legal effect would be the same if the appeal, or writ of error, were dismissed.” Fietp, J. Durant v. Essex Co., 7 Wall. 112. “Tt is the practice of the Ex- chequer Chamber in England to affirm the judgment of the court below, brought be- fore it on writ of error, when the judges are equally divided. Where a case is ad- journed to that court, under the statute of 14 Edward III, upon a division of the judges of the court below, the practice, is dif- ferent. But on writs of error it is similar to that followed by this court. Such, also, is the practice of the House of Lords when sit- ting as a court of appeals. It is said that this practice depends upon the manner in which the Lords put the question, which is always in this form: Shall this judgment, or decree, be reversed? But that is the question in all appellate courts, and the par- ticular manner in which the question is stated, cannot change the rule of law on the subject.” FreLp, J. Durant v. Essex Co., 7 Wall, 112. 14, ALLOWANCE oF DAMAGES AS PEN- ALTY FOR DELAY. In General. “We impose penalties when writs of er- ror merely for delay are sued out, in cases APPEAL AND ERROR. of judgments at law for damages.” CHASE, C. J. The Douro, 3 Wall. 566. “Parties who sue out writs of error or take appeals for delay may be subjected to ten per cent damages in addition to interest, under the present rule of the court.” CLiF- FORD, J., dissenting. Stewart v. Salamon, 97 U. S. 364, Interest as Damages. “A discretionary power is reserved, to add to the damages awarded by the court below, further damages by way of interest, in cases where, in the opinion of this court, the ap- pellee, upon the proofs, is justly entitled to such additional damages.” Taney, C. J. Hemmenway v. Fisher, 20 How. 260. “Interest, for the time a writ of error is pending, is really damages for delay.” BLatcHrorD, J. Schell wv. Cochran, 107 U. S. 628. 15. REMITTITUR. “The rule has been adopted by this court that it is proper, either for the trial court upon an application for a new trial, or for an appellate court in reviewing a judgment to permit the party, in whose favor a verdict or judgment has been returned or entered, to avoid the granting of a new trial on account of error affecting only a part thereof, by entering a remittitur as to such erroneous part, when the court can clearly distinguish and separate the same.” Wuiute, J. Han- sen v. Boyd, 161 U. S. 411. 16. SEcoND APPEAL OR WRIT OF ERROR. Allowed When Mandate Is Not Correctly Executed. “In causes remanded to the Circuit Courts, if the mandate be not correctly executed, a writ of error or appeal has always been sup- posed to be a proper remedy, and has been recognized as such in the former decisions of this court.” Story, J. Martin v. Hunter, 1 Wheat. 354. “Where the subordinate court commits any substantial error in executing the man- date of the Supreme Court, it is well-settled law that a second writ of error or appeal, as the case may be, will lie to correct the error, and to cause the mandate to be ex- ecuted according to its tenor and effect.” CuirForD, J. Cook v. Burnley, 11 Wall. 674. “As respects the federal courts, it is well settled that where the mandate leaves noth- ing to the judgment or discretion of the court below, and that court mistakes or mis- “to revise construes the decree or judgment of this court and does not give full effect to the mandate, its action may be controlled, either upon a new appeal or writ of error if in- volving a sufficient amount, or by writ of mandamus to execute the mandate of this court.” Fuurer, C. J. In re Blake, 175 U.'S. 117. Brings up Proceedings Subsequent to the Mandate Only. “In ordinary cases a second writ of error has never been supposed to draw in ques- tion the propriety of the first judgment.” Story, J. Martin v. Hunter, 1 Wheat. 355. “When appellate power is once exerted, it is spent by the judgment of the appellate court, unless another court is authorized such judgment.” Batpwin, J. Holmes v. Jennison, 14 Pet. 630. “To allow a second appeal to a court of last resort, on the same questions which were open to dispute on the first, would lead to endless litigation.” Grier, J. Corning wv. The Troy Iron, etc., Factory, 15 How. 466. “Tt has been settled, by the decisions of this court, that after a case has been brought here and decided, and a mandate issued to the court below, if a second writ of error is sued out it brings up for revision nothing but the proceedings subsequent to the man- date.” Taney, C. J. Sizer v. Many, 16 How. 103. “None of the questions which were be- fore the court on the first writ of error can be reheard or examined upon the second. To allow a second writ of error or appeal to a court of last resort on the same questions which were open to dispute on the first, would lead to endless litigation.” Grier, J. Roberts v. Cooper, 20 How. 481. “Second appeals or writs of error are al- lowed, but the rule is universal that they bring up only the proceedings subsequent to the mandate, and do not authorize an in- quiry into the merits of the original judg- ment or decree.” CiiFForD, J. Noonan v. Bradley, 12 Wall. 129. For substantially the same language see the opinion of CLIFForD, J., in Tyler v. Magwire, 17 Wall. 283. “Second appeals or writs of error, as the case may be, will lie in certain cases where it is alleged that the mandate of the ap- pellate court has not been properly executed ; but the appeal or writ of error in such a case will bring up nothing for re-examina- tion except the proceedings subsequent to 187 APPEAL AND ERROR. the mandate.” Cuirrorp, J., dissenting. Stewart v. Salamon, 97 U. S. 362. ; “This court has repeatedly held that a second writ of error does not bring up. the whole record for re-examination, but only the proceedings subsequent to the mandate, and if those proceedings are merely such as the mandate command, and are necessary to its execution, the writ of error will be dis- missed, as any other rule would enable the losing party to delay the issuing of the man- date indefinitely.” Brown, J. U.S. v. New York Indians, 173 U. S. 472. “Tt is the settled law of this court that, after a case has been brought here and de- cided, and a mandate issued to the court be- low, if a second writ of error is sued out, it brings up for revision nothing but the proceedings subsequent to the mandate. None of the questions which were before the court on the first writ of error can be: reheard or examined on the second. To al- low a second writ of error or appeal to a court of last resort on the same questions which were open to dispute on the first would lead to endless litigation. In chancery a bill of review is sometimes allowed on peti- tion to the court; but there would be no end to a suit if every obstinate litigant could, by repeated appeals, compel a court to lis- ten to criticisms on their opinions, or specu- late on chances for changes in its members.” Suiras, J. U. S. v. Camou, 184 U. S. 574., XVIII. SUPERSEDEAS. Definition. “A supersedeas, properly so called, is a suspension of the power of the court below to issue an execution on the judgment or decree appealed from; or, if a writ of ex- ecution has: issued, it is a prohibition emanat- ing from the court of appeal against the execution of the writ.” Brapiey, J. Hovey v. McDonald, 109 U. S. 160. Writ of Error at Common Law. “Writs of error at common law, when bail was duly entered, operated as a super- sedeas.” CLiFFoRD, J., dissenting. Union Tel. Co. v. Eyser, 19 Wall. (U. S.) 428. “ At common law, a writ of error was a supersedeas by implication.” Warts, C. J. Kitchen v. Randolph, 93 U. S. 87. “In England, at common law, a writ of error operated as a supersedeas and stayed all action of the inferior court, and thence it was regarded as removing the record and ousting the jurisdiction of that court.” Stronc, J. Hunnicutt v. Peyton, 102 U. S. 356. “By the common law a writ of error, without any security, was of itself a superse- deas of execution from the time of its al- lowance or recognition by the court to which it was directed; and even before, if the defendant in error had notice of it; or, in the Common Pleas, from the time of its de- livery to the clerk of the errors of that court, whose business it was, amongst other things, to prepare the returns.” Brapiey, J. Kountze v. Omaha Hotel Co., 107 U. S, 381. Common-law Rule Changed. “The law there [in England] has been changed. And here, the writ is of itself no supersedeas.” Stronc, J. Hunnicutt v. Peyton, 102 U. S. 356, Appeal. “In England, until the year 1772, an ap- peal from a decree or order in chancery sus- pended all proceedings; but since that time a contrary rule has prevailed there. The subject was reviewed by the House of Lords in 1807, and an order was made establish- ing the right of the chancellor to determine whether and how far an appeal should be suspensive of proceedings, subject to the order of the House on the same subject.” Brabiey, J. Hovey v. McDonald, 109 U. S. 160. “Independent of statutory regulations, the term supersedeas has little or no application in equity suits, as the rule is well settled in the English courts that an appeal in chancery does not stop the proceedings under the decree from which the appeal was taken without the special order of the sub- ordinate court.’ Cuirrorp, J. Slaughter- house cases, 10 Wall. 296. “Generally speaking an appeal, upon giv- ing the security required by law (when se- curity is required), suspends further proceed- ings, and operates as a supersedeas of execution. This, as we have seen, is the case in the circuit courts of the United States. But the decree itself, without further proceedings, may have an intrinsic effect which ‘can only be suspended by an affirma- tive order, either of the court which makes the decree, or of the appellate tribunal.” Braviey, J. Hovey v. McDonald, 109 U. S. 160. “Proceedings are stayed in the courts of New York by appeal in a chancery suit to the 158 APPEAL AND ERROR. extent that if the party desires to proceed, notwithstanding the appeal on the point from which the appeal was taken, he must make application to the chancellor for leave. Dif- ferent rules upon the subject prevail in dif- ferent jurisdictions, but the Act of .Con- gress provides that appeals in the federal courts shall be subject to the same rules, regulations, and restrictions as are prescribed in case of writs of error.” CLIFFoRD, J. Slaughter-House Cases, 10 Wall. 296. Appeal from Order Denying or Dissolv- ing Injunction. “Tt seems to be well settled everywhere, in suits in equity, that an appeal from the de- cision of the court denying an application for an injunction does not operate as an injunction or stay of the proceedings pend- ing the appeal. Neither does an appeal from an order dissolving an injunction suspend the operation of the order so as to entitle the appellant to stay the proceedings pend- ing the appeal, as matter of right, either in a suit at law or in equity.” Cz1FForp, J. Slaughter-House Cases, 10 Wall. 297. Prerequisites to Effect Stay — Lodging of Writ and Filing Bond. “In order that a writ of error may op- erate as a supersedeas, it is necessary that a copy of the writ should be lodged for the adverse party in the clerk’s office where the record remains, and that the bond approved by the judge allowing the writ should also be filed there.” Waste, C. J. Board of Com’rs v. Gorman, 19 Wall. 663. “This writ, [of error] to operate as a supersedeas, must be issued within ten days after the rendition of the judgment, and on security being given for a sum exceeding the amount of the judgment.” McLean, J. U.S. v. Addison, 22 How. 184. “Whenever a defendant sues out a writ of error, and he desires that it may operate as a supersedeas, he is required to do two things, and if either is omitted, he fails to accomplish his object: 1, he must serve the writ of error as aforesaid, within ten days, ‘Sundays exclusive,’ after the rendition of the judgment; and 2, he must give bond with sureties to the satisfaction of the court, for the benefit of the plaintiff, in a sum sufficient to secure the whole judgment in case it be affirmed. Security for costs only is required of the defendant when the writ of error sued out by him does not stay the execution, and he is not compelled, in any case, to make the writ of error a superse- deas, although it may be sued out within ten days after the judgment.” CxrrrorD, J. U. S. v. Dashiel, 3 Wall. 701, “If the bare notice or declaration of an intention to bring a writ of error will in- validate what is afterwards done, should the judgment at any future day be reversed, it would virtually, in many cases, amount to a stay of proceedings on the execution. No such rule is necessary for the protection of the rights of the parties. The writ of error may be so taken out as to operate as a super- sedeas. Or, if a proper case can be made for the interference of a court of chancery, the execution may be stayed by injunction.” TuHompson, J. U. S. Bank v. Washington Bank, 6 Pet. 17. “The Acts of Congress proceed upon a wholly different principle. They allow a party to take an appeal or bring a writ of error, but neither proceeding removes the record into the appellate court, as the case may be heard there upon the transcript of the record, the original remaining in the in- ferior court. Unless the plaintiff in error or the appellant takes the other step which the law prescribes, the court which rendered the judgment complained of can proceed to ex- ecute its judgment or its decree, though the case be pending in the appellate court. In fact, unless the other step mentioned be taken, a valid sale of his property may be made at the very moment when the ap- pellate court is deciding to reverse the judg- ment or the decree on which it is sold. This other step, then, which the party ap- pealing may take, and thereby totally suspend the power of the inferior court to proceed, is wholly and absolutely statutory. It is here for consideration in this case, and should be decided alone on the language and meaning of the statute. This step is the giving of a bond which, because it has the effect of suspending the action of the inferior court, is called a supersedeas bond, in analogy to the effect of a writ of supersedeas in the English law from the superior to the inferior court.” Miter, J., dissenting. Kountze v. Omaha Hotel Co., 107 U. S, 397, “Previous cases had shown great oppres- sion in exacting security in an excessive amount to stay execution in cases where but little damage could accrue to the appellee, because, as in case of proceedings in rem, where there was no personal liability, and there could be no loss except from the delay, and in cases of mortgage foreclosures, where there could be no other decree but for a sale of the property. The result was the adoption of that rule, in which the court 159 , APPEAL AND ERROR. undertook to define what damages were al- lowable in the various classes of cases where the plaintiff in error or the appellant ob- tained a stay of execution or supersedeas pending the appeal. This rule was intended for the guidance of the judges whose duty it was to approve bonds in appeals or writs of error. It was the construction of the members: of the court of that day as to the damages which, in the various kinds of cases mentioned in it, the party who had ob- tained a supersedeas, and had failed in his appeal, was liable under the act of Con- gress to pay for his false clamor to the party whom he had unjustly delayed after final judgment against him, for only final judgments can be reviewed in this court.” Mittrr, J., dissenting. Kountze v. Omaha Hotel Co., 107 U. S. 398. “Writs of error issued under the twenty- fifth section of the Judiciary Act have the same effect as if the judgments or decrees were rendered in a Circuit Court, and they operate as a supetsedeas and stay execution only where the writ of error is served by a copy thereof being lodged for the adverse party in the clerk’s office where the record remains, within ten days, Sundays exclusive, from the date of the judgment or decree. Such a writ of error is in the nature of a commission by which the judges of one court are authorized to examine a record upon which a judgment or decree was given in another court, and on such examination to reverse or affirm that judgment or decree.” CiirForD, J. Slaughter-House Cases, 10 Wall. 290. “ Exceptional cases arise where the judg- ment or decree given on appeal in the high- est court of a state is required by the law of the state to be returned to the subordinate court for execution, and in such cases it is held that the writ of error from this court may operate as a supersedeas, if granted and served at any time within ten days from the return entry of the proceedings in the court from which the record was removed, but in all other cases the writ,of error must be is- sued and served within ten days from the date of the judgment or decree, in order that it may operate as a supersedeas and stay execution.” CuirForD, J. Slaughter-House Cases, 10 Wall. 291. “Power to issue a supersedeas to a judg- ment issued in a subordinate court does not exist in this court where the writ of error is not sued out and served within ten days from the date of judgment, except where the aggrieved party is obliged to sue out a sec- ond writ of error in consequence of the neglect of the clerk below to send up the record in season, or where the granting of such a writ is necessary to the exercise of the appellate jurisdiction of the court, as where the subordinate court improperly re- jected the sureties to the bond because they were not residents of this district.” Cxir- ForD, J. Slaughter-House Cases, 10 Wall. 291. : “One general rule in all cases (subject, however, to some qualifications) is that an appeal suspends the power of the court be- low to proceed further in the cause. This includes a suspension of the power to ex- ecute the judgment or decree. But, of course, besides merely taking an appeal, those additional things must be done which the law requires to be done, in order to give to the appeal a suspensive effect, whether it be security for the payment of the claim or other condition imposed by law.” Braontey, J. Hovey v. McDonald, 109 U. S. 157. —— Appeal Must Be Taken or Writ of Error Sued Out. “A supersedeas cannot be allowed except as an incident to an appeal actually taken or a writ of error actually sued out.” Watrte, C. J. Ex p. Ralston, 119 U. S. 615. —— Strict Compliance with Statute. “A supersedeas is a statutory remedy. It is only obtained by a strict compliance with all the required conditions, none of which can be dispensed with.” Warts, C. J. Sage v. Iowa Cent. R. Co., 93 U. S. 417. ——In What Court Perfected. “While we agree that in a proper case, after an appeal or writ of error taken here. this court may interfere and require addi- tional security upon a supersedeas, it will not attempt to direct or control the discretion of a judge or justice in respect to a case as it existed when he was called upon to act, except by the establishment of rules of prac- tice.” WarTE, C. J. Jerome v. McCarter, 21 Wall. 31. Form of Supersedeas. “Form of the supersedeas at common law was ‘that if the judgment be not executed before the receipt of the supersedeas, the sheriff is to stay from executing any proc- ess of execution until the writ of error is determined.” CtirForp, J. U.S. v. Dashiel, 3 Wall. 700, 160 APPEAL AND ERROR. Effect of Supersedeas— Operates Only on Future Proceedings. “Execution cannot issue upon the judg- ment until the expiratian of ten days, ex- clusive of Sundays, from the entry thereof. If the writ of error and bond are filed be- fore the expiration of the ten days, no ex- ecution can issue so long as the case in er- ror remains undisposed of, Notwithstanding this, under the provisions of the Act of 1872 [17 U. S. Stat. at L, 198, § 11], upon the filing of the bond within sixty days from the time of the entry of the judgment a supersedeas may be obtained. Such a supersedeas, how- ever, stays proceedings only from the filing of the bond. It prevents further proceed- ing under an execution which has been is- sued but does not interfere with what has already been done.” Waite, C. J. Board of Com’rs v. Gorman, 19 Wall. 663. “Writs of error at common law, whether sued out by plaintiff or defendant, operated in all cases as a supersedeas; but it has never been heard in a court of justice since the decision in the case of Meriton v. Ste- vens [Willes 282], that they had any re- troactive effect, or any effect at all, until they were allowed and served.” CuiFForp, J. U. S. v, Dashiel, 3 Wall. 701. — On Appeal in Equity. “A supersedeas upon the appeal of a syit in equity operates to stay the execution of the decree appealed from.” Warts, C. J. Goddard v, Ordway, 94 U. S. 672. — Prevents Proceedings Below Except for Preservation of Rights. “Judgments and decrees of the Circuit Court are brought here for re-examination, and so are the judgments and decrees of a state court, and the only effect of a superse- deas is to prevent all further proceedings in the subordinate court except such as are necessary to preserve the rights of the parties.” CiiFForD, J. Slaughter-House Cases, 10 Wall. 297. “The writ of inhibition is a proper and necessary writ, not because it suspends the effect of the decree, for that is already done by the appeal; but because it enables the court of appellate jurisdiction, in case of disobedience, to punish the inferior court as being in contempt.” Paterson, J. Penhal- low wv. Doane’s Admr’s, 3 Dall. 87. — Lower Court May Perfect Its Judg- ment or Decree. “One of the qualifications of the general tule as to the suspensive effect of an appeal 1 Os. Dic.—i1 is, that the inferior court may perfect its judgment or decree, usually at any time dur- ing the term at which it is rendered.” Brapiey, J. Hovey v. McDonald, 109 U. S. 157, —— Effect on Levy of Execution. “Where the execution is issued before the writ of error is sued out, if the sheriff has commenced to levy under the execution, he must proceed to complete what he has begun; but when notified of the writ of error he has not commence to levy, he cannot obey the command of the execution.” CLIFFORD, J. U.S. uv, Dashiel, 3 Wall. 702, “Even the levy of the execution after the supersedeas has commenced to operate is no bar to the writ of error; but the court, on due application, will enjoin the proceedings and set the execution aside, and it has been held that the sheriff and all the parties act- ing in the matter are liable in trespass,” CurFForD, J. U. S. uv. Dashiel, 3 Wall. 702. “Settled construction of that order [of supersedeas] was, ‘that if the execution be begun before a writ of error or supersedeas is delivered, the sheriff ought to proceed to complete the execution so far as he has gcene.’” Cuirrorp, J. U. S. uv. Dashiel, 3 Wall. 700. “It [a supersedeas] operates from the time of the completion of those acts which are requisite to call it into existence. If, before those acts are performed, an execution has been lawfully issued, a writ of supersedeas directed to the officer holding it will be nec- essary; but if the writ of execution has been not only lawfully issued, but actually executed there is no remedy until the ap- pellate proceedings are ended.” Brantey, J. Hovey v. McDonald, 109 U. S. 159. “The levy of an execution takes effect from the time when it is made of seizing the property, and is not defeated by a subse- quent writ of supersedeas, but all the pro- ceedings, by sale or otherwise, in the due course and completion of the levy, for col- lecting the debt out of the property, have relation back to the time of the seizure.” Gray, J. Freeman v. Dawson, 110 U. S. 270. Effect of Failure to Obtain Supersedeas. “Tf the judgment or decree be reversed a writ of restitution will be awarded.” Brav- Ley, J. Hovey v. McDonald, 109 U. S. 159. “A defendant in an action of ejectment may bring a writ of error, and failing to give a supersedeas bond, may submit to the judg- 1 APPEARANCE. ment by giving possession of the land, which he can recover if he reserves the judgment by means of a writ of restitution.” MILLER, J. Dakota County v. Glidden, 113 U. S. 224. APPEARANCE. By Whom Made. “A natural person may appear for himself. But when he waives this privilege, and elects to appear by attorney, no reason is perceived why the same evidence should not be required, that the individual professing to represent him has authority to do so, which would be required if he were in- capable of appearing in person.” MarsHALL, C. J. Osborn vw. Bank of U. S., 9 Wheat. 830. “Natural persons may appear in court, either by themselves or by their attorney. But no man has a right to appear as the attorney of another, without the authority of that other. In ordinary cases, the au- thority must be produced, because there is, in the nature of things, no prima facie evidence that one man is in fact the at- torney of another. The case of an attorney- at-law, an attorney for the purpose of rep- resenting another in court, and prosecuting or defending a suit in his name, is some- what different. The power must indeed ex- ist, but its production has not been con- sidered as indispensable. Certain gentle- men, first licensed by government, are ad- mitted by order of court, to stand’ at the bar, with a general capacity to represent all the suitors in the court. The appearance of any one of these gentlemen in a cause, has always been received as evidence of his authority.” MarsHatt, C. J. Osborn vw. Bank of U. S., 9 Wheat. 829. “No reason is perceived why the courts of chancery should be more rigid in exacting the exhibition of a warrant of attorney than a court of law; and, since the practice has, in fact, been the same in both courts, an appellate court ought, we think, to be gov- erned in both by the same rule.” MarsHALL, C J. Osborn v. Bank of U. S., 9 Wheat. 831. Effect of Appearance. “A general appearance waives all question of the service of process. It is equivalent to a personal service. The question of ju- risdiction only is saved.” Huwrt, J. Creigh- ton v. Kerr, 20 Wall. 12. 2 “An appearance which waives the objec- tion of jurisdiction over the person, is a voluntary appearance, and this may be ef- fected in many ways, and sometimes may result from the act of the defendant even when not in fact intended.” Futter, C. J. Wabash Western R. Co. v. Brown, 164 U. S. 278, “Upon the strictest rules which govern in courts of common law, objections to the regularity of the process, to enforce an ap- pearance, would be considered as removed by the appearance of the party, and pleading to the merits.’ WasHincton, J. The Merino, etc., 9 Wheat. 401. “Tt by no means follows, as seems to be supposed by counsel who resist this motion, that if parties appear and without objection go to a hearing in a cause docketed after the return term, our judgment will be void for want of jurisdiction.” WarrTr, C. J. Grigsby v. Purcell, 99 U. S. 507. “ Appearance to a suit does impose a fresh liability. If there is no doubt of the validity of the demand, it places that demand in a position to be made a debt of record. If there is doubt of it, it renders the defendant liable to have it adjudicated against him, when, perhaps, he has a good defence to it.” Braptey, J. Hall v. Lanning, 91 U. S. 170. Special Appearance. “An appearance which is solely to challenge the jurisdiction, is not a gen- eral appearance in the cause, and does not waive the illegality of the service or sub- mit the party to the jurisdiction of the court.” Brewer, J. York v. Texas, 137 U. S. 20. “Trregularity in a proceeding by which jurisdiction is to be obtained is in no case waived by a special appearance of the de- fendant for the purpose of calling the at- tention of the court to such irregularity.” Gray, J. Goldey v. Morning News, 156 UL. S. 526. © Withdrawal of Attorney After Appearance. “The appearance of the defendant may remain, although the attorneys, by whom it was entered, have withdrawn. Its effect cannot be annulled by such withdrawal.” Hunt, J. Creighton v. Kerr, 20 Wall. 13. Acts Appertaining to Settlement Distin- guished. “ Appearance to a suit is a very different thing from those ordinary acts which appear- tain to a general settlement of business, such as a receipt and payment of money, giving 162 ARBITRATION AND AWARD. acquittances, and the like. If a suit be brought against all the partners, and only one of them be served with process, he may undoubtedly, in his own defence, show, if he can, that the firm is not liable, and to this end defend the suit.” Braptey, J. Hall v. Lanning, 91 U. S. 165. Authority of Copartners. “The law, indeed, does not seem entirely clear that a partner may enter an appear- ance for his copartners without special au- thority, even during the continuance of the firm. It is well known, that by the English practice, in an action on any joint contract, whether entered into by partners or others, if any defendant cannot be found, the plain- tiff must proceed to outlawry against him before he can prosecute the action; and then he declares separately against those served with process, and obtains a separate judg- ment against them, but no judgment except that of outlawry against the defendant not found.” Braptey, J. Hall v. Lanning, 91 U.S. 166. Appearance in Foreign Jurisdiction. “Tt is now settled in England that, while an appearance by the defendant in a court of a foreign country, for the purpose of pro- tecting his property already in the posses- sion of that court, may not be deemed a voluntary appearance, yet an appearance solely for the purpose of protecting other property in that country from seizure is con- sidered as a voluntary appearance.” Gray, J. Hilton v. Guyot, 159 U. S. 204. Effect of Unauthorized Appearance. “ [Domestic judgments] if regular on their face, and if appearance has been duly entered for the defendant by a responsible attorney, though no process has been served and no appearance authorized, will not necessarily be set aside; but the defendant will sometimes be left to his remedy against the attorney in an action for damages; other- wise, as has been argued, the plaintiff might lose his security by the act of an officer of the court.” Braptey, J. Hall v. Lanning, 91 U. S. 167. —— By Partner. “Where an appearance has been entered by authority of one of several copartners on behalf of all, it may well be that the courts of the same jurisdiction will be slow to set aside the judgment, unless it clearly appears that injustice has been done; and will rather leave the party who has been injured by att unauthorized appearance to his action for damages.” Bravtey, J. Hall v. Lanning, 91 U.S. 168. APPLICATION OF PAY- MENTS. See PAYMENT. APPOINT. “Tt has been said that the word ‘appoint’ is not the most appropriate word to describe the result of a popular election. Perhaps not; but it is sufficiently comprehensive to cover that mode.” Futter, C. J. McPher- son v. Blacker, 146 U. S. 27. APPORTIONMENT. “Contribution and apportionment are rec- ognized heads of equity jurisdiction, and if it be assumed that process could issue directly against the citizens to collect the debt of the city, a court of equity could make the apportionment more conveniently than could a court of law.” Hunt, J. Rees v. Water- town, 19 Wall. 124. APPRENTICES. “An [infant] apprentice serving his master pursuant to terms permitted by the law can- not, in any proper sense, be said to be in a condition of involuntary servitude. Upon arriving at his majority, the infant apprentice may repudiate the contract of apprentice- ship, if it extends beyond that period.” Haran, J., dissenting. Robertson v. Bald- win, 165 U. S. 298. And see INFANTS; INVOLUNTARY SERVITUDE. ARBITRATION AND AWARD. I. THE ARBITRATORS. II. THe Supmission. 1. Who May Submit. 2. Provisions in Contracts. 3. Scope and Sufficiency. 4, Revocation. III. Tue Awarp. IV. ErrectT oF ARBITRAMENT — Op- JECTIONS. 1. Conclusiveness in General. 2. In References under Rule of Court. 3. Examination of Arbitrators as Wit- nesses. CROSS-REFERENCE. See TREATIES: I. THE ARBITRATORS. Definition. “Arbitrators are judges chosen by the parties to decide the matters submitted to them, finally and without appeal.” Grrr, J. Burchell v. Marsh, 17 How. 349. 163 ARBITRATION AND AWARD. II. THE SUBMISSION. 1. WHo May Supsmit. Dependent upon Right to Contract. “The proposition that an independent agreement to submit to an award must de- pend for its validity upon the existence of the right to contract is so elementary that further citation of authority to support it is unnecessary.” Wuuite, J. District of Co- lumbia v. Bailey, 171 U. S, 173. Municipal Corporation. >“ The power of a municipal corporation to arbitrate arises from its authority to liquidate and settle claims.” Wuuts, J. District of Columbia v. Bailey, 171 U. S, 172, “Tt was because a submission to arbitration had the force of a contract, that at common law a submission by a corporation aggregate was required to be the act of the corporate body, . . . which act was of necessity re- quired to be evidenced in a particular man- ner.”” Wuits, J. District of Columbia wv. Bailey, 171 U. S. 171. “There is no authority for holding that a mere administrative officer of a municipal corporation, simply because of the absence of a statutory inhibition, has the power, with- out the consent of the corporation speaking through its municipal legislative body, to bind the corporation by a common law sub- mission.” Wurtz, J. District of Columbia v, Bailey, 171 U. S. 176, Executor. “Tt is true that an executor, at common law, had the power to submit to an award. But this power arose by reason of the full dominion which the law gave the executor or administrator over the assets, and the full discretion which it vested in him for the settlement and liquidation of all claims due to and from the estate,” Wuuts, J, District of Columbia v, Bailey, 171 U. S. 172. “Whilst the agreement of the ex- ecutor to a common law submission was binding upon him, such a consent on his part did not protect him from being called to an account by the beneficiaries of the estate, if the submission proved not to be to their advantage, because the submission was the voluntary act of the executor and was not the equivalent of a judicial finding.” Wuirs, J. District of Columbia v. Bailey, 171 U. S. 172. Power of Attorney to Consent to Ref- erence. “Tt is believed to be the practice through- out the union for suits to be referred by consent of counsel without special authority, and this universal practice must be founded on a general conviction that the power of an attorney at law over the cause of his client extends to such a rule. Were it other- wise, courts could not justify the permission which they always grant, to enter a rule of reference when consented to by counsel on both sides.’ MarsHatt, C. J. Holker v. Parker, 7 Cranch 449, 2. PROVISIONS IN CONTRACTS. “Tt is competent for parties to a con- tract . . . to make it a term of the con- tract that the decision of an engineer, or other officer, of all or specified matters of dispute that may arise during the execu- tion of the work shall be final and con- clusive, and in the absence of fraud or of mistake so gross as to necessarily im- ply bad faith, such decision will not be subjected to the revisory power of the courts.” Sutras, J. U. S. vw. Gleason, 175 U.S. 602. Condition Precedent to Suing. “A provision, in a contract for the pay- ment of money upon a contingency, that the amount to be paid shall be submitted to arbitrators, whose award shall be final as to that amount, but shall not determine the general question of liability, is undoubtedly valid, If the contract further provides that no action upon it shall be maintained until after such an award, then . the award is a condition precedent to the right of action, But when no such condition is expressed in the contract, or necessarily to be implied from its terms, it is equally well settled that the agreement for submitting the amount to arbitration is collateral and inde- pendent; and that a breach of this agree- ment, while it will support a separate action, cannot be pleaded in bar to an action on the principal contract.” Gray, J. Hamilton zw. Home Ins. Co., 137 U. S. 385. 83. ScopE AND SUFFICIENCY. Must Agree to Be Bound. “In order to clothe a person with the authority of an arbitrator, the parties must mutually agree to be bound by the decision of the person chosen to determine the mat- ter in controversy.” Grier, J. Gordon wv. U.S, 7 Wall. 194. 164 ARBITRATION AND AWARD. Reference of Action. “The law is well settled, that by the reference of an action to the determination of an arbitrator, nothing is included in the submission but the subject-matter involved in it.’ CAMPBELL, J. York, etc, R. Co. w. Myers, 18 How. 252. 4, REVOCATION. After Award. “Tt is always in the powet of parties to compromise their differences. One way of doing this is by arbitrators, mutually chosen, but from stch submission neither party is at liberty to withdraw after the award is made.” Davis, J. U.S. v. Justice, 14 Wall. 549. III. THE AWARD. Mutuality. “An arbitrament and award which con- cludes one party only is certainly an anomaly in the law.” Grier, J. Gordon v. U. S., 7 Wall. 195. “Great stress was laid, in the early cases, upon the mutuality of an award; but at present, it is by no means considered neces- sary that each party should be directed to do, or not to do, any particular thing.” Trim- BLE, J. Karthaus v. Ferrer, 1 Pet. 230. Finality. “An award is regarded as final, when it is an absolute conclusive adjudication of the matters in dispute.” TrimBie, J. Kar- thaus v. Ferrer, 1 Pet. 230. Good in Part and Bad in Part. “An award may be good in part, and bad in part.” Trimpiz, J. Karthaus v. Fer- rer, 1 Pet. 227. Presumption of Correctness. “Arbitrators as well as courts are pre- stimed to decide correctly until the contrary appears, and if the party desires that the decision of such a tribunal shall be re-exam- ined by an appellate court he must see that the means for such a review is embodied in the record.” CxiFForD, J. Reedy v. Scott, 23 Wall. 367. Iv. EFFECT OF ARBITRAMENT — OBJECTIONS. 1. CONCLUSIVENESS IN GENERAL, Bar to Future Litigation. [A final award] “will operate as a bar to any future litigation.’ Trrmpie, J. Karthaus v. Ferrer, 1 Pet. 230. “An award may be pleaded to a bill, to set aside the award and open the account.” M’Lean, J., dissenting. Rhode Island »v. Massachusetts, 14 Pet. 269. Error of Law or Fact. “As a mode of settling disputes, it [arbi- tration] should receive every encouragement from courts of equity. If the award is within the submission, and contains the honest de- cision of the arbitrators, after a full and fair hearing of the parties, a court of equity will not set it aside for error, either in law or fact. A contrary course would be a sub- stitution of the judgment of the chancellor in place of the judges chosen by the parties, and would make an award the commence- ment, not the end, of litigation.” Grrzr, J. Burchell v. Marsh, 17 How. 349. “Where the award finds facts it is con- clusive, where it finds or announces concrete propositions of law, unmixed with facts, its mistake, if one is made,' could not have been corrected in the court below, and can be corrected here. Where a proposition is one of mixed law and fact, in which the er- ror of law, if there be one, cannot be dis- tinctly shown, the parties must abide by the award.” Muier, J. U. S. vw Farragut, 22 Wall. 420. “Courts should be careful to avoid a wrong use of the word ‘mistake,’ and by making it synonymous with mere error of judgment, assume to themselves an arbitrary power over awards.” Grier, J. Burchell v. Marsh, 17 How. 350. Between States. “Where they [arbitration principles] are invoked in the settlement of disputes be- tween states, and the proceeding is charac- terized by fairness and good faith, it is not to be set aside, and indeed cannot be; with- out . . . ptfoving by the clearest evidence that the award was the offspring of cor- ruption or flagrant partiality. And if the de- termination of the arbitrators has the sanc- tion of time as well as principle, it is believed that history affords no instance where it has not been considered as absolutely bind- ing on the parties. The peace of nations, and the prosperity of mankind, require that compacts thus formed should be held sacred.” M’Lean, J., dissenting. Rhode Island v. Massachusetts, 14 Pet. 276. International Arbitration. “We might well doubt the soundness of any conclusion that could be regarded as weakening or tending to weaken the force 165 ARMY AND NAVY. that should be attached to the finality of an award made by an international tribunal oi arbitration.” La Abra Silver Min. Co. wv. U.'S., 175 U. S. 463. “International arbitration must always proceed on the highest principles of national honor and integrity. Claims presented and evidence submitted to such a tribunal must necessarily bear the impress of the entire good faith of the government from which they come, and it is not to be presumed that any government will for a moment allow it- self knowingly to be made the instrument of wrong in any such proceeding.” ‘WalrE, C. J. Frelinghuysen v. Key, 110 U. S. 73. “Every citizen who asks the intervention of his own government against another for the redress of his personal grievances must necessarily subject himself and his claim to these requirements of international comity.” Warts, C. J. Frelinghuysen v. Key, 110 U.S. 73. 2. In REFERENCES UNDER RULE OF Court. “Tnquisitions like the present one bear a strong analogy in many respects to the report or award of referees appointed under a rule of court, to whom is referred a pend- ing action. Referees in such cases make their report to the court; and in such a case the report, unlike an award at common law, must be confirmed before the prevailing party is entitled to the benefit of the finding of the referees. When the report is filed in court, the losing party may file objections in writing to the confirmation of the re- port, and may introduce evidence in support of the objections; and it is well-settled law, that the ruling of the court in overruling such objections is the proper subject of a bill of exceptions.” CiiFForD, J. Baltimore, etc., R. Co. v. Sixth Presbyterian Church, 91 U.S. 131. 3. EXAMINATION OF ARBITRATORS AS WITNESSES. “Te has been held that an arbitrator can be a witness as to the time when, and the circumstance in which he made an award, with a view to show that, by the terms of the submission, he was not authorized to make the award, as to the fact that the arbitrators did not examine or act upon a certain matter, as to facts which occurred at or during the arbitration, and which tend to show the award to be void for legal cause, and as to whether a certain claim was included in the award. The same principle has been applied in a case of a tribunal called a jury, ap- pointed to assess damages and apportion ben- efits in the widening of a street; . and in the case of commissioners appointed to condemn land for railroad purposes.” BLatcHrForD, J. Oelbermann v. Merritt, 123 U. S. 367. ‘i “The practice prevails in the courts, where rules of reference are in use, to ex- amine the arbitrators as witnesses, to ascer- tain facts material to the validity of the award; and the appellate courts are accus- tomed to revise their decisions.” CAMPBELL, J. York, etc, R. Co. v. Myers, 18 How. 252. ARMS. As to the right to bear arms, see CONCEALED WEAPONS. ARMY AND NAVY. I. GENERAL QUESTIONS. II. Rartstnc anp SUPPORTING. 1. Power. 2. Enlistment — Nature of Contract. 3. Pay, Allowances, and Reward. a. Control of Congress. b. Amounts and How Graduated. c. Forfeiture. d. Reward and Bounty. 4. Commutation for Fuel and Quarters. 5. Commissary. III. Auruority OVER. 1. In General — To What Law Subject. 2. President as Commander in Chief. 3. Amenability to General Laws. IV. PERSONNEL AND CoNnDUCT. V. Proper Use or Mivitary Power. AND JURISDICTION CROSS-REFERENCES. As to the domicil of a military officer, see DomiIcit. See also Arrest; Conpuct UNBECOMING AN OFFICER AND A GENTLEMAN; CourTSs MartTIAL; DEsERTION; MartiaL Law; MILr- TARY Law; Mitit1A; War. I. GENERAL QUESTIONS. Nature of Army. “An army is not a deliberative body. It is the executive arm. Its law is that of obedi- ence.” Brewer, J. Jn re Grimley, 137 U. S. 153. 166 ARMY AND NAVY. Ship of War. “The mere commissioning of a ship does not make her a ship of war, but merely in- dicates that she is assigned to active serv- ice.” Brown, J. Tucker v. Alexandroff, 183 U. S. 445. II. RAISING AND SUPPORTING. 1. PoweEr. In General. “Among the powers assigned to the na- tional government, is the power ‘to raise and support armies,’ and the power ‘to pro- vide for the government and regulation of the land and naval forces.’ The execution of these powers falls within the line of its duties; and its control over the subject is plenary and exclusive. It can determine, without question from any state authority, how the armies shall be raised, whether by voluntary enlistment or forced draft, the age at which the soldier shall be received, and the period for which he shall be taken, the compensation he shall be allowed, and the service to which he shall be assigned. And it can provide the rules for the govern- ment and regulation,of the forces after they are raised, define what shall constitute mili- tary offences, and prescribe their punishment. No interference with the execution of this power of the national government in the formation, organization, and government of its ‘armies by any state officials could be permitted without greatly impairing the efficiency, if it did not utterly destroy, this branch of the public service.” Fietp, J. Tarble’s Case, 13 Wall. 408. “This power [of Congress to provide for carrying on war] necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with ‘the command of the forces and the conduct of campaigns. That power and duty belong to the President as com- mander in chief.” Cuasg, C. J. Ex p. Mil- ligan, 4 Wall. 139. Right to Exact Military Service. “The government has the right to the military service of all its able-bodied citi- zens; and may, when emergency arises, justly exact that service from all.” Brewer, J. In re Grimley, 137 U. S. 153. 2. ENLISTMENT — NATURE OF CoNn- TRACT. Change of Status. “Enlistment is a contract; but it is one of those contracts which changes the status; and, where that is changed, no breach of the contract destroys the new status or re- lieves from the obligations which its exist- ence imposes..” BREWER, J. In re Grimley, 137 U. S. 151. “By enlistment the citizen becomes a soldier. His relations to the state and the public are changed. He acquires a new status, with correlative rights and duties; and although he may violate his contract obligations, his status as a soldier is un- changed. He cannot of his own volition throw off the garments he has once put on, nor can he, the state not objecting, re- nounce his relations and destroy his status on the plea that, if he had disclosed truth~ fully the facts, the other party, the state, would not have entered into the new rela- ‘tions with him, or permitted him to change his status. Of course these considerations may not apply where there is insanity, idiocy, infancy, or any other disability which, in its nature, disables a party from changing his status or entering into new relations. But where a party is sui juris, without any disa- bility to enter into the new relations, the rule generally applies as stated.” BREWER, J. In re Grimley, 1837 U. S. 152. “An enlistment is not a contract only, but effects a change of status.” BREWER, J. In re Morrissey, 137 U. S. 159. “Tt [an enlistment] is not . like an ordinary contract, voidable by the infant.” Brewer, J. In re Morrissey, 137 U. S. 159. “ At common law an enlistment was not voidable either by the infant or by his par- ents or guardians.” Brewer, J. In re Mor- rissey, 137 U. S. 159. “Service in the army or navy of one’s country according to the terms of enlist- ment never implies slavery or involuntary servitude, even where the soldier or sailor is required against his will to respect the terms upon which he voluntarily engaged to serve the public.” Haran, J., dissent-~ ing. Robertson v. Baldwin, 165 U. S. 298. Change of Status not Affected by Mis- conduct of Party. “Tt is a general rule accompanying a change of status, that when once accom- plished it is not destroyed by the mere mis- conduct of one of the parties, and the guilty party cannot plead his own wrong as work- ing a termination and destruction on there- of. Especially is he debarred from plead- ing the existence of facts personal to himself, existing before the change of status, the 167 ARMY AND NAVY, entrance into new relations, which would have excused him from entering into those relations and making the change, or if dis- closed to the other patty, would have led it to declare admission info the relation, or consent to the change.” Brewer, J. In re Grimley, 187 U. S. 152. 3. Pay, ALLOWANCES, AND REWARD. a. Control of Congress. “Inasmuch as Congress has full control over the matter of salaries [of naval officers] it can at any time appropriate to these officers such a stim as will make their sal- aries that which they contend was intended by the Act of March 3, 1899.” Brewer, J. Rodgers v. U. S., 185 U. S. 92. “Tt is not in the power of the executive department, or any branch of it, to reduce the pay of an officer of the army. The regu- lation of the compensation of the officers of the army belongs to the legislative depart- ment of the government.” Hunt, J. U. S. v. Williamson, 23 Wall. 416. b. Amounts and How Graduated. Rank. “Rank of itself, in every service, is a good ground for a distinction in pay; and though it has not been followed, or has tather been abandoned in ours, in favor of the brevet rank of officers in the line and staff, it should be presumed to apply to persons having rank, and those who have none.” Wayne, J. Wetmore v. U. S., 10 Pet. 654. Retired Officer. “A retired officer is not entitled to have active service credited in regulating his pay after his active service has ceased.” Gray, J. U.S. uv. Alger, 151 U. S. 364. —— Longevity Pay. “Tt is contended that, because Congress graduated the pay of officers on the active list by the length of their time of service, officers not on the active list are entitled to the same increase. But the contrary is the true construction. By omitting retired officers from the class entitled to longevity pay, Congress expressed its purpose not to allow them longevity pay. No other con- struction can be put upon the law without importing into it words which Congress has left out, namely, that besides the pay to which his grade or rank at the date of his retirement entitled him, the retired officer should also receive, for every period of five years after his retirement, the increased pay allowed officers on the active list. To give the statute this meaning would be legis- lation and not interpretation.” Woops, J. Thornley v. U. S., 113 U. S. 314. “By no act, therefore, since the fourida- tion of the government, has Congress ever given longevity pay to officers of the navy, except those on duty at sea, or on the active list of the navy.” Woops, J. Thornley v. U. S., 113 U. S. 314. “Tts [U. S. Rev. Stat. sec. 1588] plain meaning is that the pay of a retired officer shall be three-fourths of the ‘sea-pay to which he was entitled when he was retired.” Woops, J. Thornley v. U. S., 113 U. S. 314. “Sea Service "— Receiving Ship. “Service on a receiving ship, even if she is anchored in a navy yard, and not in a condition to go to sea, is ‘sea service,’ with- in the meaning of the statute giving officers ‘at sea’ a higher rate of pay than when ‘on shore duty.’” Gray, J. Johnson v, Sayre, 158 U. S. 116. ¢. Forfeiture. For Desertion. “Forfeitute of pay and allowances up to the time of desertion [of a soldier] follows from the conditions of the contract of en- listment, which is for faithful service. The contract is an entirety; and, if service of atty portion of the time is criminally omit- ted, the pay and allowances for faithful service are not earned. And, for the purpose of determining the rights of the soldier to re- ceive pay and allowances for past services, the fact of desertion need not be established by the findings of a court-martial: it is suf- ficient to justify a withholding of the moneys that the fact appears upon the mus- ter-rolls of the company. If the entry of desertion has been improperly made, its can- cellation can be obtained by application to the War Department. But forfeiture of pay and allowances for future services, as a condition of restoration to duty, can only be imposed by a court-martial.” Frep, J. U. S. v. Landers, 92 U. S. 79. — Restoration. “An unconditional restoration, or one with conditions subsequently complied with may leave the soldier who has deserted in as favorable condition for stbsequent pay and bounty as though no offence had been committed by him; but it is otherwise when conditions inconsistent with such pay or bounty are attached to the restoration, or are 168 ARMY AND NAVY. imposed as a punishment for a previous mil- itary offence.” Fretp, J. U. S. uv. Landers, 92 U. S. 80. d. Reward and Bounty. National Object. “From the very beginning of our exist- ence as a hation, the reward of military ser- vice has been treated as a national object and a public use, to which the national do- main might justly and lawfully be applied.” Gray, J. Five Per Cent Cases, 110 U. S. 483. Bounty Not a Gratuity. “Land or money, other than current sal- ary or pay, granted by the government to a person entering the military or naval ser- vice of the country, has always been called a bounty; and while it is by no means a gratuity, because the promise to grant it is one of the considerations for which the soldier or sailor enters the service, yet it is clearly distinguishable from salary or pay measured by the time of service.” Gray, J. Five Per Cent Cases, 110 U. S. 479. Bounty Fixed According to Comparative Strength of Opposing Force. “Congress, in providing for bounty to be paid by the United States on account of enemy vessels sunk or otherwise destroyed by any ship or vessel belonging..to the United States, has never prescribed any other rule than to give the smaller amount when the enemy’s vessel was of inferior force, and the larger amount when- the enemy’s vessel was of equal or superior force.” Hartan, J. Dewey v. U. S., 178 U. S. 519. Repeal of Bounty Statutes. “We have not forgotten the skill and heroism displayed by the distinguished com- mander of our fleet in the battle of Manila, as well as by the officers and sailors acting under his orders. All genuine Americans recall with delight and pride the marvelous achievements of our navy in that memo- rable engagement. But this court cannot permit considerations of that character to control its determination of a judicial ques- tion or induce it to depart from the estab« lished rules for the interpretation of stat- utes. Nor can we allow our judgment to be influenced by the circumstance that Con- gress has recently repealed all statutes giv- ing bounty to officers and soldiers of the navy for the sinking or destruction hereafter, in time of war, of an enemy’s vessels — thereby, it may be assumed, indicating that in the judgment of the legislative branch of the government the policy of giving boun- ties to the navy was not founded in wis- dom and should be abandoned.” Har.an, J. Dewey, v. U. S. 178 U. S. 520. Navy Acting with Army. “No pecuniary reward is conferred for anything taken or destroyed by the navy when it acts in conjunction with the army in the capture of a fortified position of the enemy, though the meritorious services and gallant conduct of its officers and men may justly entitle them to honorable mention in the history of the country.” Fiexp, J. Porter v. U. S., 106 U. S. 611. 4. COMMUTATION FOR FUEL AND QUARTERS. “Quarters are expected to be furnished by the government to its officers; when it cannot thus furnish, it allows them to be obtained otherwise .and pays a money éompensation therefor called commutation. This is upon the assumption , first, that the officers are actually engaged in the pub- lic service; and, second, that such quarters are necessary to the discharge of their duty. It is upon the latter idea that commutation for fuel and quarters is not allowed to officers when in the field. The duty there is public not only, but of the most necessary character; still, apartments, kitchen, and of- fices are not there necessary, and cannot be commuted for.” Hunt, J. U. S. vw. Phisterer, 94 U. S. 224. “It is a misuse of language to designate as a post or a military station a cottage in a country village, in no way distinguishable in its use of appointments from every other residence in the village, because one of the persons who lives in it is an officer in the army.” Hunt, J. U. S. v. Phisterer, 94 U. S. 223. 5. COMMISSARY. “The duty of the commissary department, in general terms, is to feed the army, to provide supplies for its subsistence. Trans- portation is not understood to be among its duties. That office belongs to the quarter- master’s department.” Hunt, J. Shrews- bury v. U. S., 18 Wall. 669. “What the commissary provides to feed the army it is the duty of the quartermaster to transport to such points as may be tieed- ed.” Hunt, J. Shrewsbury v. U. S., 18 Wall. 670. 169 ARMY AND NAVY. Ill, AUTHORITY AND JURISDIC- TION OVER. 1. In GENERAL — To WuHat Law SUBJECT. Authority of President and Congress. “Wherever our army or navy may go be- yond our territorial limits, neither can go beyond the authority of the President or the legislation of Congress.” Cuasg, C. J. Ex p. Milligan, 4 Wall. 141. Military and Naval Regulations. “The eighth section of Art. I of the Constitution provides that the Congress shall have power ‘to make rules for the government and regulation of the land and naval forces,’ and in the exercise of that power Congress has enacted rules for the regulation of the army known as the Ar- ticles of War. Every officer, before he enters on the duties of his office, sub- scribes to these articles, and places himself within the power of courts martial to pass on any offense which he may have commit- ted in contravention of them.” FULLER, C. J. Carter v. Roberts, 177 U. S. 497. “The Army Regulations derive their force from the power of the President as com- mander in chief, and are binding upon all within the sphere of his legal and consti- tutional authority.” Gray, J. Kurtz v. Mof- fitt, 115 U. S. 503. “As to the army regulations, this court has too repeatedly said, that they have the force of law, to make it proper to discuss that point anew.” Wayne, J. Gratiot vz. U. S., 4 How. 117. 2. PRESIDENT AS COMMANDER IN CHIEF. In General. “The executive power and the command of the military and naval forces is vested in the President.” Braptry, J. Hamilton v, Dillin, 21 Wall. 87. “The Constitution confers on the Presi- dent the whole executive power. ° He is commander in chief of the army and navy of the United States, and of the mili- tia of the several states when called into the actual service of the United States.” Grrr, J. Prize Cases, 2 Black 668. Volunteers. “Tt is true that the Constitution provides that ‘the President shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States.’ Nothing is said in this connection of volunteers; but the object of the provision is evidently to vest in the President the supreme command over all the military forces, such supreme and undivided command as would be necessary to the prosecution of a successful war.” Brown, J. U.S. v. Sweeny, 157 U. S. 284. Militia. “The President is thus [by article 2, sec- tion 2, of the Constitution], made commander in chief of the army and navy of the United States at all times; and com- mander in chief of the militia, only when called into the actual service of the United States.” Gray, J. Johnson v. Sayre, 158 U.S. 115. 3. AMENABILITY TO GENERAL LAws, Military Subject to Laws of Country. “We fully agree with the presiding jus- tice of the Circuit Court in the doctrine that the military should always be kept in subjection to the laws of the country to which it belongs, and that he is no friend to the Republic who advocates the contrary. The established principle of every free peo- ple is, that the law shall alone govern; and to it the military must always yield.” Frexp, J. Dow wv. Johnson, 100 U. S. 169. Officers and Soldiers Subject to Process. “Officers and soldiers of the army who do acts criminal both by the military and the municipal Jaw, are, under certain condi- tions and limitations, subject to be tried by the civil authorities in preference to the military; but the conviction or acquittal of . the party by the civil authorities will not | ‘ discharge the officer or soldier from re- sponsibility for the military offence involved in the same facts.” Cu1FForD, J., dissehting. Coleman v. Tennessee, 97 U. S. 540. “ Officers and soldiers in the militaty ser- vice are not amenable, in time of war, to process from the civil tribunals for any act done in the performance of their duties; but if the injurious act done to person or property was wholly outside of the duty of the actor, and was wilfully and wantonly inflicted, for the mere purpose of oppres- sion or private gain, the party by whom or by whose orders it was committed may be answerable in the ordinary courts of jus- tice, except when the civil tribunals are silenced by the exigencies of military rule or martial law.” Czrrrorp, J., dissenting. Dow wv. Johnson, 100 U. S. 170. 170 ARMY AND NAVY. “Reported cases, in great numbers and of high authority, support the proposition that a military officer, except when war is flagrant or when the courts are silenced by the exigencies of military rule or martial law, is subject to judicial process for the abuse of his authority or for wrongful acts done outside of his military jurisdiction.” C.iFForD, J., dissenting, Dow wv. Johnson, 100 U. S. 187. “ Acts of military officers within the scope of their jurisdiction are protected, while such as are in excess of their jurisdiction are ac- tionable.” CLiFForD, J., dissenting. Dow vz. Johnson, 100 U. S. 188. “A soldier cannot justify on the ground that he was obeying the orders of his su- perior officer, if such orders were illegal and not justified by the rules and usages of war, and such that a person of ordinary intelligence would know that obedience would be illegal and criminal.” CLIFForp, J., dissenting. Dow v. Johnson, 100 U. S. 189. “The defense—the only defense which could be relied on—is the alleged total and absolute want of jurisdiction in the Sixth District Court over the case. But surely that court did have jurisdiction of an action of trespass. The plaintiff was not only com- petent to sue, but entitled to a remedy in that court, if the cause of action was such as he declared. It is not denied that the trespasser, had he not been a member of the military forces of the United States, would have been liable to suit, and bound to answer. But it is said that because Dow was an Officer of those forces he was not bound to answer.” MULLER, J., dissenting. Dow vw. Johnson, 100 U. S. 192. Taxation. “Congress has power to raise arm.es; such armies are made up of officers and soldiers, and are instruments employed by the government in executing its powers; and although the army, as such, cannot be taxed, yet it will not be claimed that all such offi- cers and soldiers are exempt from state taxation.” THompson, J., dissenting. Wes- ton v. City Council, 2 Pet. 480. IV. PERSONNEL AND CONDUCT. Personnel of Navy. “The personnel of the navy is divided generally into commissioned officers, non- commissioned or warrant officers, petty offi- cers, and seamen of various grades and denominations.” Brown, J. U. S. v. Ful- ler, 160 U. S. 595. Marines. “Though marines are not, in some senses, ‘seamen,’ and their duties are in some re- spect different, yet they are, while employed on board public vessels, persons in the naval service, persons subject to the orders of naval officers, persons under the government of the naval code as to punishment, and persons amenable to the Navy Department. Their very name of ‘marines’ indicates the place and nature of their duties generally.” Woopsury, J. Wilkes v. Dinsman, 7 How, 124, “The marine corps is a military body de- signed to perform military services; and while they are not necessarily performed on board ships, their active service in time of war is chiefly in the navy, and accompany- ing or aiding naval expeditions. . . . The statutes of the United States, in pre- scribing the duties which they may be re- quired to perform, have not been very clear in any expression which goes to show how far these services are to be rendered under the control of the officers of the navy or of the army. It is clear that they may be ordered to service in either branch; but we are of opinion that, taking all these statutes and the practice of the government together, they are a military body, primarily belong- ing to the navy, and under the control of the head of the naval department, with lia- bility to be ordered to service in connection with the army, and in that case under the command of army officers.” Mutter, J. U. S. v. Dunn, 120 U. S. 252. Nature of Duties. “The army and navy of the United States are engaged in the performance of public, not private, duties.” Haran, J,, dissenting. Robertson v. Baldwin, 165 U. S. 298. Midshipman. “That a midshipman is an officer has been understood ever since there was a navy. He is not one of the common seamen. His name indicates a middle position, between that of a superior officer and that of the common seamen. (Imp. Dict.) Harris, in the early part of last century, and Johnson, in the middle of it, defined ‘midshipmen’ as ‘officers aboard a ship.” Braney, J. U. S. v. Cook, 128 U. S. 256. Paymaster’s Clerk. “We think the words ‘ officers or enlisted men in the regular or volunteer army or 171 ARMY AND NAVY. navy, or both’ [22 State. 473, c. 97], was in- tended to include all men regularly in ser- vice in the army or navy, and that the ex- pression ‘officers or enlisted men’ is not to be construed distributively as requiring that a person should be an enlisted man, or an officer nominated and appointed by the President, or by the head of a Department, but that it was meant to include all men in setvice, either by enlistment or regular ap- pointment in the army or navy. We are of opinion that the word ‘officer’ is used in that statute in the more general sense which would include a payrnaster’s clerk; that this was the intention of Congress in its enact- ment, and that the collocation of the words means this, especially when it is added that they ‘shall receive all the benefits of such actual service in all respects and the same manner as if said service had been contin- uous and in the regular navy.’” Mutter, J. U.S. uv. Hendee, 124 U. S. 313. “ By the Revised Statutes, certain paymas- tets, including those on receiving ships or at naval stations, are each allowed a clerk; the pay of the clerk is fixed; and he be- comes entitled to bounty land, or to a pen- sion. . . . He is not, indeed, deemed one of the petty officers, who are entitled to obedience, in the execution of their of- fices, from , persons of inferior ratings. Nor is he entitled to mileage, as an ‘ officer of the navy,’ under the Act of June 30, 1876, c. 159. . . But he is included among ° officers and enlisted men in the reg- ular or volunteer army or navy,’ and as stich entitled to longevity pay, under the Act of March 3, 1883, c. 97.” Gray, J. Johnson v. Sayre, 158 U. S. 117. “The place of paymaster’s clerk is an im- portant one in the machinery of the navy, Their appointment must be approved by the commander of the ship. Their accept- ance and agreement to submit to the laws and regulations for the government and dis- cipline of the navy must be in writing, and filed in the department. They must take an oath, and bind themselves to serve until discharged. The discharge must be by the appointing power, and approved in the same manner as the appointment. They are re- quired to wear the uniform of the service; they have a fixed rank; they ate upon the pay-roll, and are paid accordingly. They may also become entitled to a pension and to bounty land.” Swayne, J. Ex p. Reed, 100 U. S. 21. When Officer on Duty, “We are of opinion that officers of the army are in the eye of the law on military duty, although employed as such officers un- der statutes of the United States in the public service on duties not in themselves pertaining to the army, and that the moneys disbursed by them when so employed do not because they are such officers become money furnished and intended for the mili- tary service. Illustrations are found in the administration of appropriations for the In- dian service, the lighthouse service, su- perintending the Washington aqueduct, maintaining the public grounds about the White House, and the like. The appropria- tions made for river and harbor improve- ments are per se for the benefit of commerce and navigation, and not for military or naval purposes, and the money is furnished and intended for public works in aid of com- merce.” FutLuer, C. J. Carter v. McClaugh- ty, 183 U. S. 399. Duty to Obey Orders, “The obligations of an officer directed to proceed to a place specified, there to await orders, are to go to that place and to remain at that place. He cannot go else- where; he cannot return until ordered.” Hunt, J. U. S. v. Williamson, 23 Wall. 415. Resignation. “Nothing short of a written resignation to the President, or the proper executive department, by a commissioned officer of the army, navy, or marine corps, and the acceptance of thé same duly notified to the incumbent of the office, in the customary mode, will of itself create a vacancy in such an office, or prevent the incumbent, if the President consents, from withdrawing the proposed resignation; in which event the rights, privileges, duties, and obligations of the officer remain just as if the resignation had never been tendered.” CurrForp, J. Mimmack v. U. S., 97 U. S. 432. Retirement. “As it is incumbent on the officer whose case comes before a retiring board to show in order to secure a report which will en- title him to be placed on the retired list rather than on the retired list on furlough pay, that his incapacity was the result of some incident of the service, the report of the board that there was no evidence to sup- port such a finding is to all intents and pur- poses a report that the incapacity was not the result of an incident of the service, and justifies an order retiring the officer on fur» lough pay.” Woons, J. Brown v. U. S., 113 UL S. 573. 172 ARMY AND NAVY. Absence with Leave. . “The authority to give leave of absence is committed by law to particular persons; the mode of making the application for leave is pointed out and the maximum of its dura- tion is prescribed.” Hunt, J, U.S. uv. Wil- liamson, 23 Wall, 415. A department commander can _ grant leave of absence for a period not exceeding sixty days. Applications for leave exceed- ing four months must be referred to the War Department.” Hunt, J. U. S. wu Williamson, 23 Wall. 415. “While absent from duty ‘with leave,’ the officer is at liberty to go where he will during the permitted absence, to employ his time as he pleases, and to surrender his leave if he chooses. If he reports himself at the expiration of his leave, it is all that can be asked of him.” Hunt, J. U. S. w Williamson, 23 Wall, 415. — Order to Remain at Particular Place Distinguished. “The direction, on the other hand, to pro- ceed to a particular place, there to await orders, how long to remain there, to attack, to retreat, or to do any other specified thing, belongs to the officer in charge.” Hunt, J. U. S. v. Williamson, 23 Wall, 415, Discharge — Effect. “No thoughtful person questions the obli- gations which the nation is under to those who have done faithful service in its army or navy. Congress has generously provided for the discharge of those obligations in a system of pensions more munificent than has ever before been known in the history of the world. But it would be an insult to the intelligence of Congress to suppose that it contemplated any degradation of the civil service by the appointment to or con- tinuance in office of incompetent or ineffi- cient clerks simply because they had been honorably discharged from the military or naval service.” Brewer, J. Keim v. U. S., 177 U. S. 295, V. PROPER USE OF MILITARY POWER. To Compel Obedience to National Law. “The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers and: the security of all rights en- trusted by the Constitution to its care. The strong arm of the national government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails. If the emergency arises, the army of the nation, and all its militia, are at the service of the Nation to compel obedience to its laws.” Brewer, J. Jn re Debs, 158 U. S. 588. “He [the President] has no power to ini- tiate or declare a war either against a for- eign nation or a domestic state. But by the Acts of Congress of February 28th, 1795, and 8d of March, 1807, he is authorized to cal] out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to sup- press insurrection against the government of a state or of the United States.” Grier, J. Prize Cases, 2 Black 668. Interference with Civil Authorities and Rights, “The mere possession of military power in a particular district within the United States by an officer of the army of the United States carried with it, by itself, no authority to establish tribunals to dispose of civil controversies between the inhab- itants of such district, and where any such authority is asserted to have existed it must be shown to have been granted by the Presi- dent; it cannot be presumed, certainly not where the ordinary jurisdiction of the court excluded any power over civil controversies, as was the case with provost courts.” FrE.p, J., dissenting. Mechanics’, etc, Bank vw. New Orleans Union Bank, 22 Wall. 307. “His [a military commander’s] whole duty is to subdue, by force, the insurrec- tion in the one case and opposition to the extension of the dominion of his govern- ment in the other; and when this is accom- plished, to preserve order in the commynity until his superior authorities direct what further proceedings shall be taken.” Frexp, J., dissenting. Mechanics’, etc., Bank v. New Orleans Union Bank, 22 Wall. 303. “Tt is no part of the duty of a military commander, whether putting down an in- surrection against the government or en- gaged in making foreign conquest, to settle the pecuniary obligations of citizens tq each other, or to provide a court for their des termination.” Fretp, J., dissenting. Me-+ chanics’, etc. Bank v, New Orleans Union Bank, 22 Wall. 303. Acts of Agents. “Tt is a legitimate presumption that agents who act for and on behalf of an 173 ARREST. army in the field are acting under the au- thority of its. commander.” Srrone, J. Beard v. Burts, 95 U. S. 437. ARREST. As to exemption of members of Congress, see CoNGREsS. See also ABUSE oF Process; EXTRADITION; Fase IMPRISONMENT. Without Warrant — Misdemeanor. “An officer, at common law, was not au- thorized to make an arrest without a war- rant, for a mere misdemeanor not commit- ted in his presence.” PrcKHAM, J. John Bad Elk v. U. S., 177 U. S. 534. — Felony. “The rule of the common law, that a peace officer or a private citizen may arrest a felon without a warrant, has been gen- erally held by the courts of the several states to be in force in cases of felony pun- ishable by the civil tribunals.” Gray, J. Kurtz v. Moffitt, 115 U. S. 504. “By the common law of England, neither a civil officer nor a private citizen had the right without a warrant to make an arrest for a crime not committed in his presence, except in the case of felony, and then only for the purpose of bringing the offender be- fore a civil magistrate.” Gray, J. Kurtz v. Moffitt, 115 U. S. 498. — Offenses Against Military Law. “But . . the rule has never, so far as we are informed, been judicially extended to the case of an offender against the mili- tary law, punishable exclusively by court- martial.” Gray, J. Kurtz v. Moffitt, 115 U. S. 504. “Tt does not appear to have been the law of England that a peace officer or a private citizen could as such, and without any war- rant or order either from a civil magistrate or from a military officer, lawfully arrest a deserter for the purpose of delivering him to the military authorities for trial by court- martial.” Gray, J. Kurtz v. Moffitt, 115 U. S. 500. “From 1708, the English Mutiny Acts have repeatedly, if not uniformly, con- tained provisions by which persons reason- ably suspected of being deserters might be apprehended by a constable, and taken be- force a justice of the peace, and the fact of their desertion established to his satisfac- tion, before their surrender to the military authorities.” Gray, Ji Kurtz v. Moffitt, 115 U. S. 499. Right and Duty of Citizens. “Tt is the right, as well as the duty, of every citizen, when called upon by the proper officer, to act as part of the posse comitatus in upholding the laws of his coun- try. It is likewise his right and his duty to communicate to the executive officers any information which he has of the commis- sion of an offence against those laws; and such information, given by a private citizen, is a privileged and confidential communica- tion, for which no action of libel or slander will lie, and the disclosure of which cannot be compelled without the assent of the gov- ernment.” Gray, J. In re Quarles, 158 U. S. 535. “Tt is the duty and the right, not only of every peace officer of the United States, but of every citizen, to assist in prosecut- ing, and in securing the punishment of, any breach of the peace of the United States.” Gray, J. In re Quarles, 158 U. S. 535. “The right of a citizen informing of a violation of law, like the right of a prisoner in custody upon a charge of such violation, to be protected lawless violence, does not depend upon any of the Amendments to the Constitution, but arises out of the creation and establishment by the Constitution itself of a national government, paramount and supreme within its sphere of action.” Gray, J. In re Quarles, 158 U. S. 536. “The right of the private citizen who assists in putting in motion the course of justice, and the right of the officers con. cerned in the administration of justice, stand upon the same ground, just as do the rights of citizens voting and of officers elected.” Gray, J. In re Quarles, 158 U. S. 536. Exemption of Public Officers and Em- ployees. “ All persons in the public service are ex- empt, as a matter of public policy, from arrest under civil process, while thus en- gaged.” Fietp, J. U.S. uv. Kirby, 7 Wall. 486. “No officer or employee of the United States is placed by his position, or the ser- vices he is called to perform, above re- sponsibility 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 Con- stitution and laws.” Fretp, J. U. S. vw. Kir- by, 7 Wall. 486, 174 ARTICULATE SPEECH. “Indeed, it may be doubted whether it is competent for Congress to exempt the em- ployés 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 Con- gress unless clearly manifested by its lan- guage.” Fietp, J. U. S. v. Kirby, 7 Wall. 486. Sufficiency of Warrant. “By the common law, a warrant for the arrest of a person charged with crime must truly name him, or describe him sufficiently to identify him. If it does not, the officer making the arrest is liable to an action for false imprisonment; and if, in attempting to make the arrest, the officer is killed, this is only manslaughter in the person whose liberty is invaded.” Gray, J. West v. Ca- bell, 153 U. S. 85. “The principle of the common law, by which warrants of arrest, in cases criminal or civil, must specifically name or describe the person to be arrested, has been affirmed in the American constitutions; and by the great weight of authority in this country a warrant that does not do so will not jus- tify the officer making the arrest.” Gray, J. West v. Cabell, 153 U. S. 86. “A warrant of arrest in a civil action, which does not name or describe the person to be arrested, is no justification of the offi- cer.” Gray, J. West wv. Cabell, 153 U. S. 85. Abduction of Criminals. “Tt is undoubtedly true that occasional instances of unlawful abduction of a crim- inal from one state to another for trial, have been winked at; and it has been held to be no defense for the prisoner on his trial. Braptey, J., dissenting. Mahon v. Justice, 127 U. S. 716. ARREST OF JUDGMENT. Objections Raised By— Errors on Face of Record. “Judgment can be arrested only for er- rors apparent on the record.” MarsHALL, C.J. U.S. v. Klintock, 5 Wheat. 149. “Upon a motion in arrest of judgment the court cannot look beyond the record; and the judgment cannot be arrested, un- less there is some error in law or defect of jurisdiction apparent in the proceedings.” Taney, C. J. Carter v. Bennett, 15 How, 356. —— Matters of Evidence. “A motion in arrest of judgment cannot properly be made upon the ground that the evidence is insufficient to prove the case under the indictment, or under any particu- lar count thereof, because such motion is confined to matters appearing upon the face of the record itself.” PeckHam, J. Hall v. U. S., 168 U. S. 637. “After a verdict is rendered, the judg- ment cannot be arrested by the introduction of new evidence on a new fact. It may, in a proper case, lay the foundation of a mo- tion for a new trial, but not in arrest of judgment.” Taney, C. J. Carter v. Ben- nett, 15 How. 356. — Sufficiency of Indictment or Declara- tion. “Motions in arrest of judgment present questions of law when they are so framed as to call in question the sufficiency of an indictment or of a declaration in a civil suit.” Cxirrorp, J. Ewing v. Howard, 7 Wall. 502. ARRIVAL. Nature of Term. “Tf, as Chief Justice Marshall declared, it is the universal understanding of the term [arrival] that it designates the fact of ‘com- ing to’ or ‘reaching’ a place by travelling or moving tqwards it, and does not require that the place at which the traveller arrives should be his ultimate destination, and con- sequently that a traveller arrives in a city or town when he enters that city or town, it would seem to follow that ‘arrival in the state’ is complete when the person or the merchandise in question enters the state.” Gray, J., dissenting. Rhodes v. Iowa, 170 U.S. 434, ARTICLE. Definition. “In common usage, ‘article’ is applied to almost every separate substance or material, whether as a member of a class, or as a particular substance or commodity.” Fut- Ler, C. J. Junge v. Hedden, 146 U. S. 238. ARTICULATE SPEECH. See SPEECH. 175 ASSIGNMENTS. ASSESSMENTS. See SPECIAL on Loca, AssEsSMENTS; TAX- ATION. ASSETS. See EguirasLe ASSETS; ASSETS, ASSIGNEES — ASSIGNS. See ASSIGNMENTS; REPRESENTATIVES, ASSIGNMENTS, I. VoLUNTARY AND BY OPERATION OF Law. II. Wuart Is ASSIGNABLE. Ill. Wuat Is An ASSIGNMENT. IV. How Mabe. V. EFFECT. MARSHALLING CROSS-REFERENCES. For pleading by assignee, see PLEADING. See also ASSIGNMENTS FOR THE BENEFIT OF CrepiTors; BANKRUPTCY; BILLs oF LADING; Ciarms AGAINST THE UNITED STATES; ParTIEs ; ‘SERVICES. I. VOLUNTARY AND BY OPERA- TION OF LAW. “* Assigns,’ or, as the word is more com- monly spelled, ‘assignees,’ are of two classes, depending upon the manner of their crea- tion; first, voluntary assigns, who are created by act of the parties; and, second, assignees created by operation of law.” Brown, J. Hoffeld v. U. S., 186 U. S. 276. “ Assignment by operation of law, as in the case of an executor, is quite different from assignment by act of the party.” Gray, J. Arkansas Valley Smelting Co. v. Belden Min. Co., 127 U. S. 389. II. WHAT IS ASSIGNABLE. See also CHAMPERTY AND MAINTENANCE. Contract. “ Every one has aright to select and deter- mine with whom he will contract, and cannot have another person thrust upon him with- out his consent.” Gray, J. Arkansas Val- ley Smelting Co, v. Belden Min. Co., 127 U. S. 387. “At the present day, no doubt, an agree- ment to pay money, or to deliver the goods, may be assigned by the person to whom the money is to be paid or the goods are to be delivered, if there is nothing in the terms of the contract, whether by requiring some. thing to be afterwards done by him, or by some other- stipulation, which manifests the intention of the parties that it shall not be assignable.” Gray, J. Arkansas Valley Smelting Co. v. Belden Min. Co., 127 U. S. 387. “A contract to pay money may doubtless be assigned by the person to whom the money is payable, if there is nothing in the terms of the contract which manifests the intention of the parties to it that it shall not be assignable. But when rights arising out of contract are coupled with obligations to be performed by the contractor, and in- volve such a relation of personal confidence that it must have been intended that the rights should be exercised and the obliga- tions performed by him alone, the contract, including both his rights and his obligations, cannot be assigned without the consent of the other party to the original contract.” Gray, J. Delaware County v. Diebold Safe Co., 183 U. S. 488. Right to Purchase Land. “Tt would seem that if a right to pur- chase land ‘for however short a period is vested in one, it is a valuable right, and is, in that sense, property, and in the absence of express prohibition would be therefore assignable.” Fretp, J. Telfener v. Russ, 145 U. S. 532. Patent or Copyright. “A patent or a copyright, which vests the sole and exclusive right of making, using, and vending the invention, or of publishing and selling the book, in the person to whom it has been granted by the government, as against all persons not deriving title through him, is property, capable of being assigned by him at his pleasure.” Gray, J. Ager v. Murray, 105 U. S. 128. See also BANKRUPTCY. Equitable Assignment. “The doctrine of equitable assignments is a comprehensive one.” Swayne, J. Wright v. Ellison, 1 Wall. 22, Expectancy. “Tt has been expressly ruled, that a mere expectancy, as that of an heir at law to the estate of his ancestor, or the interest which a person may take under the will of another then living, or the share to which such per- son may become entitled under an appoint- 176 ASSIGNMENTS. ment or in personal estate, as presumptive next of kin, is assignable in equity.” Dan- IEL, J. Hinkle v. Wanzer, 17 How. 368. Duties Illegally Assessed. “A stranger, suing solely on an assign- ment of a claim from those who did not see fit to prosecute it themselves, cannot recover duties averred to have been illegally assessed.” WuutE, J. Seeberger v. Castro, 153 U.S. 34. Choses in Action. *Choses in action, which are not commer- cial instruments, though assignable in equity in some cases, are not generally assignable at common law.” Srtrone, J. U. S. wv. Gil- lis, 95 U. S. 412. “To choses in attion, it can scarcely be necessary here to remark, assignability is imparted by statutory enactment only, or by commercial usage.” Danzer, J., dissenting. Gayler v. Wilder, 10 How. 504. “That a chose in action is assignable in equity, is not controverted.” MARSHALL, C. J. Brashear vw. West, 7 Pet. 616. “Courts of law, following in this respect the rules of equity, now take notice of as- signments of choses in action, and exert themselves to afford them every support and protection not inconsistent with the estab- lished principles and modes of proceeding which govern tribunals acting according to the course of the common law. They will not, therefore, give effect to a release pro- cured by the defendant under a covenous combination with the assignor in fraud of his assignee, nor permit the assignor inju- riously to interfere with the conduct of any suit commenced by his assignee to enforce the rights which passed under the assign- ment.” Story, J. Welch v. Mandeville, 1 Wheat. 236. “Notwithstanding the strictness, particu- larly in the earlier cases in the courts of common law, with respect to assignments of equitable interests and choses in action, the books abound with cases showing that the rule at the common law has been much relaxed, ot almost disregarded, by the courts of equity, which, from a very early period, have held that assignments for valuable con- sideration, of a mere possibility, are valid, and will be carried into effect upon the same principle as they enforce the performance of an agreement, when not contrary to their Claim Against United States. “No Act of ‘Congress since 1835 has given negotiability to claims against the govern- ment, or given new effect to attempted trans- fers.” Strone, J. U. S. v. Gillis, 95 U. S. 413. Ill. WHAT IS AN ASSIGNMENT. Of Right of Action for Prior Trespass or Infringement. “Neither a deed of land not an assign- tment of a patent for an invention carries with it a right of action for prior tres- passes or infringements. Such rights of ac- tion are, it is true, now assignable by the statutes of most of the states, but they only pass with a conveyance of the property itself where the language is clear and explicit to that effect.” Brown, J. U. S.zv Loughrey, 172 U.S, 211. Delivery of Chose in Action. “Whatever difficulties may be suggested, on the technical meaning of the term assign- ment, it is very clear that he who acquires a chose in action, by mere delivery, has been recognized in the laws of the United States as an assignee.” Marswait, C. J. Bank of U. S. v. Planters’ Bank of Ga. 9 Wheat. 913. Order to Pay Out of Particular Fund — Bills of Exchange. “Any order, writing, of act which makes an appropriation of a fund, amounts to an equitable assignment of the fund.” Wayne, J. Spain v. Hamilton, 1 Wall. 624. “An order to pay out of a specified fund has always been held to be a valid assign- ment in equity and fulfil all the fequire- ments of the law.” Swayne, J. Christmas v. Russell, 14 Wall. 84. “Tt is well settled that an order to pay a debt out of a particular fund belonging to the debtor gives to the creditor a specific equitable lien upon the fund, and bonds it in the hands of the drawee. A part of the par. ticular fund may be assigned by an order, and the payee may enforce payment of the amount against the dtawee. But a mere agreement to pay out of such fund is not sufficient.” Swayne, J. Trist ». Child, 21 Wall. 447. “Where an ordet is drawn for the whole of a particular fund, it amounts to a par- ticular assignment of that fund, ahd after own rules or to public policy.” Danzet, J. notice to the drawee it binds the fund in Hinkle v. Wanzer, 17 How. 367. his hand. But where the order is drawn 1 Os. Dic.— 12. 177 ASSIGNMENTS. , either on a general or a particular fund, for a part only, it does not amount to an as- signment of that part, or give a lien as against the drawee, unless he consent to the appropriation by an acceptance of the drait; or an obligation to accept may be fairly implied from the custom of trade, or ‘ the course of business between the parties as a part of their contract.” Story, J. Mandeville v. Welch, 5 Wheat. 286. “Tt is said that a bill of exchange is, in theory, an assignment to the payee of a debt due from the drawee to the drawer. This is undoubtedly true, where the bill has been accepted, whether it be drawn on general funds or a specific fund, and whether the bill be in its own nature negotiable or not.” Story, J. Mandeville v. Welch, 5 Wheat. 286. “A bill of exchange is not an equitable assignment pro tanto of the funds of the drawer in the hands of the drawee.” Swayng, J. Christmas v. Russell, 14 Wall. 84. “A draft drawn by A. or B. in favor of C. for a valuable consideration, amounts to a valid assignment to C. of so much of the funds of A. in the hands of B.” Wayne, J. Spain v. Hamilton, 1 Wall. 624. —— Relinquishment of Control Necessary. “An order to pay a particular sum out of a special fund cannot be treated as an equi- table assignment pro tanto unless accom- panied with such a relinquishment of control over the sum designated that the fund- holder can safely pay it, and be compelled to do so, though forbidden by the drawer.” Fietp, J. Florence Min. Co. v. Brown, 124 U. S. 391. IV. HOW MADE. No Particular Form Necessary. “To constitute an assignment of a debt or other chose in action, in equity, no par- ticular form is necessary.” WAYNE, J. Spain v. Hamilton, 1 Wall. 624. Written Evidence Unnecessary. “A judgment may be assigned without written evidence of the transfer.” Swayne, J. Philadelphia, etc, R. Co. v. Trimble, 10 Wall. 382, —Recording Assignment of Patent or Copyright. “[An] assignment [of a patent or copy- right] unless recorded in the proper office, is void against subsequent purchasers or mortgages fora valuable consideration with- out notice.” Gray, J. Ager v. Murray, 105 U.S. 128, Notice. “As the assignee is generally entitled to all the remedies of the assignor, so he is subject to all the equities between the as- signor and his debtor. But in order to perfect his title against the debtor it is indis- pensable that the assignee should immedi- ately give notice of the assignment to the debtor, for otherwise a priority of right may be obtained by a subsequent assignee, or the debt may be discharged by a pay- ment to the assignee before such notice.” Wayne, J. Spain v. Hamilton, 1 Wall. 624. V. EFFECT. Right of assignee to sue, generally, see ParTIES; in action on judgment, see Jupc- MENTS AND DECREES. Assignee Stands in Assignor’s Shoes. “No proposition is better settled than that an assignee of such a right [chose in ac- tion] can take only such interest as his as- signor has to transfer, and will be bound by all equities binding on the latter, unless it affirmatively appears that the subsequent assignee took without notice.” JacKson, J., dissenting. Burck v. Taylor, 152 U. S. 667. “Tt is certainly true, as a general rule that a purchaser of a chose in ac. tion, or of an equitable title, must abide by the case of the person from whom he buys, and will only be entitled to the remedies of the seller; and yet, there may be cases in which a purchaser, by sustaining the charac- ter of a bona fide assignee, will be in a bet- ter situation than the person was of whom he bought; as, for instance, where the pur- chaser, who alone had made inquiry and given. notice to the debtor, or to a trustee holding the fund (as in this instance), would be preferred over the prior purchaser, who’ neglected to give notice of his assignment, and warn others not to buy.” Catron, J. Judson v. Corcoran, 17 How. 615. Assignment Has Same Force Against Debtor as Against Creditor. “Tt is hard to see how a transfer of a debt can be of no force as betweem the trans- feree and the debtor, and yet effective as between the creditor and his assignee to transmit an ownership of the debt, or create a lien upon it.” Stronc, J. Spofford v. Kirk, 97 U. S. 489. 178 ASSIGNMENTS FOR BENEFIT OF CREDITORS. Remedies of Assignor Attach. “The assignee is generally entitled to all the remedies of the assignor.” Wayne, J. Spain v. Hamilton, 1 Wall. 624, Assignment Pendente Lite. “A pendente lite assignment carries with it an implied license by the assignee to pro- tect the right assigned. Of this, the plain- tiffs in the action cannot complain, because the assignee is bound by all that is done, whether a party by name or not.” WarteE, C.J. Ex p. R. Co. 95 U. S. 226. Lien Follows Debt. “The assignment of a debt, ipso facto, carries with it a lien and all other securities held by the assignor for the discharge of such debt.” Swayne, J. Hooper v. Robin- son, 98 U. S. 538. Voluntary and by Operation of Law. For title of assignee by operation of law, see JUDICIAL SALES. “A voluntary assignee is ordinarily in- vested with all the rights which his as- signor possessed, with respect to the prop- erty; while the rights of an assignee by operation of law are such only as are neces- sarily incident to the complete possession and enjoyment of the things assigned.” Brown, J. Hoffeld v. U. S., 186 U. S. 276. “A voluntary assignee takes the property with all the rights thereto possessed by his assignor, and if he has paid a valuable con- sideration, may claim all the rights of a bona fide purchaser with respect thereto.” Brown, J. Hoffeld v. U. S. 186 U. S. 276. “An assignee by operation of law may, under certain circumstances, have greater rights than a voluntary assignee.” Brown, J. Hoffeld v. U. S., 186 U. S. 276. Guaranty. “A mere transfer or assignment does not import a guaranty. At most, it warrants title, not insolvency of the debtor, or col- lectibility of the chose assigned.” Srrone, J. Ketchum v. Duncan, 96 U. S. 671. Distin- Assignment and _ Indorsement guished. “An assignee stands in the place of his assignor, and takes simply an assignor’s rights; but an endorsement creates a new and collateral contract.” Srrone, J. Cen- tral Trust Co. v. Wyandotte First Nat. Bank, 101 U, S. 71, ASSIGNMENTS FOR THE BENEFIT OF CREDIT- ORS. J. AssIGNMENT AND Mortcace Dis- TINGUISHED. II. Power To MAKE GENERAL ASSIGN- MENT. III. ASSIGNMENT BY PARTNERS, IV. PREFERENCES. V. Questions oF Fraup. VI. Errect oF ASSIGNMENT. CROSS-REFERENCES. Effect of assignment by partner, see PART- NERSHIP; with respect to bankruptcy pro- ceedings, see BANKRUPTCY. I. ASSIGNMENT AND MORTGAGE DISTINGUISHED. “It is sometimes difficult to determine whether a particular instrument is a mort- gage or an assignment with preferences. The test most frequently applied is whether the conveyance is of all the property of the debtor, and is made to a trustee for the benefit of certain creditors. In such cases it is usually held to be an assignment, but if the conveyance be made directly to the creditor himself, it is ordinarily treated as a chattel mortgage.” Brown, J. Davis w. Schwartz, 155 U. S. 641. II. POWER TO MAKE GENERAL ASSIGNMENT. “The power is conceded, when not for- bidden by the statute of a state, to a failing debtor to make a general assignment of his property for the benefit of his creditors.” Murer, J. Denny v. Bennett, 128 U. S. 495. III. ASSIGNMENT BY PARTNERS. “Tt cannot, however, be doubted that, in the absence of a statute prohibiting it, such an assignment [for the benefit of the joint creditors] whether during the continuance of the partnership or after its dissolution by agreement, would be valid where the partners all unite in executing it, or where one of them executes it by the direction or with the consent of the others.” Haran, J. Emerson v. Senter, 118 U. S. 7. IV. PREFERENCES. Right of Debtor. “The right of a debtor to prefer particu- lar creditors, where no bankrupt or other 179 ASSIGNMENTS FOR BENEFIT OF CREDITORS. law prohibiting such preference exists, is not questioned.” Marsuatt, C. J. Brooks v. Marbury, 11 Wheat. 98. —Partnership Before and After Dis- solution, “Partnership creditors have no specific lien upon the joint funds for their debts. They have no such relations with the partnership as entitles them to interfere with the complete control of the joint prop- erty by the partners, during the existence of the partnership, or with their right, after a dissolution, by agreement, of the partner- ship to dispose of it for the payment of their joint debts, giving such preference as they deem proper.” Hartan, J. Emerson v. Sen- ter, 118 U. S. 7. Equal Distribution Favored. “Unless there are special circumstances giving priority of right to the demands of one creditor over another, the rule of equity would require the equal and ratable distri- bution of the debtor’s property for the bene- fit of all of them. And so, whenever such a disposition has been voluntarily made by the debtor, the courts in this country have uniformly expressed their approbation of the proceeding. The hindrance and delay to particular creditors, in their efforts to reach before others the property of the debtor, that may follow stich a conveyance, are re- garded as unavoidable incidents to a just and lawful act, which in no respect impair the validity of the transaction.” Fiexp, J. Mayer v. Hellman, 91 U. S. 500, Statutes Against. “The difficulty with the courts has not been in recognizing the beneficent objects of this legislation [voluntary assignment act of Illinois, July 1, 1887], but in determining whether, in view of the special circum- stances attending their execution, particular instruments are to be treated as part of an assignment, within the meaning of the stat- ute [against preferences].” Harian, J. White v. Cotzhausen, 129 U. S. 338. “Surely, the mere name of the particular instruments by which the illegal result is reached, ought not to be permitted to stand in the way of giving the relief contemplated by the statute.” Harzan, J. White v. Cotz- hausen, 129 U. S. 344. V. QUESTIONS OF FRAUD. Prior Disposition of Property. “A fraudulent disposition of property does not of itself impair a subsequent general assignment.” Fiexp, J. Estes v. Gunter, 122 Uz. S. 456. Reservations. “ Cases in which reservations for the bene- fit of the assignor have been held to invali- date the assignment have usually been those where the reservation was either secret, or was upon its face detrimental to the interest of the creditors, and a practical fraud upon them. But if the reservation be only of any surplus which may chance to remain after the debts are paid, it is difficult to see why it should invalidate the instrument, as the creditors obtain all they are entitled to, and the surplus is that which as matter of law properly belongs to the mortgagor. It so rarely happens that a surplus is realized after the payment of all the debts, that courts should not be too technical in holding that the reservation of such surplus invali- dates the instrument, unless it appears to have been made with fraudulent intent.” Brown, J. Huntley v. Kingman, 152 U. S. 538. Relationship of Parties. “The fact that the assignee or of the pre- ferred creditor of an insolvent debtor is a relative or intimate friend is doubtless cal- culated to excite suspicion; yet. in reality there is nothing unnatural in a dealer or trader who is in need of credit, or a loan of money to carry on his business, first ap- plying to his relatives for such loans, and if the evidence be undisputed that the money was advanced, the fact that the persons making the loan are relatives ought not to debar them from receiving security. Their rights are neither increased nor diminished by the fact of relationship. A gen- eral assignment to a relative as trustee for the benefit of creditors is open to more sus- picion, since such are more often selected as instruments for creating a secret trust in favor of the assignor.’ Brown, J. Davis v. Schwartz, 155 U. S. 638. VI. EFFECT OF ASSIGNMENT. Irrevocability After Assent of Creditors. “Tt is clear law that such an assignment [voluntary assignment for the benefit of creditors], if assented to by the creditors, or a considerable portion of them, becomes ir- revocable; and in this country assent will be presumed if dissent is not expressed.” Brabiey, J. Barings v. Dabney, 19 Wall. 9. What Passes. “Tn cases unaffected with fraud the as- signee stands in the situation of the insol- 180 ASSIGNMENTS FOR BENEFIT OF CREDITORS. vent debtor, and succeeds to alt his property and rights of property, whether legal or equitable, and the rule is supported by the highest authority, that the assignor passes all his property, whether mentioned or not in the schedule to the assignee.” CLIFFORD, J. Crapo uv. Kelly, 16 Wall 638. “The rights of a paterttee have also been held to pass to an assignee in insolvency under the state law, if the court so orders.” Brown, J. Campbell v. Haverhill, 155 U. S. 619. ‘Status, Rights, and Remedies of Assignee. “Whilst it is generally true that an as- signee for the benefit of creditors holds the property assigned subject to the same equities as the debtor or assignor held it, it is not universally true. Many transac- tions would be binding on the latter which would not be binding on the assignee.” Brapbtey, J. Casey v. Cavaroc, 96 U. S. 487. —— Resisting or Attacking Preference or Conveyances. “Tt may be laid down as a general rule, as well at the common [aw as the civil law, that a trustee, assignee, or syndic, having the powers and occupying the relations which are sustained by a receiver under the National Banking Act, or an assignee in bankruptcy, may well oppose any privilege er preference which the law itself, unaided by a bona fide purchase or judgment, would regard as void against the general creditors in a direct contest between them and the parties claiming such privilege or prefer- ence; even though the debtor himself, on account of some personal disability arising from his own aets or agreements, could not resist the claim.” Braptey, J. Casey w. Ca- varoc, 96 U. S. 489. “Conveyances by imsolvent debtors in fraud of their creditors may be attacked by their statutory assignees, though equity would not aid the debtors themselves to re- cover the property, for the property trans- ferred would, in the eye of the law, remain the debtors’ and pass. to the assignees, who would not be subject to the rule that those who commit iniquity have no standing in equity to reap the fruits thereof. But equi- ties or rights belonging to particular cred- itors are not, by operation of law, trans- ferred to such assignees.” Furter, C. J. Hubbard v. Tod, 171 U. S. 499. “There is a broad: distinction between a bill by a bankrupt, the author of the fraud, and one by the assignee, who seeks to re- cover the property for the benefit of the very interest sought to be defrauded, as public policy in the first case forbids the court to lend its aid to a plan intended to deprive creditors of their just rights, but to grant relief in the second case, is to act in accordance with the rights of creditors for the purpose of defeating the fraudulent de- sign.” CxirforD, J. Crapo v. Kelly, 16 Wall. 638. “ Where the legal or equitable property in a security passes, arid there is no express law invalidating the transfer, the creditor will be entitled to hold it as well against the assignee or receiver as against the debt- or; because the assignee only takes such title as the debtor at the time of the assign- ment or insolvency.” Brapiey, J. Casey v. Cavaroc, 96 U. S. 490. Extraterritorial Effect. “Whilst the disposition of his movable property by the owner is respected by the laws of all states everywhere, the laws of any particular state and transfers by opera- tior of law, have no extraterritorial force which other states will concede, except by comity. This comity is mever exercised to the prejudice of the citizens of the state which aceords it.” Braptry, J., dissenting, Crapo v. Kelly, 16 Wall. 642. “A statutable conveyance of property can- not strictly operate beyond the Iocal juris- diction. Any effect which may be given to it beyond this does not depend upon inter- national law; but the principal of comity; and national comity does not require any government to give effect to such assign- ment, when it shal? impair the remedies or lessen the securities of its own citizens. And this is the prevailing doctrine in this coun- try.” McLean, J. Oakey v. Bennett, 11 How. 44. “A proceeding am rem against the prop- erty of a foreign bankrupt, under our local laws, may be maintained by creditors not- withstanding the foreign assignment.” Mc- Lean, J. Oakey v. Bennett, 11 How. 44. “Chancellor Kent considers it to be a set- tled part of the jurisprudence of the United States, that a prior assignment under a for- eign law will not be permitted to prevail against a subsequent attachment of the bank- rupt’s effects found in the United States. The courts of the United States. will not subject their citizens to the inconvenience of seeking their dividends abroad, when 481 ASSISTANCE — WRIT OF. they have the means to satisfy them under their own control. We think that it would prejudice the rights of the citizens of the states to admit a contrary rule. The rule, as it is with us, affords an admitted excep- tion to the universality of the rule that per- sonal property has no locality, and follows the domicil of the owner.” Wayne, J. Booth v. Clark, 17 How. 337. “There is general consensus of opinion to the effect that such assignments [of prop- erty in other states] will be respected, ex- cept so far as they come in conflict with rights of local creditors, or with the laws or public policy of the state in which the assignment is sought to be enforced.” Brown, J. Security Trust Co. v. Dodd, etc., Co., 173 U. S. 628. “While it may be true that the assign- ment in question is good as between the assignor and the assignee, and as to assent- ing creditors, to pass title to property both within and without the state, and, in the absence of objections by rion-assenting cred- itors, may authorize the assignee to take possession of the assignor’s property wher- ever found, it cannot be supported as to creditors who have not assented, and who are at liberty to pursue their remedies against such property of the assignor as they may find in other states.” Brown, J. Security Trust Co. v. Dodd, etc., Co., 173 U. S. 635. “In some states a foreign assignee under a statutory assignment, good by the law of the state where made, may be permitted to come into such a state ‘and take possession of the property of the assignor there found, and withdraw it from the jurisdiction of that state in the absence of any objection thereto by the local creditors of the as- signor; but in such case the assignee takes the property subject to the equity of at- taching creditors, and to the remedies pro- vided by the law of the state where such property is found.” Brown, J. Security Trust Co. v. Dodd, etc., Co., 173 U. S. 634. “ [With respect to statutory assignments], while the authorities are not altogether har- monious, the prevailing American doctrine is that a conveyance under a state insol- vent law operates only upon property within the territory of that state, and that with respect to property in other states it is given only such effect as the law of such state permits; and that, in general, it must give way to claims of creditors pursuing their remedies there. It passes no title to real estate situated in another state. Nor, as to personal property, will the title ac- quired by it prevail against the rights of attaching creditors under the laws of the state where the property is actually situat- ed.” Brown, J. Security Trust Co. v. Dodd, etc., Co., 173 U. S. 629. “But the weight of authority is, as al- ready stated, that it makes no difference whether the estate of the insolvent is vested in the foreign assignee under proceedings instituted against the insolvent or upon the voluntary application of the insolvent him- self. The assignee is still the agent of the law, and derives from its authority.” Brown, J. Security Trust Co. v. Dodd, etc, Co.,, 173 U. S. 635. — Real Estate. “Tt is an admitted principle in all countries where the common law prevails, whatéver views may be maintained in regard to per- sonal property, that the real estate can be conveyed only under the foreign assign- ment.” McLean, J. Oakey v, Bennett, 11 How. 44. Release. “The law holds it to be right that a debtor shall devote his entire property to the pay- ment of his debts, and when he has done this that after-acquired property shall be his own, to be held free from the obliga- tion of all his debts, just debts as well as unjust, principal debts as well as security debts.” Hunt, J. Allen & Co. v. Ferguson, 18 Wall. 4. —— Effect of Statute of Another State. “So far as the courts of other states [than Minnesota] have passed upon the question, they generally held that any state law upon the subject of assignments, which limits the distribution of the debtor’s property to such of his creditors as shall file releases of their demands, is to all intents and purposes an insolvent law; that a title to personal prop- erty acquired under such laws will not be recognized in another state, when it comes in conflict with the rights of creditors pur- suing their remedy there against the prop- erty of the debtor, though the proceedings were instituted subsequent to and with notice of the assignment in insolvency.” Brown, J. Security Trust Co. v. Dodd, etc. Co., 173 U. S. 633. ASSISTANCE— WRIT OF. Jurisdiction to Issue. “The jurisdiction of courts of equity to interfere and effectuate their own decrees 182 ASSUMPSIT. by injunctions or writs of assistance in or- der to avoid the relitigation of questions once settled between the same parties, is well settled.” Jackson, J. Root v. Wool- worth, 150 U. S. 411. Against Parties Only. “Writs of assistance can only issue against parties affected by the decree, which is only saying that, the execution cannot ex- ceed the decree which it enforces, the rule being that the owner of property mort- gaged which is directed to be sold can only be barred when he has had notice of the proceedings for its sale, if he acquired his interest prior to their institution.” CLIFFoRD, J. Howard v. Milwaukee, etc, R. Co. 101 U.S. 849. “The writ of assistance cannot go against a stranger in a suit for foreclosure, and that the remedy of the party in sucha case is eject- ment.” Currrorp, J. Howard v. Milwau- kee, etc, R. Co, 101 U. S. 848. “A writ of assistance can only issue against parties to the proceedings, and parties entering into possession under them after suit commenced, pendente lite.” Frexp, J. Terrell v. Allison, 21 Wall. 293. “The writ of assistance can only issue against parties bound by the decree, which is only saying that the execution cannot exceed the decree which it enforces.” FIELD, J. Terrell v. Allison, 21 Wall. 291. ASSOCIATIONS. See VoLunTARY ASSOCIATIONS. ASSOCIATIONS OF PERSONS. See generally CorrorATIONS; PERSONS. “The words “association of persons’ are often, and not inaptly, employed to describe a corporation. An incorporated company is an association of individuals acting as a single person, and by their corporate name.” Hartan, J. U. S. vu. Trinidad Coal Co., 137 U. S. 169. “A private corporation is, in fact but an association of individuals united for a law- ful purpose and permitted to use a common name in their business, and to have a change of members without dissolution.” Frexp, J. Kansas Pac. R. Co. v. Atchison, etc., R. Co., 112 U. S. 415. “Such [private] corporations are merely associations of individuals united for a spe- cial purpose, and permitted to do business under a particular name, and have a succes- sion of members without dissolution.” Fietp, J. Pembina Min. Co. v. Pennsylvania, 125 U. S. 189. ASSUMPSIT. See Case; ELEcTION oF REMEDIES AND RicHts; Money Hap anp RECEIVED. Introduction of Remedy. “The remedy by assumpsit is compara- tively of modern introduction.” Swayne, J. Schuchardt v.- Allens, 1 Wall. 368. “This form of action [assumpsit] origi- nated, like many others, under the Stat. of Westm. 2, 13 Edw. I. c. 24, sec. 2. Its establishment was strenuously resisted through several reigns, 2 Reeves’s Hist. 394, 507, 608. It was sustained, upon full consideration, in Slade’s Case, 4 Coke, 92, which was decided in 44 Elizabeth.” Swayne, J. Carrol v. Green, 92 U. S. 513. Propriety of Remedy Generally —On Record. ; “ Assumpsit would not lie upon a record or other specialty; but would lie upon any other contract, whether expressed by the party, or implied by law.” Gray, J. Hil- ton v. Guyot, 159 U. S. 199. —— For Use and Occupation. “An action in the nature of assumpsit for the use and occupation of real estate will never lie where there has been no relation of contract between the parties, and where the possession has been acquired and maintained under a different or adverse ti- tle, or where it is tortious and makes the defendant a trespasser.” Gray, J. Hill w. U. S., 149 U. S. 598, —— Between Partners. “Between partners, though articles of co- partnership have been sealed between them, yet, upon an account stated, and a balance struck, assumpsit will lie.” DawnzeL, J. Fresh v. Gilson, 16 Pet. 334, See also PARTNERSHIP. —Contract Express or Implied. “Case, now usually called assumpsit,’ is founded on a contract express or implied.” Swayne, J. Carrol v. Green, 92 U. S. §13. — Implied Promise. Indebitatus assumpsit is founded upon what the law terms an implied promise on the part of the defendant to pay what in 183 ASSUMPSIT, good conscience he is bound to pay to the plaintiff, consequently where the case shows, that it is the duty of the defendant to pay, the law imputes to him a promise ta fulfil that obligation.” Ct irForp, J. God- dard v. Foster, 17 Wall. 141. To the same effect see the language of Cxirrorp, J., in Collector v. Hubbard, 12 Wall. 1; U. S. a. Russell, 13 Wall. 630; Curtis v. Fielder, 2 Black 478. — Liability under Deed Polt: “Where a party executes a deed poll, re- serving rent, and the grantee enters into possession, he is under the same liability to pay such rent as if the deed were an in- denture inter partes, and he had executed it. The law implies a promise to pay which may be enforced by an action of indebitatus assumpsit.” Swayne, J. Sanger v. Upton, 91 U. S. 64. —— Only Where No Express Promise, “Implied promises or promises in law exist only when there is no express promise between the parties—esxpressum facit ces- sare tacitum.’ CutrrorD, J. Hawkins vw. U. S., 96 U. S. 697. -—— When Promise Not Implied. “Such a promise to pay, however, will never be implied unless some duty creates such an obligation, nor will the law ever imply a promise to do an act contrary to law or in violation of a public duty.” CutFForD, J. Collector v. Hubbard, 12 Wall. 12. To the same effect see the language of CurrrorpD, J., in U. S. v. Russell, 13 Wall. 630. “The Jaw will never imply a promise where it would be unjust to the party to whom it would be imputed, and contrary to equity so to imply it.” Dante, J. Cary v. Curtis, 3 How. 251. Money Had and Received. “Whenever one person has in his hands money equitably belonging to another, that other person may recover it by asstimpsit for money had and received.” Woops, J. Gaines v. Miller, 111 U. S. 397%. To the same effect, see the language of Davis, J., in Bayne v. U. S, 98 U. S. 643, and of Swayng, J., in U. S. v. Boston State Nat. Bank, 96 U. S. 35, “The form of the indebtedness or the mode in which it was incurred is immate- rial.” Swayne, J. U. S. uv: Boston State Nat. Bank, 96 U. S. 35, “Tf money be delivered by A. to B to be paid over to C. although no promise is made by B. to C., yet C. may recover the money from B. by an action of assumpsit.” MarsHalt, C. J. Lawrason v. Mason, 3 Cranch 495. —— Money Illegally Exacted. “Assumpsit for money had amd reeeived is an appropriate remedy to recover back moneys illegally exacted by a collector as taxes in all jurisdictions where no other remedy is given, unless the tax was voltn- tarily paid or some statutory conditions are amnexed to the exercise of the right to sue, which were unknown at common law.” CurFForD, J. State Tonnage Tiax Cases, 12 Wall, 209. “Tt is the doctrine of the common law, (as far as my researches extend), absolutely universal, that if a man, by fraud, or wrong, or illegality, obtains, or exacts, or retains money justly belonging to another, with no- tice that the latter contests the right of the former to receive, or exact, or retain it, an action for money had and received lies to recover it back; and it is no answer for the wrong-doer to say that he has paid it over to his superior.” Story, J., dissent- ing. Cary v. Curtis, 3 How. 255, “Tt is. an entire mistake of the true meaning of the rule of the common law, which is sometimes suggested in argument, that the action of assumpsit for money had and received is founded upon a voluntary, express, or implied promise, of the defend- ant, or that it requires privity between the parties ex contractu to support it. The rule of the common law has a muck broader and deeper foundation. Whenever the law pro- nounces that a party is under a legal liabil- ity or duty to pay over money belonging to another, which he has no lawful right to exact or retain from him, there it forces the promise upon him in imvitum to pay over the money to the party entitled to it.” Story, J., dissenting. Cary wv. Curtis, 3 How. 255. Work and Labor. “ Assuredly there may be a state of facts from which an implied contract or promise to pay for services rendered may be justly inferred.” Sutras, J. Coleman v. U. S,, 152 U, S. 99. “We think that a promise to pay for services can only be implied when the court can see that they were rendered in such circumstamces as authorized the party per- 184 ATTACHMENT. forming to entertain a reasonable expecta- tion of their payment by the party benefit- ed.” Suiras, J. Coleman v. U. S., 152 UL S. 99. Quantum Meruit. “Tt has been ruled, that where a person who had covenanted to. perform certain work had failed or refused to fulfill his cove- nant, but had afterwards, upon the parol engagement of the covenantee, or by his acts amounting in law to an _ engage- ment, gone on in whole or in part to do the work, he might recover the value of the work in assumpsit, upon a quantum meruit.” DANIEL, J. Fresh v. Gilson, 16 Pet. 334, “When a special contract for work and services has been abandoned and put an end to, if the employer has derived some benefit from work done under it, he may be made liable upon an implied promise to make reasonable remuneration in respect to such work.” Cuirrorp, J. Hawkins v. U. S. 96 U. S. 697. “Tf there be an express written contract between the parties, the plaintiff in an ac- tion to recover for work and labor done, or for money paid, must declare upon the writ- ten agreement so long as the special agree- ment remains in force and unrescinded, as he cannot recover under such circtumstances upon a quantum meruit.’ CuivForD, J. Hawkins, v. U. S. 96 U. S. 697. “Tt is to be observed that when it is said in some of the books, that where one party puts an end to the contract, the other party cannot sue on the contract, but must sue for the work actually done under it, as upon a quantum meruit, this only means that he cannot sue the party in fault, upon the stipulations comtained in the contract, for he himself has been prevented from perform- ing his own part of the contract upon which the stipulations depend.” Brantey, J. U. S. v. Behan, 110 U. S. 346. Defenses under General Issue. “Tn assumpsit any matter which shows that the plaintiff never had a cause of ac- tion may be proved under the general issue.” Hunt, J. Chambers County v. Clews, 21 Wall. 323. “Tt has been long since established that under non assumpsit the defendant may give in evidence any thing which shows that no debt was due at the time when the action was commenced, whether it arise from an inherent defect in the original promise or a subsequent discharge and satisfaction.” Srory, J. Young v. Black, 7 Cranch 567. “Whilst, however, at the common law, under the general issue in assumpsit, it was always admissible to give in evidence any matter which showed that the plaintiff never had a valid cause of action, in practice many other matters were allowed under that plea, such as went to the discharge of the orig- inal cause of action, and showed that none subsisted at the commencement of the suit, stich as payment, release, accord and satis- faction, and a former recovery, and excuses for non-performance of the contract; and also that it had become impossible or illegal to perform it.” Fretp, J. Oscanyan v. Win- chester Repeating Arms Co., 103 U.S. 266. AS WELL AS. See INcLUDING. AT. See Distance. ATTACHMENT. I. Nature or REMeEpy. 1. In General. 2. Construction of Statutes. 3. Relation to Main Action, II. AtLowance, DIssoLuTION, AND DISCHARGE. III. Levy. 1. Duty and Liability of Officer. 2. Lien. CROSS-REFERENCES. For nature of judgment in absence of per- sonal service, see PROcEss. See also GARNISHMENT; PENSIONS. I, NATURE OF REMEDY. 1. In GENERAL. Origin. “Our attachment laws had their origin in the custom of London. . . Under it a debt was regarded as being where the debtor was, and questions of jurisdiction were set- tled on that regard.” McKenna, J. Chi- cago, etc, R. Co. v. Sturm, 174 U. S. 724 185 ATTACHMENT. Proceeding in Rem. “An attachment is in the nature of, but not, strictly speaking, a proceeding in rem, since that only is a proceeding im rem in which the process is to be served on the thing itself.” Futter, C. J. Cole v. Cun- ningham, 133 U. S. 116. Situs of Res. “The essential service of foreign attach- ment laws is to reach and arrest the pay- ment of what is due and might be paid to a non-resident to the defeat of his creditors. To do it he must go to the domicil of his debtor, and can only do it under the laws and procedure in force there. This is a legal necessity, and considerations of situs are somewhat artificial. If not artificial, whatever of substance there is must be with the debtor. He and he only has something in his hands. That something is the res, and gives character to the action as one in the nature of a proceeding in rem.’ Mc- Kenna, J. Chicago, etc., R. Co. wv. Sturm, 174 U. S. 715. “In a proceeding by attachment of proper- ty, which in the nature of an action in rem, it is elementary that the defendant is found, to the extent of the property levied upon, where the property is attached. It would be an extremely strained construction of the language of the act to hold that Congress intended to prohibit a remedy universally pursued, that of a proceeding against the property of non-residents in the place in the territory where the property of such non-res- ident is found.” Wuuire, J. Central Loan, etc. Co. v. Campbell, 173 U. S. 97. -—— Effect of Appearance and Nonap- pearance. “Tf, in an attachment suit, the defendant appears, the cause becomes mainly a suit in personam, with the added incident, that the property attached remains liable, under the control of the court, to answer any demand which may be established against the defend- ant by the final judgment of the court.” Fuiter, C. J. Cole v. Cunningham, 133 U. S. 116. Mutter, J. Cooper v. Reynolds, 10 Wall. 318. “But, if there is no appearance of the de- fendant, and no service of process on him, the case becomes, in its essential nature, a proceeding in rem, the only effect of which is to subject the property attached to the pay- ment of the demand which the court may find to be due to the plaintiff.” Murer, J. Cooper v. Reynolds, 10 Wall. 318. 186 Authority to Classify Residents and Non- residents, “The elementary doctrine is not denied that for the purposes of the remedy by at- tachment, the legislative authority of a state or territory may classify residents in one class and non-residents in another.” WHuute, J. Central Loan, etc., Co. v. Campbell, 173 U. S. 98. ——- Both Parties Nonresidents. “We cannot see why, if Illinois, in the spirit of enlightened legislation, concedes to the citizens of other states equal privileges with her own in her foreign attachment laws, that the judgment against the personal estate located in her limits of a nonresident debt- or, which a citizen of New York lawfully ob- tained there, should have a different effect given to it tinder the provisions of the Con- stitution and the law of Congress, because the debtor, against whose property it was recovered, happened also to be a citizen of New York.” Davis, J. Green v. Buskirk, 7 Wall. 151. Lex Fori Controls Validity of Title. “They [attachment laws] exist in every state for the furtherance of justice, with more or less of liberality to creditors. And if the title acquired under the attachment laws of a state, and which is valid there, is not to be held valid in every other state, it were better that those laws were abolish- ed, for they would prove to be but a snare and a delusion to the creditor.” Davis, J. Green v. Van Buskirk, 7 Wall. 148. Conveyance Under. “An attachment, and conveyance under it, are equivalent to an execution executed.” Jounson, J., concurring. Inglis uv, Sailor’s Snug Harbour, 3 Pet. 137. 2. CONSTRUCTION OF STATUTES. “The law of attachment, being in deroga- tion of the common law, courts are not in- clined to extend its provisions beyond the requirements of the statute authorizing it.” Davis, J. Mitchell v. St. Maxtent, 4 Wall. 243, “Tn some of the states, peculiar systems of jurisprudence, with respect to suits in attachment, have grown up, and every thing in that connection is held to be siricti juris. In other states, more liberal rules prevail. We do not mean to contravene the former. In cases arising in such states, we should be bound to apply the local law.” Swayne, J. Tilton v. Cofield, 93 U. S. 168. ATTACHMENT. 3. RELATION TO Marin ACTION. “An attachment is but an incident to a suit, and unless the suit can be maintained the attachment must fall.” Warts, C. J. Ex p. Des Moines, etc, R. Co. 103 U. S. 796. To the same effect see the language of Jounson, J.,.in Pratt v. Law, 9 Cranch 497. II. ALLOWANCE, DISSOLUTION, AND DISCHARGE, Allowance, By Whom. “Tt is elementary that where the ground for the attachment may be alleged in the language of the statute, the authority to al- low the writ need not be exercised by the judge of the court, but may be delegated by the legislature to an official such as the clerk of the court. WxH1tr, J. Central Loan, etc., Co. v. Campbell, 173 U. S. 96. Discharge for Debtor’s Benefit. “ Attachments are made for the benefit of creditors, but the provision for the discharge of the property attached is made for the benefit of debtors.” Cu1FForD, J. Inbusch v. Farwell, 1 Black 572. Effect of Dissolution — Return of Prop- erty. “The general rule is, that where an at- tachment has been dissolved, no action can be maintained against. the sheriff for a re- turn of the property, until he have notice by the record of the fact; or if it has taken place, by the act of the parties, dehors the record, then not until notice of the extrinsic facts, which have satisfied it, has been brought home to him.” Matruews, J. Conner v. Long, 104 U. S. 239. III. LEVY. 1. Duty AND LiaBILITy OF OFFICER. Mesne Process — Property of Stranger. “The marshal, in serving a writ of at- tachment on mesne process, which directs him to take the property of a particular person, acts officially. His- official duty is to take the property of that person, and of that person only; and to take only such prop- erty of his as is subject to be attached, and not property exempt by law from attach- ment.” Gray, J. Lammon v. Feusier, 111 U.S. 18. —— Remedy. “The remedy of a person, whose prop- erty is wrongfully taken by the marshal in officially executing his writ, is not limited . full knowledge of the assignment.” to an action against him personally. His official bond is not made to the person in whose behalf the writ is issued, nor to any other individual, but to the government, for the indemnity of all persons injured by the official misconduct of himself or his depu- ties; and his bond may be put in suit by and for the benefit of any such person.” Gray, J. Lammon vw. Feusier, 111 U. S. 19. “When a marshal, upon a writ of attach- ment on mesne process, takes property of a person not named in the writ, the property is in his official custody, and under the con- trol of the court whose officer he is, and whose writ he is executing; and, according to the decisions of this court, the rightful owner cannot maintain an action of replevin against him, nor recover the property specifically in any way, except in the court from which the writ issued.” Gray, J. Lammon v. Feusier, 111 U. S. 19. “A person other than the defendant named in the writ, whose property is wrong- fully taken, may indeed sue the marshal, like any other wrongdoer, in an action of trespass, to recover damages for the wrong- ful taking; and neither the official character of the marshal, nor the writ of attachment, affords him any defense to such an action.” Gray, J. Lammon vw. Feusier, 111 U. S. 19. 2. Lien. Nature Of. “Levying an attachment has ihe double effect of creating a lien and instituting an action. But the lien is only inchoate; it awaits the judgment of the court for its consummation, and must fall with the suit. To decide otherwise would be to permit the defendant, by collusion, or his own act, to nullify the lien of the subsequent attach- ment.” JoHNSON, J. Pratt v. Law, 9 Cranch 497. Effect of Prior Assignment. “Courts of law, as well as courts of equi- ty, are constantly, in all states where the common law prevails, in the habit of holding a prior assignment of the equitable interest in stock as superseding the rights of attach- ing creditors, who attach the same with a Story, J. Black v. Zacharie & Co., 3 How. 512. Transfer After Issuance of Writ. “The transfer of his real estate by a debtor against whom an attachment has been issued, and before judgment or decree, whether by his own act, or by operation of law, cannot impair or invalidate the title of 187 ATTORNEY AND CLIENT. a purchaser under such decree or judgment. Tt is evident that unless this is so an attach- ment suit can never be invoked for the col- lection of a debt.” Hunr, J. Doe w. Chil- dress, 21 Wall. 645. ATTAINDER. Definition. “The word attainder is derived, by Sir Thomas Tomlins, in his law dictionary, from the words a#tincta and attinctura, and is de- fined to be ‘the stain or corruption of the blood of a criminal capitally condemned; the immediate inseparable consequence of the eommon. law, on the pronouncing the ses- tence of death.’ The effect of this corrup- tion of the blood was, that the party attaint- ed lost all inheritable quality, and could neither receive nor transmit any property or other rights by inheritance.” Mutzer, Jj., dissenting. Ex p. Garland, 4 Wall. 387. Bills of Attainder. “Bills of attainder, therefore, or acts of attainder, as they were called after they were passed into statutes, were laws which de- clared certain persons attatnted, and their blood corrupted so that it had lost all herita- ble quality. Whether it declared other pun- ishment or not, it was am act of attainder if it declared this.” Mrtrer, J., dissenting. Ex p. Garland, 4 Wall. 387. “* A statute, then, which designates no criminal, either by mame or description — which declares no guilt, promounces no sen- tence, and inflicts no punishment—can in no sense be called a bill of attainder.” Mu- LER, J., dissenting. Ex p. Garland, 4 Wall. 390. Forfeiture Related Back to Time of Of- fense, “ At common law, in case of attainder for treason or felony the forfeiture of lands re- lates back to the time of the offense com- mitted so as to avoid all intermediate changes and conveyances.” Story, J. U.S. vw. 1,960 Bags of Coffee, 8 Cranch 411. Necessity of Conwiction. “No right to the goods and chattels of the felon could be acquired by the crown by the mere commission of the offense; buti the right attached only by the conviction of the offender.” Story, J. The Palmyra, 12 Wheat. 14. Personal Powers, and Conditions. “Even under the statutes of treason in England, powers and conditions, personal to the parties, did not by an attainder pass to the crown.” Story, J. Carver v. Jackson, 4 Peters 92, Forfeiture During Life. “Tt has not been found necessary in En- gland to hold that a reversion remained in a traitor after his attaint, though the stat- utes declare that the forfeiture shall be dur- ing his natural life only.” Srronc, J. Wal- lach v. Van Riswick, 92 U. S. 212. In the United States. “Tn England, attainders of treason worked corruption of blood and perpetual forfeiture of the estate of the person attainted, to the dishersion of his heirs, or of those wha would otherwise be his heirs. Thus inno cent children were made to. suffer because. of the offence of their ancestor. When the Federal Constitution was framed, this was felt to be a great hardship, and even rank injustice. For this reason, it was ordained that no attainder of treason should work corruption of blood or forfeiture, except during the life of the person attainted. No one ever doubted that it was a provision in- troduced for the benefit of the children and heirs alone; a declaration that the children. should not bear the iniquity of the fathers. Its purpose has never been thought to be a benefit to the traitor, by leaving im him a vested interest in the subject of forfeiture.” Stronc, J. Wallach v. Van Riswick, 92 U. S. 210. ATTESTATION. Conclusiveness. “The memorandum of attestation to a deed or will, whether that memorandum be gen- eral or special, is mot conclusive as to the ceremony of the execution of the instrument to which such memorandum is annexed, but may be explained by the testimony of the witnesses themselves, or by reference to the testimonium clause of the instrument, as showing the facts and circumstances set forth in that clause, and which the witnesses, were called on to attest.” Dantst, J. Ladd uw Ladd, 8 How. 33. ATTORNEY AND CLIENT. I. In GENERAL. II. Apmission, ContTrot, PuNIsH- MENT,, AND REMOVAL OF ATTOR- NEYS. ; 188 ATTORNEY AND CLIENT. III. THE ReLation — ConTINUANCE, DuTiEs, AND TERMINATION. 1. In General. 2. Fees. 3. Liability of Attorney. CROSS-REFERENCES. For appearance by, see APPEARANCE; control of execution, see EXECUTIONS ; acceptance of service of process, see Process. See also CoMPROMISE AND SETTLEMENT} Damaces; PRIvILEGED COMMUNICATIONS}; Proression, Practice OF. I. IN GENERAL. “Tt is believed that no civilized nation of modern times has been without a class of men intimately connected with the courts, and with the administration of justice, called variously attorneys, counsellors, solicitors, proctors, and other terms of similar import.” Miter, J., dissenting. Ex p. Garland, 4 Wall. 384. “In this country, the distinction between attorney or solicitor and counsel is practi- cally abolished in nearly all the states. The lawyer in charge of a case acts both as so- licitor and counsel. His services in the one capacity and the other cannot be well dis- tinguished.” Braptry, J. In re Paschal, 10 Wall. 493. . II. ADMISSION, CONTROL, PUNISH- MENT, AND REMOVAL OF AT- TORNEYS. Admission and Removal Judicial Acts. “Both the admission and removal of at- torneys are judicial acts.” Frietp, J. Ran- dail v. Brigham, 7 Wall. 535. Right to Practice— Privilege and Qual- ifications. “The right to practice law in the courts as a profession, is a privilege granted by the law, under such limitations or conditions in each state or government as the law-making power may prescribe. It is a privilege, and not an absolute right.” Mrtzer, J., dissent- ing. Ex p. Garland, 4 Wall. 384. “Parties are admitted to the profession {of an attorney] only upon satisfactory evi- dence that they possess fair private charac- ter and sufficient legal learning to conduct causes in court for suitors. The order of admission is the judgment of the court that they possess the requisite qualifications both in character and learning. They become by such admission officers of the court.” Fietp, J. Ex p. Robinson, 19 Wall. 512. “Every state in the Union, and every civilized government has laws by which the right to practice in its courts may be granted, and makes that right to depend on the good moral character and professional skill of the party on whom the privilege is conferred.” Miiter, J., dissenting. Ex p. Garland, 4 Wall. 384. “Attorneys and counsellors at law — and the two characters are in this country gen- erally united in the same person —are offi- cers of the court, admitted to be such by its order upon evidence that they possess suffi- cient learning to advise as to the legal rights of parties, and to conduct proceedings in the courts for their prosecution or de- fence, and that they have such fair private characters as to insure fidelity to the inter- ests intrusted to their care.” Frexp, J., dis- senting. Ex p. Wall, 107 U. S., 303. Control over in General — Punishment. “The authority of the court over its at- torneys and counsellors is of the highest importance. They constitute a profession essential to society. Their aid is required not merely to represent suitors before the courts, but in the more difficult transactions of private life. The highest interests are placed in their hands, and confided to their management. The confidence which they re- ceive and the responsibilities which they are obliged to assume demand not only ability of a high order, but the strictest integrity. The authority which the courts hold over them, and the qualifications re- quired for their admission, are intended to secure those qualities.” Fimetp, J. Randall v. Brigham, 7 Wall. 540. “There are few of the business relations of life involving a higher trust and confi- dence than that of attorney and client or, generally speaking, one more honorably and faithfully discharged, few more anxiously guarded by the law, or governed by sterner principles of morality and justice; and it is the duty of the court to administer them in a corresponding spirit, and to be watchful and industrious, to see that confidence thus reposed shall not be used to detriment or prejudice of the rights of the party be- stowing it.” Nexson, J. Stockton v. Ford, 11 How. 247. se Attorneys at law are officers of the court, admitted as such by its order; but it is a 189 ATTORNEY AND CLIENT. mistake to suppose that they are officers of the United States, as they are neither elected nor appointed in the manner prescribed by the Constitution for the election or appoint- ment of such officers.” CLiFForD, J. Sav- ings Bank v. Ward, 100 U. S. 198. ——Continuance of Right to Practice — Disbarment. “The continuance of the right [to practice law] is made, . . . to depend upon the continued possession of these qualities [good moral character and professional skill].” Miter, J., dissenting. Ex p. Garland, 4 Wall. 384. “This power [to disbar an attorney] is possessed by all courts which have authority to admit attorneys to practice.’ Frexp, J. Ex p. Robinson, 19 Wall. 512. —— Causes for Disbarment and Jurisdic- tion. “The oath which every attorney and coun- sellor is required to take on his admission briefly expresses his duties. It is substan- tially this: that he will support the Consti- tution of the United States and ‘conduct himself as an attorney and counsellor of the court uprightly and according to law.’ This implies not only obedience to the Constitu- tion and laws, but that he will, to the best of his ability, advise his clients as to their legal rights, and will discharge with scrupu- lous fidelity the duties intrusted to him; that he will at all times maintain the respect due to the courts and judicial officers; that he will conform to the rules prescribed by them for his conduct in the management of causes; that he will never attempt to mislead them by artifice or any false statement of fact or intentional misstatement of the law, and will never employ any means for the advancement of the causes confided to him except such as are consistent with truth and honor. So long as he ‘carries out these requirements of his oath he will come within the rule of ‘good behavior,’ and no com- plaint of his professional standing can be made. The authority which the court holds over him and the exercise of his profession extends so far, and so far only, as to insure a compliance with these requirements. It is for a disregard of them, therefore, that is, for professional delinquency, and the loss of character for integrity and trustworthi- mess, or, in other words, for moral delin- quency, which a disregard of them manifests, that the court will summarily act upon his office and disbar him.” Frexp, J., dissenting. Ex p. Wall. 107 U. S. 303. “A removal from the bar should there- fore never be decreed where any punishment less severe—such a reprimand, temporary suspension, or fine— would accomplish the end desired.” Fietp, J. Bradley v. Fisher, 13 Wall. 355. “On one hand, the profession of an at- torney is of great importance to an indi- vidual, and the prosperity of his whole life may depend on its exercise. The right to exercise it ought not to be lightly or ca- priciously taken from him. On the other, it is extremely desirable that the respectabil- ity of the bar should be maintained, and that its harmony with the bench should be pre- served. For these objects, some controlling power, some discretion, ought to reside in the court. This discretion ought to be exer- cised with great moderation and judgment, but it must be exercised; and no other tri- bunal can decide, in a case of removal from the bar, with the same means of information as the court itself. If there be a revising tribunal, which possesses controlling author- ity, that tribunal will always feel the deli- cacy of interposing its authority, and would do so only in a plain case.” MarsHALL, C.J. Ex p. Burr, 9 Wheat. 530. —Indictable Acts. “Where the acts charged against an attor- ney are not done in his official character, and are indictable, and not confessed, there has been a diversity of practice on the sub- ject; in some cases it being laid down that there must be a regular indictment and con- viction before the court will proceed to strike him from the roll; in others, such previous conviction being deemed unneces- sary.” Braptey, J. Ex p. Wall, 107 U. S. 281. “The summary jurisdiction of the court in this respect [disbarment of an attorney] will only be exercised; first, for misconduct of the attorney in cases and matters in which he has been employed or consulted professionally, or matters in which, from their nature, it must be presumed he was employed by reason of his professional char- acter; and, second, for such misconduct out- side of his profession as shows the want of that integrity and trustworthiness which is essential to insure fidelity to interests in- trusted to him professionally. The commis- sion of a felony or a misdemeanor involving moral turpitude is of itself the strongest proof of such misconduct as will justify an expulsion from the bar; but the only evi- dence which the court can receive of the commission of the offense, when it is not 190 ‘ATTORNEY AND CLIENT. admitted by the party, is a record of his conviction.” Fievp, J., dissenting. Ky p. Wall, 107 U. S. 304. “Tt is only for that moral delinquency which consists in a want of integrity and trustworthiness, and renders him an unsafe person to manage the legal business of oth- ers, that the courts can interfere and sum- mon him [the attorney] before them. He is disbarred in such case for the protection of the court and of the public. Fuexp, J., dis- senting. Ex p. Wall, 107 U. S. 307. “When the proceeding to disbar an at- torney is taken for misconduct outside of his profession, the inquiry should be con- fined to such matters, not constituting in- dictable offenses, as may show him unfit to be a member of the bar; that is, as not possessing that integrity and trustworthi- ness which will insure fidelity to the in- terests intrusted to him professionally, and to the inspection of any record of conviction against him for a felony or a misdemeanor involving moral turpitude. It is not for every moral offense which may leave a stain upon character that courts can summon an attorney to account.” Frietp, J., dissenting. Ex p. Wall, 107 U. S. 306. “When the charge against the attorney is of misconduct in his office, and that in- volves, as it sometimes may, the commission of a public offense, for which he may be prosecuted criminally, the inquiry should proceed only so far as to determine the question of professional delinquency, and he should be left to the proper tribunals for the punishment of the crime committed. And on such an inquiry no answer will be required of him which would tend to his crimination.” Fretp, J., dissenting. Er p. Wall, 107 U. S. 304. “TI cannot assent to the doctrine that, by virtue of any power which a court pos- sesses over attorneys, it can try one for a felony upon a proceeding to disbar him. The Constitution of the United States and of every state has made it a part of the fun- damental law of the land that ‘no person shall be held to answer for a capital or otherwise infamous crime unless on a pre- sentment or indictment of a grand jury,’ except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger. A felony is an infamous crime. No person charged therewith can be held to answer therefor; that is, can, in any other form of proceeding, be required to explain his con- duct or vindicate his action. This pro- vision excludes an inquiry, and, of course, any possible punishment for an imputed crime, except upon a conviction under such presentment or indictment. If a party is otherwise tried and punished, the constitu- tional guaranty is violated in his person.” Fizxp, J., dissenting. Ex p. Wall, 107 U. S. 297. “A conviction of a felony or a misde- meanor involving moral turpitude implies the absence of qualities which fit one for an office of trust, where the rights and property _of others are concerned. The record of con- viction is conclusive evidence on this point. Such conviction, as already said, can follow only a regular trial upon the presentment or indictment of a grand jury. It cannot follow from any proceeding of the court on a motion to disbar, for the reason already given, that no one can be required to an- swer for such an offense except in one way. If a party indicted is, upon trial, acquitted, the court cannot proceed to retry him for the offence upon such a motion. He may answer, after acquittal, that he never com- mitted the offence, and that no tribunal can take any legal proceeding against him on the assumption that he had been wrong- fully acquitted. And what the court can- not do after acquittal it cannot do by such a proceeding before trial, Fuiexp, J., dissent- ing. Ex p. Wall, 107 U. S. 307. — Summary Jurisdiction to Enforce Per- formance of Duty. “Tf an attorney have collected money for his client, it is prima facie his duty, after deducting his own costs and disbursements, to pay it over to such client; and his refusal to do this, without some good excuse, is gross misconduct and dishonesty on his part, calculated to bring discredit on the court and on the administration of justice. It is this misconduct on which the court seizes as a ground of jurisdiction to compel him to pay the money, in conformity with his professional duty. The application against him in such cases is not equivalent to an action of debt or assumpsit, but is a quasi criminal proceeding, in which the question is not merely whether the attorney has re- ceived the money but whether he has acted improperly and dishonestly in not paying it over. If no dishonesty appears the party will be left to his action. The attorney may have cross demands against his client, or there may be disputes between them on the subject proper for a jury or a court of law or equity to settle. If such appear to 191 ATTORNEY AND CLIENT. be thé case, and no professional misconduct be shown to exist, the court will not ex- ercise its summary jurisdiction. And as the proceeding is in the nature of an attach- ment for a contempt, the respondent ought to be permitted to purge himself by his oath.” Brapiey, J. Jn re Paschel, 10 Wall. 492, gif It is laid down in all the books in which the subject is treated, that a court. has power to exercise a summary juris- diction over its attorneys to compel them to act honestly towards their clients, and to punish them by fine and imprisonment for misconduct and contempts, and, in gross cases of misconduct, to strike their names from the roll. If regularly convicted of a felony, an attorney will be struck off the roll as of course, whatever the felony may be, because he is rendered infamous. If convicted of a misdemeanor which imports fraud or dishonesty, the same course will be taken. He will also be struck off the roll for gross malpractice or dishonesty in his profession, or for conduct gravely af- fecting his professional character.” BRrap- Ley, J. Ex p. Wall, 107 U. S. 273. “We do not doubt the power of the court to punish attorneys as officers of the same, for misbehavior in the practice of the same. This power has been recognized and en- forced ever since the organization of courts and the admission of attorneys to practice therein. If guilty of fraud against their clients, or of stirring up litigation by corrupt devices, or using the forms of law to further the ends of injustice; in fine, for the com- mission of -any other act of official or per- sonal dishonesty and oppression, they be- come subject to the summary jurisdiction of the court. Indeed, in every instance where an attorney is charged with fraud or malpractice in his profession, contrary to the principles of justice and common hon- esty, the court, on motion, will order him to appear and answer, and deal with him according as the facts may appear in the case. But, this is a distinct head of pro- ceeding from that of contempt of court, or of the members thereof, committed in open court, or in immediate view and presence, tending to interrupt its proceedings, or to impair the respect due to its authority. This distinction is recognized in the act of 1831, which, after providing for personal contempt in presence of the court, authorizes attachments to issue, and summary punish- ment to be inflicted, for the misbehavior of the officers of said courts in their official transactions.” Netson, J. Ex p. Bradley, 7? Wall, 374. “There may be cases undoubtedly of such gross and outrageous conduct in ‘open court on the part of the attormey, as to justify very summary proceedings for his suspen- sion or removal from office; but even then he should be heard before he is condemned.” Fretp, J. Ex ~. Robinson, 19 Wall. 512. III. THE RELATION — CONTINU- ANCE, DUTIES, AND TERMINA- TION. 1. In GENERAL. Employment Creating Relation. “The employment to draw the contract [for sale of property] was sufficient alone to put the parties in this relation [of at- torney and client] to each other.” Swayne, J. Baker v. Humphrey, 101 U. S. 500. “The authority of an attorney commences . with his retainer.” PeckHam, J. Stone wv. Bank of Commerce, 174 U. S, 421. “The power of an attorney depends upon the authority given him to commence a suit or to defend a suit actually brought, and he has no power as an attorney until such fact exists.” Pecxuam, J. Stone vw. Bank of Commerce, 174 U. S. 423. Nature of Relationship. “ An attorney of an individual, retained for a single suit, is not an employé. It is true, he has engaged to render services; but his engagement is rather that of a contractor than that of an employé.” Brewer, J. Louisville, etc, R. Co. v. Wilson, 138 U. S. 505. Termination of Relation. “Undoubtedly either party had the right to terminate the connection at any time.” Swayne, J. Baker v. Humphrey, 101 U. S. 500. Withdrawal Not Permitted. “No attorney or solicitor can withdraw his name after he has once entered it upon the record, without the leave of the court.” Furr, C. J. Tripp v. Santa Rosa St. Co., 144 U. S. 128, “We presume that no court would permit an attorney who had appeared at the trial, with the sanction of the party, express or implied, to withdraw his name after the case was finally decided. For if that could be done, it would be impossible to serve the 192 ATTORNEY AND CLIENT. citation where the party resided in a dis- tant country, or his place of residence was unknown, and would in every case occasion unnecessary expense and difficulty, unless he lived at the place where court was held. And, so far from permitting an attorney to embarrass and impede the administration of justice, by withdrawing his name after trial and final decree, we think the court should regard any attempt to do so as open to just rebuke.” Taney, C. J. U. S. v. Curry, 6 How. 111. Good Faith Required. “Until [the relation is termi- nated] the confidence manifested by the client give him the right to expect a corespond- ing return of zeal, diligence, and good faith on the part of the attorney.” Swayne, J. Baker v. Humphrey, 101 U. S. 500. —— Duty to Convey Information. “Tt is the duty of an attorney to advise the client promptly whenever he has any information to give which it is important the client should receive.’ Swayne, J. Baker v. Humphrey, 101 U. S. 500. — Constructive Fraud. “ Actual fraud in such cases [on the part of an attorney in acting for his client] is not necessary to give the client a right ‘to redress. A breach of duty is ‘constructive fraud, and is sufficient.” Swayne, J. Baker v. Humphrey, 101 U. S. 502. — Attorney Cannot Buy Adverse Title. “An attorney can in no case, without the client’s consent, buy and hold otherwise in trust, any adverse title or interest touching the thing to which his employment relates. He cannot in such a way put himself in the adversary position without this result. The cases to this effect are very numerous and they are all .in harmony.” Swayne, J. Baker v. Humphrey, 101 U. S. 501. Authority — Agreement Binding Client. “When an attorney has been retained he has certain implied powers to act for his client, in a suit actually commenced, in the due and orderly conduct of the case through the courts. In cases of suits actually pend- ing he may agree that one suit shall abide the event of another suit involving the same question, and his client will be bound by this agreement.” PreckHamM, J. Stone vw. Bank of Commerce, 174 U. S. 422. — Admissions by Attorney. “Tn the trial of a cause the admissions of counsel, as to matters to be proved, are con- I Os. Dic.—13 stantly received and acted upon. They may dispense with proof of facts for which wit- nesses would otherwise be called. They may limit the demand made or the set-off claimed. Indeed, any fact bearing upon the issues in- volved, admitted by counsel, may be the ground of the court’s procedure equally as if established by the clearest proof. And if in the progress of a trial, either by such admission or proof, a fact is developed which must necessarily put an end to the action, the court may upon its own motion, or that of counsel, act upon it and close the case.” Fietp, J. Oscanyan v. Winchester Repeat- ing Arms Co., 103 U. S. 263. “Tn relation to the admissions of the coun- sel it may be said that they were men not likely to admit any thing to the prejudice of their clients, which could be successfully opposed; nor would the court, on a constitu- tional question, rest their judgment on the admissions of counsel.” McLzan, J. State Bank of Ohio v. Knoop, 16 How. 387. —— Service on Attorney of Record. “While his [the attorney's] name con- tinues there [on the record] the opposite party has a right to treat him as the author- ized attorney or solicitor and the service of notice upon him is valid.” FuLier, C. J. Tripp v. Santa Rosa St. R. Co., 144 U. S. 128, § 2. FEES. Fees Are Legal Demand. “As a general rule, counsel fees, as well as those of attorney or solicitor, constitute a legal demand for which an action will lie.” Brapiey, J. Jn re Paschal, 10 Wall. 493. — For What Services. “Professional services, to prepare and ad- vocate just claims for compensation, are as legitimate as services rendered in court in arguing a cause to convince a court or jury that the claim presented or the defense set up against a claim presented by the other party ought to be allowed or rejected.” Cuirrorp, J. Stanton v. Embrey, 93 U. S. 557, —— Recoverable on Quantum Meruit. “In New York, counsel fees have always been recoverable on a quantum meruitt.” Brapiey, J. In re Paschal, 10 Wall. 494. Amount. “Attorneys and solicitors are entitled to have allowed to them, for their professional services, what they reasonably deserve to have for the same, having due reference to 193 ATTORNEY AND CLIENT. the nature of the service and their owfi standing in the profession for learning, skill, and proficiency; arid, for the purpose of aid- ing the jury in determining that matter, it is proper to receive evidence as to the price usually charged and received for similar ser- vices by other persons of the same pro- fession practising in the same court.” CLiF- ForD, J. Stanton v. Embrey, 93 U. S. 557. — Contingent Fees. “By several decisions of this court, in- déed, beginning at December term, 1853, contracts for contitigent fees, by which at- torneys, employed to prosecute claims against the United States, were to be allowed a proportion of the amount tecovered in case of success, and nothing in case of failure, were held to be lawfttl and valid.” Gray, J., Ball v. Halsell, 161 U. S. 80. “While fifty per cent seems to be more than a fair proportion in the division be- tween client and attorney in an ordinary case, we -e not prepared to assume that it is extortionate for that reason alone, and the testimony of the lawyers on that subject, taken as experts, does not justify such a conclusion.” Mts, ‘J. Taylor v. Bemiss, 110 U. S. 46. “The well kttown difficulties and delays ini obtainihg payment of just ¢elaiths which dre not within the ordinary course of proceduré of the auditing officets of the government, justifies a liberal compensation [to attorney] in successful cases, .where none is to be received in case of failure.” Mutier, J. Taylor v. Bemiss, 110 U.S. 48. See also CHAMPERTY AND MAINTENANCE: Costs. “Of course it is well understood that costs as between solicitors and client in- clude all reasonable expenses and counsel fees, atid are not like costs as between patty and party, confined to the taxed costs al- lowed by the fee-bill.’ Braptey, J. In- ternal Imp. Fund v. Greenough, 105 U. S. 533. “Whilst, as between party and party in a cause, the statutory fee bill fixes the amount of costs to be recovered, as between at- tottiey or solicitor atid client a different rule obtains. The claim of the attorney of solicitor in the latter case, even in England, extends to all proper disbursements made in the litigation, and to the customary and usual fees fot the services tendered. e fee biil adopted by Congress in 1853 réc- ognizes this general rile, arid, in fact, adopts it.” Braptey, J. In re Paschal, 10 Wall. 493. “ Attortieys, solicitors, and proctors thay chatge their clients tfeasonably for their setvices, in dddition to the taxable costs, but nothing can be taxed or recoveréd as cost against the opposite. party, as an inci- dent to the judgment, for their services, ex- cept the costs and fees therein described arid enumerated.” CuxiFrorp, J. Flanders wv. Tweed, 15 Wall. 453. “When an allowance to the complainant is proper on account of solicitor’s fees, it may be made directly to the solicitors them- selves, without any application by their im- mediate client.” Hartan, J. Georgia Cent. R., ete, Co. v. Pettus, 113 U. S. 124. Lien for Fees. “In England and in several of the states, it is held that an attorney or solicitor’s lien on papers or money of his client in posses- sion exterids to the whole baldtice of his account for professional yervices. But whether that be or be not the better rule it can hardly be contended that, in this case, it does not extend to all the fees and dis- bursements incurred in relation to all these indemnity bonds.” Braptey, J. In re Paschal, 10 Wall. 493. 3. LIABILITy oF ATTORNEY. Error of Judgment. “Tn the ordinary case of advice to cliefits, if an attorney acts in good faith and in the honest belief that his advice is well founded and in the just interests of his client, he cannot be held liable forserror in judg- ment.” Furrer, C. J. In re Watts, 190 U. S. 29. “State courts are entitled to the assist- ance of the gentlemen, of the bar in the maintenance of their dignity and jurisdic- tion, and the fearless discharge of their duty by the latter should not be shaken by liability to punishment for mere errors of judgment in rendering such assistance.” Futter, C. J. In ré Watts, 190 U. S. 35. “When a person adopts the legal ptofes- sion, and assumes to exercise its duties in behalf of another for hire, he must be under- stood as promising to employ a reasonable degree of care and skill in the performance oi such duties; and if injury results to the client from a want of such a degree of rea- sonable care and skill, the attorney may be held to respond in damages to the ex- tent of the injury sustained. Proof of em- ployment and the want of reasonable care and skill are prerequisites to the mainte- 194 ATTORNEY-GENERAL. nance of the action; but it must not be un- derstood that an attorney is liable for every mistake that may occur in practice or that he may be held responsible to his client for every error of judgment in the conduct of his client’s cause. Instead of that, the rule is that if he acts with a proper degree of skill, and with reasonable care and to the best of his knowledge, he will not be held responsible.” CLiFForD, J. Savings Bank v. Ward, 100 U. S. 198. Want of Reasonable Care and Skill. “Tf he [an attorney] fails in any of these respects [i. ¢, to exercise reasonable care and skill] he may, and sometimes does, not only forfeit all claim for compensation, but may also render himself liable to his client for atiy damage he may sustain from such neglect. Such liabilities frequently arise, and an attorney may also be liable to his client for the consequences of his want of rea- sonable care or skill in matters not in liti- gation. Business men not infrequently seek legal advice in making or receiving convey- ances of real property, and it is well settled that an attorney may be liable to his client for negligence or want of reasonable care anid skill in examining titles in such cases, whether the error occurs in respect to the title of property purchased or in the cov- enants in the instrument of conveyance, where the property is sold.” Currrorp, J. Savings Bank v. Ward, 100 U. S. 198. “Like [reasonable] care and skill are also required of attorneys when employed to in- vestigate titles to real estate to ascertain whiether it is a safe or sufficient security for a loan of money, the rule being that if the attorney is negligent or fails to ex- ercise reasonable care and skill in the per- formance of the service, and a loss results to his employers from such neglect or want of care and skill, he shali be responsible to them for the consequences of such loss.” Cuirrorp, J. Savings Bank wv, Ward, 100 U.S. 195. “ Attorneys employed by the purchasers of real property to investigate the title of the grantor prior to the purchase impliedly con- tract to exercise reasonable care and skill in the performance of the undertaking, and if they ate negligent; or fail to exercise such reasonable care and skill in the dis- chatge of the stipulated setvice, they are responsible to their employers for the loss occasioned by such neglect ot want of care and skill.’ C1irrorp, J. Savings Bank v. Ward, 100 U. S. 195. “JT think if a lawyer, employed to ex- amine and certify to the recorded title of real property, gives his client a certificate which he knows or ought to know is to be used by the client in some business trans- action with another person as evidence of the facts certified to, he is liable to such other person relying on his certificate for any loss resulting from his failure to find on record a conveyance affecting the title; which, by the use of ordinary professional care, and skill, he might have found.” Warts, C. J., dissenting. Savings Bank v. Ward; 100 U. S. 207. Rules Applicable to Any One Acting as Attorney. “Persons acting professionally in legal formalities, negotiations, or proceedings by the warrant or authority of their clients may be regarded as attorneys at law within the meaning of that designation as tised in this country; and all stich, when they un- dertake to conduct legal controversies or transactions, profess themselves to be rea- sonably vell acquainted with the law and the rules and practice of the courts, and they are bound to exercise in such proceed- ings a reasonable degree of care, prudence, diligence, and skill, Authorities everywhere support that proposition; but attorneys do not profess to know all the law or to be incapable of error or mistake in applying it to the facts of evety case, as even the most skilful of the profession would hardly be able to come up to that standard. Unless the client is injured by the deficiencies of his attorney, he cannot maintain any action for damages; but if he is injured, the true rule is that the attorney is liable for the want of such skill, care and diligence as men of the legal profession commonly possess and exercise in such matters of professional em- ployment.” CurFForp, J. Savings Bank vw. Ward, 100 U. S. 199. Obligation Not to Third Party. “Beyond all doubt, the general rule is that the obligation of the attorney is to his client, and not to a third party, and unless there is something in the circumstances of this case to take it out of that general rule; it seems clear that the proposition of the defendant must be sustained.” Currrorp, J. Savings Bank v. Ward, 100 U. S. 200. ATTORNEY-GENERAL. Powers and Duties. “T do not recognize the doctrine that the attorney-general takes any power by virtue 195 AUCTIONS AND AUCTIONEERS. of his office except what the Constitution and the laws confer.” Firetp, J. U. S. v. San Jacinto Tin Co., 125 U. S. 307. “His duties [the attorney-general] are strictly professional duties, and his powers those of an attorney at law. Whatever he may do for the United States, a special at- torney might be retained to do; nor can the United States appear in his name, nor by his agency, in cases where they may not be a party.” CampsBeELL, J., dissenting. Florida v. Georgia, 17 How. 517. “That officer [the attorney-general] pos- sesses no powers derived from usage or im- plied from the name of his office. His pow- ers are only co-extensive with his duty.” Curtis, J., dissenting. Florida v. Georgia, 17 How. 512. —— Representing United States in Suits Between Individuals. “Tt is the familiar practice of the court to hear the attorney-general in suits be- tween individuals, when he suggests that the public interests are involved in the de- cision. And he is heard, not as counsel for one of the parties on the record, but on behalf of the United States, and as repre- senting their interests.’ Taney, C. J. Florida v. Georgia, 17 How. 491. — Allowance of Use of Name of United States. “T cannot admit that the attorney general can, at the request of private parties, right- fully allow the use of the name and power of the United States in proceedings for the annulment of patents, upon such parties ex- ecuting a bond as security for costs, or upon any other stipulation of indemnity to them.” Frexp, J. U. S. v. San Jacinto Tin Co., 125 U. S. 305. —— Superintendence of District Attorneys. “He [the attorney-general] is the head of the Department of Justice, and as such he is charged with the superintendence and direction of all district attorneys of the United States, and generally of all litiga- tion in which the United States are inter- ested. He is also the legal adviser of the heads of the executive departments, and if they are fraudulently imposed upon in the discharge of their duties, or have mistaken the law, he may at their request take such, legal proceedings as are necessary to cor- rect their errors and revoke their action.” Fretp, J. U. S. v. San Jacinto Tin Co., 125 U. S. 306, AUCTIONS AND AUCTION- EERS. See Imports, Exports, AND CUSTOMS DUuTIEs. Nature of Auction — Consent. “Contracts for the sale and purchase of goods or lands at public auction are con- tracts founded upon mutual promises and a mutuality of obligation, and consequently they cannot be regarded as having been per- fected and made binding unless they have received the consent of the parties.” CuiF- ForD, J. Blossom v. Milwaukee, etc., R. Co., 3 Wall. 205. Agency of Auctioneer. “Courts often say that an auctioneer is solely the agent of the seller of the goods until the sale is effected, and that then he becomes also the agent of the purchaser, for certain purposes; but the marshal or master, in carrying out a decretal order, is more than an auctioneer.” CuirForD, J. Blossom v. Milwaukee, etc., R. Co., 3 Wall. 209. Conduct of Sale— Good Faith. “In point of principle, any fraud by auctioneers is more dangerous than by own- ers themselves. The sales through the for- mer extend to many millions annually, and are distributed over the whole country, and the acts accompanying them are more con- fided in as honest and true than acts or statements made by owners themselves in their own behalf, and to advance their own interests. Great care is therefore proper to preserve them unsullied and to discourage and repress the smallest deviations in them from rectitude.” Woopsury, J. Veazie vw. Williams, 8 How. 154. — Reception of Private Bid. “An agency simply to bid a particular sum for a purchaser, amounting to no more than receiving from the purchaser, before the auction, a bid which is to be treated as if made there by the purchaser himself, is not necessarily inconsistent with any duty of the auctioneer, and does not enable any one to avoid the sale.” Curtis, J. Richards wv. Holmes, 18 How. 148. —— By-bids. “Tt is a sound doctrine that the verbal declarations of an agent at a sale often bind the principal. And that the agent is bound to disclose all and to act as the principal is when present, and sell- ing. And that a principal so act- ing in person cannot be justified in asserting 196 BAGGAGE. what is false, and by which another is in- jured. . . And that what the vendor may not do in person, or may not employ others to do in his absence — that is, make by-bids to enhance the price — his agent, the auctioneer, cannot rightfully do.” Woopsury, J. Veazie v. Williams, 8 How. 156. “ By-bidding or puffing by the owner, or caused by the owner, or ratified by him, has often been held to be a fraud, and avoids the sale. He may fix a minimum price, or give a notice of by-bids, and thus escape censure.” Woopsury, J. Veazie v. Williams, 8 How. 153. — Agreements to Unite in Bidding. “In cases of public sales, the rule laid down by this court is that agreements to unite in a bidding are not necessarily void. Some other element than the mere fact of union must exist before the agreement is to be condemned.” Brewer, J. Hyer v. Rich- mond Traction Co., 168 U. S. 478. No Warranty on Sale. “Sales at auction, in the usual mode, are never understood to be accompanied by a warranty. Auctioneers are special agents, and have only authority to sell, and not to warrant, unless specially instructed so to do.” THompson, J. The Monte Allegre, 9 Wheat. 647. AUDITA QUERELA. — See Mortons. “ Audita querela is a regular suit in which the parties may plead and take issue on the merits, and cannot, therefore, be sued against the United States, as in England it could not against the Crown.” Davis, J. Avery v. U. S., 12 Wall. 307. AUTHORITY. “Everybody must be amenable to the au- thority under which he acts.” Paterson, J. Penhallow v. Doane’s Adm’rs, 3 Dall. 81. “That an undefined authority is danger- ous, and ought to be intrusted as cautiously as possible, every man must admit.” Inkg- DELL, J., concurring. Penhallow v. Doane’s Adm’rs, 3 Dall. 91. AUTREFOIS ACQUIT AND CONVICT. See JEoparpy. BAGGAGE. Liability — Extent. “A common carrier of travellers is bound to the preservation of the accustomed bag- gage of the traveller, because of the known custom that travellers carry with them ar- ticles for their comfort and accommodation, and the price for which the transportation is undertaken is graduated on that pre- sumption; but the carrier would not there- fore be responsible for other articles, of ex- traordinary value, secretly transported upon his vehicle, because by this secrecy he is defrauded of a compensation commensurate with the value of the subject transported, and with the increased hazards to which it is attempted to commit him without his knowledge or consent. But to render him liable, he must have received the article for transportation, and it must be a subject fall- ing fairly within the scope of his engage- ment.” DanieL, J., dissenting. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 417. Amount Allowed. “ Manifestly, what is a reasonable maxi- mum amount when a larger value is al- lowed to be carried as baggage by paying an additional compensation, is a different ques- tion from what is a reasonable amount where the right to declare and pay for a larger sum is refused, or what is equivalent thereto is permitted only upon condition that the passenger subjects himself to conditions which are void against public policy.” Waitt, J. The Kensington, 183 U. S. 277. _ “I dissent from the judgment of the court in this case. I do not think that two hun- dred and seventy-five yards of lace, claimed by the owner to be worth $75,000, and found by the jury to be of the value of $10,000, can, as a matter of law, be properly consid- ered as baggage of a passenger, for the loss of which the railroad company, in the absence of any special agreement, should be held liable.” Fiery, J., dissenting. New York Cent. etc., R. Co. v. Fraloff, 100 U. S. 32. Right to Refuse to Receive Other Prop- erty. “{A railroad company] may refuse to re- ceive on the passenger train property other than the baggage of the passenger, for a contract to carry the person only implies an undertaking to transport such a limited quantity of articles as are ordinarily taken by travellers for their personal use and 197 BAIL. convenience; such quantity depending of course upon the station of the party, the object and length of the journey, and many other considerations,” Fierp, J. Hannibal R, Co. v. Swift, 12 Wall, 274. BAIL. See RECOGNIZANCES. In Civil and Criminal Cases. “The object of bail in civil cases is, either directly or indirectly, to secure the payment of a debt or other civil duty; whilst the object of bail in criminal cases is to secure the appearance of the principal before the court for the purposes of public justice.” Brapitzy, J. U. S. wv. Ryder, 110 U. S. 736. “A yecognizance of hail, in a criminal case, is taken to secure the due attendance of the party. accused, to answer the indict- ment and to submit to a trial, and the judg- ment of the court thereon.” Story, J. Ex p. Milburn, 9 Pet. 710. — Holding to on Plaintiff’s Statement. “Tf, by the practice of the court, a mere statement by the plaintiff were sufficient to hold to bail, and such statement were made falsely, it would subject the plaintiff to punishment by the common law.” M’Lzan, J., dissenting. U. S. v. Bailey, 9 Pet. 265, — Rights of Bail. “The rights of the bail in civil and crim- inal cases are the same,” Swayne, J. Taylor v. Taintor, 16 Wall. 372. Exoneration and Satisfaction— Act of God. “Bail will be exonerated where the per- formance of the condition is rendered im- possible by the act of God, the act of the obligee, or the act of the law.” Swayne, J. Taylor wv. Taintor, 16 Wall. 369. —— Impossibility of Delivery Created by Obligor or Stranger, “It is well settled that if the impossibility [of delivering a bailed person] be created by the obligor or a stranger, the rights of the obligee will be in nowise af- fected.” Swayne, J. Taylor v. Taintor, 16 Wall. 370. ——— Payment. “Payment by the bail in a civil case dis- charges the obligation of the principal to his creditor, and is only required to the extent of that obligation, whatever may be the penalty of the bond or recognizance soe whilst payment by the bail of their recogni- zance in criminal cases, though it discharges the bail, does not discharge the obligation of the principal to appear in court; that ob- ligation still remains, and the principal may at any time be retaken and brought into court.” Brapitey, J. U. S. v. Ryder, 110 U. S. 736. “A yecognizance of bail, in a criminal case is not designed as a satisfac- tion for the offense, when it is forfeited and paid; but as a means of compelling the party to submit to the trial and punishment which the law ordains for his offence,” Story, J. Ex p. Milburn, 9 Pet. 710. Surrender of Principal. “When bail is given, the principal is re- garded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may im- prison him until it can be done, They may exercise their rights in person or by agent. They may pursue him into another state; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose.” Swayne, J. Taylor v. Taintor, 16 Wall. 371. “The relief of the bail by the surrender of their principal is matter of practice, and may be fegulated by rules of court. And the acts of the legislature of Ohio, or the de- cisions of their courts on this subject, can have no binding force on the courts of the United States, or regulate their prac- tice, any further than they have been adopted by the court.” THompson, J., dissenting. Beers v. Haughton, 9 Pet, 372. “ Courts have, ex gratia, extended the right to surrender, until the return of the writ or process against the bail: and perhaps, in some instances, the right to surrender has been extended to a later period. But the contingency of not being able to make the surrender after the return of the capias ad satisfaciendum, not found, is at the risk of the bail. And the relief of the bail in such cases is, on motion addressed to the favor of the court; and relief is granted, upon such terms as the circumstances of the suit against the bail.’ Tompson, J., dissenting. Beers v. Haughton, 9 Pet. 369. Preliminary Step to Prosecution Against Bail. “A capias ad satisfaciendum against the principal is an indispensable preliminary step BAILMENTS. to a prosecution against the bail; and if the court has a right to order that no capias ad satisfaciendum shall be issued, it is taking from the creditor all remedy against the bail,” Tuompson, J., dissenting, Beers v. Haughton, 9 Pet. 363. Relief After Bail Fixed, “The mode of relief after the bail are fixed, in law, must be t, an application to the favor of the court; and cannot be pleaded in bar.” THompson, J., dissent- ing. Beers v, Haughton, 9 Pet. 372. “The relief [of the bail] is on motion and not by plea, and the court always requires the costs in the suit or the recognizance to be paid. The same doctrine is fully settled in the English courts.” THompson, J., dis- senting. Beers v. Haughton, 9 Pet. 370. “[Time] being allowed [to the bail] ex gratia, according to the language of all the cases, is conclusive to show that it could not be pleaded as a legal discharge of the bail.” THompson, J., dissenting. Beers v. Haugh- ton, 9 Pet. 370. “All cases agree that after the bail are fixed, de jure, they take the risk of the death of the principal. The attempt for relief has frequently been made, and as often denied. That the time which is al- lowed the bail ex gratia, is at their peril, and they must surrender. That there are many cases where the bail have been relieved on motion. But, in these cases, the event upon which the bail has been relieved happened before the bail became fixed. That, in cases of insolvency, time has been allowed the bail ex gratia to surrender, to prevent circuity of action. THompson, J., dissenting. Beers wv. Haughton, 9 Pet. 370. BAILMENTS, As to public officer having property in his Custody, see Puptic OFFICERS. liability of carriers, see CARRIERS. And see BANKS AND BANKING. What Is—Sale or Loan Distinguished. “Where logs are delivered to be sawed into boards, or leather to be made into shoes, rags into paper, olives into oil, grapes into wine, wheat into flour, if the product of the identical articles delivered is to be returned to the original owner in a new form, it is said to be a bailment, and the title never vests in the manufacturer. If, on the other hand, the manufacturer is not bound to return the same wheat or flour or paper, but may deliyer any other of equal value, it is said to be a sale or a Ioan, and the title to the thing delivered vests in the manufacturer.” Hunt, J. Laflin & Rand Powder Co. w Burkhardt, 97 U. S. 116. “Where a man turns over personal prop- erty to another, under an arrangement by which the latter is not obliged to restore the specific articles of property, but is at liberty to deliver other property of the same kind and value, the receiver becomes the owner of the property; as where wheat is delivered to an elevator with the under- standing that the obligation to return it shall be discharged by the delivery other like wheat . . although even then, a usage to return substituted property may turn the transaction into a bailment.” Brown, J. Arnold v, Hatch, 177 U, S. 280. Admission of Title of Bailor. “A man cannot hold as bailee for him- self. By the act of accepting goods in bail- ment, he acknowledges a right or title in the bailor.” ‘Stronc, J. Dows v. Milwau- kee Nat. Exchange Bank, 91 U. S. 633. Degree of Care Required. “A bailee for hire is only responsible for ordinary diligence and liable for ordinary negligence in the care of the property bail- ed. This is not the common law, but the general law, on the subject.” Braptey, J. Clark v. U.S, 95 U. §. 542, “The business of the bailee will neces- sarily have some effect upon the nature of the care required of him.” Furexp, J. Pres- ton wv. Prather, 137 U. S. 610. “No one taking upon himself a duty for another without consideration is bound, either in law or morals, to do more than a man of that character would do generally for himself under like conditions. The ex- ercise of reasonable care is in all such cases the dictate of good faith. An utter disre- gard of the property of the bailor would be an act of bad faith to him.” Fiezp, J. Preston v. Prather, 187 U. S, 608. ; “The rule of the common law, by which common carriers of goods are held liable for loss or injury by any cause whatever, except the act of God, or of public ene- mies, does not extend even to the ware- housemen or wharfingers, or to any other class of bailees, except innkeepers, who, like carriers, have peculiar opportunities for em- bezzling the goods, or for collusion with 199 BANKRUPTCY. thieves.” Gray, J. Primrose v. Western Union Tel. Co, 154 U. S. 14. See also CARRIERS. Duty of Bailee to Return Property. “The ordinary law of bailment requires that the bailee return the property to the owner in the condition in which it was received, less the ordinary results of wear and tear, and such injuries as are caused by a peril of the sea, or inevitable accident.” Brown, J. The Barnstable, 181 U. S. 468. —— Loss Without Fault. “It is elementary that, generally speak- ing, the hirer in a simple contract of bail- ment is not responsible for the failure to return the thing hired, when it has been lost or destroyed without his fault. Such is the universal principle.” Wauure, J. Sun Printing, etc., Assoc. v. Moore, 183 U. S. 654. — Absolute Liability under Contract. “A bailee may, however, enlarge his. legal responsibility by contract, express or fairly implied, and render himself liable for the loss or destruction of the goods committed to his care—the bailment or compensation to be received therefor being a sufficient consideration for such undertaking.” JacK- son, J. Sturm v. Boker, 150 U. S. 330. “Where by a contract of bailment the hirer has either expressly or by fair im- plication assumed the absolute obligation to return, even although the thing hired has been lost or destroyed without his fault, the contract embracing such liability is con- trolling and must be enforced according to its terms.” Wuute, J. Sun Printing, etc. Assoc. v. Moore, 183 U. S. 654. -—— Delivery to True Owner Good De- fense. “The modern and best-considered cases treat as a matter of no importance the question how the bailor acquired the posses- sion he has delivered to his bailee, and adjudge, that; if the bailee has delivered tne property to one who had the right to it as the true owner, he may defend himself against any claim of his principal.” Stronc, J. The “Idaho,” 93 U. S. 580, . “When the bailee has actually delivered the property to the true owner, having a right to the possession, on his demand, it is a sufficient defence against the claim of the bailor. The decisions are numerous to this effect.’ Stronc, J. The “Idaho,” 93 U. S. 579. — Delivery under Legal Process. “Tt is now everywhere held, that, when the true owner has by legal proceedings compelled a delivery to himself of the goods bailed, such delivery is a complete justifica- tion for non-delivery, according to the di- rections of the bailor.” Stronc, J. The “Tdaho,” 93 U. S. 579. Action Against Bailee. “Tt [gross negligence on the part of a gratuitous bailee] is a tort, and an action on the case is the appropriate remedy for such a wrong. In many cases where there is a valid contract it may be regarded only as inducement and as raising a duty, for the breach of which an action may be brought ex contractu or ex delicto, at the option of the injured party.” Swayne, J. Carlisle First Nat. Bank v. Graham, 100 U. S. 702. Action Against Wrongdoer. “The cases are numerous in which the general owner has sustained an action of tort against the wrongdoer for injuries to the property while in the hands of the bailee.” Netson, J. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 381. _ BAND. See INDIANS. BANK. Definition. “Doctor Johnson defines the word bank to be the earth arising on each side of a water. We say properly the shore of the sea and the bank of a river, brook or small water. In the writings of our Eng- lish classics, the two words are more fre- quently used in those senses; for instance, as when boats and vessels are approaching the shore to communicate with those who are upon the banks.” Wayne, J. Alabama v. Georgia, 23 How. 514. “The banks of a river are those eleva- tions of land which confine the waters when they rise out of the bed.” Curtis, J. How- ard v. Ingersoll, 13 How. 427. BANKRUPTCY. I. Ortcin AND Nature or BANK- RuPTcy Laws. II. FEDERAL AND STATE JURISDICTION. TII. Acts or BanxKruptcy — INSOL- VENCY. 200 BANKRUPTCY. IV. PRocEEDINGS. . Nature in General. Commencement. . Courts — Jurisdiction. Record of Proceedings. Parties. What Property Passes. . Assignee — Rights, Duties, and Ac- tions. . Rights of Creditors. a. In General. b. Preferences — Ratable Distribution. c. Provable Claims. d. As Against Firm and Separate As- sets of Partners. 9. Effect on Proceedings in Courts. 10. Sale of Property. 11. Costs and Expenses. 12. Discharge. Ao Tw oO Other CROSS-REFERENCES. As to dissolution of partnership by bank- ruptcy, see PARTNERSHIP. For administration of assets of national banks, see NaTIONAL BANKS. And see IMPAIRMENT OF OBLIGATION OF Contracts; INSOLVENCY. I. ORIGIN AND NATURE OF BANK- RUPTCY LAWS. Origin. “Bankruptcy laws have been in force in ' England for more than three centuries, and they had their origin in the Roman law.” Waite, C. J. Canada Southern R. Co. wv. Gebhard, 109 U. S. 536. “The first bankrupt act of the United States, enacted in 1800, was in great part copied from the earlier bankrupt acts of England.” Gray, J., dissenting. Merrill v. Jacksonville Nat. Bank, 173 U. S. 174. Nature and Object — Equitable Distribu- tion and Discharge. “The leading purpose of the Bankrupt law is to secure an equal distribution of the bankrupt’s property among his creditors.” Davis, J. Avery wv. Hackley, 20 Wall. 413. “Congress, in enacting the bankrupt law, had apparently in view, (1) the discharge, under some circumstances, of an honest debtor from legal liability for debts he could not pay; and (2) an early pro rata distri- bution, according to equity, of his available assets among his several creditors.” WdarTE, C. J. Wiswall v. Campbell, 93 U. S, 350. 201 To the same effect see the language of Swayne, J., in Bank v. Sherman, 101 U. S. 406; Haran, J., in Reed v. McIntyre, 98 U. S. 512; Fievp, J., in U. S. vu. Fox, 95 U. S. 672. “Systems of bankruptcy are designed to relieve the honest debtor from the weight of indebtedness which has become oppres- sive and to permit him to have a fresh start in business or commercial life, freed from the obligation and_ responsibilities which may have resulted from business mis- fortunes.” Day, J. Wetmore v. Markoe, 196 U. S. 77. “The Bankrupt Act was not intended: to prevent false credits. Its purpose is ratable distribution.” Stronc, J. Sawyer v. Tur- pin, 91 U. S. 121. “Speedy administration as well as equal distribution of the assets among the cred- itors is the policy of the Bankrupt Act, and the former is almost as necessary as the latter to accomplish the beneficent ends for which the law was passed.” CLirForD, J. Gifford v. Helms, 98 U. S. 252. “Tn both classes of cases [cases of vol- untary and involuntary bankruptcy] un- doubtedly the primary object is to secure a just distribution of the bankrupt’s prop- erty among his creditors, and in both the secondary object is the release of the bank- rupt from the obligation to pay the debts of those creditors. But in case of voluntary bankruptcy the aid of the law is invoked by the bankrupt himself, with the purpose of being discharged from his debts as his Principal motive, and in the other the move- ment is made by his creditors with the pur- pose of securing the appropriation of his property to their payment, the discharge be- ing with them a matter of no weight and often contested.” Mrtzrer, J. Wilson v. St. Paul City Bank, 17 Wall. 480. “That the law should give a creditor remedies against the estate of a bankrupt, notwithstanding the neglect or default of the bankrupt, is natural. The law would be, indeed, defective without them. It would also be defective if it permitted the bank- rupt to experiment with it—to so manage and use its provisions as to conceal his estate, deceive or keep his creditors in igno- rance of his proceeding without penalty to him. It is easy to see what results such “Jooseness would permit— what preference could be accomplished and covered by it.” McKenna, J. Birkett v. Columbia Bank, 195 U. S. 350. @ BANKRUPTCY. ‘ Not Intended to Affect Husband’s Obliga- tion to Support Family, “The bankruptcy law should receive such an interpretation as will effectuate its be- neficent purposes and not make it an instru- ment to deprive dependent wife and chil- dren of the support and maintenance due them from the husband and father, which it has ever been the purpose of the law to enforce. .', Unless positively requir- ed. by direct enactment the courts should not presume a design upon the part of Con- gress in relieving the unfortunate debtor to make the law a means of avoiding enforce- ment of the obligation, moral or legal, de- volved upon the husband to support his wife and to maintain and educate his children.” Day, J. Wetmore v. Markoe, 196 U. S. 77. —— Same as to State and Federal Laws. “Such law [bankrupt law,] in its prin- ciple and object, has in view the benefit of both debtor and creditor, and is no more than the just exercise of the sovereign leg- islative power of the gove‘nment to relieve a debtor from his contracts, when necessity, and unforeseen misfortunes, have rendered him incapable of performing them; and whether this power is to be exercised by the states individually, or by the United States, can make no difference in princi- ple.” Tompson, J., dissenting. Ogden v. Saunders, 12 Wheat. 312. : Legislative Function. “The mode, and manner, and the extent to which property may be taken in satis- faction of debts, must be left to the sound discretion of the legislature, and regulated by its views of policy and expediency, in promoting the general welfare of the com- munity, subject to such regulation.” THomp- son, J., dissenting, Ogden v. Saunders, 12 Wheat. 309. Construction. “TThe bankruptcy act] being a part of a general system of statutory regulation, it must be read and applied in connection with every other section appertaining to the same feature of the general system, so that each and every section of the act may, if possible, have their due and conjoint effect without repugnancy or inconsistency. C.itFForn, J. New Lamp Chimney Co. v. Ansonia Brass, etc. Co, 91 U. S. 662. — “Credits ” and “ Debts.” “In our act [the Bankrupt Act of March 2, 1867, c. 17] the terms ‘credits’ and ‘debts’ are used as correlative. What is a debt on one side is a credit on the other, so that the term ‘credits’ can have no broader meaning than the term ‘debts.’ We find no warrant in the language of the section or its context for extending the term ‘credits’? so as to include trusts. Gen- erally we know that ‘credit’ and ‘trust’ are not synonymous terms.” Woops, J. Libby v. Hopkins, 104 U. S. 309. Insolvent and Bankrupt Laws Distin- guished. “Insolvent laws operate at the instance of an imprisoned debtor; bankrupt laws at the instance of a creditor.” MarsHALt, C. J. Sturges v. Crowninshield, 4 Wheat. 194. II. FEDERAL AND STATE JURIS- DICTION. Power of Congress. “Congress has express power to enact bankrupt laws,” CHasz, C. J. Hepburn v. Griswold, 8 Wall. 623. “The determination of the status of the honest and unfortunate debtor by his liber- ation from encumbrances on future exertion is matter of public concern, and Congress has power to accomplish it ‘throughout. the United States by proceedings at the debtor’s domicil.” Futter, C. J. Hanover Nat. Bank v. Moyses, 186 U. S. 192. “Congress may prescribe any regulations concerning discharge in bankruptcy that are not so grossly unreasonable as to be in- compatible with fundamental Jaw.” Fut- LER, C. J. Hanover Nat. Bank v. Moyses, 186 U. S. 192, “That an Act of Congress establishing a uniform system of bankruptcy throughout the United States, is constitutional, al- though providing that others than traders may be adjudged bankrupts, and that this may be done on voluntary petitions, is really not open to discussion.” Futier, C. J. Hanover Nat. Bank wv. Moyses, 186 U. S. 187, “The Constitution expressly empowers the Congress of the United States to estab- lish such laws. Every member of a politi- cal community must necessarily part with some of the rights which, as an individual, not affected by his relation to others, he might have retained. Such concessions make up the consideration he gives for the ob- ligation of the body politic to protect him in life, liberty, and property. Bankrupt \ 202 BANKRUPTCY. laws, whatever may be the form they as- sume, are of that character [and do not de- prive a person of property without due proc- ess of law.]” Watts, C. J. Canada South- ern R. Co., vw. Gebhard, 109 U. S. 536. — Uniformity. “As it [Congress] is authorized ‘to es- tablish vaoni lowe on the subject of bank- ruptcies throughout the United States,’ it may embrace within its legislation whatever may be deemed important to a complete and effective bankrupt system.” Fieup, J, U.S. uv, Fox, 95 U. S. 672, “A bankrupt law is most necessary in a commercial community; and as different states in this respect do not stand on the same footing, a system which might be adapted to one, might not suit all, which would naturally present difficulties in form- ing any uniform system; and Congress may, as heretofore, deem it expedient to leave each state to establish such system as shall best suit its own local circumstances and views of policy, knowing, at the same time, that if any great public inconvenience shall grow out of the different state laws, the evils may be corrected by establishing a uni- form system, according to the provision of the constitution, which will suspend the state laws on the subject.” THompson, J., dissenting. Ogden v. Saunders, 12 Wheat. 810. “No power has been given to Congress to lessen the obligations of a contract be- tween private parties by direct legislation, except by the enactment of uniform laws on the subject of bankruptcy. Even a bankrupt law cannot be enacted applicable only to single corporations or single debt- ors. To be constitutional, it must be uni- form throughout the United States.” Strone, J., dissenting, Sinking-Fund Cases, 99 U.S. 737. Power of States until Congress Acts. “The power given to the United States to pass bankrupt laws is not exclusive.” Jounson, J. Ogden v. Saunders, 12 Wheat. 369. “Tt was held that the states had a right to pass bankrupt laws until the power had been acted: upon by Congress.” Brown, J. The Roanoke, 189 U, S. 197. “State legislatures have authority to pass a bankrupt or insolvent law, provided there be no act of Congress in force establishing a uniform system of bankruptcy, conflicting with such law; and, provided the law itself be so framed that it does not impair the obligation of contracts.” CxizrForp, J. Baldwin v. Hale, 1 Wall. 228. “By a reasonable rule of interpretation, and by repeated adjudications of this court, it is held, that the mere investiture of Con- gress with the power ta pass laws on the sybject of bankruptcy would not, ipso facto, divest such a power out of the states,” DanigL, J. Cook v. Moffat, 5 How. 312. To the same effect, see the language of Taney, C. J., in Holmes v. Jennison, 14 Pet. 576. —~— Effect of State Laws. “Tt is true, that as between the several states of this union, their respective bank- ruptcy laws, like those of foreign states, can have no effect in any forum beyond their respective limits, unless by comity. But it is not a necessary consequence, that state courts can treat this subject as if the states were wholly foreign to each other, and inflict her bankrupt laws on contracts and persons not within her limits.” Garter, J. Cook v. Moffat, 5 How. 308. —— Effect of Exercise of Power by Con- gress. “Power to establish uniform laws upon the subject of bankruptcy throughout the United States ig conferred upon Congress, and Congress having exercised the power it has become an exclusive power.” CLIFFORD, J. Michaels v. Post, 21 Wall. 427. “ Authority to establish uniform laws up- on the subject of bankruptcy is conferred upon congress; and, Congress having made such provision in pursuance of the Con- stitution, the jurisdiction conferred becomes exclusive throughout the United States.” CuirForD, J. New Lamp Chimney Co. v. Ansonia Brass, etc., Co., 91 U. S. 661, “State bankrupt laws, since the Consti- tution went into effect, have only sustained when operating prospectively upon contracts, and then only in the absence of a national law.” Bravtey, J., dissenting. Sinking- Fund Cases, 99 U. S. 745. 7 “The operation of the bankruptcy laws of the United States cannot be defeated by insolvent commercial corporations applying to be wound up under state statutes.” Fut- LER, C. J. In re Watts, 190 U. S. 27. Ill. ACTS OF BANKRUPTCY — INSOLVENCY. Act of Bankruptcy — Evidence. “Where there is no statute providing what particular act shall be evidence of insol- 203 t BANKRUPTCY. vency or bankruptcy, it may be and it sometimes is quite difficult to determine the fact of its existence at any particular period of time.” Prcxuam, J. McDonald v. Williams, 174 U. S. 404. —— Declaration of Bankrupt. “A bankrupt’s declarations, oral or by let- ter, at or before the time of leaving or staying away from home, as to his reason for going abroad, have always been held by the English courts to be competent, in an action by his assignees against a credi- tor, as evidence that his departure was with intent to defraud his creditors, and there- fore an act of bankruptcy.” Gray, J. Mu- tual L. Ins. Co. v. Hillmon, 145 U. S. 297. Insolvency. “Insolvency, in the sense of the Bank- rupt Act, means that the party whose busi- ness affairs are in question is unable to pay his debts as they become due, in the ordi- nary course of his daily transactions; and a creditor may be said to have reasonable cause to believe his debtor to be insolvent when such a state of facts is brought to his notice respecting the affairs and pecuniary condition of his debtor as would lead a prudent man to the conclusion that the debtor is unable to meet his obligations as they mature, in the ordinary course of his business.” Cu1FForD, J. Dutcher v. Wright, 94 U. S. 557. “Insolvency in the sense of the Bankrupt Act means that the party whose business affairs are in question is unable to pay his debts as they become due in the ordinary course of his daily transactions.” CLIFFORD, J. Buchanan v. Smith, 16 Wall. 308. “By the bankrupt law of England and of the United States, and by the insolvency laws of Massachusetts and many other states, the person or the partnership in bus- iness' which is no longer able to pay its current debts as they fall due is insolvent.” Miter, J. Godfrey v. Terry, 97 U. S. 178, “Tf a partnership engaged in any mer- cantile or manufacturing business fails to meet, and pay when demanded, its current business paper as it falls due, that firm is said, in popular language, to have failed. If any business man or business firm does the same thing, they are, by the express terms of every bankrupt law, bankrupts.” Miter, J. Godfrey vw. Terry, 97 U. S. 178. Reasonable Cause to Believe a Person Insolvent. “Some confusion exists in the cases as to the meaning of the phrase [in the Bank- rupt Act] ‘having reasonable cause to be- lieve such a person is insolvent.’ Dicta are not wanting which assume that it has the same meaning as if it had read, ‘having reasonable cause to suspect such a person is insolvent.’ But the two phrases are distinct in meaning and effect. It is not enough that a creditor has some cause to suspect the insolvency of his debtor; but he must have such a knowledge of facts as to induce a reasonable belief of his debtor’s insolvency, in order to invalidate a security taken for his debt.” Brapiey, J. Grant v. Monmouth First Nat. Bank, 97 U. S. 81. General Assignment. “A general assignment for the benefit of creditors, made within four months from the filing of a petition in bankruptcy, is void as:against the trustee in bankruptcy, so far as it interferes with his administer- ing the property assigned.” Hotmgs, J. Randolph v. Scruggs, 190 U. S. 536. IV. PROCEEDINGS. 1. NATURE IN GENERAL. Judicial — Parties Entitled to Hearing. “Every bankrupt or insolvent system in the world must partake of the character of a judicial investigation. Parties whose rights are to be affected, are entitled to a hearing.” Jounson, J. Ogden v. Saunders, 12 Wheat. 366. Proceedings Constitute One Suit. “A proceeding in bankruptcy from the time of its commencement, by the filing of a petition to obtain the benefit of the act, until the final settlement of the estate of the bankrupt, is but one suit.” Warts, C. J. “Sandusky v. Indianapolis First Nat. Bank, 23 Wall. “The distinction between steps in bank- ruptcy proceedings proper and controversies arising out of the settlement of the estates of bankrupts is recognized in 23, 24, and 25 of the present act, and the provisions as to revision in matter of law and appeals were framed and must be construed in view of that distinction.” Futter, C: J. Holden v. Stratton, 191 U. S. 118. 293. —— Re-examination of Proceedings. “The District Court, for all the purposes of its bankruptcy jurisdiction, is always 204 BANKRUPTCY. open. . Its proceedings in any pend- ing suit are, therefore, at all times open for re-examination upon application there- for in an appropriate form. Any order made in the progress of the cause may be subse- quently set aside and vacated upon proper showing made, provided rights have not be- come vested under it which will be disturb- ed by its vacation. Applications for such re-examination may be made by motion or petition, according to the circumstances of the case. Such a motion or petition will not have the effect of a new suit, but of a proceeding in the old one.” Waitt, C. J. Sandusky v. Indianapolis First Nat. Bank, 23 Wall. 293. Equitable Nature. “Proceedings in bankruptcy generally are in the nature of proceedings in equity.” Gray, J. Bardes v. Hawarden Bank, 178 U. S. 535, “A bankruptcy proceeding, by which the estate of a debtor is administered, is essen- tially an equitable one.” Bravtery, J., dis- senting. Coit v. Robinson, 19 Wall. 286. In Rem or in Personam. “Proceedings in bankruptcy are, gener- ally speaking, in the nature of proceedings in rem.” Futter, C. J. Hanover Nat. Bank v. Moyses, 186 U. S. 192. “An adjudication in bankruptcy partakes in part of the nature of a judgment in rem, and in part of the nature of a judg- ment in personam. With regard to the es- tate 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 per- sons and in every court. As a determina- tion-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 a determination of the legal status of a person not a bank- rupt, and who was not a party ‘to the pro- ceeding, and whose status as a bankrupt has never been questioned before the court, it unquestionably is not binding upon any person not a party to such proceeding.” Lamar, J. Abendroth v. Van Dolsen, 131 U. S. 71. 2, COMMENCEMENT. By Filing Petition. “Proceedings in bankruptcy are deemed to be commenced from the filing of the peti- tion in bankruptcy, ‘either by a debtor in his own behalf or by any creditor against a debtor.” CuiFForD, J. U. S. uv. Herron, 20 Wall. 253. 3. CouRTS — JURISDICTION. Of Bankruptcy Courts In General. “Bankruptcy courts have original juris- diction in their respective districts of all matters and proceedings in bankruptcy, and are authorized to hear and adjudicate upon the same, according to the provisions of the Bankrupt Act.” CzirForp, J. Glenny v. Langdon, 98 U. S. 25. —— Authority to Enforce Orders —Con- tempt Process. “They [bankruptcy courts] have full au- thority, to compel obedience to all orders and decrees passed by them in bankruptcy, by process of contempt and other remedial process, to the same extent that the circuit courts now have in any suit pending there- in in equity.” CtrFForD, J. Glenny v. Lang- don, 98 U. S. 25. District Courts. “District Courts of the United States are constituted courts of bankruptcy, and as such they have original jurisdiction in all matters and proceedings in bankruptcy, with power to hear and adjudicate the same according to the provisions of the Bankrupt Act.” Cuirrorp, J. Glenny v. Langdon, 98 U. S. 20. “It is but recently settled that the several District and Circuit Courts of the United States have jurisdiction, under the bankrupt law, of causes arising out of proceedings in bankruptcy pending in other districts. There had been much doubt on the subject, but it was finally settled at the last term of this court in favor of the jurisdiction.” BrabLey, J. Claflin v. Houseman, 93 U. S. 133. “The language conferring this jurisdic- tion of the District Courts is very broad and general. It is, that they shall have original jurisdiction in their respective dis- tricts in all matters and proceedings in bankruptcy. The various branches of this jurisdiction are afterwards specified; result- ing, however, in the two general classes be- fore mentioned. Were it not for the words, ‘in their respective districts,’ for the jurisdic- tion would extend to matters of bankruptcy arising anywhere, without regard to locality. It is contended that these words confine it 205 BANKRUPTCY. to cases afisifig in the district. But such is not the language. Theit jurisdiction is cofifined to their respective districts, it is true; but it extends to all matters and pro- ceedings in bankruptcy without limit.” Brapiey, J. Lathrop v. Drake, 91 U. S. nly — Court Always Open. “The District Court, for all purposes of its bankruptcy jurisdiction, is always open. It has no separate terms.’ Warts, C. J. Sandusky v. Indianapolis First Nat. Bank, 22 Wall. 293, Review — Circuit Court. “Circuit Cotirts aré tiot courts of bank- ruptcy, nor have they power to re-examite or review the rulings, decisions, or judg- ments of the District Courts sitting in bank- ruptcy, except in the cases and in the man- ner provided by the Bankrupt Act.” Cutr- ForD, J., dissenting. Cleveland Ins, Co. v. Globe Ins. Co., 98 U. S. 374, — Supreme Court. “No law that Congress ever passed, has in it to a greater degree, the elements of various construction and confusion, than the bankrupt law of 1841, when administer- ed by more than thirty judges, acting sep- arately; if all are exempt ‘from the revising power of this tribunal, «created for the put- pose (amongst others) of producing uni- formity of decision and construction in all cases over which its jurisdiction extends.” Catron, J., dissenting. Nelson wv. Carland, 1 How: 276. “In a case of such importance as that which involves a man’s liability or non-lia- bility for his debts after he has given up all his property, he ought not to be deprived of the right of appeal if the law, fairly con- sidered, gives it to him.” Braptey, J., dis- senting. Coit wv. Robinson, 19 Wall. 286, “The allowance or rejection of a debt or claim is a part of the bankruptcy proceed- ifigs, and not an independent suit, and un- der the Act of 1867 it was held that this court had no jurisdiction to review judg+ ments of the Circuit Courts dealing with the a¢tion of the District Courts in such allowance or rejection because they were not final . . . The jurisdiction now given is carefully restricted and cannot be expanded beyond the letter of the gtant. It is an exception to the general rule as to appeals ard writs of error obtaining from the foundation of our judicial sys- tem.” Futter, C. J. Holden v. Stratton, 191 U. S. 118, 4, RECORD OF PROCEEDINGS. “Proceedings in bankruptcy ate deemed to be matters of record, but they ate not te- quired to be recorded at large. Instead of that, requirement is that they shall be filed, kept, and tumbered in the officé of the clerk of the court, a short memoratidum thereof being kept in books ptovided for the purpose.” Cttrrokp, J. Turnbull. Payson, 95 U. S. 422. 5. PARTIES. Corporations and Joint-stock Companies. “Corporations, whether moneyed, bus- iness, Or commercial and joint-stock cormm- panies, are subjett to the provisions of the Bankrupt Act.” CuirForp, J: New Lamp Chimney Co. v. Ansonia Brass, etc, Co. 91 U. S. 657. —— Authority of Corporate Officer. “Such a petition [in bankrtiptey] might properly be made by the president of the company, and by him presefttcd to the Dis- trict Court, if he was thereto duly author- ized at a legal meeting called for the. pur- pose by a vote of a majority of the corporators; and whether he was so author- ‘ized or not was a question of fact to be determined by the District Court to which the petitioft wis presented; and the fulé in stich cases is, that if thete be a total de- fect of evidetice to prove the eésetitial fact, afid the court find it without proof, the action of the cotitt is void: but when the proof exhibited has a legal tendency to show a case of jutisdictioti, then, although the proof may be slight atid inconclusive, the action of the court will be valid until it is set aside by a direct proceeding for that purpose.” Cxirforp, J. New Lamp Chim- ricy Co. vw. Ansonia Brass, ett, Co. 91 U. S. 660. Any Creditor May Petition. “Any creditor of another may institute proceedings in bankruptcy against his debtor, if he have probable cause to believe that his debtor has committed an act of bank- ruptcy; but a condition precederit to such right is, that hé be, in fact, a creditor.” Bravery, J., dissenting. Stewart vw. Sonne- born, 98 U. S. 202. “In England, it has never been doubted that a man, having a claini on two persons, might become a petitioning creditor fof the bankruptcy of ore of them. Such peti- 206 BANKRUPTCY. tiotiinig creditor has always beeri adinitted to prove his debt before the commissioners, and to receive his dividends, in proportion, with the other creditors. He is, then, in contemplation of the act, a creditor of the bankrupt; and, consequently, all the pro- visions of the act apply to him, as to other creditors.” MarsHati, C. J. Tuckers wv. Oxley, 5 Cranch 42. Persons Submitting to Jurisdiction Bound. 3 Every person submitting himself to the jurisdiction of the bankrupt court in the progress of the cause, for the purpose of having his rights in the estate determined, makes himself a party to the suit, and is bound by what is judicially determined in the legitimate course of the proceeding.” Warts, C. J. Wiswall v. Campbell, 93 U. S. 351. “This court . . . has never held that where the plaintiff in the execution himself took the proceeding in the bankrupt court, and there obtained rules and orders, he was not bound by them.” Hunt, J. O’Brien v. Weld, 92 U. S. 83. “The defetdarits appédred and claimed and exercised every tight which the bank- rupt act confers. They are, therefore, estop- ped to deny the jurisdiction of the court; nor are the plaintiffs in any better condi- tion, unless it appears that the bankrupt proceedings are actually void. Void pro- ceedings, of cotirsé, birid no one not estop- ped to set up the objection.” Czirrorp, J. New Latnp Chimney Co. ¥. Ansonia Brass, etc, Co., 91 U. S. 659. “A creditor who offers proof of his claim, and demands its allowance, sub- jects himself to the dominion of the court, and must abide the consequences. His remedies for the purpose of this proof are prescribed by the law.” Warts, C. J. Wis- wall v. Campbell, 93 U. S. 351. 6. WHat Property Passes. As to the vight of an assignee to refuse to accept property of an onerous nature, see infra, IV. 7%. Rights at Time of Assignment. “The recent Bankrupt Act of the United States, in definitig what property should vest in the assignee iri bankruptcy, expressly efiumeérated ‘all rights in equity, choses in action, patent-tights, and copyfights, atid required the assigtiee to sell all the ptop- erty of the bankriipt for thé beriefit of his creditors. Rev. Stat., sects. 6046, 5062-5064, The only difference is, that in Englarid all such rights pass that become vested in the bankrupt before he obtains a certificate of discharge, whereas here only those rights pass which belong to him at the time of the assignment.” Gray, J. Ager v: Mur- ray, 105 U. S. 129. “An assignment in bankruptcy only trans- fers to the assignee such property as the bankrupt had wher the bankruptcy was filed.” Warts, C. J. Thatcher v. Rockwell, 105 U. S. 469. “A commission of bankruptcy relates to the act of bankruptcy, having the effect of an execution: it prevents the transmission of the bankrupt’s property from that time to any but his assignees.” BALDwIN, J. Brent v. The Bank of Washington, 10 Pet. 617. Outlawed Claim. “A demand of a bankrupt, which is out- lawed, must go to the assignee; for cori- tingencies may arise in many ways which will give value to it.” Fretp, J.. Erwin v. U.S. 97 U. S, 396. Indemnity Received by United States. “In this court, it is well settled that moneys received by the United States from a foreign government by way of indemnity for the destruction of American vessels, and granted by act of Congress to the owners of those vessels, without directing to whom pay- ment shall be made in case of death or in- solvency, pass to the assignees in bankruptcy ‘for the benefit of the creditors of such own- ers, although such assignees have been ap~ pointed before the act of Congress making the grant.” Gray, J. Briggs v. Walker, 171 U.S, 472. Claim Against United States, “Demands against the government, if based upon considerations which wotild be valid between individuals, such as services rendered or goods taken, are property, al+ though there be no court to investigate and pass upon theif validity, and their recogni- tiori and payntent may depend upon the ca- price or favor of tlie legislature.” Fiexp, J. Erwin v. U. S., 97 U. S. 396. Patent-right. “In England it has long been held that a patent-right would pass by an assignment in bankruptcy, even without express words to that effect in Bankrupt Act.” Gray, J. Ager v, Murray, 105 U. S. 128. 207 BANKRUPTCY. Subject to Claims of Others. “Tf, in consequence of his bankruptcy, the property had come into the possession of his assignees, they would have taken it subject to all legal and equitable claims of others not in fraud of the rights of the general creditors. They would be affected by all the equities which could be urged against him.” MattrHews, J. Hauselt v. Harrison, 105 U. S. 406. “When vessels have passed into the hands of an assignee or receiver, it has been the constant practice of courts of bankruptcy: and equity to respect the liens given by the maritime law, to marshal such liens and di- rect their payment, precisely as a court of admiralty would have done.” Brown, J. Pratt v. Paris Gas Light, etc., Co., 168 U. S. 259. —— Adverse Claimant. “Tt is not necessary in order to be an ad- verse claimant [in bankruptcy proceedings] that the surety should claim to be the ab- solute owner of the property in his posses- sion.” PrecxHam, J. Jaquith v. Rowley, 188 U.S. 624, Real Estate Out of Jurisdiction. i “There is no pretense that this govern- ment, through the agency of bankrupt law, could subject the real property in Texas, or in any other foreign government, to the pay- ment of debts. This can only be done by the laws of the sovereignty where such property may be situated.” McLean, J. Oakey v. Bennett, 11 How. 45. Debt Due Foreign Bankrupt. “A creditor of the foreign bankrupt may attach the debt due the foreign bankrupt, and apply the money to the satisfaction of his peculiar debt, to the prejudice of the rights of the assignees or other creditors.” Jounson, J. Ogden v. Saunders, 12 Wheat. 364. Y. ASSIGNEE—Ricuts, DUTIES, AND ACTIONS. In General. “The primary object of the bankrupt law is to secure the equal distribution of the property of the bankrupt of every kind among his creditors. This can only be done through the rights vested in the assignee and by the faithful discharge of his duties.” Miter, J. Trimble v. Woodhead, 102 U. S. 650. When Title Passes. “Tf the title passed to the insolvent as- signees, it passed eo instanti the assignment was executed.” Hunt, J. Crapo v. Kelly, 16 Wall. 629. “The title of an assignee in bankruptcy was early held to relate back, for the purpose of maintaining trover, to the time of the commission of the act of bank- ruptcy.” Wuutr, J.,. dissenting. U. S. wv. Louglrey, 172 U. S. 227. Not Bound to Accept Property of Onerous Nature. “They [assignees in bankruptcy] were not bound, however, to accept property of an onerous and unprofitable nature, which would burden instead of benefiting the estate, and they could elect whether they would accept or not, after due consideration and within a reasonable time, while, if their judgment was unwisely exercised, the bankruptcy court was open to the creditors to compel a different conclusion.” Fuiter, C. J. Sparhawk vw. Yerkes, 142 U. S. 13. To the same effect see the language of Woops, J., in American File Co. v. Garrett, 110 U. S. 295. Cause of Action — Accrual upon Appoint- ment. “The cause of action does not accrue to the assignee [in bankruptcy] until his ap- pointment.” Brapiey, J. Buffington v. Har- vey, 95 U. S. 102. — Recovery of Property Conveyed by Bankrupt. “ Assignees in insolvency under the com- prehensive rule by which the assignee is vested with all the rights of property be- longing to the bankrupt, acquire the same right as creditors to avoid any transactions of the insolvent debtor which were in- tended to enable a third party to hold his property in trust for his own benefit.” CLiF- ForD, J. Crapo v. Kelly, 16 Wall. 638, “Unless, therefore, a transaction is void against creditors independently of the pro- visions of the Bankrupt Act, its validity is not open to contestation by the assignee, where it took place at the period prescribed by the statute anterior to the proceedings in bankruptcy.” Fretp, J. Mayer v. Hellman, 91 U. S. 501. “Where the pledge is in fraud of the bank- rupt law, and consequently void, the as- signee may disregard the contract of pledge, and recover the property for the benefit of creditors. Not so where the pledge, as in this case, was made in good faith, for a val- uable consideration, and not in violation of the provisions of the bankrupt law.” Har- 208 BANKRUPTCY. LAN, J. Yeatman wv. Sav. Institution, 95 Uz S. 767. — Right to Sue Delinquent Shareholders. “The assignee [of a bankrupt corporation] might have filed a bill in equity against all the delinquent shareholders jointly.” Swayne, J. Sanger v. Upton, 91 U. S. 62. Jurisdiction of Actions. “The state courts have concurrent juris- diction with the United States courts of ac- tions and suits in which a bankrupt or his assignee is a party.” Braptey, J. Claflin v. Houseman, 93 U. S. 134. “Under the bankrupt law of 1841, with substantially the same provisions on this sub- ject as the present law [1867], it was held that the assignee could sue in the state courts.” Brapiey, J. Claflin v. Houseman, 93 U. S. 135. “Jurisdiction is vested in the Circuit Courts, under the Bankrupt Act, concurrent with the District Court for the same district, of all suits, at law or in equity, which may or shall be brought by any person against the assignee of the bankrupt’s estate, touch- ing any property, or rights of property, of the bankrupt transferable to, or vested in, such assignee.” CLiFForD, J. Scammon v. Kimball, 92 U. S. 363. “Tt [the Circuit Court of the United States] has general power given to it, ir- respective of citizenship, to grant equitable relief, in a suit in equity by an assignee in bankruptcy against any person who claims an adverse interest touching the assigned property.” Biatcurorp, J. Chapman vw. Brewer, 114 U. S. 171. ~— Recovery of Property Conveyed by Bankrupt. “ By virtue of [section 23 of the Bankruptcy Act], as adjudged at the last term of this court, the District Court can, by the proposed defendant’s consent, but not other- wise, entertain jurisdiction over suits brought by trustees in bankruptcy against third per- sons to recover property fraudulently con- veyed by the bankrupt to them before the institution of proceedings in bankruptcy.” Gray, J. Bryan v. Bernheimer, 181 U. S. 194. “Tt was repeatedly held by this court that the right of an assignee in bank- ruptcy to assert a title in property trans- ferred by the bankrupt before the bank- ruptcy to a third person, who now claimed it adversely to the assignee, could not be enforced by a plenary suit, at law, or in 1 Os. Dic.—14 equity, under the second section of the Act of 1867; and not by summary proceedings under the first section thereof, notwithstand- ing the declaration in that section that the jurisdiction in bankruptcy should extend ‘to the collection of all the assets of the bank- rupt,’ and ‘to all acts, matters and things to be done under and in virtue of the bank- ruptcy’ until the close of the proceedings in bankruptcy. The jurisdiction of the courts of the United States over all mat- ters and proceedings in bankruptcy, as dis- tinguished from independent suits at law or in equity, was of course exclusive. But it was well settled that the jurisdiction of such suits, conferred by the second section of the Act of 1867 upon the Circuit and District Courts of the United States for the benefit of an assignee in bankruptcy, was concur- rent with that of the state courts.” Gray, J. Bardes v. Hawarden Bank, 178 U. S. 532, 8. RIGHTS OF CREDITORS. a. In General. “Insolvency gives unsecured creditors no greater rights than they had before, though through redemption or subrogation or the realization of a surplus they may be bene- fited.”. Futrer, C. J. Merrill v. Jackson- ville Nat. Bank, 173 U. S. 147. Creditor Holding Voidable Security. “Tt is argued that courts of bank- ruptcy are guided by equitable considerations, and should not permit a creditor who has retained a fraudulent preference uritil com- pelled by a court to surrender it, to prove his debt and thus suffer no other loss than the costs of litigation. The fallacy lies in assuming that courts have power to inflict penalties, although the law has not imposed them. Moreover, if the statute be inter- preted, as it is insisted it should be, there would be no distinction between honest and fraudulent creditors, and therefore every creditor who in good faith had acquired an advantage which the law did not permit him to retain would be subjected to the forfeiture simply because: he had presumed to submit his legal rights to a court for determination. And this accentuates the error in the con- struction, since the elementary principle is that courts are created to pass upon the rights of Parties, and that it is the privilege of the citizen to submit his claims to the judicial tribunals, especially in the absence of malice and when acting with probable cause, with- out subjecting himself to penalties of an extraordinary character.” Keppel v. Tiffiz: Savings Bank, 197 U. S. 363. 209. BANKRUPTC. “The bankrupt law contemplates that a secured creditor, who holds a security void- able under the law and which he should put into the common fund as a condition of the right to participate with other unsecured creditors in the division of the estate, must make his choice while he has yet some- thing to give for the privilege of being taken from the class of those who have a security which may be taken from them, and placed in a class, always favored in the bankrupt law, who shall share in the equal distribu- tion of the bankrupt’s estate, freed from fraudulent conveyances: and voidable prefer- ences.” Day, J., dissenting. Keppel v. Tiffin Savings Bank, 197 U. S. 384. Resisting Fictitious Claims. “Tf an assignee in bankruptcy, with knowl- edge, or with reason to believe that one claiming to be a creditor of the bankrupt had proved a debt against the bankrupt’s estate which had no existence, or which was tainted with fraud, should neglect or refuse to con- test the allowance of such debt, there is no reason why the other creditors, having proved their debts, should not be permitted to interpose and seek the aid of a court of equity to annul the allowance.” Srrone, J. Troy First Nat. Bank v. Cooper, etc., Co., 20 Wall. 174. b. Preferences— Ratable Distribution. In General. “The policy and aim of bankrupt laws are to compel an equal distribution of the assets of the bankrupt among all his cred- itors. Hence when a merchant or trader, by any of these tests of insolvency, has shown his inability to meet his engagements, one creditor cannot, by collusion with him, or by a race of diligence, obtain a preference to the injury of others. Such conduct is con- sidered a fraud on the act, whose aid is to divide the assets equally, and therefore equi- tably.” Grier, J. Shawhan v. Wherritt, 7 How. 644. “The main purpose which the Bankrupt Act seeks to accomplish is to distribute the property of the bankrupt equally among his creditors, and in order to do this the cred- itor who has not, when proceedings are be- gun, such a security as binds the property is prevented from obtaining it, and thus se- curing a preference over another creditor.” Davis, J. Morgan v. Campbell, 22 Wall. 393. “There is no good reason why the law should protect a landlord in the issuing of a distress warrant, and repudiate an equally meritorious creditor in the levy of an at- tachment.” Davis, J. Morgan v. Campbell, 22 Wall. 393. “The effect of the distress warrant is to seize the property and hold it for the purpose of enforcing the claim of the land- lord upon it, and an ordinary attachment upon mesne process does nothing more for the general creditor.” Davis, J. Morgan vw. Campbell, 22 Wall. 394. Priority of United States. “In this country, and in its courts, in a contest - specting property lying in this country, the United States are not deprived of that priority which the laws give them, by the circumstance that the contract was made in a foreign country, with a person resident abroad.” Marsuatt, C. J. Harri- son v. Sterry, 5 Cranch 299. Payments, Transfers, and Judgments Be- fore Bankruptcy Proceedings. “Tt is well settled that a debtor may pay a just debt to his creditor at any time be- fore proceedings in bankruptcy are taken.” Hunt, J. Fox uv. Gardner, 21 Wall. 479. “Many find themselves with ample means, good credit, large business, technically in- solvent; that is, unable to meet their cur- rent obligations as fast as they mature. But by forbearance of creditors, by meeting only such debts as are pressed, and even by the submission of some of their property to be seized on execution, they are finally able to pay all, and to save their commercial charac- ter and much of their property. If creditors are not satisfied with this, and the parties have committed an act of bankruptcy, any creditor can institute proceedings in a bank- rupt court. But until this is done, their honest struggle to meet their debts and to avoid the breaking up of all their business is not, of itself, to be construed into an act of bankruptcy, or a fraud upon the act.” Mitier, J.. Wilson v. St. Paul City Bank, 17 Wall. 486. “It is for the interest of the community that every one should continue his business, and avoid, if possible, going into bankruptcy, and yet how could this result be obtained if the privilege were denied a person who was unable to command ready money to meet his debts as they fell due, of making a fair disposition of his property in order to accomplish this object. It is true that he may fail, notwithstanding all his efforts, in keeping out of bankruptcy, and in that case 210 BANKRUPTCY. any sale he has made within six months of that event is subject toexamination.” Davis, J. Tiffany v. Lucas, 15 Wall, 421. “If it appears that the debtor giving the preference was actually insolvent, and that the means of knowledge were at hand, and that such facts and circumstances were known to the creditor securing the prefer- ence as clearly ought to have put a prudent man upon inquiry, it must be held that he had reasonable cause to believe that the debtor was insolvent, if it appears that he might have ascertained the fact to be so by reasonable inquiry.” CurFForD, J. Dutcher v. Wright, 94 U. S. 557. — Bona Fide Purchaser. “Purchasers are required to exercise or- dinary prudence in respect to the title of the seller, and if they fail to investigate when put upon inquiry, they are chargeable with all the knowledge which it is reasonable to suppose they would have acquired if they had performed their duty in that regard.” CuirForD, J. Wager v. Hall, 16 Wall. 601. —— Judgment Notes. “The Bankrupt Act was not aimed against false credits. It did not prohibit holding judgment bonds and notes without entering judgments thereon until the debtor became embarrassed.” Strone, J. Clark v. Iselin, 21 Wall. 377. “In order to make a judgment and ex- ecution against an insolvent debtor a prefer- ence fraudulent under the law, the debtor must have procured them with a view or in- tent to give a preference, and that intent must have existed when the judgment ‘was en- tered.” Srrone, J. Clark v. Iselin, 21 Wall. 376. —— Change by Act of 1808. “The careful change in the language of the provisions of the Bankrupt Act of 1898 from those of the former Bankrupt Acts upon the subject must have been intended by Congress to prevent a debtor from giving a creditor an irrevocable warrant of attorney which would enable him, at any time, during the insolvency of the debtor, arid within four months before a petition in bankruptcy, to obtain a judgment and levy the execution on all the property of the bankrupt, to the exclusion of his other creditors.” Gray, J. Wilson v. Nelson, 183 U. S. 198. —— Note on Secret Compromise Void. - “A note given by a bankrupt upon a secret compromise with a creditor, is de- clared void; as it produces inequality in the distribution of the bankrupt’s effects, and evades the provisions and policy of the law, which proposes to put all the creditors upon an equal footing.” Jounson, J. Bank of U. S. v. Owens, 2 Pet. 540. c. Provable Claims, Accrued Interest. “Accrued interest constitutes part of a debt provable against the estate of the bank- rupt, and if it does it is necessarily part of a debt which may be used to uphold invol- untary proceedings.” Warts, C. J. Sloan wv. Lewis, 22 Wall. 156. Claim Merged in Judgment. “Notwithstanding the change in its form from that of a simple contract debt, or un- liquidated claim, or whatever its character may have been, by merger into a judgment of a court of record, it still remains the same debt on which the action was brought in the state court and the existence of which was provable in bankruptcy.” Muizr, J. Boynton v. Ball, 121 U. S. 466. d. As Against Firm and Separate Assets of Partners. Claim of Solvent Partner. “A solvent partner cannot prove his own separate debt against the separate estate of the bankrupt partner, so as to come in com- petition with the joint creditors of the part- nership, for the plain reason that he is him- self liable to all the joint creditors, which is sufficient to show that in equity he can- not be permitted to claim any part of the funds of the bankrupt before all the creditors to whom he is liable are fully paid.” Cur- ForD, J. Amsinck v, Bean, 22 Wall. 402. All Partners Bankrupt—Claim by One Against Joint Estate. “Where all the partners become bankrupt the general rule is that the separate estate of one partner shall not claim against the joint estate of the partnership in competi- tion with the joint creditors, nor shall the joint estate claim against the separate estate in competition with the separate creditors.” CuirForpD, J. Amsinck v. Bean, 22 Wall. 402. Separate Creditors of Bankrupt Partner. “Debts due by the bankrupt partner to the partnership are entitled to priority in pref- erence to the debts due by him to his separate creditors, and if the joint fund prove insur- ficient to discharge his debt to the partner- ship the solvent partners have.a right the govern- ment.” MarsHatt, C. J. Osborn v. Bank of U. S., 9 Wheat. (U. S.) 860. “A bank, where the stock is owned by in- dividuals, is a private corporation.” Mc- LEAN, J. State Bank of Ohio v. Knoop, 16 How. 380. “When a corporation or natural person re- ceives from another person, for discount, bills of exchange or promissory notes belong- ing te that other, he is acting as a banker.” Stronc, J. Selden v. Equitable Trust Co., 94 U. S. 422. “Prohibitions now exist in many states against private banking, and against the issue of private bank paper, with the intent that it shall pass as currency.” Story, J., dissent- ing. Briscoe v. Commonwealth, 11 Pet. 348. III. NATURE AND CONDUCT OF BUSINESS. 1. CapiraL — Funps SupjEct To DEBTS. Actual Capital Employed. “The legislature might well presume, after prescribing the maximum to which the cap- ital stock [of a bank] should extend, that the actual capital to be employed might safely be left to the discretion of the stockholders, or its agents.” Story, J. Minor v. Me- chanics Bank, 1 Pet. 65. State as Stockholder. “A state, when it becomes a stockholder in a bank, imparts none of its attributes of sovereignty to the institution; and : this is equally the case whether it own a whole or a part of the stock of the bank.” M’Lean, J. Briscoe v. Commonwealth Bank, 11 Pet. 325. “When banks are created upon private capital, they stand upon that capital; and their credit is limited to the personal or corporate responsibility of the stockholders, as provided for in the charter. If the cor- porate stock, and that only, by the charter is made liable for the debts of the bank, and that capital stock is paid in; every holder of its bills must be presumed to trust ex- clusively to the fund thus provided, and the general credit of the corporation. And in such a case, a state owning a portion of the funds, and having paid in its share of the capital stock, is treated like every other stockholder; and is understood to incur no public responsibility whatsoever. It de- scends to the character of a mere corporator, and does not act in the character of a sov- ereign.” Srory,. J., dissenting. Briscoe v. Commonwealth Bank, 11 Pet. 348. 216 BANKS AND BANKING. Funds and Property Subject to Debts. “The funds of the bank and its property, of every description, are held responsible for the payment of its debts; and may be reached by legal or equitable process. In this re- spect, it can claim no exemption under the prerogatives of the state.’ M’Lzan, J. Briscoe v. Commonwealth Bank, 11 Pet. 327. 2. USAGE AND CUSTOM. “Evidence of the usage of banks to re- gard drafts drawn upon them, payable at a day certain, as checks, and not entitled to days of grace is admissible as evidence to control the rules of the law in relation to such paper.” CuiFForD, J. Thompson v. Riggs, 5 Wall. 680, “The ordinary usage and practice of a bank, in the absence of counter proof, must be supposed to result from the regulations prescribed by the board of directors; to whom, the charter and by-laws, submit the general management of the bank, and the control and direction of its officers. It would be not only inconvenient, but perilous, for the customers, or any other persons dealing with the bank, to transact their business with the officers upon any other presump- tion.” Story, J. Minor v. Mechanics Bank, 1 Pet. 70. “The public character of the business of a bank, the strict regulations under which its business is usually transacted, the care required of its officers and agents in per- forming their duties, bring the case fully within the operation of the rule which al- lows usage and the course of business to be shown for the purpose of raising a prima facie presumption of fact in aid of collateral testimony.” Braptey, J. Knickerbocker L. Ins. Co. v. Pendleton, 115 U. S. 347. 3. DISCOUNTING. What Is. “Nothing can be clearer than that, by the language of the commercial world and the settled practice of banks, a discount by a bank means, ex wi termini, a deduction or drawback made upon its advances or loans of money, upon negotiable paper, or other evidences of debt, payable at a future day, which are transferred to the bank.” Story, J. Fleckner v. Bank of U. S., 8 Wheat. 350. “Discount, as we have seen, is the dif- ference between the price and the amount of the debt, the evidence of which is transferred. That difference represents interest charged, being at some rate, according to which the price paid, if invested until the maturity of the debt, will produce its amount. And the advance, therefore, upon every note dis- counted, without reference to its character as business or accommodation paper, is prop- erly denominated a loan, for interest is pre- dicable only of loans, being the price paid for the use of the money.” Matruews, J. National Bank v. Johnson, 104 U. S. 277. Authority. “Tt has always been supposed that an au- thority to discount, or make discounts, did, from the very force of the terms, necessarily include an authority to take the interest in advance. And this is not only the settled opinion among professional and commercial men, but stands approved by the soundest principles of legal construction. Indeed, we do not know in what other sense the word discount is to be interpreted.” Srory, J. Fleckner v. Bank of U. S., 8 Wheat. 354. “Tt is notorious that banking operations are always carried on in our country by dis- counting notes.” Story, J. Fleckner wv. Bank of U. S., 8 Wheat. 350. Interest. “Where a bank is limited by its charter to a specified rate of interest, but no penal consequences is denounced for taking more, it has been held that a contract for more is not wholly void.” Swayne, J. Union Nat. Bank v. Matthews, 98 U. S. 627. “Mere accommodation paper can have no effective or legal existence until it is trans- ferred to a bona fide holder. It follows, then, that the discounting by a bank at a higher rate of interest than the law allows of paper of this character, made and given to the holder for the purpose of raising money upon it, in its origin only a nominal contract, on which no action could be maintained by any of the parties to it if it had not been dis- counted, is usurious, and not defensible as a purchase.” Davis, J. Tiffany wv. Boat- man’s Inst., 18 Wall. 385. See also NEGOTIABLE INSTRUMENTS. Effect. “A bank in discounting commercial paper does not guarantee the genuineness of a doc- ument attached to it as collateral security.” Fretp, J. Goetz v. Bank of Kansas City, 119 U. SS. 555. 217 BANKS AND BANKING. 4, BorROWING AND DISPOSING OF PROPERTY. Power to Dispose of Property. “A power to dispose of its [a banking cor- poration’s] notes, as well as other property, may well be regarded as an incident to its business as a bank to discount notes, which are required to be in their terms assignable, as well as an incident to its right of holding them or other property, when no express limitation is imposed on the authority to transfer them.” Woopsury, J. Planters’ Bank v. Sharp, 6 How. 322. “Indeed, its [a banking corporation’s] right to sell any of its property, when not restricted in the charter or any previous law, is per- haps as unlimited as that of an individual, if not carried into the transaction of an- other separate and unauthorized branch of business.” Woopgury, J. Planters’ Bank v. Sharp, 6 How. 323. “Both [banking corporations and indi- viduals] may sell notes to liquidate their debts, both sell their lands acquired under mortgages foreclosed, or acquire under the extent of executions not redeemed. Both, too, must be able to sell all kinds of their property, when proceeding to close up their business, or find it impracticable.” Woop- sBurY, J, Planters’ Bank v. Sharp, 6 How. 323. Rediscounting and Sale of Notes. “The very object of banking is to aid the operation of the laws of commerce by serv- ing as a channel for carrying money from place to place, as the rise and fall of supply and demand requires, and it may be done by rediscounting the bank’s paper or by some other form of borrowing.”’ McKenna, J. Auten v. U. S. Nat. Bank, 174 U. S. 143. “In discounting notes and managing its property in legitimate banking business, it [a banking corporation] must be able to assign or sell those notes when necessary and proper, as, for instance, to procure more specie in an emergency, or return an unusual amount of deposits withdrawn, or pay large debts for a banking-house, and for any ‘ goods and effects’ connected with banking which it may properly own. It is its duty to pay in some way every debt.” Woopsury, J. Planters’ Bank v. Sharp, 6 How. 323. Borrowing. “Banking in much, if not in the greater part of its practice, is in strict sense borrow- ing, and we may well hesitate to condemn it as illegitimate, or regard it as out of the course of regular business, and hence sus- Ppicious and questionable”’ McKenna, J. Auten v. United States Nat. Bank, 174 U.S. 141. “The very first banking in England was pure borrowing. It consisted in receiving money in exchange for which promissory notes were given payable to bearer on de- mand.” McKenna, J. Auten v. U. S. Nat. Bank, 174 U. S. 142. “The chief business and design of most banks, their very vitality, is to incur debts as well as to have credits. All their de- posit certificates, or bank-book credits to in- dividuals, are debts of the bank, and which it is a legitimate and appropriate part of its business as a bank to incur and to pay. The same may be said, also, of all its bank- notes, or bills, they being merely promises or debts of the bank, payable to their hold- ers, and imperative on them to discharge.” Woopsury, J. Planters’ Bank v. Sharp, 6 How. 323. Indorsement Waiving Demand and Notice. “Undoubtedly a bank might indorse, ‘waiving demand and notice,’ and would be bound accordingly.” Swayne, J. People’s Bank v. Manufacturers’ Nat. Bank, 101 U. S. 183. 5. OFFICERS AND DirEcTORS — POWERS AND DUTIES. a. In General, Officers or Stockholders. “When we speak of an act to be done by a bank or banks, we mean an act to be done by those who have the authority to do it. If it be an act within the franchise for bank- ing, or the ordinary power of the bank to contract, and it is done by the president and directors, or by their agent, we say the bank did it, and every one understands what is meant. If, however, an act is to be done relative to the institution, by which its char- ter is to be in any way changed, the stock- holders must do it, unless another mode to effect it has been provided by the charter. In one sense, after it has been done we may say the bank did it, but only so beeause what the stockholders have done, became a part of the institution, which it was not be- fore.” Wayne, J. Gordon v. Appeal Tax Court, 3 How. 148. Authority Confined by Law. “An agent or trustee of a banking cor- poration has no rights of individual 218 BANKS AND BANKING. ownership; his control over the effect is solely derived from the law; regulated and controlled by. it, in any application he may make of it. The moment he exceeds his char- tered powers, or violates his duty as pre- scribed by law, all privity between him and the bank ceases: he is no longer their agent; and his acts are no longer theirs. Conced- ing the rule to be, that in a contest between creditors at the counter of a bank, the note or check first presented, may be first paid, by the cashier; it cannot, in my opinion, ap- ply to real estate, or unavailable effects; which require time and legal process for cheir collection; and which the charter declares shall be at all times answerable for demands against the bank. Directors have no inher- ent right in the property, or control over it, resulting from ownership, which gives them the power of individual debtors to give cred- itors a preference.” Batpwin, J., dissenting. YU. S. v. Robertson, 5 Pet. 667. Acts Within Scope of General Usage. “ Authorities to show that the acts of a cashier or other officer of a bank, within the scope of the general usage, practice, and course of business of banking institutions, are binding on the corporation in favor of third persons transacting business with it, are quite numerous, providing it appears that the persons dealing with the officer did not know at the time that he was transcending his au- thority.” Cuirrorp, J. Case v. Louisiana Citizens’ Bank, 100 U. S. 455. Presumption of Integrity. “Those dealing with the bank in good faith have the right to presume integrity on the part of its officers, when acting within the apparent sphere of their duties, and the bank is bound accordingly.” Swayne, J. Merchants’ Nat. Bank v. State Nat. Bank, 10 Wall. 650. Corporate Seal. “In respect to banks, from the very na- ture of their operations in discounting notes, in receiving deposits, in paying checks, and other ordinary and daily contracts, it would be impracticable to affix the corporate seal as a confirmation of each individual act.” Story, J. Fieckner vw. Bank of U. S., 8 Wheat. 357. See also Corporations. Offenses — Misapplication of Funds. “Tf the money of a bank be misapplied by paying it out on worthless paper, (it is obvious that) a subsequent renewal of such paper upon which nothing was actually ob- tained could not have inisapplied the money of the bank.” 162 U. S. 677. — Official Acts Not Strictly Construed into Crimes. “While it is true that care must be taken not to weaken the wholesome provisions of the statutes designed to protect depositors and stockholders against the wrongdoings of banking officials, it is of equal importance that they should not be so construed as to make transactions of such officials, carried on with the utmost honesty and in a sincere belief that no wrong was being done, crim- inal offenses, and subjecting them to the se- vere punishments which may be imposed un- der those statutes.” Brewer, J. Potter v. U. S., 155 U. S. 447. b. Directors. Chartered Agents. “T consider the directors of a bank, as its Wuits, J. Coffin wv. U. S, chartered agents; and the bank as bound by their acts, when they are within the powers, and are exercised on the subjects, and in the manner authorized by the charter.” Batp- win, J., dissenting. U. S. v. Robertson, 5 Pet. 665. Trustees. “Bank directors are often styled trustees, but not in any technical sense. The relation between the corporation and them is rather that of principal and agent, certainly so far as creditors are concerned, between whom and the corporation the relation is that of a contract and not of a trust. But, undoubt- edly, under circumstances, they may be treat- ed as occupying the position of trustees to cestut que trust.” Futter, C. J. Briggs v. Spaulding, 141 U. S. 147. “A banking corporation, publicly avowing that its business was to be wholly adminis- tered by executive officers, and that the di- rectors would have nothing in fact to do with its management, would not long retain the confidence of stockholders and depositors, a fact which, of itself, shows that the abdi- cation by directors of their duties and func- tions not only tends to defeat the object for the creation of such institution, but puts in peril the interests of stockholders and deposi- tors.” Harran, J., dissenting. Briggs v. Spaulding, 141 U. S. 174. Duty of Diligence. ; “Directors [of a bank] cannot, in justice to those who deal with the bank, shut their eyes to what is going on around them. It is their duty to use ordinary diligence in ascertaining the condition of its business, and to exercise reasonable control and su- 219 BANKS AND BANKING. pervision of its officers. They have some- thing more to do than, from time to time, to elect the officers of the bank, and to make declarations of dividends.” Harian, J. Martin v. Webb, 110 U. S. 15. Powers in General. “The power conferred [upon bank direc- tors] may be exercised in all usual transac- tions through the executive officers of the bank without consultation with the stock- holders.” Day, J. Commercial Nat. Bank v. Weinhard, 192 U. S. 248. Powers Not Unlimited. “However broad and general the powers of the direction may be, for the government and management of the concerns of a bank, by the general language of the charter and by-laws, those powers are not unlimited, but must receive a rational exposition.” Story, J. Minor v. Mechanics’ Bank, 1 Pet. 71. No Authority to Plunder. “Tt cannot be pretended that the board [of directors of a bank] could, by a vote, author- ize the cashier to plunder the funds of the bank, or to cheat the stockholders of their interest therein.’ Story, J. Minor v. Me- chanics’ Bank, 1 Pet. 71. “No vote could authorize the directors [of a bank] to divide among themselves, the capital stock, or justify the officers of the bank in an avowed embezzlement of its funds.” Story, J. Minor wv. Mechanics’ Bank, 1 Pet. 71, Bank Not Bound by Unlawful Acts. “Tf a corporation is authorized to raise money by a lottery, their agents cannot sell it; . . . if to raise a specific sum they cannot raise a quarter. Every act of fraud, departure from their duty, or any other illegal act, committed by the directors of a bank, or the cashier, by their connivance and permission, however, sanctioned by the uni- form usage of the board, is an excess of power and void from illegality. The directors are liable individually; but the bank cannot be bound by their doing that, which they had no lawful power to do, or which was a violation of some duty enjoined by the charter, or resulting from the nature and objects of the incorporation; for the directors are not then their agents.” Batpwin, J., dis- senting- U.S. v. Robertson, 5 Pet. 665. c. Cashiers. Superintending or Executive Officer. “Banking corporations necessarily act by some agent, and it is a matter of common knowledge that such institutions usually have an officer known as their cashier. In gen- eral he is the officer who superintends the books and transactions of the bank under the orders of the directors. His acts within the sphere of his duty are in behalf of the bank, and to that extent he is the agent of the corporation.” CLiFForD, J. Baldwin v. Newbury Bank, 1 Wall. 240. “The cashier is the executive officer, through whom the whole financial operations of the bank are conducted. He receives and pays out its moneys, collects and pays its debts, and receives and transfers its com- mercial securities. Tellers and other subor- dinate officers may be appointed, but they are under his direction, and are, as it were, the arms by which designated portions of his various functions are discharged.” Swayne, J. Merchants’ Nat. Bank v. State Nat. Bank, 10 Wall. 650. “ As the executive officer of the bank, he [a bank cashier] transacts its business under the orders and supervision of the board of direc- tors. He is their arm in the management of its financial operations.” Haran, J. Martin v. Webb, 110 U. S. 14. Cashier May Be Teller. “There is nothing in the nature of the duties of teller [of a bank] incompatible with those of cashier; on the contrary, as is well known, cashiers often perform the functions of both. The circumstance, that the office of teller, and distinct accounts and books, were still kept up, does not vary the legal result.” Story, J. Minor v. Mechanics Bank, 1 Pet. 72. General Usage and Course of Business. “Cashiers of a bank are held out to the public as having authority to act according to the general usage, practice, and course of business conducted by the bank, and their acts, within the scope of such usage, practice, and course of business, will in general bind the bank in favor of third persons possessing no other knowledge.” C.irrorp, J., dissent- ing. Merchants’ Nat. Bank wv. State Nat. Bank, 10 Wall. 672. “ Such an officer [cashier of a bank] is vir- tute officii entrusted with the notes, securi- ties, and other funds of the bank and is held out to the world by the bank as its general agent for the transaction of its affairs, within the scope of authority, evi- denced by such usage, practice and course of business.” CxrFrorp, J. Case v. Louisiana Citizens’ Bank, 100 U. S. 454. 220 BANKS AND BANKING. “Cashiers of a bank are held out to the public as having authority to act according to the general usage, practice, and course of business conducted by such institutions; and their act, within the scope of such usage, practice, and course of business, will in gen- eral bind the bank in favor of third persons * possessing no other knowledge.’”” CLIFForRD, J. Case v. Louisiana Citizens’ Bank, 100 U. S. 454. “Neither the public at large nor third per- sons usually have any other knowledge of the powers of a cashier than what is derived from such usage, practice, and course of business; and it would be the height of in- justice to hold that the bank as the principals to the cashier may set up their secret and private instruction to the officer, limiting his authority in respect to a particular case, and thus defeating his acts and transactions as such agent, when the party dealing with him had not and could not have had any notice of the secret instructions.” CLIFFORD, J. Case v. Louisiana Citizens’ Bank, 100 U.S. 454. “ Official acts may be performed by a cash- ier which constitutes the ordinary and cus- tomary functions of such an officer, and per- sons dealing with the bank are warranted in believing that the cashier is duly authorized to perform any customary duties falling with- in the scope of that category, and may to that extent hold the bank responsible as if he was so authorized, however the fact may be, save only the cases where his want of authority is affirmatively proved, and actual knowledge of that fact is brought home to the third party.” CiiFForD, J. Case v. Louisiana Citizens’ Bank, 100 U. S. 454. Acts Done in Ordinary Course of Business, “The acts of the cashier [of a bank] done in the ordinary course of the business actu- ally confided to such an officer, may well be deemed prima facie evidence that they fell within the scope of his duty.” Srory, J. Fleckner v. Bank of U. S., 8 Wheat. 357. —— Presumption of Authority of Execu- tive Officer. “The cashier, being the ostensible execu- tive officer of a bank, is presumed to have, in the absence of positive restrictions, all the power necessary for such an officer in the transaction of the legitimate business of banking. Thus, he is generally understood to have authority to indorse the commercial paper of his bank and bind the bank by the indorsement. So, too, in the absence of restrictions, if he has procured a bona fide rediscount of the paper of the bank, his acts will be binding, because of his implied power fo transact such business.” Warts, C. J. West St. Louis Sav. Bank wv. Shawnee County Bank, 95 U. S. 559. ——Indorsement by. “An indorsement by a cashier of a \bank of a note payable directly to the bank is good, upon the ground that he represents the interest of the bank in it, though he is not officially or otherwise a payee upon the face of the note.” Wayne, J. Pease v. Dwight, 6 How. 199. Unauthorized Acts. “The term ordinary business, with direct reference to the duties of cashiers of banks, occurs frequently in English cases, and in the reports of the decisions of our state courts, and in no one of them has it been judicially allowed to comprehend a contract made by a cashier, without an express delegation of power from a board of directors to do so, which involves the payment of money, un- less it be such as has been loaned in the usual and customary way.” Wayne, J. U. S. v. City Bank, 21 How. 364. “His [a bank cashier’s] duties are quite extensive, but it is settled law in this court that they do not comprehend the making of a contract which involves the payment of money, without an express authority from the directors, unless it be such as relates to the usual and customary transactions of the bank.” CzrFForp, J., dissenting. Merchants’ Nat. Bank v. ‘State Nat. Bank, 10 Wall. 672. “Cashiers are forbidden by the express decision of this court from making contracts on behalf of their banks not within the scope of their usual and ordinary powers, involving the payment o£ money, without any express delegation of authority from the directors?” Ct irForp, J., dissenting. Mer- chants’ Nat. Bank v. State Nat. Bank, 10 Wall. 675. “Strictly speaking, he [a bank cashier] may not, in the absence of authority con- ferred by the directors, cancel its deed of trust given as security for money loaned — certainly not, unless the debt secured is paid.” Haran, J. Martin v. Webb, 110 U. S. 14. “Ordinarily, he [a bank cashier] has no power to discharge a debtor without payment, nor to surrender the assets or securities of the bank.” Harian, J. Martin v. Webb, 110 U. S. 14. 221 BANKS AND BANKING. Fraud and Misapplication of Funds. “The presumption of a wilful waste or misapplication of the funds of the bank by the Cashier, was a natural conclusion, from his failure to pay over or account-for the same.” Story, J. Minor v. Mechanics Bank, 1 Pet. 68. “A usage to allow customers to overdraw, and to have their checks and notes charged up, without present funds in the bank, ‘ is surely a manifest departure from tlie duty, both of the directors and the cashier, as cannot receive any countenance in a court of justice. It could not be sup- ported by any vote of the directors, however formal ; and, therefore, whenever done by the cashier, it is at his own peril, and upon the responsibility of himself and his sure- ties.” Story, J. Minor v. Mechanics Bank, 1 Pet. 72. Security Not Confined to Personal Fraud. “The operations of a bank require dili- gence, with fitness and capacity, as well as honesty, in its cashier; and the security for the faithful discharge of his duties, would be utterly illusionary, if we were to narrow down its import, to a guarantee against per- sonal fraud only.” Story, J. Minor v. Me- chanics Bank, 1 Pet. 69. Connivance of Directors No Protec- tion from ‘Liability. “Every act of fraud, every known de- parture from duty, by the board, [of directors of a bank] in connivance with the cashier, for the plain purpose of sacrificing the in- terest of the stockholders, would be an excess of power, from its ille- gality, and, as such, void, as an authority to protect the cashier, in his wrongful com- pliance.” Story, J. Minor v. Mechanics Bank, 1 Pet. 71. 6. GOVERNMENT SUPERVISION. Bank Commissioners. “Bank commissioners have the power to visit and inspect the bank under existing laws whenever they deem it necessary, or when- ever thereto required by the comptroller of the state, and they are required to report the general condition of the bank to the legis- lature once at least in every three years.” CutFrorp, J. Savings Bank wv. Collector, 3 Wall. 510. Requirement of Redemption of Securities. “Tt has been common in many states, of late years, to require banks of circulation 222 to secure prompt redemption by securities de- posited with the state officers, and among such securities preference is usually given to bonds of the United States. But this is for the benefit and security of the note- holders, not of the banks. The requirement restricts rather than increases the amount of their circulation.” Case, C. J. Van Allen v. Assessors, 3 Wall. 599. %. DuTIEs AND LIABILITIES WITH RE- LATION TO CUSTOMERS AND DeEpos- ITORS. a. In General. Redemption of Bills. “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 genuine- ness 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 re- fuse them as spurious on his peril, or rather, on the peril of the bank itself.” Braptezy, J. McGahey v. Virginia, 135-U. S. 695. “Any unnecessary delay by a bank in ex- amining its bills to determine their genuine- ness is equivalent to a refusal to redeem them.” Fretp, J., dissenting. Antoni w. Greenhow, 107 U. S. 792. Notice of Maturity of Paper. “Banks often give notice to their cus- tomers of the approaching maturity of their promissory notes or bills of exchange; but they are not obliged to give such notice, and their neglect to do it would furnish no ex- cuse for non-payment at the day.” Brap- Ley, J. Thompson v. Knickerbocker, L. Ins. Co., 104 U. S. 258. b. In Relation of Collecting Agents. Indorsement of Bill. “The custom to indorse a bill put in bank, for collection, is universal.” MArsHAtt, C, J. Bank of Washington v. Triplett, 1 Pet, 30. Consideration. “The taking by a bank, from a customer, in the usual course of business, of paper for collection, is sufficient evidence of a valu- able consideration for the service.” BLatcH- ForD, J. Exchange Nat. Bank v. New York Third Nat. Bank, 112 U. S. 288. Collecting Bank Agent of Holder. “By law, a collecting bank is the agent of the holder of the note, and in no sense the BANKS AND BANKING. agent of the maker.” Hunt, J. Dodge v. Freedman’s Sav., etc, Co. 93 U. S. 385. Employment of Other Agents. “Whether a draft is payable in the place where the bank receiving it for collection is situated, or in another place, the holder is aware that the collection must be made by a competent agent. In either case, there is an implied contract of the bank that the proper measures shall be used to collect the draft, and a right, on the part of its owner, to presume that proper agents will be em- ployed, he having no knowledge of the agents.” BLatcurorp, J. Exchange Nat. Bank v. New York Third Nat. Bank, 112 U. S. 289, “Where a bank, as a collection agency, re- ceives a note for the purposes of collection, its position is that of an independent contractor, and the instruments em- ployed by such bank in the business contem- plated are its agents, and not the sub-agents of the owner of the note. It is not per- ceived that it can make any difference that such collection agency is composed of indi- viduals, instead of being an incorporation.” Hunt, J. Hoover v. Wise, 91 U. S. 313. Diligence. “The liability of the bank, for the bill placed in its hands for collection, undoubt- edly depends on the question, whether rea- sonable and due diligence has been used, in the performance of its duty.” MarsHALL, C.J. Bank of Washington v. Triplett, 1 Pet. 31. “The Bank of Commerce, having accepted the agency to collect, was bound only to rea- sonable care and diligence in the discharge of its assumed duties.” Stronc, J. National Bank of Commerce v. Merchants’ Nat. Bank, 91 U. S. 104. “An agent receiving for collection, before maturity, a draft payable on a patticular day after date, is held to due diligence in making presentment for acceptance, and, if chargeable with negligence therein, is liable to the owner for all damages -he has sustained by such negligence.” Biatcurorp, J. Ex- change Nat. Bank v. New York Third Nat. Bank, 112 U. S. 290. Presentment for Acceptance. “Tt is well settled, that there is a distinc- tion between the owner of a draft and his agent, in that, though the owner is not bound to present a draft payable at a day certain, for acceptance, before that day, the agent employed to collect the draft must act with due diligence to have the draft accepted as well as paid, and has not the discretion and latitude of time given to the owner, and, for any unreasonable delay, is responsible for all damages sustained by the owner.” Bratcurorp, J. Exchange Nat. Bank v. New York Third Nat. Bank, 112 U.S. 291. Drafts with Bills of Lading Attached. “The Bank of Commerce can be held liable to the owners of the drafts for a breach of duty in surrendering the bills of lading on acceptance of the drafts, only after special instructions to retain the bills until payment of the acceptances.” Srronc, J. National Bank of Commerce v. Merchants’ Nat. Bank, 91 U. S. 105. 8 “Tn our opinion, no respectable case can be found in which it has been decided that when a time draft has been drawn against a con- signment to order, and has been forwarded to an agent for collection with the bill of lading attached, without any further instruc- tions, the agent is not justified in delivering over the bill of lading on the acceptance of the draft.’ Srtronc, J, National Bank of Commerce v Merchants’ Nat. Bank, 91 U. S. 104. “In other courts, also, the question has arisen, What is the duty of a collecting bank to which time drafts, with bills of lading attached, have been sent for collection? and the decisions have been, that the agent is bound to deliver the bills of lading to the acceptor on his acceptance.” Srrone, J. National Bank of Commerce v. Merchants’ Nat. Bank, 91 U. S. 101. “ By such a transmission [of a bill of lading and draft “for collection ”] to the agent, he is instructed to collect the money mentioned in the drafts, not to collect the bill of lad- ing; and the first step in the collection is procuring acceptance of the draft. The agent is, therefore, authorized to do all which is necessary to obtaining such acceptance. If the drawee is not bound to accept without the surrender to him of the consigned property or of the bill of lading, it is the duty of the agent to make that surrender; and if he fails to perform this duty, and in consequence thereof acceptance be refused, the drawer and indorsers of the draft are discharged.” Stronc, J. National Bank of Commerce v. Merchants’ Nat. Bank, 91 U. S. 97. “Generally speaking, in the purchase and shipment of goods on bills of lading attached to bills of exchange drawn against them, the. 223 BANKS AND BANKING. bill of exchange is drawn on the consignee and purchaser, and sent forward for collec- tion through the banker at the place of shipment, who advances on the draft, and thereafter realizes on it through his corre- spondents, or by sale as exchange; or the banker at some other point, or at the general exchange center, may be the drawee of the bill of exchange instead of the consignee or real owner, the banker standing in the place of the owner, in virtue of some arrangement with his customer, or on the faith of a running account, the pledge of other securi- ties, or the customer’s personal liability, so that the draft may be charged up at once, and, at all events, the control of the goods is not the sole reliance of the banker.” Fut- Ler, C. J. The Carlos F. Roses, 177 U. S. 665. ¥ c. Deposit and Relation Created Thereby. Deposit Ticket. “A mark on a deposit ticket, if intended to require a particular deposit to be kept separate from all other deposits placed to the credit of the same depositor must be in the shape of a plain direction, if such a duty is to be imposed on the bank.” BLatcHrorp, J. Springfield State Nat. Bank v. Dodge, 124 U.S. 346. Certificate of Deposit — Assignment. “A certificate of deposit is a subsisting chose in action and represents the fund it describes, as in cases of notes, bonds, and other securities, so that a delivery of it, as a gift, constitutes an equitable assign- ment of the money for which it calls.” Marruews, J. Basket v. Hassell, 107 U. S. 614. Bailment or Debtor and Creditor — De- posits of Two Kinds. “ All deposits made with bankers may be divided into two classes namely, those in which the bank becomes bailee of the depos- itor, the title to the thing deposited remain- ing with the latter; and that other kind of deposit of money peculiar to banking busi- ness in which the depositor, for his own con- venience, parts with the title to his own money, and loans it to the banker; and the latter in consideration of the loan of the money and the right to use it for his own profit, agrees to refund the same amount, or any part thereof, on demand.” Mrter, J. Marine Bank v. Fulton Bank, 2 Wall. 256. —— Debtor and Creditor. “The relation of banker and customer, in their pecuniary dealings, is that of debtor and * creditor.” Davis, J. Bank of Republic v. Millard, 10 Wall. 155. To the same effect see the language of Brewer, J., in U. S. v. Wardwell, 172 U. S., 55; of CiiFForp, J., in Thompson v. Riggs, 5 Wall. 660; and of Gray, J., in Leather Manufacturers’ Nat. Bank v. Merchants’ Nat. Bank, 128 U. S. 34. “Tt [a bank deposit] is not a transfer of property as a payment, pledge, mortgage, gift or security.” Day, J. New York Coun- ty Bank v. Massey, 192 U. S. 147. “Where the deposit is general, and there is no special agreement proved inconsistent with such a theory, the title to the money deposited, passes to the banker, and he becomes liable for the amount as a debt which can only be discharged by a legal pay- ment of the amount.” CuiFForD, J. Scam- mon v. Kimball, 92 U. S. 369. “Tt cannot be doubted that, except under special circumstances, or where there is a statute to the contrary, a deposit of money upon general account with a bank creates the relation of debtor and creditor. The money deposited becomes a part of the general fund of the bank, to be dealt with by it as other moneys, to be lent to customers, and parted with at the will of the bank, and the right of the depositor is to have this debt repaid in whole or in part by honoring checks drawn against the deposits. It creates an ordinary debt, not a privilege or right of a fiduciary character.” Day, J. New York County Bank v. Massey, 192 U. S. 145. “Tt is an important part of the business of banking to receive deposits, but when they are received, unless there are stipulations to the contrary, they belong to the bank, become part of the general funds, and can be loaned by it as other moneys. The banker is ac- countable for the deposits which he re- ceives as debtor, and he agrees to discharge these debts by honoring the checks which the depositors shall from time to time draw on him. The contract between the parties is purely a legal one, and has nothing of the nature of a trust in it.” Davis, J. Bank of Republic v. Millard, 10 Wall. 155. — Not Property Capable of Identifica- tion. “A general deposit in a bank is so much money to the depositor’s credit; it is a debt to him by the bank, payable on demand to his order, not property capable of identifica- tion and specific appropriation.” rep, J. Florence Min. Co. v. Brown, 124 U. S. 391. 224 BANKS AND BANKING. -— Parties to Contract — Equitable Own- ership. “The contract created by the dealings in a bank account is between the depositor and the bank alone, without reference to the bene- ficial ownership of the moneys deposited. No one can sue at-law for a breach of that contract, except the parties to it.” Mar- THEWS, J. Central Nat. Bank v. Connecticut Mut. L. Ins. Co., 104 U. S. 66. “A bank is not sponsor for all its de- positors, although it may know the char- acter of their business. Its relations to its depositors are those of debtor; and, gener- ally, receiving and paying out money on the checks of its depositors, it discharges the full measure of its obligations. It is not ordinarily bound to inquire whence the de- positor received the moneys deposited, or what obligation such depositor is under to other parties. It is only when there gather around any deposit, or line of deposits, cir- cttmstances of a peculiar nature, which indi- vidualize that deposit or line of deposits, and inform the bank of peculiar facts of equitable cognizance, that it is debarred from treating the deposit as that of moneys belonging abso- lutely to the depositor.” Brewer, J. Union Stock Yards Bank v. Gillespie, 137 U. S. 416. “A bank account, it is true, even when it is a trust fund, and designated as such, by being kept in the name of the depositor as trustee, differs from other trust funds which are permanently invested in the name of trustees for the sake of being held as such for a bank account is made to be checked against, and represents a series of current transactions.” MattHews, J. Cen- tral Nat. Bank v. Connecticut Mut. L. Ins. Co., 104 U. S. 64. “ Although the relation between the bank and its depositor is that merely of debtor and creditor, and the balance due on the account is only a debt, yet the question is always open, To whom in equity does it beneficially belong? If the money deposited belonged to a third person, and was held by the depositor in a fiduciary capacity, its char- acter is not changed by being placed to his credit in his bank account.” MatrnHews, J. Central Nat. Bank v. Connecticut Mut. L. Ins. Co., 104 U. S. 66. —— Deposit May Be Bailment. “Deposits undoubtedly may be made with a banker under circumstances where the legal conclusion would be,.that the title to the fund deposited remained in the de- 1 Os. Dic.—15 positor; and in that case the banker would become the bailee of the depositor, and the latter might rightfully demand the identical money deposited as his property.” CLIFFORD, J. Scammon v. Kimball, 92 U. S. 369. “Deposits may be made under circum- stances where the legal conclusion would be that the title to the thing deposited remained with the depositor, and in that case the bank would become the bailee of the depositor, and the latter might rightfully demand the identical money deposited as his property.” CuirrorD, J. Thompson wv. Riggs, 5 Wall. 678. Deposit of Checks. “When a. check on itself is offered to a bank as a deposit, the bank has the option. to accept or reject it, or to receive it upon such conditions as may be agreed upon.. If, it be rejected, there is no room for any doubt or question between the parties. “If,.on the other hand, the check is offered as a deposit and received as a deposit, there being no fraud and the check genuine, the parties are. no less bound and concluded than in the former case. Neither can disavow or re-- pudiate what has been done. The case is simply: one of an executed contract. There are the requisite parties, the requisite con- sideration, and the requisite concurrence and assent of the minds of those concerned.” Swayne, J. National Bank v. Burkhardt, 100 U. S. 689. “The mere credit of a cheque upon the books of a bank, which may be cancelled at any time, does not make the bank a bona fide purchaser for value. If after such credit and, before payment for value upon the faith thereof, the holder receives notice of the invalidity of the cheque, he cannot become a bona fide holder by subsequent payment.” Brown, J.' Thompson v. Sioux Falls Nat. Bank, 150 U. S. 244. Duty to Pay on Demand. “The deposit of money by a customer with his banker-is one of loans, with a superadded obligation that the money is to be paid when demanded by a check.” Wuire, J. Davis wv. Sav. Bank, 161 U. S. 288. “Deposits are made to be invested for the benefit of the depositors, and the bank is under obligations to repay the amount when demanded, agreeably to the by-laws and charter.” CtrrForD, J. Savings Bank v. Col- lector, 3 Wall. 512. 7 “Tt is held that upon the ordinary de- posit of money with a bank no action will 225 BANKS AND BANKING. , lie until a demand has been made, by cheque or otherwise, and that hence the statute of limitations will not begin to run until after a refusal to pay on such demand.” Brewer, J. U.S. uv. Wardwell, 172 U. S. 53. Medium of Payment — Contract Controls. “Contracts between a banker and his cus- tomers are doubtless required to be per- formed, and must be construed in the same way as contracts between other parties. When the banker specially agrees to pay in bullion or in coin he must do so or answer in damages for its value, and so if one agrees to pay in depreciated paper, the tender of that paper is a good tender, and in de- fault of payment the promisee can recover only its market value and not its nominal. But where the deposit is general, and there is no special agreement proved, the title of the money deposited, whatever it may be, passes to the bank, and the transaction is unaffected by the character of the money in which the deposit was made, and the bank becomes liable for the amount as a debt, which can only be discharged by such money as is by law a legal tender.” Ctirrorp, J. Thompson v. Riggs, 5 Wall. 678. Bank-book and Vouchers— Duty to Ex- amine. “The sending of his [the depositor’s] pass- book to be written up and returned with the vouchers, is, therefore, in effect, a demand to know what the bank claims to be the state of his account. And the return of the book, with the vouchers, is the answer to-that de- mand, and, in effect, imports a request by the bank that the depositor will, in proper time, examine the account so rendered, and either sanction or repudiate it.” Harwan, J. Leather Manufacturers’ Bank v. Morgan, 117 U. S. 106. See also infra, IIT. 7. e. “Mistakes in bank accounts are not un- common. They occur both by unauthorized or pretended payments, as well as by the omission to give credit for sums deposited. When discovered, the mistake must be recti- fied, and an ordinary writing of a bank-book, with a return of vouchers or a statement of accounts, precludes no one from ascertaining the truth and claiming its benefit.” Hunt, J. First Nat. Bank, etc., v. Whitman, 94 U. S. 346, ; d. Checks. Use Adopted by Commercial World. “Checks on bankers are in constant use, and have been adopted by the commercial world generally as a substitute for other modes of payment.” Davis, J. Bank of Re- public v. Millard, 10 Wall. 156. Memoranda or Figures in Margin. “No bank is, bound to take notice of mem- oranda and figures upon the margin of a check, which a depositor places there merely for his own convenience, to preserve informa- tion for his own benefit; and in such case, the memoranda and figures are not a notice to the bank that the particular check is to «be paid only from a particular fund. BLatTcHForD, J. Springfield State Nat. Bank v. Dodge, 124 U. S. 346. Memorandum Check. “A memorandum check is in the ordinary form of a bank check, with the word ‘memorandum’ written across its face, and is not intended for immediate presentation, but simply as evidence of'an indebtedness by the drawer to the holder.” Hunt, J. U. S. v. Isham, 17 Wall. 502. Nature. “A check is properly neither a bond, bill, or note, with regard to the bank drawn upon, but an acquaintance. And the contract aris- ing out of a payment upon it, is a contract for money advanced, and must be so, declared upon.” JouNnson, J. Mechanics’ Bank of Alexandria v. Bank of Columbia, 5 Wheat. 335. Rights of Maker and Holder. “Tt is settled law in this court that the holder of a bank check cannot sue the bank for refusing’ payment, in the absence of proof that it was accepted by the bank or charged against the drawer, but the depositor can sue for the breach of the con- tract to honor his checks.” Futter, C. J. St. Louis, etc., R. Co. v. Johnson, 133 U. S. 574, “Tt is very clear that he [the holder] can sue the drawer if payment is refused, but can he also, in such a state of case, sue the bank? It is conceded that the depositor can bring assumpsit for the breach of the contract to honour his checks, and if the holder has a similar right, then the anomaly is presented of a right of action upon one promise, for the same thing, existing in two distinct persons, at the same time. On prin- ciple, there can be no foundation for an action on the part of the holder, unless there is a privity of contract between him and the bank. How can there be such a privity when the bank owes no duty and is under no obli- gation to the holder? The holder takes the check on the credit of the drawer in the belief that he has funds to meet it, but in no sense can the bank be said to be con- nected with the transaction. If it were true 226 BANKS AND BANKING. ‘that there was a privity of contract between the banker and holder when the check was given, the bank would be obliged to pay the check, although the drawer, before it was presented, had countermanded it, and although other checks, drawn after it was issued, but before payment of it was de- manded, had exhausted the funds of the depositor. If such a result should follow the giving of checks, it is easy to seé that bankers would be compelled to abandon altogether the business of keeping deposit accounts for their customers.” Davis, J. Bank of Re- public v. Millard, 10 Wall. 156. -—— Bank Becomes Liable to Holder by Acceptance. “Tt is not to be doubted, that it is within the power of the bank to render itself liable to the holder and payee of the check. This it may do by a formal ac- ceptance written upon the check, in which case it stands to the holder in the position of a drawer and acceptor of a bill of ex- change.” Hunt, J. First ‘Nat. Bank, etc., v. Whitman, 94 U. S. 345. To the same effect, see the language of Swayne, J., in Merchants’ Nat. Bank v. State Nat. Bank, 10 Wall. 647. — Equitable Assignment of Fund. “A check is not an equitable as- signment pro tanto of the funds of the drawer in the hands of the drawee.” Swayne, J. Christmas v. Russell, 14 Wall. 84, “The question of how far and under what circumstances a check of a depositor in a bank will be considered an equitable assign- ment to the payee of the check, of all or any portion of the funds or deposits to the credit of the drawer in the bank, is one which has been very much considered of late years in the courts, and about which there is not a unanimity of opinion. In this court it is very well settled that such a check, unless accepted by the bank, will not sustain an action at law by the drawee against the bank, as there is no privity of contract between them.” Mutter, J. Laclede Bank v. Schuler, 120 U. S. 514, — When Equity Will Lend Aid. “Whilst an equitable assignment or lien will not arise against a deposit account solely by reason of a check drawn against the same, yet the authorities establish that if in the transaction connected with the delivery of the check it was the understanding and agree- ment of the parties that an advance about to be made should be charged on and be satis- fied out of a specified fund, a court of equity will lend its aid to carry such agreement into effect as against the drawer of the check, mere volunteers, and parties charged with notice.” Wuurte, J. Fourth Street Bank v. Yardley, 165 U. S. 644. Distinguished from Bill of Exchange. “Bank checks are not inland bills of ex- change, but have many of the properties of such commercial paper; and many of the rules of the law merchant are alike appli- cable to both. Each is for a specific sum payable in money. In both cases there is a drawer, a drawee, and a payee. Without acceptance, no action can be maintained by the holder upon either against the, drawer. The chief. points of difference are that a check is always drawn on a bank or banker. No days of grace are allowed. The drawer is not discharged by the laches of the holder in presentment for payment, unless he can show that he has sustained some injury by the default. It is not due until payment is demanded, and the statute of limitations runs only from that time. It is by its face the appropriation of so much money of the drawer in the hands of the drawee to the payment of an admitted liability of the drawer. It is not necessary that the drawer of a bill should have funds in the hands of the drawee. A check in such case would bea fraud.” Swayne, J. Merchants’ Nat. Bank v. State Nat. Bank, 10 Wall. 647. “Bank checks are not bills of exchange, and though the rules applicable to each are in many respects the same, they differ in important particulars. Among these par- ticulars is that a check is drawn against funds on deposit with the banker, and the indorsement that it is good implies that when the indorsement is made there were funds there to pay it.” Murttzr, J. Espy v. Cin- cinnati Bank, 18 Wall. 620. Notice of Dishonor. “A check implies a contract on the part of the drawer that he has funds in the hands of the drawee for its payment on presen- tation. If it is dishonored the drawer is entitled to notice, but, unlike the drawer of a bill of exchange, he is not discharged from liability for the want of such notice unless he has sustained damage, or is prejudiced in the assertion of his rights by the omission.” Fierp, J. Bull v. Kasson First Nat. Bank, 123 U. S. 110, —— Presentment for Acceptance Unneces- sary. “A check requires no presentment for ac- 227 BANKS AND BANKING. ceptance as distinguished from presentment for payment. If once presented and payment refused, it is dishonored.” Hunt, J. Mayor v. Ray, 19 Wall. 482. : Certified Checks — Definition. “The word ‘certify’ as commonly under- stood implies that the cheque, upon which the words of certification have been written, has passed from the custody of the bank and into the hands of some other party.” Brew- ER, J. Potter v. U. S., 155 U.S. 444. —— Authority to Certify. “Repeated decisions of this court have. determined the question that the power to certify the checks of third persons in behalf of the corporation is not inherent in the office of the cashier of a bank, and also that the exercise of such a power is not within the scope of his usual and ordinary duties.” CzxiFForD, J., dissenting. Merchants’ Nat. Bank wv. State Nat. Bank, 10 Wall. 672. “A teller may be clothed with power to certify checks, but this in itself would not affect the right of the cashier to do the same thing. The directors may limit his au- thority as they deem proper but this would not affect those to whom the limitation was unknown.” Swayne, J. Merchants’ Nat. Bank v. State Nat. Bank, 10 Wall. 650. “Tf a bank may be held liable in any case upon a certificate of their cashier that a check is good when they have no funds of the drawer, it is not because the cashier is deemed authorized to make such a certificate, but because the bank is bound by his repre- sentation, notwithstanding it is false and unauthorized.” CxirForp, J., dissenting. Merchants’ Nat. Bank wv. State Nat. Bank, 10 Wall. 673. —— Effect of Certification. “The practice of certifying checks has grown out of the business needs of the country. They enable the holder to keep or convey the amount specified with safety. They enable persons not well acquainted to deal promptly with each other, and they avoid the delay and risks of receiving, count- ing, and passing from hand to hand large sums of money.” Swayne, J. Merchants’ Nat. Bank v. State Nat. Bank, 10 Wall. 648. “A bank incurs no greater risk in certify- ing a check than in giving a certificate of deposit. In well-regulated banks the prac- tice is at once to charge the check to the account of the drawer, to credit it in ‘a certified check account, and when the-check is paid to debit that account with the amount. Nothing can be simpler or safer than this process.” Swayne, J. Merchants’ Nat. Bank v. State Nat. Bank, 10 Wall. 648. “By the law merchant of this country the certificate of the bank that a check is good is equivalent to acceptance. It implies that the check is drawn upon sufficient funds in the hands of the drawee, that they have been set apart for its satisfaction, and that they shall be so applied whenever the check is presented for payment. It is an undertak- ing that the check is good then and shall ‘continue good, and this agreement is as binding. on the bank as its notes of circula- tion, a certificate of deposit payable to the order of the depositor, or any other obliga- tion it can assume. The object of certify- ing a check, as regards both parties, is to enable the holder to use it as money. The transferee takes it with the same readiness and sense of security that he would take the notes of the bank. It is available also to him for all the purposes of money. Thus it continues to perform its important functions until in the course of business it goes back to the bank for redemption and is ex- tinguished by payment.” Swayne, J. Mer- chants’ Nat. Bank v. State Nat. Bank, 10 Wall. 647. e. Liability for Payment of Forged Paper. In General. “Tt is important to keep in mind the dif- ference between the liability of a bank to a depositor, and the liability to a bank of a person who has received money from it upon a forged check or order. It is true that the liability, in either case, is that of debtor, not that of trustee or bailee; but there the re- semblance ceases. If the bank pays out money to the holder of a check upon which the name of the depositor, or of a payee or indorsee is forged, it is simply no Payment as between the bank and the de- positor; and the legal state of the account between them, and the legal liability of the bank to him, remains just as if the pretended payment had not been made. But as between the bank and the person obtaining money on a forged check or order, the case is quite different. . . . One who by presenting forged paper to a bank, procures the pay- ment of the amount thereof to him, even if he makes no express warranty, in law repre- sents that the paper is genuine, and, if the payment is made in ignorance of the forgery, is liable to an action by the bank to recover back the money which in equity and good 228 BANKS AND BANKING. conscience has never ceased to be its prop- erty.” Gray, J. Leather Manufacturers Nat. Bank v. Merchants’ Nat. Bank, 128 U. S. 34. Diligence Required of Depositor. “Tn their relations with depositors, banks are held, as they ought to be, to rigid re- sponsibility. But the principles governing those relations ought not to be so extended as to invite or encourage such negligence by depositors in the examination of their bank accounts, as is inconsistent with the rela- tions of the parties or with those established rules and usages, sanctioned by business men of ordinary prudence and _ sagacity, which are or ought to be known to de- positors.” Harian, J. Leather Manufactur- ers’ Bank v. Morgan, 117 U. S. 115. “As the right to seek and compel restora- tion and payment from the person committing the forgeries was, in itself, a valuable one, it is sufficient if it appears that the bank, by reason of the negligence of the depositor, was presented from promptly, and, it may be, effectively, exercising it.’ Haran, J. Leather Manufacturers’ Bank v. Morgan, 117 U.S. 115. “An inquiry as to the damages in money actually sustained by the bank by reason of the neglect of the depositor to give notice of the forgeries might be proper if this were an action by it to recover damages for a violation of his duty. But it is a suit by the depositor, in effect to falsify a stated account, to the injury of the bank, whose defense is that the depositor has, by his con- duct, ratified or adopted the payment of the altered checks, and thereby induced it to forbear taking steps for its protection against the person committing the forgeries.” Har- LAN, J. Leather Manufacturers’ Bank v. Morgan, 117 U. S. 115. “Whether the depositor is to be held as having’ ratified what his clerk did, or to have adopted the checks paid by the bank and charged to him, cannot be made, to depend upon a calculation whether the criminal had at the time the forgeries were committed, or subsequently, property, suffi- cient to meet the demands of the bank.” Haran, J. Leather Manufacturers’ Bank v. Morgan, 117 U. S. 115. — Examination of Account in Pass-book. “While it is true that the relation of a bank and its depositor is one simply of debtor and creditor, and that the depositor is not chargeable with any payments except such as are made in conformity with his orders, it is within common knowledge that the object of a pass-book is to inform the depositor from time to time of the condition of his account as it appears upon the books of the bank.” Harran, J. Leather Manu- facturers’ Bank v. Morgan, 117 U. S. 106. “Tt [a pass-book] not only enables him [the depositor] to discover errors to his prej- udice, but supplies evidence in his favor in the event of litigation or dispute with the bank. In this way it operates to protect him against the carelessness or fraud of the bank.” Harian, J. Leather Manufacturers’ Bank v. Morgan, 117 U. S. 106. “We must not be understood as holding that the examination by the depositor of his account must be so close and thorough as to exclude the possibility of any error what- ever being overlooked by him. Nor do we mean to hold that the depositor is wanting in proper care, when he imposes upon some competent person the duty of making that examination and of giving timely notice to the bank of objections to the account. If the examination is made by such an agent or clerk in good faith and with ordinary dili- gence, and due notice given of any error in the account, the depositor discharges his duty to the bank. Harran, J. Leather Manufacturers’ Bank v. Morgan, 117 U. S. 116. “As the depositor was not presumed to know, and as it did not appear that he in fact knew, the signature of the payee, it could not be said that he was guilty of negligence in not discovering, upon receiving his pass-book, the fact that his clerk, or some one else, had forged the payee’s name in the indorsement.” Hartan, J. Leather Manufacturers’ Bank v. Morgan, 117 U. S. iii%, — Excuse for Failure to Examine. “Tf the defendant’s [bank’s] officers, before paying the altered checks, could by proper care and skill have detected the forgeries, then it cannot receive a credit for the amount of those checks, even if the depositor omitted all examination of his account.” Har.an, J. Leather Manufacturers’ Bank v. Morgan, 117 Uz S. 112. Receipt by Bank of Its Own Notes Forged. “The receipt by a bank of forged notes, purporting co be its own, must be deemed an adoption of them. It has the means’ of knowing if they are genuine; if these means 229. BARRATRY. are not employed, it is certainly evidence of a neglect of that duty, which the public have a right to require.’ Story, J. Bank of U. S. uw. Bank of Georgia, 10 Wheat. 343. “Many considerations of public conven- ience and policy would authorize a distinc- tion between cases where a bank receives forged notes purporting to be its own, and those where it receives the notes of other banks in payment, or upon general deposit.” Story, J. Bank of U. S. v. Bank of Georgia, 10 Wheat. 343. 8. Banx’s LIEN on CUSTOMER'S SECURITIES. “Tt has long been settled, that whenever a banker has advanced money to another, he has a lien on all the paper securities which are in his hands for the amount of his gen- eral balance, unless such securities were de- livered to him under a particular agree- ment.” Taney, C. J. Bank of Metropolis wv. New England Bank, 1 How. 239. “Tt is familiar law that a bank receiving notes for collection is entitled, in the absence of a contract expressed or implied to the contrary, to retain them as security for the debt of the party depositing the notes.” Brewer, J. Joyce v. Auten, 179 U. S. 597. BARRATRY. See also Marine INSURANCE. Definition and Etymology. “ Barratry is an act committed by the mas- ter or mariners of a ship, for some unlawful or fraudulent purpose, contrary to their duty to their owners, whereby the latter sustain an injury.” Story, J. Marcardier v. Chesa- peake Ins. Co., 8 Cranch 49. “Many attempts have been made to define the term barratry, in its marine sense; but when compared with the ideas attached to the word, as derived from the most respect- able sources, such definitions will too gener- ally be found deficient in precision or com- prehensiveness; they need commentaries to apply or explain them. And it is remarkable, that the point in which all the definitions in the English or American authorities agree; to-wit, that fraud must be a constituent of the act of barratry; is that in which prac- tically all the difficulties arise. The question seems to be ‘dolus’ and ‘culpa,’ which of those two words best conveys the sense of the law. It cannot be denied that the etymology of the word favours the adoption of the for- mer.” JoHNSON, J. Patapsco Ins Co. wv. Coulter, 3 Pet. 230. “It is worthy of particular notice, that writers on maritime law of the first respect- ability, . . . in explaining the marine sense of the word barratry, use the French word ‘ prevariquez,’ which can only be trans- lated into ‘acting without due fidelity to their owners.’ The best French dictionary we have renders it by ‘agir contre les devoirs de son charge,’ acting contrary to the duties of his undertaking, and ‘trahir la cause ou Pinterest des personnes qu’on est obligé de defendre,’ to betray the cause or interest of those whom we are bound to protect.” Jounson, J. Patapsco Ins. Co. v. Coulter, 3 Pet. 230. “Some of our English books, following a French writer, (Pasquier sur Emerigon,) derive it [the word barratry] from ‘barat,’ an old French or Italian word, which they explain by ‘tromperie, fourbe, mensonge.’ I should myself derive the word from the Spanish barateria, baratero, which are ren- dered fraus, and fraudulentus.” JoHnson, J. Patapsco Ins. Co. v. Coulter, 3 Pet. 230. —— Term Known to Common Law. “The term barratry is known to the com- mon law” Jounson, J. Patapsco Ins. Co. v. Coulter, 3 Pet. 230. Acts Constituting. “Certainly a master of a vessel who sees another engaged in the act of scuttling or firing his ship, and will not rise from his berth to prevent it, is prima facie chargeable with barratry. Although a mere misfea- sance, it is a breach of trust, a fault, an act of infidelity to the owners. So if, in height of a storm, the captain and crew turn in without resorting to the nautical precautions of laying the vessel to and other~ wise preparing her to overcome the peril, it will be left to a jury to determine if such conduct be not barratrous.” Jounson, J. Patapsco Ins. Co. v. Coulter, 3 Pet. 234. Gross Negligence. “Gross negligence may be evidence of bar- ratry.” JoHNson, J. Patapsco Ins. Co. v. Coulter, 3 Pet. 236. Against Owner for Particular Voyage. “Tt [barratry] may be committed against a person who is owner for the voyage, al- though he may not be the general owner of the ship.” Srory, J. Marcardier v. Chesa- peake Ins. Co., 8 Cranch 49. 280 BEADS. BASTARDY. Illegitimate Children Fruits of Crime. “All illegitimate children are the fruits of crime; differing indeed, greatly, in its de- gree of enormity.” Taney, C. J. Brewer v. Blougher, 14 Pet. 198. Child Takes Status of Mother. “Duncan, the deceased, was the illegitimate child of a Choctaw Indian, by a colored woman, who was not his wife, but a slave in the Cherokee Nation. As his mother was a negro slave, under the rule partus sequitur ventrem, he must be treated as a negro by birth, and not as a Choctaw Indian. There is an additional reason for this in the fact that he was an illegitimate child, and took the status of his niother.” Brown, J. Alberty v. U. S., 162 U. S. 501. Right to Inherit at Common Law. “Under the common law illegitimate chil- dren did not inherit from their father.” Brewer, J. Naeglin v. De Cordoba, 171 U. S. 640. Statutory Protection. “ Legislation admitting illegitimate children to the right of succession is undoubtedly in derogation of the common law, and should be strictly construed, and hence it has gen- erally been held that laws permitting such children, whose parents have since married, to inherit, do not apply to the fruits of an adulterous intercourse.” Brown, J. Cope v. Cope, 137 U. S. 685. “By the laws of many states’ natural children are ‘permitted to inherit from the mother, and also from the father in case of the marriage of their parents, or where there are no lawful children, or where an adoption is made in due form, or where recognition is made by will. And if the question of parentage be satisfactorily set- tled, there would seem to be power in the legislature to endow even the children of an adulterous intercourse with inheritable blood from the father.” Brown, J. Cope wv. Cope, 137 U. S. 684. “Legislature for the protection of children born in polygamy is not necessarily legisla- tion favorable to polygamy. There is no inconsistency in shielding the one and in denouncing the other as a crime.” Brown, J. Cope v. Cope, 137 U. S. 687. “Tt has never been supposed that the acts of the several states legitimating natural children, whose parents intermarry after their birth, had the slightest tendency to shield or countenance illicit cohabitation, but they were rather designed to protect the unfortunate children of those who were will- ing to do all in their power towards righting a great wrong.” Brown, J. Cope v. Cope, 137 U. S. 687. BEADS. See generally Imports, Exports, AND Cus- toms DUuTIES. “From an early day up to and including the Act of 1883 beads had separate classifica- tion, and were dutiable at a higher rate than precious stones or imitations of them. Pre- cious stones set and unset; imitations of them set and unset, and compositions of glass or paste when not set, were separately men- tioned, and bore a different rate of duty from beads, and were not confounded with beads by resemblances, indeed not always by iden- tity of material.” McKenna, J. U. S. w. Morrison, 179 U. S. 459. “As early as 1858 the Treasury Depart- ment decided that genuine pearls, when im- ported strung on a thread to be used as beads for necklaces without further manu- facture, were dutiable as beads. And later jet and coral necklaces were classed as beads and bead ornaments. Also glass’ balls and oval pieces of onyx, and pieces of glass or paste capable of being strung, were held to be beads against a claim of being imita- tions of precious stones.” McKenna, J. U. S. v. Morrison, 179 U. S. 459. . “An imitation of precious stone may be a manufacture of glass, but the latter is not necessarily an imitation of a precious stone, or, more narrowly, an imitation of a precious stone within the meaning of a tariff statute. Every resemblance would not make such imitation, and the suggestion of the counsel for the United States is not without its weight, that the capability and purpose of set- ting must be considered.” McKenna, J. U. S. v. Morrison, 179 U. S. 461. “It may be that in construing a tariff act it is the essential nature of the article, not the purpose of the importer, which deter- mines its classification; but if color may be regarded to bring the article to the resem- blance of a precious stone its other con- ditions may be regarded to bring it to the character of a bead —a manufacture of glass, a mere hat or dress trimming, or an orna- ment for embroidery.” McKenna, J. U. S. v. Morrison, 179 U. S. 462. 231 BIGAMY. BED. “ The bed [of a river] is that soil so usually covered by the water as to be distinguish- able from the banks, by the character of the soil, or vegetation, or both, produced by the common presence and action of flowing water.” Curtis, J. Howard v. Ingersoll, 13 How. 427. BEER. See LAGER BEER. BELIEF. See IMPRESSION. BEQUESTS. See Lecactes AND DEvISES. BETWEEN. “*Between,’ if accurately used, imports that not more than two persons or groups are set against each other.” Houtmes, J. MclIn- tire v. McIntire, 192 U. S. 120. BEYOND A REASONABLE DOUBT. See Mora CERTAINTY ; REASONABLE DouBt. BEYOND THE SEAS. See Limitation or ACTIONS. “In several of the states, the English stat- ute of limitations has been adopted, with various modifications; but in the saving clause the expression ‘ beyond the seas,’ is re- tained. These words in some of the states are construed to mean ‘out of the state,’ and in others a literal construction has been given to them.” McLean, J. Green v. Neal, 6 Pet. 300. BIGAMY. Nature of Offense. “The crime of bigamy or polygamy con- sists in entering into a bigamous or poly- gamous marriage, and is complete when the relation begins.” Matruews, J. Murphy v.° Ramsey, 114 U. S. 42 * As one may be living in a bigamous or polygamous state without cohabitation with more than one woman, he is in that sense a bigamist or a polygamist, and yet guilty of no criminal offense.” Matruews, J. Mur- phey v. Ramsey, 114 U. S. 43. “One man, where such a system has been tolerated and practised, may have several es- tablishments, each of which may be the home of a separate family, none of which he him- self may dwell in or even visit.” MATTHEWs, J. Murphy v. Ramsey, 114 U. S. 42. —— Crime Against Marital Relation. “Polygamy and adultery may be crimes which involve disloyalty to the marital rela- tion, but they are rather crimes against such relation than against the wife.” Brewer, J- Bassett v. U. S., 137 U.S. 506. Contrary to Spirit of Civilization. “The organization of a community for the spread and practice of polygamy is, in a measure, a return to barbarism. It is con- trary to the spirit of Christianity and of the civilization which Christianity has praduced in the Western world.” Braviey, J. Mor- mon Church v. U. S., 136 U. S. 49. “ According as monogamous or polygamous marriages are allowed, do we find the prin- ‘ciples on which the government of the peo- ple, to a greater or less extent, rests.” WAITE, C.J. Reynolds v. U. S., 98 U. S. 165. Power of Government to Prohibit. “An exceptional colony of polygamists un- der an exceptional leadership may sometimes exist for a time without appearing to dis- turb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of con- stitution, it is within the legitimate scope of the power of every civil government to de- termine whether polygamy or monogamy shall be the law of social life under its dominion.” Warre, C. J. Reynolds v. U. S., 98 U. S. 166. “Congress has the power to extirpate po- lygamy in any of the territories, by the enactment of a criminal code directed to that end; but it is not authorized under the cover of that power to seize and confiscate the property of persons, individuals, or corpora- tions, without office found, because they may have been guilty of criminal practices.” Fut- Ler, C. J., dissenting. Mormon Church wv. UL S., 186 U. S. 67. — Religious Creed No Defense. “T agree that the power to make needful rules and regulations for the territories necessarily comprehends the power to sup- press crime; and it is immaterial even though that crime assumes the form of a religious belief or creed.” Futuer, C. J., dissenting. Mormon Church v. U. S., 136 U. S. 67. “Tt has been held by this court, that on an indictment for bigamy it was no defense 232 BILLS OF CREDIT. that the doctrines and practice of polygamy were a part of the religion of the accused.” Woops, J. Miles v. U. S., 103 U. S. 310. “As a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his re- ligious belief? To permit this would be to make the professed doctrines of religious be- lief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Waire, C. J. Reynolds v. U. S., 98 U.S. 166. “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.” Waite, C. J. Reynolds wv. U. S., 98 UL. S. 166. Proof of Bigamy. “A bigamist may be proved so, in a civil suit, by any of those facts from which mar: riage may be inferred. Reputation of mar- riage is not enough, but facts from which it may be inferred are so. In a prosecution for the offense, there must be proof of an actual marriage. The confession of the biga- mist will be sufficient in a civil suit, when made under circumstances which imply no objection to it as a confession.” WaAyNE, J. Patterson v. Gaines, 6 How. 597. To the same effect see the language of Catron, J., in Gaines v. Relf, 12 How. 560. BILLS AND NOTES. See Bitts oF Crepit; NecotrasLe INsTRU- MENTS. BILLS OF CREDIT. I. DeFIniTIon, NATuRE, AND Usz. II. Autuority To Issue. 1. Of Congress. a. In General. . b. Giving Quality of Legal Tender. 2. Of States. I, DEFINITION, NATURE, AND USE. In General. “* Bills of credit’. signify a paper medium, intended to circulate between individuals, and between government and individuals, for the ordinary purposes of society. Such a medium has been always liable to consider- able fluctuation. Its value is continually changing; and these changes, often great and sudden, expose individuals to immense loss, are the sources of ruinous speculations, and destroy all confidence between man and man.” MarsHatL, C. J. Craig v. Missouri, 4 Pet. 432. i “The terms ‘bills of credit,’ are in them- selves vague and general, and, at the present day, almost dismissed from our language. It is then only by resorting to the nomen- clature of the day of the Constitution, that we can hope to get at the idea which the framers of the Constitution attached to it.” MarsHat., C. J. Craig v. Missouri, 4 Pet 442. “The true meaning of bill of credit was just as well known and understood from the past and the passing events at the time of the adoption of the Constitution as the terms habeas corpus, trial by jury, process of impeachment, bill of attainder, or any other phrase to be found in the technical vocabulary of the Constitution.” Story, J., dissenting. Briscoe v. Commonwealth Bank, 11 Pet. 332. Drawn upon Credit Only. “There is a material and well known dis- tinction between a bill drawn upon a fund, and one drawn upon credit only. A bill of credit may therefore be considered a bill drawn and resting merely upon the credit of the drawer; as contradistinguished from a fund constituted or pledged for the pay- ment of the bill. Thus, the Constitution vests in Congress the power to borrow money on the credit of the United States. A bill drawn under such authority would be a bill of credit.” Tuompson, J. Craig v. Missouri, 4 Pet. 447. “A bill of credit emanates from the sover- eignty of the state. It rests for its currency on the faith of the state pledged by a public law. The state cannot be sued ordinarily on such bill, nor its payment exacted against its will, There is no fund or property which the holder of the bill can reach by judicial process.” McLean, J. Darrington v. State Bank of Alabama, 13 How. 17. “When it is said, that bills of credit are such only as are issued upon the mere credit of the state, and not bottomed upon any real or substantial find for their redemption; we find that in most cases, the colonial bills of credit were issued upon such funds; pro- vided by the very terms of the acts.” Story, J., dissenting. Briscoe v. Commonwealth Bank, 11 Pet. 339. 283 BILLS OF CREDIT. —— United States Notes. “They [United States notes] bind the na- tional faith. They are, therefore, strictly securities. They secure the payment stip- ulated to the holders, by the pledge of the national faith, the only ultimate security of all national obligations, whatever form they may assume.” Cuasz, C. J. Bank v. Su- pervisors, 7 Wall. 31. Quality as Legal Tender. “We do not think that the history of our country proves either that being made a ten- der in payment of debts is an essential qual- ity of bills of credit or the only mischief resulting from them.” Marswaty, C. J. Craig v. Missouri, 4 Pet. 434. “The history of our country proves that it is not of the essence of bills of credit, it is not a part of their definition, that they should be a tender in payment of debts.” Story, J., dissenting. Briscoe v. Common- wealth Bank, 11 Pet. 333. Promise to Pay — Time. “When it is said, that a bill which is pay- able on demand, is not a bill of credit; nor a bill which contains no promise to pay at a future day; we find, that on their face nearly all the colonial issues were without any lim- itation of time, and were receivable in pay- ments to the state, immediately upon their presentation ; though funds for their redemp- tion were not provided except im futuro. Story, J., dissenting. Briscoe v. Common- wealth, 11 Pet. 338. Interest. “When it is said, that bills of credit can- not bear interest, for that disqualifies them for a paper currency; we find, that in point of fact, such bills were issued both by the colonies and by the revolutionary congress; and indeed, since, by the United States in the form of treasury notes.” Srory, J., dis- senting. Briscoe v. Commonwealth, 11 Pet. 339. Early Use. “Congress emitted bills of credit to a large amount, and did not, perhaps could not, make them a legal tender. This power residea in the states. In May, 1777, the legislature of Virginia passed an act for the first time making the bills of credit issued under the authority of Congress a tender so far as to extinguish interest. It was not un- til March, 1781, that Virginia passed an act making all the bills of credit which had been emitted by Congress, and all which had been emitted by the state, a legal tender in pay- ment of debts. Yet they were in every sense of the word bills of credit, previous to that time; and were productive of all the conse- quences of paper money.” MarsHALt, C. J. Craig v. Missouri, 4 Pet. 435. “Paper money was also issued in other colonies [besides Massachusetts] both in the North and South; and whether made a ten- der or not, was productive of evils in pro- portion to the quantity emitted. In the war which commenced in America in 1755, Vir- ginia issued paper money at several succes- sive sessions, under the appellation of treasury notes. This was madea tender. Emis- sions were afterwards made in 1769, in 1771, and in 1773. These were not made a ten- der; but they circulated together; were equally bills of credit; and were productive of the same effects. In 1775 a considerable emission was made for the purposes of the war. The bills were declared to be current, but were not made a tender. In 1776, an additional emission was made, and the bills were declared to be a tender. The bills of 1775 and 1776 circulated together; were equally bills of credit; and were productive of the same consequences.” MarsHALL, C. J. Craig v. Missouri, 4 Pet. 435. “We learn from Hutchinson’s History of Massachusetts, vol. 1, p. 402, that bills of credit were emitted for the first time in that colony in 1690. An army returning unex- pectedly from an expedition against Canada, which had proved as disastrous as the plan was magnificent, found the government total- ly unprepared to meet their claims. Bills of credit were resorted to, for relief from this embarrassment. They do not appear to have been made a tender; but they were not on that account the less bills of credit, nor were they absolutely harmless. The emission, however, not being considerable, and the bills being soon redeemed, the experiment would have been productive of not much mischief, had it not been followed by repeated emis- sions to a much larger amount. The subse- quent history of Massachusetts abounds with proofs of the evils with which paper money is fraught, whether it be or be not a legal tender.” MarsHati, C. J. Craig v. Mis- souri, 4 Pet. 434. “During the most eventful period of our history [the Revolution] bills of credit formed the currency of the country; and every thing of greater value was excluded from circulation. These bills were so mul- tiplied by the different states and by Con- gress, that their value was greatly impaired. This loss was attempted to be covered, and 234 BILLS OF CREDIT. the growing wants of the government sup- plied, by increased emissions. These caused a still more rapid depreciation, until the credit of the bills sunk so low as not to be current at any price. Various statutes were passed to force their circulation, and sustain their value; but they proved ineffectual. For a time, creditors were compelled to receive these bills under the penalty of forfeiting their debt; losing the interest; being de- nounced as enemies to the country, or some other penalty. These laws destroyed all just relations between creditor and debtor; and so debased a currency produced the most serious evils in almost all the relations of society. Nothing but the ardor of the most elevated patriotism could overcome the diffi-. culties and embarrassments growing out of this state of things.” McLean, J. Craig v. Missouri, 4 Pet. 452. II. AUTHORITY TO ISSUE. 1. Or Concress. a. In General. Congress May Authorize Emission of Bills. “Tt is settled by the uniform practice of the government and by repeated decisions, that Congress may constitutionally authorize the emissions of bills of credit.” CHASE, C. J. Veazie Bank v. Fenno, 8 Wall. 548. “T hold it to be the prerogative of every government not restrained by its Constitu- tion to anticipate its resources by the issue of exchequer bills, bills of credit, bonds, stock, or a banking apparatus.” Branptey,’ J. Legal Tender Cases, 12 Wall. 560. “The power of Congress to emit bills of credit, as well as to incorporate national banks, is now clearly established.” Gray, J. Legal Tender Case, 110 U. S. 444. “Undoubtedly the power to borrow in- cludes the power to give evidences of the loan in bonds, treasury notes, or in such other form as may be agreed between the parties. These may be issued in such amounts as will fit them for circulation, and for that purpose may. be made payable to bearer, and transferable by delivery.” Fuiexp, J., dissenting. Legal Tender Case, 110 U. S. 461. b. Giving Quality of Legal Tender. Power of Congress in General. “No one doubts at the present day nor has ever seriously doubted that the power of the government to emit bills exists. It has been exercised by the government with- out question for a large portion of its his- tory. This being conceded, the incidental power of giving such bills the quality of legal tender follows almost as a matter of course.” BrapLey, J. Legal Tender Cases, 12 Wall. 560. “Whether those issues* shall or shall not be receivable in payment of private debts is an incidental matter in the discretion of ‘such government unless restrained by constitu- tional prohibition.” Brapiey, J. Legal Ten- der Cases, 12 Wall. 560. “Under the power to borrow money on the credit of the United States, and to issue circulating notes for the money borrowed, its power to define the quality and force of those notes as currency is as broad as the like power over a metallic currency under the power to coin money and to regulate the value thereof.” Gray, J. Legal Tender Case, 110 U. S. 448. “The power of issuing bills of credit, and making them, at the discretion of the legis- lature, a tender in payment of private debts, had long been exercised in this country by the several colonies and states; and during the Revolutionary War the states, upon the recommendation of the Congress of the Con- federation, had made the bills issued by Con- gress a legal tender. . The exercise of this power not being prohibited to Con- gress by the Constitution, it is included in the power expressly granted to borrow money on the credit of the United States.” Gray, J. Legal Tender Case, 110 U. S. 447. “There can be no question of the power of the government to emit them [bills of credit]; to make them receivable in payment of debts to itself; to fit them for use by those who see fit to use them in all the transac- tions of commerce; to provide for their re- demption; to make them a currency, uniform in value and description and convenient and useful for circulation.” CHasr, C. J. Veazie Bank v. Fenno, 8 Wall. 548. “Tf there be anything in the ‘history of the Constitution which can be established with moral certainty, it is that the framers of that instrument intended to prohibit the issue of legal tender notes both by the gen- eral government and by the states; and thus prevent interference with the contracts of private parties.” Frep, J., dissenting. Legal Tender Case, 110 U. S. 451, “Legislative declaration cannot make the promise of a thing the equivalent of the thing itself.” Fretp, J., dissenting. Legal Tender Case, 110 U. S. 452. 235 BILLS OF CREDIT. “Paper emissions have, at one time or an- other, been authorized and employed as cur- rency by most commercial nations, and by no government, past or present, more ex- tensively than by the United States, and yet it is safe to affirm that all experience in its use as a circulating medium has demonstrat- ed the proposition that it can not by any legislation, however stringent, be made a standard of value or the just equivalent of gold and silver.” CuirForD, J., dissenting. Legal Tender Cases, 12 Wall. 588. “Congress may issue bills of credit, and perhaps have done so in the emissions of treasury notes: is a state prohibited from circulating them? If not, it must be ad- mitted, the violation of the Constitution con- sists, not in the circulation of such bills, but in their creation.’ McLean, J. Craig v. Missouri, 4 Pet. 461. —— Power Belonging to Sovereignty. “The power, as incident to the power of borrowing money and issuing bills or notes of the government for money borrowed, of impressing upon those bills or notes the qual- ity of being a legal tender for the payment of private debts, was a power universally understood to belong to sovereignty, in Eu- rope and Aimerica, at the time of the fram- ing and adoption of the Constitution of the United States.” Gray, J. Legal Tender Case, 110 U. S. 447. Affecting Value of Private Contracts. “The power of making the notes of the United States a legal tender in payment of private debts, being included in the power to borrow money and to provide a national currency, is not defeated or restricted by the fact that its exercise may affect the value of private contracts.” Gray, J. Legal Tender Case, 110 U. S. 448. 2. Or STATES. Constitutional Inhibition in General. “The prohibition [in the Constitution ‘No state shall . emit bills of credit’] is general. It extends to all bills of credit, not to. bills of a particular description.” Mar- SHALL, C. J. Craig v. Missouri, 4 Pet. 434. “That the states have an unlimited power to effect the one [a loan], and are divested of power to do the other [emit bills . of credit], are propositions equally unquestion- able; but where to draw the discriminating line is the great difficulty. I fear it is an insuperable difficulty.” MarSHALL, C. J. Craig v. Missouri, 4 Pet. 442. “Ts the proposition to be maintained, that the Constitution meant to prohibit names and not things? That a very important act, big with great and ruinous mischief which is ex- pressly forbidden by words most appropriate for its description; may be performed by the substitution of a name? That the Constitu- tion, in one of its most important provisions, may be openly evaded by giving a new name to an old thing? We cannot think so.” MarsHat., C. J. Craig v. Missouri, 4 Pet. 433. “To cut up this mischief [the fluctuating value of bills of credit] by the roots, a mis- chief which was felt through the United States, and which deeply affected the inter- est and prosperity of all; the people declared in their Constitution, that no state should emit bills of credit. If the prohibition means anything, if the words are not empty sounds, it must comprehend the emission of any paper medium by a state government for the purpose of common circulation.” MarsHALt, C. J. Craig v. Missouri, 4 Pet. 432. —— Bills Intended to Circulate as Money. “Tt has been held that the bills of credit prohibited by the Constitution are those which were intended to circulate as money.” PEcK- HAM, J. Houston, etc., R. Co. v. Texas, 177 U.S. 85. ; “A bill of credit . issued by a state, is negotiable paper, designed to pass as cur- rency, and to circulate as money. It is dis- tinguishable from the evidences of debt is- sued by a state for money borrowed, or debts otherwise incurred; not merely in form, but in substance. The form of the in- strument is wholly immaterial. It is the sub- stance we are to look to; the question is, whether it is issued and is negotiable, and is designed to circulate as currency. If that is its intent, manifested either on the face of the bill or on the face of the act, and it is in reality the paper issue of a state; it is within the prohibition of the Constitution. If no such intent exists, then it is a consti- tutional exercise of power by the state.” Story, J., dissenting. Briscoe v. Common- wealth Bank, 11 Pet. 331. “The whole history and legislation of the time prove that, by bills of credit, the fram- ers of the Constitution meant paper money, with reference to that which had been used in the states from the commencement of the century, down to the time when it ceased to pass, before reduced to its innate worthless- ness.” MarsHALL, C. J. Craig v. Missouri, 4 Pet. 442. 236 BILLS OF CREDIT. “The emissions of paper money by the states, previous to the adoption of the Con- stitution, were, properly speaking, bills of credit; not being bottomed upon any fund constituted for their redemption, but resting solely for that purpose upon the credit of the state issuing the same. There was no check therefore upon excessive issues and a great depreciation and loss to holders of such bills followed as matter of course. But when a fund is pledged, or ample provision made for the redemption of a bill or voucher, whatever it may be called, there is but little danger of a depreciation or loss.” THOMpP- son, J. Craig v. Missouri, 4 Pet. 447. “The meaning of the term ‘bills of credit,’ as used in the Constitution, has been settled by decisions of this court. By a sound rule of interpretation, it has been construed in the light of the historical circumstances which are known to have led to the adoption of the clause prohibiting their emission by the states, and in view of the great public and private mischiefs experienced during and prior to the period of the War of Independ- ence, in consequence of unrestrained issues, by the colonial and state governments of paper money, based alone upon credit.” Mart- THEWs, J. Poindexter wv. Greenhow, 114 UL S. 283. — Other Obligations Not Inhibited. “It was in consequence of unrestrained is- sues of paper money by the colonial and state governments, based alone upon credit, that this clause in the Constitution protibie- ing the emission of bills of credit by the states was adopted, and the proper definition of the term was not founded on the abstract meaning of the words so as to include every- thing in the nature of an obligation to pay money, reposing on the public faith and sub- ject to future redemption, but was limited to those particular forms or evidences of debt that had been so abused to the detri- ment of both private and public interests.” PEcKHAM, J. Houston, etc., R. Co. v. Texas, 177 U. S. 87. “The precise meaning and interpretation of the terms, bills of credit, has no where been settled; or if it has, it has not fallen within my knowledge. As used in the Con- stitution, it certainly cannot be applied to all obligations, or vouchers, given by, or un- der the authority of a state for the payment of money. The right of a state to borrow money cannot be questioned; and this neces- sarily implies the right of giving some vouch- er for the repayment; and it would seem to me difficult to maintain the proposition, that such voucher cannot legally and constitu- tionally assume a negotiable character; and as such, to a certain extent, pass as, or be- come a substitute for money.” THOMPSON, J. Craig v. Missouri, 4 Pet. 447. “Bills of credit were denominated cur- rent money; and were often referred to in the proceedings of Congress by that title, in contradistinction to loan office certificates. It is reasonable to suppose that in using the term ‘bills of credit’ in the Constitution, such bills were meant as were known at the time by that denomination. If the term be sus- ceptible of a broader signification, it would not be safe so to construe it; as it would extend the provision beyond the evil intend- ed to be prevented, and instead of operating as a salutary restraint, might be productive of serious mischief.” McLean, J. Craig v. Missouri, 4 Pet. 454. “T have come to the conclusion, that to constitute a bill of credit, within the mean- ing of the Constitution, it must be issued by a state, and its circulation as money enforced by statutory provisions. It must contain a promise of payment by the state generally, when no fund has been appropriated to ena- ble the holder to convert it into money. It must be circulated on the credit of the state; not that it will be paid on presentation, but that the state, at some future period, on a. time fixed, or resting in its own discretion, will provide for the payment. If a more ex- tended definition than this were given to the term, it would produce the most serious em- barrassments to the fiscal operations of a state.” McLean, J. Craig v. Missouri, 4 Pet. 454. “Every state in the transactions of its moneyed concerns, has one department to in- vestigate and pass accounts, and another to pay them. Where a warrant is issued for the amount due to a claimant, which is to be paid on presentation to the treasurer, can it be denominated a bill of credit? And may not this warrant be negotiated, and pass in ordinary transactions, as money? This is very common in some of the states; and yet it has not been supposed to be an infraction of the Constitution.” McLean, J. Craig v. Missouri, 4 Pet. 453. “A substitution of the credit of the state for money, may be considered: as an essential ingredient to constitute a ‘bill of credit. When this is wanting, whatever other desig- nation may be given to the thing — whether it be called paper money, or a state bill, it cannot be called a ‘ bill of credit.’ The credit 237 BILLS OF LADING. refers to a future time of payment; and not to the confidence we feel in the punctuality of the state in paying the bill when pre- sented. A bill, therefore, which is payable on presentation, is not a bill of credit, within the meaning of the Constitution; nor is a bill which contains no promise to pay at a future day; but a simple declaration that it will be received in payment of public dues.” Mc- Lean, J. Craig v. Missouri, 4 Pet. 458. “ A simple promise to pay a sum of money, a bond or other security given for the pay- ment of the same, cannot be considered a bill of credit, within the sense of the Constitu- tion. Such a construction would take from the states all power to borrow money, or ex- ecute any obligation for the repayment. The natural and literal meaning of the terms im- port a bill drawn on credit merely, and not bottomed upon any real or substantial fund for its redemption.” THompson, J. Craig v. Missouri, 4 Pet. 447. “The definition [of the term bills of credit] deduced was not founded on the abstract meaning of the words, so as to in- clude everything in the nature of an obliga- tion to pay money, reposing on the public faith, and subject to future redemption, but was limited to those particular forms of evi- dences of debt, which had been so abused to the detriment of both private and public in- terests.” MatrHews, J. Poindexter vw. Greenhow, 114 U. S. 283. State Municipality. “As against the United States, a State municipality has no right to put its notes in circulation as money. It may execute its obligations, but cannot, against the will of Congress, make them money.” Warr, C. J. Merchants’ Nat. Bank v. U. S., 101 U. S. 6. BILLS OF EXCEPTIONS. See Exceptions, Bitts OF. BILLS OF EXCHANGE. See NEGOTIABLE INSTRUMENTS. BILLS OF INTERPLEADER. See INTERPLEADER, Brtts OF. BILLS OF LADING. As to drafts with bills of lading attached see BANKS AND BANKING. See also CARRIERS; CHARTER-PARTIES; PeERILS OF THE SEA; SHIPS AND SHIPPING. Nature in General— Distinguished from Bills and Notes. “Bills of lading are regarded as so much cotton, grain, iron, or other articles of mer- chandise. The merchandise is very often sold or pledged by the transfer of the bills which cover it. They are, in commerce, a differ- ent thing from bills of exchange and promis- sory notes, answering a different purpose and performing different functions.” StTrone, J. Shaw v. North Penn. R. Co., 101 U. S. 565. — Are Instruments of Commerce. “Negotiable instruments are not instru- ments of commerce; bills of lading are, be- cause they stand for the articles included therein.” Futter, C. J. Lottery Case, 188 U.S. 369. — Obligation of Carrier. “A clean bill of lading, in general, imports, unless the contrary appear on its face, that the goods are to be safely and properly se- cured under deck.” Cuirrorp, J. The Pro- peller Niagara v. Cordes, 21 How. 23. —— Under Harter Act. “That Congress [in the Harter Act] meant by the words ‘a bill of lading or shipping document’ but one thing, namely, a bill of lading, appears from the refusing to issue on demand ‘the bill of lading herein provided for,’ and does not mention the words ‘ship- ping document’ at all.” Wuutst, J. The Kensington, 183 U. S. 274. Authority of Master to Sign. “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, his act does not bind the owner of the ship even in favor of an innocent purchaser.” FULLER, C. J. Friedlander v. Texas, etc., R. Co., 130 UL S. 424. Legal Effect — Title to Goods — Shipment on Purchaser’s Vessel. “The legal effect of a bill of lading taken deliverable to the shipper’s own order, that it is inconsistent with an intention to pass the ownership of the cargo to the person on whose account it may have been purchased, even when the shipment has been made in the vessel of the drawee of the drafts against the cargo, has. been repeatedly decided.” Stronc, J. Dows v. Milwaukee Nat. Ex- change Bank, 91 U. S. 631. “A shipment on the purchaser’s own ves- sel is ordinarily held to pass the property to 238 BILLS OF LADING. the purchaser; but not so if the bill of lading exhibits a contrary intent—if thereby the shipper reserves to himself or to his assigns the dominion over the goods shipped.” Stronc, J. Dows v. Milwaukee Nat. Ex- change Bank, 91 U. S. 635. —To be Delivered on Shipper’s Order. “We agree, that where a bill of lading has been taken containing a stipulation that the goods shipped shall be delivered to the order of the shipper, or to some person designated by him other than the one on whose account they have been shipped, the inference that it was not intended the property in the goods should pass, except by subsequent order of the person holding the bill, may be rebutted, though it is held to be almost conclusive; and we agree, that where there are circum- stances pointing both ways, some indicating an intent to pass the ownership immediately, notwithstanding the bill of lading, in other words, where there is anything to rebut the effect of the bill, it becomes a question for the jury, whether the property has passed.” Strone, J. Dows v. Milwaukee Nat. Ex- change Bank, 91 U. S. 633. —— Effect of Sending Invoice to Drawee of Draft. “Tt has been regarded as of no importance that an invoice was sent by the shipper to _the drawee of the drafts drawn against the shipment, even when the goods were de- scribed as bought and shipped on account of and at the risk of the drawee.” Srrone, J. Dows v. Milwaukee Nat. Exchange Bank, 91 U. S. 630. —— Possession Equivalent to Possession of Property. “The exigencies of trade have called a class of instruments into being’ which are substantially acknowledgments by public or private agents that they have received mer- chandise, and from whom and on whose ac- count; and usage has made the possession of such documents equivalent to the pos- session of the property itself. Among them the most notable is the bill of lading.” Sxi- ras, J., dissenting. The Carlos F. Roses, 177 U. S. 689. — Only Prima Facie — Prize Cases. “While possession of the bills of lading imports a legal title to the goods, yet in prize cases it is permitted for the courts to go be- hind the bills of lading, if there is evidence tending to show that the party in whose name they are issued, or to whom they have been indorsed, has no equitable interest or is a mere cover to an enemy.” Sutras, J., dissenting. The Carlos F. Roses, 177 U. S. 690. — Advances Protected. “As well advances made for the purchase of goods, as an absolute purchase, are pro- tected by bills of lading, whether made out directly to the party purchasing or making the advancements, or indorsed to him by the shipper.” Sutras, J., dissenting. The Car- los F. Roses, 177 U. S. 690. -——— Goods Subsequently Delivered. “We do not say that a title to personal property may not be created between the is- sue of a bill of lading therefor and its de- livery to the ship, which will prevail over the master’s bill, but, in the absence of any such intervening right, a bill of lading does cover goods subsequently delivered and received to fill it, and will represent the ownership of the goods.” Stronc, J. The “Idaho,” 93 U.S. 582. — Lost or Stolen Bill. “The function of that instrument [a bill of lading] is entirely different from that of a bill or note. It is not a representative of money, used for transmission of money, or for the payments of debts or for purchases. It does not pass from hand to hand as bank- notes or coin. It is a contract for the per- formance of a certain duty. True, it is a symbol of ownership of the goods covered by it—a representative of those goods. But if the goods themselves. be lost or stolen, no sale of them by the finder or thief, though to a bona fide purchaser for value, will di- vest the ownership of the person who lost them, or from whom they were stolen. Why then should the sale of the symbol or mere representative of the goods have such an ef- fect?” Srronc, J. Shaw v. North Penn. R. Co., 101 U. S. 564. “Bills of lading answer a different purpose and perform different functions [from bills and notes]. They are regarded as so much cotton, grain, iron or other articles of mer- chandise, in that they are symbols of the 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 that 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 239 BILLS OF PEACE. against a purchaser, who has been misled to his hurt by reason of such negligence.” Fuiier, C. J. Friedlander v. Texas, etc. R. Co., 180 U. S. 423. Action by Consignee. “Tf we take the rule to be that an action against the carrier cannot be brought by a consignee who has no beneficial interest in the goods, it still remains true, that a pre- sumption of such an interest in the consignee arises from a bill of lading which makes the goods deliverable to him or his assigns.” Curtis, J. Lawrence v. Minturn, 17 How. 107. Negotiability —In General. “Bills of lading, though transferable by indorsement, are only quasi negotiable.” Stronc, J. National Bank*of Commerce v. Merchants’ Nat. Bank, 91 U. S. 98. “Bills of lading stand as the substitute and representative of the goods described therein, and while quasi negotiable instru- ments, are not negotiable in the full sense in which that term is applied to bills and notes.” Futter, C. J. The Carlos F. Roses, 177 U. S. 665. “That a bill of lading does not partake of the character of negotiable paper, so as to transfer to the assignees thereof the rights of the holder of such paper, is well settled.” Wurtz, J. Missouri Pac. R. Co. v. McFad- den, 154 U. S. 162. — Used Only as Evidence of Ownership of Property. © “Tt is true that while not negotiable as commercial paper is, bills of lading are com- monly used as security for loans and ad- vances; but it is only as evidence of owner- ship, special or general, of the property men- tioned in them, and of the right to receive such property at the place of delivery.” Futer, C. J. Friedlander v. Texas, etc., R. Co., 130 U. S. 424. — Effect of Statute. “Tt cannot be, that the statute which made them negotiable by indorsement and delivery, or negotiable in the same man- ner as bills of exchange and promissory notes are negotiable, intended: to change totally their character, put them in all respects on the footing of instruments which are the rep- resentatives of money, and charge the nego- tiation of them with all the consequences which usually attend or follow the negotia- tion of bills and notes. Some of these con- sequences would be very strange if not im- t possible. Such as the liability of indorsers, the duty of demand ad diem, notice of non- delivery of the carrier, etc. or the loss of the owner’s property by the fraudulent as- signment of a thief. If these were intended, surely the statute would have said something more than merely make them negotiable by indorsement.” Stronc, J. Shaw v. North Penn. R. Co., 101 U. S. 565. “So great an innovation as would be plac- ing bills of lading on the same footing in all respects with bills of exchange not to be inferred from words that can be fully satis- fied without it.” Strong, J. Shaw v. North Penn R. Co., 101 U. S. 565. —— Effect of Transfer or Assignment. “The assignment of a bill of lading passes the legal title to the goods.” Swayne, J. Hooper v. Robinson, 98 U. S. 538. “The transfer of the bill passes to the transferee the transferrer’s title to the goods described, and the presumption as to the ownership arising from the bill may be ex- plained or rebutted by other evidence show- ing where the real ownership lies. A pledgee to whom a bill of lading is given as security gets the legal title to the goods and the right of possession only if such is the intention of the parties, and that intention is open to explanation. Inquiry into the transaction in which the bill originated is not precluded because it came into the hands of persons who may have innocently paid value for it.” Futter, C. J. The Carlos F. Roses, 177 U.S. 665. “The assignment of bills of lading trans- fers the jus ad rem, but not necessarily the jus in rem. The jus in re or in rem implies the absolute dominion — the ownership inde- pendently of any particular relation with an- other person. The jus ad rem had for its foundation an obligation incurred by an- other.” Futter, C. J. The Carlos F. Roses, 177 U. S. 666. “The indorser [of a bill of lading] does not acquire a right to change the agreement between the shipper and his vendee. He cannot impose obligations or deny advan- tages to the drawee of the bill of exchange drawn against the shipment which were not in the power of the drawer and consignor.” Stronc, J. National’ Bank of Commerce v. Merchants’ Nat. Bank, 91 U. S. 98. BILLS OF PEACE. See REMovAL oF CLouD AND QUIETING TITLE. 240 BILLS QUIA TIMET. BILLS OF SALE. See CHATTEL MOorTGAGES. BILLS OF REVIEW. When the Bill Lies. “To sustain a bill of review, there must be errors of law apparent on the face of the decree, or some new matters of fact mate- tial in themselves, and discovered after the rendition of the decree. This is the general rule in equity.” Stronc, J. Beard v. Burts, 95 U. S. 436. “The facts are not open for a re-trial, unless the bill asserts that new evidence has been discovered, not obtainable before the first trial by the exercise of reasonable dili- gence. The conclusions of fact of the court or chancellor are conclusive.” Strone, J. Beard v. Burts, 95 U. S. 436. “The only questions open in a bill of re- view (except when filed on the ground of newly discovered evidence) are such as arise upon the face of the record, without refer- ence to the evidence in the cause.” Brap- LEY, J. Thompson v. Maxwell, 95 U. S. 397. “Since the ordinances of Lord Bacon, a bill of review can only be brought for ‘ error in law appearing in the body of the decree or record,’ without further examination of matters of fact; or for some new matter of fact discovered, which was not known and could not possibly have been used at the time of the decree.” McLean, J. Ken- nedy v. Georgia State Bank, 8 How. 609. Necessity For. “No court of original jurisdiction in equi- ty, can annul its own decrees without a bill of review, even for error apparent; this has been the law from the time of Lord Bacon.” Batpwin, J., dissenting. Harrison v. Nixon, 9 Pet. 531. Time to Bring. “A bill of review must originally be brought within the time limited by statute for taking an appeal from the decree sought to be reviewed, where the review sought is not founded on matters discov- ered since the decree.” BLatcurorp, J. En- sminger v. Powers, 108 U. S. 302. —— Analogous Procedure Courts. “The civil procedure as pursued in the Spanish courts has no proceeding analogous ’ to a bill of review, except the allegation of 1 Os. Dic.—16 in Spanish nullity, which must be made within sixty days from the time of pronouncing the de- cree; after which period, if no appeal be taken, the sentence or decree becomes res ad- judicata, and cannot be revoked unless ob- tained by means of false or forged proof.” Brapiey, J. Thompson v. Maxwell, 95 U.S. 399, Plaintiff Confined to New Matter Pleaded. “On the hearing of a bill of review, the plaintiffs are confined to the new matter set forth in their bill.” Baxpwin, J., dissenting. Harrison v. Nixon, 9 Pet. 528. “Bills [of review] containing new matter, of course, are in the nature of original bills, so far as such new matter is concerned, and admit of an answer and a replication, and proceedings appertaining to an issue of fact; but only as it relates to the truth and suffi- ciency of such new matter, and the propriety of its admission for the purpose of opening the decree in the original cause. If decided to be founded in fact, sufficient to affect the decree, and properly admissible, the original decree will be opened, and if necessary, a new hearing had; but, if not so found, the bill of review will be dismissed, and the original decree will stand. But even in this case, as well as in that of a pure bill of re- view, the evidence in the original cause can- not be discussed for the purpose of ques- tioning the propriety of the original decree as based on such evidence. It can only be adverted to, if at all, for the purpose of showing the relevancy and bearing of the new matter sought to be introduced into the cause.” Brapiey, J. Buffington v. Harvey, 95 U. S. 103. Decision on Issues of Fact Conclusive. “The decision of the court upon the is- sues of fact, so far as they depend upon the proofs, are conclusive on a bill of review.” Brabizy, J. Buffington v. Harvey, 95 U. S. 99. Consent Decree. “Tt is a general rule that against such a [consent] decree a bill of review will not lie.” Brap.ey, J. Thompson v. Maxwell, 95 U.S, 397, By Assignees. “Tt [a bill of review] does not lie for as- signees.” BRapvLey, J. Thompson v. Max- well, 95 U, S. 897. BILLS QUIA TIMET. See RemMovAL oF CLoup AnD QUIETING TITLE, 241 BLOCKADE. BINDERS. See Tosacco. BISHOP. “A bishop is not a corporation sole.” Stronc, J. Kain v. Gibboney, 101 U. S. 365. BLOCKADE. See INTERNATIONAL Law; Marine [Nnsur- ANCE; STEAM. Definitions. “Blockades are maritime blockades, or blockades by sea and land; and they may be either military or commercial, or may par- take of the nature of both.” Futzer, C. J. The Olinde Rodrigues, 174 U. S. 518. “This country has always recognized the essential difference between a military and a commercial blockade. The one deals with the exclusion of trade, and the other in- volves the consideration of armed conflict with the belligerent. The necessity of a greater blockading force in the latter case than in the former is obvious. The differ- ence is in kind, and in degree.” Futter, C. J. The Olinde Rodrigues, 174 U. S. 520. — Blockade Is Not Arrest or Detain- ment. “Tt [a blockade] certainly is not ‘an ar- rest,’ nor is it ‘a detainment.’ Each of these terms implies possession of the thing by the power which arrests or detains; and in the case of a blockade, the vessel remains in the possession of the master.” MarsHatt,C. J. Olivera v. Union Ins. Co., 3 Wheat. 189. Establishment of Blockade Is Act of War. “A blockade under the law of nations is a belligerent right, and its establishment an act of war upon the nation whose port is blockaded. One of the most important of the belligerent rights is that of blockad- ing the enemy’s ports, not merely to compel the surrender of the place actually attacked or invested, but, as a means, often the most effectual, of compelling the enemy, by the pressure upon his financial and commercial resources, to listen to terms of peace.” NEL- son, J., dissenting. The Circassian, 2 Wall. 156. “The principle of blockade has indeed in modern times been pushed to such an ex- travagant extent as to become a very justi- fiable cause of war, but still it is admitted to be consistent with the law of nations, when confined within the limits of reason or necessity.” JoHNSON, J., dissenting. Rose v. Himely, 4 Cranch 289, Right Secured by Law of Nations. “The right to blockade an enemy’s port with a competent force, is a right secured to every belligerent by the law of nations.” Story, J. McCall v. Marine Ins. Co, 8 Cranch 65. “That a belligerent may lawfully blockade the port of his enemy is admitted.” Mar- SHALL, C. J. Olivera v. Union Ins. Co. 3 Wheat. 194. Blockade Against Neutrals Not Carrying Contraband. “To declare a blockade effective against neutrals not carrying contraband goods is said by all the authorities to be one of the highest acts of sovereignty, not to be resort- ed to except for reasons based on well- known principles of modern warfare, and to be proclaimed so as to give full notice to friendly and neutral nations.” Snrras, J., dissenting. The Adula, 176 U. S. 387. Who May Establish. “Lawful blockade can only be established by a belligerent party, the rule being that a neutral country has a right to trade with all other countries in time of peace, and when in time of war the right is subjected te the conditions or restrictions resulting from blockade, the interruption of the untram- melled right can only be justified because the party imposing the conditions and re- strictions is invested with belligerent rights under the law of nations.” CLiFForp, J. Ford v. Surget, 97 U. S. 611. Attitude of United States Toward Com- mercial Blockade. “Our government was originally of opin- ion that commercial blockades in respect of neutral powers ought to be done away with; but that view was not accepted, and during the period of the Civil War the largest com- mercial blockade ever known was estab- lished.” Futter, C. J. The Olinde Rodri- gues, 174 U. S. 521. Obligation of Neutrals to Respect Block- ade. “The vessels of one nation are bound to respect the blockades of the other.” Warts, C. J. U.S. uv. Diekelman, 92 U. S. 529. — Necessity of Exercising Good Faith. “The clearest good faith may very rea- sonably be required of those engaged in neu- tral commerce with a port constantly and 242 BLOCKADE. notoriously used as a port of call and trans- shipment by persons engaged in systematic violation of blockade and in the conveyance of contraband of war.” Cuase, C. J. The Springbok, 5 Wall. 22. — Trade with Neutral Port Having In- land Communication with Blockaded Port. “Trade with a neutral port in immediate proximity to the territory of one belligerent, is certainly inconvenient to the other. Such trade, with unrestricted inland commerce be- tween such a port and the enemy’s territory, impairs undoubtedly and very seriously im- pairs the value of a blockade of the enemy’s coast.” CuasE, C. J. The Peterhoff, 5 Wall. 57. Effectiveness of Blockade — Constructive Blockade Not Allowed. “No paper or constructive blockade is al- lowed by international law. Where such blockades have been attempted by other na- tions, the United States have ever protested against them and denied their validity.” Cuasz, C. J. The Peterhoff, 5 Wall. 50. — Neutral Vessel Excused for Violating Ineffective Blockade. “Undoubtedly a blockade may be so in- adequate, or the negligence of the belligerent in maintaining it may be of such a character, as to excuse neutral vessels from the penal- ties for its violation.” Furier, C. J. The Olinde Rodrigues, 174 U. S. 516. — Single Capture Decisive of Effective- ness. “The question of effectiveness [of block- ades] must necessarily depend on the cir- cumstances. We agree that the fact of a single capture is decisive of the effectiveness of a blockade.” Futter, C. J. The Olinde Rodrigues, 174 U. S. 518. —— Captured Vessel Cannot Dispute Ef- fectiveness. “Tt cannot be that a vessel actually cap- tured in attempting to enter a blockaded port, after warning entered on her log by a cruiser off that port only a few days before, could dispute the efficiency of the force to which she was subjected.” Furaer, C. J. The Olinde Rodrigues, 174 U. S. 516. Notice of Blockade — Necessity. “To be binding, the blockade must be known, and the blockading force must be present.” Futrer, C. J. The Olinde Rodri- gues, 174 U. S. 513, —— What Constitutes Notice or Knowl- edge. “Mere knowledge by the neutral vessel that vessels of war occupied the harbor and adjacent waters would not constitute notice or knowledge of a blockade; she would be entitled to an actual warning.” SuHrras, J., dissenting. The Audula, 176 U. S. 392. Right of Neutral Vessel to Approach Blockade Port. “When a blockade of a given coast or port of one belligerent has been declared by the sovereign power of another, all vessels of neutral or friendly nations are thereby sup- posed to be visited with notice of such block- ade, and it has been held that if they sailed for the blockade port, with the intent to en- ter it, and approach it for that purpose, they are subject to seizure and condemnation, and that they cannot even approach the blockade port for the purpose of making inquiries of the blockading vessels, since such liberty might lead to attempts to violate the block- ade under pretext of approaching for the purpose of making such inquiries. . . But in the case of a blockade established by a naval officer, acting upon his own discre- tion, without governmental proclamation, neutrals are not visited with implied notice of the existence of such a blockade, and they may rightfully sail for such a blockade port, and if, when approaching it, armed vessels are seen to be in its immediate neighborhood, they may apply to such vessels for informa- tion and for leave to enter, without subject- ing themselves to capture. The duty of the blockading squadron, if objection exists to permitting neutral vessels to enter, is to warn them off. If, after such warning, the neutral vessels, disregarding it, attempt to enter, they are liable to seizure.” SuHrras, J., dissenting. The Adula, 176 U. S. 389. “Tt is well settled that, in the case of a proclaimed blockade, the neutral vessel may not, with a knowledge of the proclamation, approach the prohibited port, even for the purpose of inquiring from the vessels in oc- cupation whether the blockade was still in existence. The reason given for such a de- cision is that it would seriously affect the efficiency of the blockade port on pretext of inquiry, and thus be enabled to slip in if there was a momentary absence of a block- ading vessel. But different principles pre- vail in the case of a blockade de facto. Then, neutral vessels may, even with knowledge that such a blockade had been in existence, sail for such port with a clear right to in- quire whether the blockade was still in force, 248 BLOCKADE. and to enter the port if it is found not to be actually blockaded. The reason for the distinction, given in the authorities, is that a proclaimed blockade is deemed to continue until the blockade is raised by a declaration of the power that established it. But a sim- ple de facto blockade lasts only so long as the blockading squadron chooses to maintain it by a present and actual force. The rea- sons for constituting such a blockade may cease at any time, and a neutral vessel, on a peaceful voyage, and not carrying a contra- band cargo, may lawfully sail for such a port, and, if when she reaches it the block- ade continues, is entitled to a warning,” Suiras, J., dissenting. The Adula, 176 U.S, 393, ——Liberal Construction of Rights of Neutrals. “This is no time, in the history of inter- national law, for the courts of the United States, in laying down rules to affect the rights of neutrals engaged in lawful com- merce, to extend and apply harsh decisions made a hundred years ago, in the stress of the bitter wars then prevailing, when the rights of the comparatively feeble neutral states were wholly disregarded, Still less should our courts, . . , adopt strained and unnatural constructions of facts and cir- cumstances, in order to subject vessels of nations with whom we are at peace to seizure and condemnation.” Sutras, J., dissenting. Adula, 176 U. S. 398. Burden of Proof as to Existence of Block- ade. “A simple blockade may be established by a naval officer, acting upon his own discre- tion or under direction of superiors, without governmental notification; while a public blockade is not only established in fact, but is notified by the government directing it, to other governments. In the case of a simple blockade, the captors are bound to prove its existence at time of capture; while in the case of a public blockade the claimants are held to proof of discontinuance in order to protect themselves from the penalties of at- tempted violation,” Cuasz, C, J. The Cir- cassian, 2 Wall, 150. Presumption of Continuance of Duly Es- tablished Blockade. “We have already held that a blockade once established, and duly notified, must be presumed to continue until notice of dis- continuance, in the absence of positive proof of discontinuance by other evidence,” CHASE, C. J, The Baigorry, 2 Wall, 480. Breach of Blockade — Right of Seizure, “Seizure on the high seas for a breach of the right of blockade, during the whole re- turn voyage, is universally acquiesced in as a reasonable exercise of sovereign power,” Jounson, J., dissenting. Rose v. Himely, 4 Cranch 289. “Settled rule as established by a majority of this court is that a yessel which has full knowledge of the existence of a blockade is liable to capture if she attempts to enter the blockaded port in violation of the blockade regulations, and that it is no defense against an arrest made under such circumstances that the vessel arrested had not been previously warned of the blockade, nor that such pre- vious warning had not been indorsed on her register.” CxirrorD, J. The Admiral, 3 Wall, 615, : Attempt to Commit Breach Author- izes Capture. “Tt is the English doctrine, and the cor- rect doctrine on the law of nations, that an attempt to commit a breach of blockade is a violation of belligerent rights, and authorizes capture.” Jounson, J. Croudson v. Leon- ard, 4 Cranch 435. —— Evidence of Attempted Breach Must be Clear and Convincing. “* The evidence of evil intent must be clear and convincing before a merchant ship be- longing to citizens of a friendly nation will be condemned [for attempting to violate a blockade].” Furrer, C. J. The Olinde Ro- drigues, 174 U. S. 535, —— Probable Cause for Capturing for Breach. “Probable cause [for making a capture of a merchant vessel alleged to have been violating a blockade] exists where there are circumstances sufficient to warrant suspicion though it may turn out that the facts are not sufficient to warrant condemnation. And whether they are or not cannot be determin- ed unless the customary proceedings of prize are instituted and enforced. , Even if not found sufficient to condemn, restitution will not necessarily be made absolutely, but may be decreed conditionally as each case requires, and an order of restitution does not prove lack of probable cause,” Futter, C. J. The Olinde Rodrigues, 174 U. S. 535. — Ship and Cargo Share Same Fate, “So far as liability for infringement of blockade is concerned, ship and cargo must share the same fate.” CHasz, C. J. The Peterhoff, 5 Wall. 50, 244, BONDS. — Forfeiture of Cargo of Unoffending Owner. “Even the case of cargo shipped a9 a mercantile adventure and found on board of a vessel liable to condemnation for a breach of blockade, although it is prima facie involved in the offense of the vessel, yet, if the owner can show that he did not participate in the offense, his property is not liable to forfeiture.” Taney, C. J. U. S. v. Guillem, 11 How. 62. Termination of Blockade. “The capture and possession of the port of the enemy by the blockading force or by the forces of the belligerent, in the course of the prosecution of the war, puts an end to the blockade and all the penal conseqttences growing out of this measure to neutral commerce. The altered condi- tion of things, and state of the war between two parties in respect to the besieged port or town, makes the continuance of the blackade inconsistent with the code of in- ternational law on the subject; as no right exists on the part of the belligerent as against the neutral powers to blockade his own port.” Nerson, J., dissenting. The Circassian, 2 Wall. 156. “The occupation of the city terminates a blockade because, and only because, it supersedes it, and if a vessel be bound to a port or place beyond, which is still occupied by the enemy, the occupation of the mouth of the harbor does not necessarily terminate the blockade as to such places.” Brown, J. The Adula, 176 U. S. 369. BOARDING-HOUSES. See INNS AND INNKEEPERS. BODILY INFIRMITIES OR DISEASE. See Acctvent INSURANCE. BOLSTERS. See Freicht Cars. BONA FIDE. See generally Estates; Lis Prnpens; NEGOTIABLE INSTRUMENTS; REGISTRATION. “ Bona fide is a legal technical expression; and the law of Great Britain and this coun- try has annexed a certain idea to it. It is a term used in statutes in Engfarid, and in Acts of Assembly of all the states, and signifies a thing done really, with a good faith, without fraud, or deceit, or collusion, or trust. The words bona fide are restric- tive, for a debt may be for a valuable con- sideration, and yet not bona fide. A debt must be bona fide at the time of its com- mencement, or it never can become so after- wards.” CHasz, J. Ware wv. Hylton, 3 Dall. 241. BONA FIDE CREDITORS. “Real bona fide creditors afe fately un- willing to receive their debts from ary hand that will pay them.” Tompson, J. Thomp- kins v. Wheeler, 16 Pet. 119. BONA FIDE HOLDERS OR PURCHASERS. “[The plea] of a bona fide purchaser is one favored in the law.” Brewer, J. U. S. v. California, ete, Land Co., 148 U. S. 40. And see NecotIaste INSTRUMENTS; QUIT- CLAIMS. BONDS. I. DeFInitIon. TE. Nature, VALIDITY, AND LIABIL- ITIES. III. Coupons. IV. Municrpat Bonps. 1. Form. 2. Power to Issue. 3. Rights of Holders. a. After Maturity of Call for Re- demption. b. Defenses. (1) In General. (2) Want of Authority to Issue. (3) Effect of Recitals in Bord. 4, Remedy. CROSS-REFERENCES. As to the character of bonds and coupons as commercial paper, see Necortas.e In- STRU MENTS. For other matters related to this title. see Corporations; Muwnictpat Corrors- Tions; RECOGNIZANCES; SURETYSHIP. I. DEFINITION. Imports Sealed Instrument. “The word ‘bond’ at common faw (and evett mow ds a general rule} imports a BONDS. sealed instrument.” Hartan, J. Koshko- nong v. Burton, 104 U. S, 673. II. NATURE, VALIDITY, AND LIABILITIES. Property. “A bond when good and valid is prop- erty.” Mutter, J., dissenting. Gelpcke v. Dubuque, 1 Wall. 214. “If bonds are not property, then half the wealth of the nation, now so liberally invested in the bonds of the government, both state and national, and in bonds of corporations, must be considered as having no claim to be called property.” Mutter, J., dissenting. Gelpcke v, Dubuque, 1 Wall. 214. Voluntary Bonds. “Were it even true that an official bond cannot be taken in a case where it is not expressly directed by law, we, do not think that a bond taken to secure the payment of a sum of money is void, because it is also an official bond.” MarsHati, C. J. Post- master Gen. of U. S. uv, Early, 12 Wheat. 149. ; “It [a bond] is a voluntary bond when it is not demanded by any particular statute or regulation based thereon, and when it is not exacted in violation of any law or valid regulation of a department.” Prcx- HAM, J. Moses v. U. S., 166 U. S. 586. “The consideration or the condition of the bond [given to the government] must not be in violation of law; it must not run counter to any statute; it must not be either malum prokibitum or malum in se. Otherwise and for all purposes of security, a bond may be valid though no statute directs its delivery.” PeckHaM, J. Moses v. U. S., 166 U. S. 586. Evidence of Debt. “The bond does not create the debt, but is only evidence of it.’ InepELL, J. Ware v. Hylton, 3 Dall. 264. “A bond implies an obligor bound to do what is agreed shall be done.” Waite, C. J. Davenport v. Dodge County, 105 U. S. 241. Legislative Contract. “Nearly all the legislative contracts are “ made in a similar way. The law authorizes certain bonds to be issued, or certain work to be done upon specified conditions. When these are accepted, a contract is entered in- to imposing the duties and creating the lia- bilities of the most carefully drawn instru- ment embodying the provisions.” Frexp, J. Louisiana v. Pilsbury, 105 U. S. 289. Seal — Consideration. “Tt is an elementary rule, that a bond or other specialty is presumed to have been made upon good consideration, so long as the instrument remains unimpeached.” CuirForD, J. Storm v. U. S., 94 U. S. 83. “Want of consideration is not a sufficient answer to an action on a sealed instrument. The seal imports a consideration, or ren- ders proof of consideration unnecessary; be- cause the instrument binds the parties by force of ‘the natural presumption that an instrument executed with so much deliber- ation and solemnity is founded upon some sufficient cause.” CLIFFoRD, J. Storm wv. U. S, 94 U. S. 84. “We think that the mere want of seals is not such a departure from the act as to warrant the court, upon any supposed prin- ciples of public policy, to pronounce this instrument utterly void; it being good at common law, and given in furtherance of the great object of the statute, and as se- curity for the faithful discharge of the duties required of the office.” THompson, J. U. S. v. Linn, 15 Pet. 317. Parties — Signing by Obligors Not Named in Body. “Tf one party only be named as obligor in the body of a bond, and others sign it also, all are bound. In no other way can any effect be given to the signatures of those not so named. The intent is clear, and that is sufficient.” Swayne, J. George v. Tate, 102 U. S. 569. “The omission of the names of the sureties in the introductory part of the bond does not affect its validity, inasmuch as it appears that each signed and sealed the in- strument.” C.rrrorp, J. Babbitt wv. Finn, 101' U. S. 13. —Bond to Executor of Living Person. “A bond to B.’s executors, B. being alive, is a bond to B.” Swayne, J. George v. Tate, 102 U. S. 569 — Joint and Several. “Cases seem to imply that an original in- debtedness, though the bond be only joint, and no evidence offered of an agreement that it should be several also, will be regarded as several, and enforced accordingly, if it was for an ordinary loan, where all are 246 BONDS. partners or where all were benefited.” Woopsury, J., dissenting. U. S. uv. Price, 9 How. 102. Payable to Bearer. “When a corporation covenants to pay to bearer and gives a bond with negotiable qual- ities, and by this means obtains funds for the accomplishment of the useful enterprises of the day, it cannot be allowed to evade the payment by parading some obsolete judi- cial decision that a bond, for some techni- cal reason, cannot be made payable to bearer.” Grier, J. Mercer County v. Hack- et, 1 Wall. 95. “A mere technical dogma of the courts or the common law cannot prohibit the com- mercial world from inventing or using any species of security not known in the last century.” Grier, J. Mercer County vu. Hacket, 1 Wall. 95. Place of Payment. “It is not necessary to the validity of a bond that it should name a place of payment.” Braptey, J. Parsons v. Jackson, 99 U. S. 440. Penalty. “Where the law provides that the penal sum of a bond shall be equal to the double value, and the parties voluntarily and with- out fraud assent to the insertion of a given sum, it is as much an estoppel as if the bond had specially recited that such sum was the double value.” Story, J. Speake v. U. S., 9 Cranch 36. Delivery and Acceptance. “The act of delivery is essential to the existence of any deed, bond or note. AIl- though drawn and signed, so long as it is undelivered it is a nullity; not only does it take effect only by delivery; but also on delivery.” Lamar, J. Young v. Clarendon Tp., 182 U. S. 353. “A bond may not be a complete contract until it has been accepted by the obligee; but if it be delivered to him to be ac- cepted if he should choose to do so, that is not a conditional delivery, which will postpone the obligor’s undertaking to the time of its acceptance, but an admission that the bond is then binding upon him and will be so from that time, if it shall be accepted. When accepted, it is not only binding from that time forward, but it be- comes so upon both from the time of the delivery.” Wayne, J. Broome v. U. S., 15 How. 154. Maturity — Redemption. “Experience shows that the value of bonds or debentures depends not only upon the sufficiency of the security and the rate of interest, but upon the length of time they have to run and the certainty that they will not, before the expiration of such time, be called in for redemption.” Brown, J. City Ry. Co. v. Citizens’ Street R. Co., 166 U. S. 567. “Where a bond contains a stip- ulation [for maturity upon default in pay- ment of a part which becomes due] it may be enforced accordingly in an action at law.” Swayne, J. Olcott v. Bynum, 17 Wall. 62. Liability of Principal and Surety. “A principal in a bond may be liable be- yond the stipulations of the instrument, in- dependently of them, but so far as his lia- bility is in consequence of the bond, and by force of its terms, his surety is bound with him.” ‘Strone, J. Stovall’ v. Banks, 10 Wall. 588. — Summary Remedy Against Surety. “Sureties, signing appeal bonds, stay bonds, delivery bonds, and receipters under writs of attachment, become quasi parties to the proceedings, and subject themselves to the jurisdiction of the court, so that sum- mary judgments may be rendered on their bonds or recognizances.” Mutter, J. Blos- som v. Milwaukee, etc, R. Co., 1 Wall. 656. Condition, Breach, and Penalty. “Tn the case of bonds given for the dis- charge of duties, offices, or annuities, it never was maintained as an objection that the object of the lien was future, contin- gent, or uncertain.” Jounson, J. Mutual Assur. Soc. v. Watts, 1 Wheat. 290. — Condition No Part of Obligation. “The condition of the bond is no part of the obligation.” Grier, J. Farni v. Tesson, 1 Black 314. — Legal and Illegal Conditions Sever- able. “Tt is a settled principle of law that where a bond contains conditions, some of which are legal and others illegal, and they are severable and separable, the latter may be disregarded and the former enforced.” Swayne, J. U. S. vw. Hodson, 10 Wall. 408. To the same effect see the language of Swayng, J., in Daniels v. Tearney, 102 U.S. 419. 247 : BONDS. — Impossibility of Performance. “Where the condition is possible at the date of the instrument and becomes impossible subsequently, the obligation does not be- come thereby discharged, unless the impossi- bility of performance was the act of God, or of the law, or of the obligee.” Mat- tHEws, J. Clark wv. Barnard, 108 U. S. 454. “Originally, at law, in case of breach of the condition of a bond, the amount recov- erable was that named in the obligation. So that, if the condition is impossible either in its self or in law, the obligation remains absolute.” Mattruews, J. Clark ‘v. Bar- nard, 108 U. S. 454. —— Pleading Condition. _ “And, accordingly, it is well known, that in declarations on bonds with a condition, no notice need be taken of the existence of the condition. If the debtor would avail himself of it, he must pray oyer of it, and plead it by way of discharge.” Story, J. U. S. v. North Carolina State Bank, 6 Pet. 39. —— Demand for Penalty. “In an action of debt on bond, the de- mand is for the penalty.” Grrer, J. Farni v. Tesson, 1 Black 314. ~—— Assessment of Damages by Jury. “The action being brought on a penal bond, under the Maryland practice, it was the province of the jury to assess the dam- ages which the plaintiffs had a right to re- cover.” M’Lean, J. Gorman v. Lenox, 15 Pet. 117. III. COUPONS. In General. “Bonds executed by a railroad compary may not be put upon the market until one or more coupons have matured. The com- pany may cut them off when it sells the bonds, or leave them on to be accounted for in the purchase.” Woops, J. Indiana, etc., R. Co., v. Sprague, 103 U. S. 761. Separable Obligations. “Coupons are separable obligations for the imterest payable upon demand. It constant- ly occurs that they are not demanded for weeks and months, and sometimes years, after they are due. As they bear interest after maturity, it will frequently happen that the owner of a bond who holds it as an investment will keep the coupon for the same purpose.” Woons, J. Indiana, ete., R. Co. wv. Sprague, 103 U. S. 761. Transfer. “Interest-coupons are instruments of a peculiar character. The title to them passes from hand to hand by mere delivery. A transfer of possession is presumptively a transfer of title. And especially is this true when the transfer is made to one who is not a debtor, to one who is under no obli- gation to receive them or pay them.” Srronc, J. Ketchum v. Duncan, 96 U. S. 662. ‘See also NEcoTIABLE INSTRUMENTS. —— When Not Extinguished. “Tn multitude of cases, coupons are transferred by persons who are not the own- ers of the bonds from which they have been detached. To hold that in all cases the coupons are paid and extinguished, and not transferred or assigned, unless there was something more to show an assent of the person parting with the possession that they should remain alive, and be available in the hands of the person to whom they were delivered, would, we think, be inconsistent with the common understanding of business men.” Strone, J. Ketchum v. Duncan, 96 U. S. 663. “Tt is within common knowledge that in- terest-coupons, alike those that’ are not due and those that are due, are passed from hand to hand; the receiver paying the amount they call for, without any intention on his part to extinguish them, and without any belief in the other party that they are ex- tinguished by the transaction. In such a case, the holder intends to transfer his ti- tle, not to extinguish the debt.” Strone, J. Ketchum v. Duncan, 96 U. S. 663. Action on Without Producing Bond. “Coupons are written contracts for the payment of a definite sum of money, on a given day, and being drawn and executed in a form and mode for the very purpose that they may be separated from the bonds, a suit may be maintained on them without the necessity of producing the bonds to which they were attached.” Cxrrrorp, J. Aurora City v. West, 7 Wall. 105. To the same effect see the language of CutrForp, J., dissenting, in Cromwell v. County of Sac, 94 U. S. 362. “Coupons, when severed from the bonds to which they were originally attached, are in legal effect equivalent to separate bonds for the different instalments of interest. The life action may be brought upon each of them, when they respectively become due, 248 BONDS. as upon the bond itself when the principal matures.” Fretp, J. Clark v. Iowa City, 20 Wall. 589. : —— Interest on Coupon. “We have held in numerous cases not only that suit may be maintained upon un- paid coupons, in advance of the maturity of the principal debt and without producing the bonds, but that the holder of such coupons is entitled to recover interest thereon from their maturity.” Haran, J. Amy v. Du- buque, 98 U. S. 473. IV. MUNICIPAL BONDS, 1. Form. “Tt is within the power of a state to prescribe the form in which municipal bonds shall be executed in order to bind the pub- lic for their payment. If not so executed they create no legal liability. Other circum- stances may exist which will give the holder of them an equitable right to recover from the municipality the money which they rep- resent, but he cannot enforce the payment, or put them on the market as commercial paper.” Warts, C. J. Anthony wv. Jasper County, 101 U. S. 697. 2. Power To Issur. Necessity of Legislative Authority. “A municipal corporation cannot issue bonds in aid of extraneous objects without legislative authority.” Brapiey, J. South Ottawa v. Perkins, 94 U. S. 262. “When the legislature deemed it desir- able for the parish to issue such paper to enable it to raise money, the power was expressly given, with proper safeguards and limitations. This very fact indicates the legislative understanding that no general and indefinite power of the kind had any exist- ence.” Braptey, J. Police Jury v. Britton, 15 Wall. 573. “This characteristic of commercial paper, which no court has more faithfully en- forced than this, raises the doubt whether the power to issue it can be implied from the ordinary powers of local administration and police which are conferred upon the boards and trustees of political districts.” Bravtey, J. Police Jury wv. Britton, 15 Wall. 571. “There must . be an original au- thority, by statute, to the municipality to issue the bonds. Municipal corporations have not the power, except through the spe- cial authority of the legislature, to issue corporate bonds which will bind theit towns.” Hunt, J. Kenicott v. Supervisors, 16 Wall. 465, —— Power Not Implied from Corporate Existence, “The power to isstie such securities [bonds] does not inhere in a municipal cor- poration, so as to be implied from its cor- porate existence; it must be conferred, either in express words, or by reasonable intend- ment.” MatrHews, J. Harshman v. Knox County, 122 U. S. 317. Under Authority to Aid in Construc- tion of Railroad. “ Although a municipal corporation, so far as it is invested with subordinate legislative powers for local purposes, is a mere instru- mentality of the state for the convenient administration of government, yet, when au- thorized to take stock in a railroad company, and issue its obligations in payment of the stock, it is to that extent to be deemed a private corporation, and its obligations are secured by all the guaranties which protect the engagements of private individuals.” Fretp, J. Broughton wv. Pensacola, 93 U. S. 269. To the same effect, see the language of Woons, J., in Mobile v. Watson, 116 U. S. 305. “Whilst a municipal corporation, author- ized to subscribe for the stock of a rail- road company or to incur any other obliga- tion, may give written evidence of such subscription or obligation, it is not there- by empowered to issue negotiable paper for the amount of indebtedness incur- red by ‘the subscription or obligation. Such paper in the hands of innocent parties for value cannot be enforced with- out reference to any defense on the part of the corporation, whether existing at the time or arising subsequently.” Fietp, J. Hill vw. Memphis, 134 U. S. 203. — Under Authority to Aid in Erection of Public Buildings. “Money may be borrowed by a county to aid in the erection of public buildings, and it is well settled law that a municipal cor- poration, in exercising such an authority, may issue its bonds as the means of accomplish- ing the object.” Cutrrorp, J., dissenting. Smith v. Sac County, 11 Wall. 156. Requirements as to Election and Prelim- inary Steps. “Tn almost all the cases where municipal corporations have any authority at all to issue such bonds, the statutes which give 249 BONDS. the authority require that there shall first be a vote of the majority of the people of the municipality, approving the purpose for which they are issued, and authorizing their issue. Of course the law fixes the manner of taking this vote; and I believe that, until this court decided to the contrary, no court had ever held that such bonds were valid without a substantial compliance with the statutes on that subject.” Murer, J., dis- senting. Riggs v. Johnson County, 6 Wall. 200. “Municipal officers cannot rightly dispense with any of the essential forms of proceed- ing which the legislature has prescribed for the purpose of investing them with power to act in the matter of such a subscription [to a bridge company’s stock]. If they do, the bonds they issue will be invalid in the hands that cannot claim protection as bona fide holders.” Watts, C. J. McClure w. Township of Oxford, 94 U. S. 432. “The persons specially appointed to act as agents for the people have a‘ministerial duty to perform in issuing the bonds, after the people, at an election held for the pur- pose, have assented that they shall be bound.” Grigr, J. Sheboygan v. Parker, 3 Wall. 96. “Bonds issued under the authority of a popular election cannot be set aside simply because all that may have been said by in- terested parties, in public speeches during the canvass which preceded the election, does not turn out to be in every respect true.” Warre, C. J. Greene County v. Daniel, 102 U. S. 196. “Where a particular functionary is clothed with the duty of deciding such a question, his decision, in the absence of fraud or col- lusion, is final.” Swayne, J. Lynde v. Winnebago County, 16 Wall. 13. Nature of Authority. “In reference to municipal bonds alone, the law is, that no authority to issue them can be given which is capable of any effect- ual condition or limitation as to its exer- cise.” Mutter, J., dissenting. Humboldt Tp. v. Long, 92 U. S. 647, Ratification of Issue. “In cases of bonds issued by municipal corporations, under a statute upon the sub- ject, ratification by the legislature is in all respects equivalent to original authority, and cures all defects of power, if such defects existed, and all irregularities in its execu- tion.” Swayne, J. Beloit v. Morgan, 7 Wall. 624. “If the legislature had no constitutional authority to grant the new power, a statute passed for that purpose could not have the effect of validating the old bonds.” Waite, C. J. Katzenberger v. Aberdeen, 121 U. S. 178. —— Effect of Paying Instalments of In- terest. “Tt is hardly necessary to add that the ‘payment of some instalments of interest can- not have the effect of ratifying bonds issued beyond the constitutional limit; for a ratifica- tion can have no greater effect than a pre- vious authority; and debts which neither the district not its officers had any power to authorize or create cannot be ratified or validated by either of them, by the payment of interest, or otherwise.” Gray, J. Doon Townshi, v. Cummins, 142 U. S. 376. 3. RicHTs oF Ho.pDErs. a. After Maturity of Call for Redemption. “Tt may be admitted for the sake of the _argument — although the proposition cannot be considered indisputable — that, after the maturity of a call for the redemption of designated bonds, the obligation of the gov- ernment to pay them thereby became fixed and irrevocable so that thereafter on demand and refusal of payment, an action would ac- crue to the holder for the recovery of the principal and accrued interest, the Court of Claims having jurisdiction in such cases.” MartHews, J. Morgan v, U. S., 113 U. S. 498. “The bond becomes, after the maturity of a call for redemption, payable at the option of the holder on demand, but without fu- ture interest, at any time prior to the day fixed for ultimate payment, when it becomes unconditionally due. The construction which, after the maturity of such a call, reads the contract as if the day when interest is to cease had been originally inserted as the day of ultimate payment, confounds and ob- literates the express distinction made in the law itself between redeemability and pay- ability, and rewrites the contract upon a different basis. The legal effect of the call undoubtedly is to entitle the holder to de- mand payment at its maturity, and, even though not demanded, to exonerate the gov- ernment from liability for interest accru- ing after that date; but, consistently with the terms of the statutes and the obvious purposes in view in the original creation and issue of the securities in the form adopted, it cannot be, that the legal effect of such a call for the purpose of redemption is the 250 BONDS. same as if the bond had been originally framed as an obligation to pay absolutely on a day previously fixed. Matruews, J. Morgan v. U. S., 113 U. S. 498. b. Defenses. (1) In GENERAL. Mere Irregularities in Issue. “The bonds are negotiable: public cor- porations are estopped from setting up many defenses of irregularity against the innocent holders of such negotiable securities.” PeckHaM, J. Tulare Irrigation Dist. wv. Shepard, 185 U. S. 12. “(Where] the statute invested the board of supervisors with power to decide whether the district had been duly organized, the exercise of that power by the board and its determination that the district had been legally and duly organized, (such determi- nation being evidenced by the order duly re- corded as provided for in the statute,) was a finding of fact upon which the purchaser had a right to rely, as it was the record provided by the statute, made by a-body di- tected by it to determine the very fact in question, and in such cases the finding is conclusive in favor of a bona fide holder of bonds.” Precxuam, J. Tulare Irrigation Dist. v. Shepard, 185 U. S. 19. “Tf there be lawful authority for the mu- nicipality to issue its bonds, the omission of formalities and ceremonies, or the exist- ence of fraud on the part of the agents of the municipality issuing the bonds, can- not be urged against a bona fide holder seeking to enforce them.” Hunt, J. Keni- cott v. Supervisors, 16 Wall. 464. “Tf the power exists in the municipality the bona fide holder is protected against mere irregularities in the manner of its exe- cution.” Wartr, C. J. Anthony v. Jasper County, 101 U. S. 697. “It is settled law that a negotiable se- curity of a corporation, which upon its face appears to have been duly issued by such corporation, and in conformity with the pro- visions of its charter, is valid in the hands of a bona fide holder thereof, without a notice, although such security was in point of fact issued for a purpose, and at a place not authorized by the charter of the cor- poration.” CurrFrorp, J. Marshall County Supervisors v. Schenck, 5 Wall. 784. To the same effect see the language of CLIFForD, J., dissenting, in Smith v. Sac County, 11 Wall. 163. — Right to Presume Regularity. “When a corporation has power, undet any circumstances, to issue negotiable secur- ities, the decision of the court is that the bona fide holder has a right to presume they were issued under the circumstances which give the requisite authority, and they are no more liable to be impeached for any infirmity in the hands of such a holder than any other commercial paper.” CuiFForD, J. Marshall County Supervisors v. Schenck, 5 Wall. 784. To the same effect see the language of CuirForp, J., dissenting, in Smith v. Sac County, 11 Wall. 156. “Tf the right to subscribe [to stock in railroad] be made dependent upon the result of a popular vote, the officers of the county must first determine whether the vote has been taken as directed by law and what the vote was. When, therefore, they make a subscription, and issue county bonds in pay- ment, it may fairly be presumed, in favor of an innocent purchaser of the bonds, that the condition which the law attached to the exer- cise of the power has been fulfilled.” Srronc, J. Pendleton County v. Amy, 13 Wall. 305. See also infra, IV. 3. b. (3). -—— Holders of Coupons. “Holders of [interest coupons], . . . if the same are indorsed in blank or are made payable to bearer, stand upon the same footing as the holders of negotiable bills of exchange or promissory notes, and are as effectually shielded from the defense of prior equities between the original parties to the instrument, if unknown to them at the time of the transfer, as the holders of any other class of negotiable instruments. Such instru- ments are protected from defenses of the kind when in the possession of an indorsee, not merely because they are negotiable but also because they are regarded as commercial instruments, and as such are favored as well on account of their negotiable quality as their general convenience in mercantile af- fairs.” CiirForD, 'J., dissenting. Smith vw. Sac County, 11 Wall. 149. — Effect of Right to Call. “Tn the form in which those now in ques- tion were issued, until a call for their re- demption was advertised, they were not due upon their face until the day fixed for final payment; and the right reserved to the gov- ernment, at its option, to anticipate the pay- ment cannot be construed as affecting the contract injuriously to the holder, any further than the law declaring it, either expressly or by necessary implication, requires. That law 251 BONDS. gives to the holder three months after the date of the call for redemption within which to present his bonds for payment or ex- change, with interest to the date of redemp- tion; but the only penalty it prescribes, if the holder chooses to retain his original security, is the loss of future interest.” MattuEws, J. Morgan v. U. S.; 113 U. S. 499. “As against one choosing for any purpose of his own to retain his bond as a continuing security for the value it always represents, having impressed upon it by the law of its creation the faculty of passing from hand to hand as money, and therefore just as use- ful in the pursuits of trade and the exchanges of commerce and banking as so much money in the form of coin or banknotes, and more convenient because more portable, no such presumption can be entertained on the ground that its continued circulation is not in the due course of business, that it has fully performed all its intended functions, and that it has been in any sense dishonored by a refusal on the part of the obligor to fulfil its obligation. On the contrary, sup- posing the purchaser bound to know, what in fact does not appear on its face, that the bond has been called for redemption under penalty of a stoppage of interest after three months, the very notice, which, it is said, discredits his title, is in fact an advertise- ment, not that the maker has any ground to refuse payment, but that the previous holder preferred to hold the security for the money rather than to accept the money which it represents.” Matruews, J. Morgan v. U. S., 113 U. S. 500. “No such presumption [of discredit], in our opinion, arises to affect the title of the holder of the bonds of the United States, stich as those now in question, acquired by a bona fide purchaser for value prior to the date fixed in the bonds themselves for their ultimate payment; for, as we have already shown, the onfy change in the original effect of the contract by the exercise of the right of earlier redemption is to stop the obliga- tion to pay future interest.” MarrHews, J. Morgan v. U. S., 113 U. S. 500. “The fact that interest was to cease to accrue three months after the date of call, had no tendency to discredit the bonds or affect the title of a bona fide purchaser for value in the due course of trade.” Mart- THEWwS, J. Morgan wv. U. S., 113 U. S. 501. “Tt [five-twenty consol of 1865] stands, therefore, upon its statutory basis, as a bond redeemable at the treasury on demand with- out interest after the maturity of the call, payable according to its original terms, and not overdue, in the commercial sense, till after the day of unconditional payment. Ii the obligation had been originally written in that form—a promise to pay absolutely on the 1st day of July, 1885, with interest ac- cording to the coupons attached, but redeem- able at the treasury at and after July 1, 1870, interest to cease three months there- after if not presented for redemption within that period —it would have expressed in advance the exact contract, as it became by the exercise of the reserved option of re- demption; and in that form, it seems to us quite plain that it could not be considered an overdue obligation, in the sense in which that term is applied to ordinary commercial paper, until after the limit fixed for final payment had been passed.” Matruews, J. Morgan v. U. S., 113 U. S. 499. Burden under Plea of Non Est Factum. “The plea of non est factum did not put in issue the fact that he was the holder. Legislative authority for an issue of bonds being established by reference to the statute, and the bonds reciting that they were issued in pursuance of the statute, the utmost which plaintiff was bound to show to entitle him, prima facie to judgment, was the due ap- pointment of the commissioners and the ex- ecution by them, in fact, of the bonds. It was not necessary that he should, in the first instance, prove either that he paid value, or that the conditions preliminary to the exercise by the commissioners of the au- thority conferred by statute were, in fact, performed before the bonds were issued, The one was presumed from the possession of the bonds; and the other was established by the statute authorizing an issue of bonds, and by proof of the due appointment of the commissioners, and their execution of the bonds, with recitals of compliance with the statute. So we have often rufed in numer- ous cases with which the profession are familiar and which need not be cited.” Hartan, J. Montclair v. Ramsdell, 107 U.S. 158. (2) Want or AvutHority to Issug. Duty of Purchaser to Take Notice. “All persons dealing with such bonds must take notice at their perif [of the want of legislative authority on the part of the municipality to issue them].” Bravrey, J. South Ottawa v. Perkins, 94 U. S. 262. “Tf there is a want of power, no legal liability can be created.” Warts, C. J. An- thony v. Jasper County, 101 U. S. 697. 252 BONDS. “Tf it be once conceded that the trustees or other local representatives of townships, counties, and parishes have the implied power to issue coupon bonds, payable at a future day, which may be valid and binding obligations in the hands of innocent pur- chasers, there will be no end to the frauds that will be perpetrated.” Braptey, J. Po- lice Jury v. Britton, 15 Wall. 572. “Without legislative authority a municipal corporation, like a county, may not sub- scribe to the capital stock of a railroad com- pany, and bind itself to pay its subscription, or issue its bonds in payment; and if it does, the purchase of such bonds is affected by the want of authority to make them.” Stronc, J. Pendleton County v. Amy, 13 Wall. 304. —— Of Constitutional Limitation as to In- debtedness, “The purchaser of bonds [municipal] in open market was bound to take notice of the constitutional limitation on the county with respect to indebtedness which it might occur.” Lamar, J. Chaffee County v. Pot- ter, 142 U. S. 363. —— Of Statute under Which Bond Is Issued, “Every purchaser of a municipal bond is chargeable with notice of the statute under which the bond was issued. If the statute gives no power to make the bond, the mu- nicipality is not bound.” Warrz, C. J. U. S. v. Macon County, 99 U. S. 590. —— Of Official Character of Persons Ex- ecuting Bonds. “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.” BratcHrorp, J. Coler vw. Cleburne, 131 U. S. 173. — Under Power to Borrow Money. “Tt seems to us that the court . . . an nounces for the first time that an express power in a municipal corporation, to borrow money, for corporate or general purposes, does not, under any circumstances, carry with it, by implication, any authority to ex- ecute a negotiable promissory note or bond for the money so borrowed, and that any such note or bond is void in the hands of a bona fide holder for value.” Haran, J., dissenting. Brenham v. German American Bank, 144 U. S. 196. -—— Duty to Make Inquiry. “Tf one of two innocent persons must suffer for the unauthorized act of the town- ship or county officers, it is clear that he who could, before parting with his money, have easily ascertained that they [bonds is- sued by a municipal corporation] were un- authorized, should lose, rather than the prop- erty-holder, who might not know any thing of the matter, or, if he did, had no power to prevent the wrong.” MIL.Er, J., dissent- ing. Humbolt Tp. v. Long, 92 U. S. 650, Burden of Proof. “Tf the authority to issue them in a given case is challenged by a proper denial, the plaintiff is put to the proof.” Harshman v. Knox County, 122 U. S. 317. “Tt was incumbent upon him [the plaintiff in action on municipal notes] to prove that the town was authorized to create the in-~ struments, and to dispose of them in the manner in which disposition of them was made,” Stronc, J. Scipio v. Wright, 101 U.S, 667. (3) Errect oF Recrrats 1n Bonp, In General — Cutting Off Defenses Except Want of Power. “The effect of recitals in municipal bonds is like that given to words of negotiability in a promissory note. They simply relieve the paper in the hands of a bona fide holder from the burden of defenses other than the lack of power, growing out of the original issue of the paper, and available as against the immediate payee.” Brewer, J. Nesbit v, Riverside Ind. Dist. 144 U. 5. 619. “Tt were useless to refer to the long list of cases in which recitals, like these, have been held sufficient to sustain [municipal] bonds in the hands of bona fide holders.” Fietp, J. Bernards Tp, v. Morrison, 133 U.S. 527. “The question of legislative authority in a municipal corporation to issue bonds in aid of a railroad company cannot be con- cluded by mere recitals; but the power ex- isting, the municipality may be estopped by recitals to prove irregularities in the exer- cise of that power.” Haran, J. Northern Bank v. Porter Tp. 110 U. S. 619, “Numerous cases have been determined in this court, in which we have said that where a statute confers power upon a municipal corporation, upon the performance of certain 258 BONDS. precedent conditions, to execute bonds in aid of the construction of a railroad, or for other like purposes, and imposes upon certain officers — invested with authority to deter- mine whether such conditions have been performed—the responsibility of issuing them when such conditions have been com- plied with, recitals, by such officers, that the bonds have been issued ‘in pursuance of,’ or ‘in conformity with, or ‘by virtue of,’ or ‘by authority of,’ the statute, have been held in favor of bona fide purchasers of value, to import full compliance with the statute, and to preclude inquiry as to whether the conditions precedent had been performed before the bonds were issued.” Haran, J. School District v. Stone, 106 U. S. 187. Misrecital of Statute. “We have often enforced municipal bonds in aid of railroad subscriptions, where they failed to recite the statute authorizing their issue, but recited one which did not sustain their validity. The inquiry in such cases has been, was there, in any statute, authority for the execution of the bonds?” Harran, J., dissenting. Civil Rights Cases, 109 U. S. 60. Municipality Entitled to Benefit Of. “Tf a purchaser may be, as he sometimes is, protected by false recitals in municipal bonds, the municipality ought to have the benefit of those that are true.” Warre, C. J. McClure v. Township of Oxford, 94 U. S. 433. Recital as to Limitation upon Indebted- ness, “In those cases in which this court has held a municipal corporation to be estopped by recitals in its bonds to assert that they were issued in excess of the limit imposed by the constitution or statutes of the state, the statutes, as construed by the court, left it to the officers issuing the bonds to deter- mine whether the facts existed which con- stituted the statutory or constitutional con- dition precedent, and did not require those facts to be made a matter of public record. But if the statute expressly requires those facts to be made a matter of public rec- ord, open to the inspection of every one, there can be no implication that it was in- tended to leave that matter to be determined and concluded, contrary to the facts so re- corded, by the officers charged with the duty of issuing the bonds.” Gray, J. Sutliff v. Lake County Com’rs, 147 U. S. 235. Want of Constitutional Authority to Issue Bonds. “Nothing is better settled than this rule -— that the purchaser of bonds, such as these [county bonds], is held to know the con- stitutional provisions and the statutory re- strictions bearing on the question of the authority to issue them; while, on the other hand, if he act in good faith and pay value, he is entitled to the protection of such re- citals of facts as the bonds may contain.” Lamar, J. Lake County v. Graham, 130 U. S. 680. “It is well settled that no recitals in the bonds, or indorsed thereon, could estop the county from setting up their invalidity, based upon a want of constitutional authority to issue the same. Recitals in bonds issued under legislative authority may estop the municipality from disputing their authority as against a bona fide holder for value, but when the municipal bonds ate issued in vio- lation of a constitutional provision, no such estoppel can arise by reason of any recitals ccntained in the bonds.” Jackson, J. Hedges v. Dixon County, 150 U. S. 187. Recital as to Compliance with Preliminary Requirements. “If a municipal body has lawful power to issue bonds or other negotiable securities, dependent only upon the adoption of certain preliminary proceedings, such as a popular election of the constituent body, the holder in good faith has the right to assume that such preliminary proceedings have taken place if the fact be certified on the face of the bonds by the authorities whose primary duty it is to ascertain it.” Woops, J. Pana v. Bowler, 107 U. S. 539. “There is a class of cases where recitals in obligations are held to supply such proof of compliance with the special authority del- egated as to preclude the taking of any testimony on the subject, and estop the obligor from denying the fact. These have generally arisen upon municipal bonds, au- thorized by statute, upon the vote of the ma- jority of the citizens of a particular city, country or town, and in which certain per- sons or officers are designated to ascertain and certify as to the result.” Freip, J. Mer- chants’ Exchange Nat. Bank wv. Bergen County, 115 U. S. 391. “Tf an election or other fact is required to authorize the issue of the bonds of a muni- cipal corporation; and if the result of that election, or the existence of that fact, is by law to be ascertained and declared by any judge, officer, or tribunal, and that judge, officer, or tribunal, on behalf of the corpora- tion executes, or issues the bonds with a 254 BOUNDARIES. recital that the election has been held or that the fact exists, or has taken place, this will be sufficient evidence of the fact to all bona fide holders of the bonds.” Huwnz, J. Kenicott v. Supervisors, 16 Wall. 464, —— Absence of Recital — Presumption Only Prima Facie. “Tf, when the law requires a vote of tax- payers, before bonds can be issued, the supervisor of a township, or the judge of probate of a county, or other officer or magistrate, is the officer designated to as- certain whether such vote has been given, and is also the proper officer to execute, and who does execute, the bonds, and if the bonds themselves contain a statement or re- cital that such vote has been given, then the bona fide purchaser of the bonds need go back no farther. He has a right to rely on the statement as a determination of the question. But a mere execution and issue of the bonds without such recital is not, in my judgment, conclusive. It may be prima facie sufficient; but the contrary may be shown. This seems to me to be the true distinction to be taken on this subject; and I do not think that the contrary has ever been decided by this court. There have been various dicta to the contrary; but the cases, when carefully examined, will be found to have had all the prerequisites necessary to sustain the bonds, according to my view of the case.” Braptey, J. Coloma v. Eaves, 92 U.S. 493. 4, REMEDY. Absence of Stipulation for Special Statu- tory Remedy. “When a statute provides an extraordi- nary remedy to the holder of bonds contain- ing an express stipulation that he ‘shall be entitled’ to that remedy, it should not be adjudged that he is also entitled to it in the absence of such stipulation, for it is a rea- sonable presumption that if the county in issuing the bonds intended to contract for such extraordinary remedy it would have complied with the express provisions of the statute and incorporated the stipulation into the bonds.” Brewer, J. Hubbert v. Camp- bellsville Lumber Co., 191 U. S. 77. BOOK. Distinguished from Periodical. “A book is readily distinguishable from a periodical, not only because it usually has a more substantial binding (although this is by no means essential), but in the fact that it ordinarily contains a story, essay or poem, or a collection of such, by the same author, although even this is by no means universal, as books frequently contain ar- ticles by different authors. Books are not often issued periodically, and, if so, their periodicity is not an element of their char- acter. Brown, J. Houghton v. Payne, 194 U. S. 97. See also PrRIopIcAL. Copyright. “Tt is the intellectual production of the author which the copyright protects and not the particular-form which such production ultimately takes, and the word ‘book’ as used in the statute is not to be understood in its technical sense of a bound volume, but any species of publication which the author selects to embody his literary product.” Brown, J. Holmes v. Hurst, 174 U. S. 89. And see CopyricHT. BOOTY. See Capture, RECAPTURE, CONFISCATION, AND PrizE; CoNQuEsTs; War. BOTTOMRY BONDS. See ADMIRALTY; Maritime LIENS. BOUNDARIES. I. ELEMENTS, DESCRIPTION, AND Com- PARATIVE VALUE. 1. In General. 2. Water Boundaries. II. As BETWEEN INDEPENDENT SOVER- EIGNTIES. CROSS-REFERENCES. See Distance; GOVERNMENT. I. ELEMENTS, DESCRIPTION, AND COMPARATIVE VALUE. 1. In GENERAL. Controlling Descriptions — Metes Bounds. “Metes and bounds in the description of premises control distance .and quantities when there is any inconsistency between and them.” Brewer, J. Horne v. Smith, 159 Uz. S. 43. —— Course and Distance, “Course controls distance, and... course and distance control quantity.” Brabtey, J. Ayers v, Watson, 113 U. S. 607. 255 BOUNDARIES —— Monuments. “Monuments control courses and dis- tances, and courses and distances control quantity, but where there is uncertainty in specific description, the quantity named may be of decisive weight, and necessarily so if the intention to convey only so much and no more is plain.” Futter, C. J. Ainsa vw. U. S., 161 U. S. 229. “Tt is a universal rule that course and distance yield to natural and ascertained ob- jects. A call for a natural object, as a river, a spring, or even a marked line, will control both course and distance. Artificial and natural objects called for, have the same effect.” Swayne, J. St. Clair County v. Lovingston, 23 Wall. 62. “Tf two such trees, answering the descrip- tion [in a land grant] were afterwards found in the east line of the survey, properly marked, and sitvated at about'the proper distance from the river San Andres, as called for in the survey, it was for the jury to say, in the light of all the evidence, whether said trees, so marked and so situated, were or were not the trees called for in the field notes; and, if they were, then they were such objects, and such a monument, as would control the call for course and distance.” Braptey, J. Ayers v. Watson, 113 U. S. 605. — Certain and Uncertain Monuments, “A cabin and a marked tree in a country ‘full of cabins and marked trees, cannot con- trol a call made for an object of such general notoriety as the Big Blue Lick. A subse- quent locator would look for them only at the Big Blue Lick.” MarsHatt, C. J. Fin- ley v. Williams, 9 Cranch 170. — Designation of Line or Corner by Name of Owner. “When the established line or corner of a prior survey is made part of a boundaz,, it is usual to designate such marked line or corner by naming the person whose line or corner it is.’ MarsHatt, C. J. Chinoweth v. Haskell, 3 Pet, 97. Construction of Instrument. “If the language in the description of boundaries is clear, that should control, and should not be narrowed and limited by any mere ambiguity in the subsequent statement of the appurtenances to the grant.” BREWER, J. Lowndes v. Huntington, 153 U. S. 22. , “Tt is admitted to be a general principle that, where a location calls for land to lie a given distance from a given point, the whole land must be placed at or beyond that distance, if there be no other words in the location which control this construction. But it is not admitted that this call can over- rule the plain meaning of the whole entry taken together. It is believed to be unques- tionably decided that every material part of the entry is to be considered, and that such construction is to be put upon the whole as is best adapted to all its material calls.” MarsuatL, C. J. Johnson v. Pannel, 2 Wheat. 219. Evidence —Liberal Rules Applied. “Courts have always been liberal in re- ceiving evidence with regard to boundaries which would not be strictly competent in the establishment of other facts. Old surveys, perambulation of boundaries, even reputation, are constantly received on the question of boundaries of large tracts of land. The dec- larations of surveyors made at the time of making a survey have been admitted.” BraptEy, J. Ayers v. Watson, 137 U. S. 596. “Tt is every day’s experience in land trials, to establish by evidence the identity of both natural and artificial monuments called for in surveys. If the beginning point be at the mouth of a brook, or creek, where it empties into a river, evidence may be given, nay, must generally be given, to establish the identity of the brook; and when once es- tablished to the satisfaction of the jury, it has all the effect of any natural or artificial object called for in the survey, and will con- trol courses and distances.” Brapiey, J. Ayers v. Watson, 113 U. S. 605. —— General Reputation. “The doctrine in America, in respect to boundaries, has gone farther; and has ad- mitted evidence of general reputation as to boundaries between contiguous private es- tates ; but there it has stopped.” Story, J. Ellicott v. Pearl, 10 Pet. 436. — Declarations of Deceased Persons. “Upon the subject of boundary there is a general agreement that, by the English rule, evidence of the declarations of deceased persons as to the boundary of parishes, manors, and the like, which are of public in- terest, is admissible, but that such evidence is inadmissible for the purpose of proving the boundary of a private estate, unless such boundary is identical with another of public interest. In many of the states this strict rule has been extended, and these declara- tions have been admitted to prove the bound- aries of lands of private persons. This 256 ' BOUNDARIES. extension of the rule has, we think, been sustained by the weight of authority in the American state courts, as justified upon grounds as strong as those on which the original rule rests.” Lamar, J. Clement v. Packer, 125 U. S. 321. —— Junior Survey. “Tt is unquestionably true that a junior survey cannot control or enlarge the di- mensions of a senior survey.” Lamar, J. Clement v. Packer, 125 U. S. 332, “Where younger surveys of fixed lines called for the older the fact is admissible, in the language of the authorities, ‘to aid the jury in discovering the actual location of the survey.’” Lamar, J. Clement wv. Packer, 125 U, S. 336. 2. WaTER BouNDARIES. As to boundaries between states, see infra, II. Grant Construed According to Laws of State Where Land Lies. “The extent of the title of a government grantee of lands bounded on streams and waters, without any reservation and restric- tion of terms, is to be construed, as to its effect, according to the law of the state in which the lands lie.” Surras, J. French- Glenn Live Stock Co. v. Springer, 185 U. S. 52. Terms Defined — Middle of the Stream. “In international law and by the usage of European nations, the terms ‘middle of the stream’ and ‘midchannel’ of a naviga- ble river are synonymous and interchange- ably used.” Fretp, J. Iowa vw. Illinois, 147 Uz S. 10. “In international law, therefore, and by the usage of European nations, the term ‘middle of the stream’ as applied to a navigable river, is the same as the middle of the channel of such stream.” Fre.p,J. Iowa v. Illinois, 147 U. S. 8. —— High Water. “Tn respect to fresh-water rivers, the term {high water] is altogether indefinite, and the line marked uncertain. It has no fixed mean- ing in the sense of high-water mark when applied to a river where the tide ebbs and flows, and should never be adopted as a boundary in the case of fresh-water rivers, by intendment or construction, whether be- tween states or individuals. It may mean any stage of the water above its ordinary height, and the line will fluctuate with every I Os, Dic —17 varying freshet or flood that may happen.” Netson, J. Howard v. Ingersoll, 13 How. 424, “The term high water, when applied to the sea, or to a river where the tide ebbs and flows, has a definite meaning. The line marked is by the periodical flow of the tide, excluding the advance of waters above this line in the one case by winds and storms, and in the other by freshets or floods.” NEL- son, J. Howard v. Ingersoll, 13 How. 423. — Shore of Sea and of Arms of Sea. “By the common law, the shore of the sea, and of course, of arms of the sea, is the land between ordinary high and low water mark, the land over which the daily tides ebb and flow.” Fietp, J. U. S. w. Pacheco, 2 Wall. 590. Country Bounded by River. “A country bounded by a river extends to low-water mark.” MarsHatt, C.J. Handly v. Anthony, 5 Wheat. 383. Where Tide Ebbs and Flows. “Grants of land, bounded by the sea or by navigable rivers, where the tide ebbs and flows, extend to high-water mark, that is, to the margin of the periodical flow of the tide, unaffected by extraordinary causes, and the shores below common high-water mark - belong to the state in which they are sit- uated.” Netson, J. Howard v. Ingersoll, 13 How. 421. “With regard to grants of the government for lands bordering on tidewater, it has been distinctly settled that they only extend to high-water mark, and that the title to the shore and lands under water in front of lands so granted enures to the state within which they are situated, if a state has been organized and established there. Such title to the shore and lands under water is re- garded as incidental to the sovereignty of the state—a portion of the royalties belong- ing thereto and held in trust for the public purposes of navigation and fishery — and can- not be retained or granted out to individuals by the United States. Such title be- ing in the state, the lands are ‘subject to state regulation and control, under the con- dition, however, of not interfering with the regulations which may be made by Congress with regard to public navigation and com- merce. The state may even dispose of the usufruct of such lands, as is frequently done by leasing oyster beds in them, and granting fisheries to particular localities; also, by the reclamation of submerged flats, and the erec- 257 BOUNDARIES. tion of wharves and piers and other adven- titious aids of commerce. Sometimes large areas so reclaimed are occupied by cities, and are put to other public or private uses, state control and ownership therein being supreme, subject only to the paramount authority of Congress in making regulations of commerce, and in subjecting the lands to the necessities and uses of commerce.” Braptey, J. Har- din v. Jordan, 140 U. S. 381. Where Tide Does Not Ebb and Flow. “Grants of land bounded on rivers above tidewater, or where the tide does not ebb and flow, carry the gtratitee to the middle of the river, unless there are expressions in the terms of the grant, or something in the terms taken in connection with the situation and condition of the lands granted, that clearly indicate an intention to stop at the edge or margin of the river. There must be a reservation or restriction, express or neces- sarily implied, which controls the operation of the general presumption and makes the particular grant an exception.” NeELson, J. Howard v. Ingersoll, 13 How. 421. “Tt is a familiar principle of that law [the law applicable to dedications] that a grant of land bordering on a road or river, carries the title to the center of the river or road, unless the terms or circumstances of the grant indicate a limitation of its extent by _the exterior lines. CHasre, C. J. Banks ». Ogden, 2 Wall. 68. River Between States. “The middle of the channel of a navigable river between independent states is taken as the true boundary line from the obvious reason that the right of navigation is pre- sumed to be common. to both in the absence of a special convention between the neigh- boring states, or long use of a different line equivalent to such a convention.” Frexp, J. Iowa v. Illinois, 147 U. S. 10. “The reason and necessity of the rule of international law as to the midchannel be- ing the true boundary line of a navigable river separating independent states may not be as cogent ip this country, where neighbor- ing states are under the same general gov- ernment, as in Europe, yet the same rule will be held to obtain unless changed by statute or usage of so great a length of time as to have acquired the force of law.” Fuetp, J. Jowa v. Illinois, 147 U. S. 10. Main River — Between States. “Wherever the river is a boundary be- tween states, it is the main, the permanent river, which constitutes that boundary.” MarsHati, C. J. Handly v. Anthony, 5 Wheat. 380. “Tf a river, subject to tides, constituted the boundary of a state, and at flood the waters of the river flowed through a narrow channel, round an extensive body of land, but receded from that channel at ebb, so as to leave the land it surrounded at high water connected with the main body of the country, this por- tion of the territory would scarcely be con- sidered as belonging to the state on the op- posité side of the river, although that state should have the property of the river.” MarsHatt, C. J. Handly v. Anthony, 5 Wheat. 383, ——Branch Retaining Name of Main River. “Tf one branch of a small river has by con- sent retained the name of the main river, in exclusion of the others, that branch must be considered, in the absence of other circum- stances, as the true boundary intended by the parties, in a deed which calls for the stream by its name. The fact may be less certain and less notorious; but, if it exists, it must be followed by the same consequences,” MarsHatt, C. J. Reynolds v. M’Arthur, 2 Pet. 440. Indication of Main Stream. “Tf neither branch had notoriously re- tained the name of the river, the main branch is entitled to it. But the main branch is not necessarily that in whose channel water might be found at all seasons of the year, at the point farthest removed from its mouth. The largest volume of water is certainly one indication of the main stream, which does not necessarily accompany that which the coun- sel for the plaintiff in error has selected as the sole criterion by which it is to be determined. The length of the stream is an- other. It is obvious that two branches may pursue such a course that the source of the longest may be nearer the mouth of the river than that of the shortest.” MarsHatt, C. J. Reynolds v. M’Arthur, 2 Pet. 440. No Vacant Land Between River and Land Bounded. “Where a survey and patent show a river to be one of the boundaries of the tract, it is a legal deduction that there is no vacant land left for appropriation between the river and the river boundary of such tract.” Swayneg, J. S. Clair County v. Lovingston, 23 Wall. 63. Lakes. “As many features of the common law with regard to the rights of riparian owners 258 BOUNDARIES. were borrowed directly from the civil law, . . . it would not be strange if the rule relating to lakes and ponds came from the same source. It was recommended by the same reasons that applied to fresh-water rivers and streams. When land is bounded by a lake or pond, the water, equally as in the case of a river, is appurtenant to it; it constitutes one of the advantages of its sit- uation, and a material part of its value, and the presumption is that a grant of land thus bounded is intended to include the contigu- ous land covered by water. Besides, a lake or pond, like a river, is a concrete object, a unit, and when named as a boundary, the natural inference is that the middle line of it is intended, that is, the line equidistant from the land on either side. If the mar- gin is named as the boundary the case is different; the land under the water being then expressly excluded. Of course, these observations do not apply to our great nav- igable lakes, which are really inland seas, and to which all those reasons apply which appy to the sea itself.” Brapiey, J. Har- din v. Jordan, 140 U. S. 390. Meander Line — Not a Boundary. “Tt has been decided again and again that the meander line is not a boundary, but that the body of water whose margin is meandered is the true boundary.” BRADLEY, J. Mitchell v. Smale, 140 U. S. 414. “The meander line is not a line of bound- ary, but one designed to point out the sinu- osities of the bank of the stream, and as a means of ascertaining the quantity of land in the fraction which is to be paid for by the purchaser.” Brewer, J. Horne wv. Smith, 159 U. S. 43. c —— Boundary on River Means to Water Line. “A meander line is not a line of boundary, and a patent for a tract of land bordering on a river conveys the land, not simply to the meander line, but to the water line.” Brewer, J. Horne v. Smith, 159 U.S. 42. — Question of Fact Not Concluded by Call for Meander Line. “We agree with the Supreme Court of Oregon in thinking that the question whether the northern boundary of the lots of the plaintiff in error was an existing lake, the recession of whose waters would leave the bed of the lake, thus laid bare, to accrue to the owner of the lots, was a question of 259 fact which was not concluded by a mere call for a meander line.” Suiras, J. French-Glenn Live Stock Co, v. Springer, 185 U. S. 51. —In Public Grant. “Tt has been the practice of the govern- ment from its origin, in disposing of the public lands, to measure the price to be paid - for them by the quantity of upland granted, no charge being made for the lands under the bed of the strcarn, or other body of water. The meander lines run along or near the margin of such waters are run for the pur- pose of ascertaining the exact quantity of the upland to be charged for, and not for the purpose of limiting the title of the grantee to such meander lines. It has frequently been held, both by the federal and state courts, that such meander lines are intended for the purpose of bounding and abutting the lands granted upon the waters whose mar- gins are thus meandered; and that the waters themselves constitute the real boundary.” Brabtey, J. Hardin v. Jordan, 140 U. S. 380. —— When General Rule Not Applicable. “There must be some limit to the length courts will go in search of the water delin- eated on a plat of survey, with a meander line shown thereon. If the water were ten miles away, it is certain that a claim“to be bounded thereon would not for one moment be admitted. A distance of half a mile, enough to plainly show the gross error of the survey, together with the other facts adverted to herein, are sufficient to justify a refusal to apply the general rule that a meander line is not usually one of bound- ary.” PrecxHam, J. Security Land, etc., Co. v. Burns, 193 U. S. 183. Corners at, in or on Stream or Its Bank. “Tt may be considered a canon in American jurisprudence, that where the calls in a conveyance of land, are for two corners at, in, or on a stream or its bank, and there is an intermediate line extending from one such corner to the other, the stream is the boundary,, unless there is something which excludes the operation of this rule by show- ing that. the intention of the parties was otherwise.” Swayne, J. St, Clair County v. Lovingston, 23 Wall. 64. “Where land adjoining a fresh-water river, or above tidewater, is described as bounded by a monument, whether natural or artificial, such as a tree or a stake standing on the bank, and a course is given as running from BOUNDARIES. it up or down the river to another monu- ment standing upon the bank, these words necessarily imply, as a general rule, that: the line is to follow the river, according to its meanderings and ‘turnings, and the grantee takes to the middle of the river. Such is the uniform construction given to this description where the common law prevails.” Netson, J. Howard v. Ingersoll, 13 How. 422, “Where premises above tidewater are described as bounded by a monument stand- ing on the bank of the river, and a course ~ is given as running from it down the river as it winds and turns to another monument, the grantee takes usque filum aquae, unless the river be expressly excluded from the grant by the terms of the deed.” Swayne, J. ‘St. Clair County v. Lovingston, 23 Wall. 64, — Low Water Mark of Creek. “Where a deed calls for a corner stand- ing on the bank of a creek, ‘thence down said creek with the meanders thereof,’ the boundary is low-water mark.” Swayne, J. ‘St. Clair County v. Lovingston, 23 Wall. 63. “Where a deed calls for an object on the bank of a stream, ‘thence south, thence east, thence north to the bank of the stream, and with the course of the bank to the place of beginning,’ the stream at low-water mark is the boundary.” Swayne, J. St. Clair County v. Lovingston, 23 Wall. 63. II. AS BETWEEN INDEPENDENT SOVEREIGNTIES. Settlement of Boundaries Belongs to Sov- ereign Power. “Settlements of boundary belong to the sovereign power, and cannot be questioned by individuals.” BrapitEy, J. Coffee v. Groover, 123 U. S. 30. Between Independent Nations. “A question of disputed boundary be- tween sovereign independent nations, is, in- deed, much more properly a subject for diplomatic discussion, and of treaty, than of judicial investigation.” TrimBLe, J. De La Croix v. Chamberlain, 12 Wheat. 600. As Between States — Effect of Decision. “On a question of disputed boundary be- tween two states, although the inquiry of the court is limited to the establishment of a common line, yet the exercise of sovereign authority, over more or less territory, may depend upon the decision.” McLean, I ‘Pennsylvania v. Wheeling, etc, Bridge Co., 13 How, 560. —— Decision upon Broad and Liberal Principles. “It may be a simple matter to determine where a line shall be run; but when such determination may draw after it a change of sovereign power over a district of country, and many thousand citizens, the principles involved must be considered as of the highest magnitude. The question is national in its character; and it is fit and proper that it should be decided by those broad and liberal principles which constitute the code of national law.” M’Lean, J., dissenting. Rhode Island v. Massachusetts, 14 Pet. 275. “In great questions which concern the boundaries of states, where great natural boundaries are established in general terms, with a view to public convenience, and the avoidance of controversy, we think the great object, where it can be distinctly perceived, ought not to be defeated by those technical perplexities which may sometimes influence contracts between individuals.” MarsHatt, C. J. Handly v. Anthony, 5 Wheat. 383. —— Consideration of Private Rights. “Tt is the common usage, it is true, in mutual adjustments of disputed boundaries, to stipulate that private titles shall not be disturbed. Such stipulations are dictated by a humane consideration for those who have innocently invested their fortunes on the faith of the good title of their government.” Brantey, J. Coffee v. Groover, 123 U. S. 23. “There are also moral considerations which should prevent any disturbance of long recognized boundary lines; considerations springing from regard to the natural senti- ments and affections which grow up for places on which persons have long resided; the attachments to country, to home and to family, on which is based all that is dearest and most valuable in life.’ Freip, J. Vir- ginia v. Tennessee, 148.U. S. 524. —— Compact Prohibited by Constitution. “The compact or agreement [between states] will be within the prohibi- tion of the Constitution or without it, ac- cording as the establishment of the boundary line may lead or not to the increase of the political power or influence of the states affected, and thus encroach or not upon the full and free exercise of federal authority. If the boundary established is so run as to cut off an important and valuable portion of a state, the political power of the state en- BOUNDARIES. larged would be affected by the settlement of the boundary; and to an agreement for the running of such a boundary, or rather for its adoption afterwards, the consent of Congress may well be required.” Fiexp, J. Virginia v. Tennessee, 148 U. S. 520: “The mere selection of parties to run and designate the boundary line between two states, or to designate what line should be run, of itself imports no agreement to ac- cept the line run by them, and such action of itself does not come within the prohibition [of the Federal Constitution]. Nor does a legislative declaration, following such line, that it is correct, and shall thereafter be deemed the true and estabished line, import by itself a contract or agreement with the adjoining state. It is a legislative declara- tion which the state and individuals, affected by the recognized boundary line, may in- voke against the state as an admission, but not as a compact or agreement.” Fretp, J. Virginia v. Tennessee, 148 U. S. 520. Boundaries Between Particular States. “The boundary of Kentucky extends only to low-water mark on the western and north- western banks of the Ohio river.” HArian, J. Louisville, etc, Ferry Co. v. Kentucky, 188 U. S. 393. “The River Delaware is the well known boundary between the states of Pennsylvania and New Jersey.” Grier, J. Rundle v. Del- aware, etc., Canal Co., 14 How. 90. —— River Boundary. See also supra, I. 2. “The Constitution of Illinois calls for the middle of the Mississippi River as the west- ern boundary of that state, and as Iowa was admitted into the Union after Illinois, a line in the middle of the river is the dividing line between the states.” Catron, J. Mis- sissippi, etc, R. Co. v. Ward, 2 Black 493. “Tt is common usage to speak of the bound- ary of a state or county as a river, though the legal boundary may be the middle of the river; and particularly when any thing is to be constructed on such a boundary, which from its nature must be constructed on dry land, would no one understand the place of construction as any other than the shore of the river.” Stronc, J. Union Pacific R. Co. v. Hall, 91 U. S. 347. “The words ‘on the boundary of Iowa’ are not technical words; and therefore they are to be taken as having been used by Congress in their ordinary signification.” Stronc, J. Union Pacific R. Co. v. Hall, 91 U. S. 347. “Tt is perfectly legitimate and in accord- ance with every-day usage to say that a house built in Illinois on the eastern shore of the Mississippi stands on the western boundary of the state, though the legal boundary of the state is the mid-channel of the river. In common understanding, there- fore, a point on the western boundary of Iowa would be a point in Iowa on the east- ern shore of the Missouri, precisely as a point on the eastern boundary of Nebraska would be understood to be in Nebraska, on the western shore of the river.” Strona, J. Union Pacific R. Co. v. Hall, 91 U. S. 347. “When we speak of a river, we speak of it as a whole, whether we refer to it above or below a certain point.” McLean, J. Rhode Island v. Massachusetts, 4 How. 633, “We call that a part which is less than the whole, when we speak of any thing made up of parts. We do not call a limb a tree, but it is a part of a tree; and if a measure- ment is to be made from any and every part of the tree, would its branches be dis- regarded.” McLean, J. Rhode Island vw. Massachusetts, 4 How. 633. Judicial Cognizance of Disputes. “Tt is not by me denied that a dispute as to boundaries between two states is judicially cognizable as a controversy between states, and that such may also be the case where one state asserts property rights against an- other, provided always that the assertion of the particular right does not violate the pro- hibition of the Eleventh Amendment.” Wuirtr, J., dissenting. South Dakota vw. North Carolina, 192 U. S. 338. -—— Tribunal for Settlement. “In the colonies, there was no judicial tribunal which could settle boundaries be- tween them; for the court of one could not adjudicate on the rights of another, unless as a plaintiff. The only power to do it re- mained in the king, where there was no agreement; and in chancery, where there was one, and the parties appeared: so that the question was partly political and partly judicial, and so remained till the declaration of independence. Then the states, being in- dependent, reserved to themselves the power of settling their own boundaries, which was necessarily a purely political matter, and so continued till 1781. Then the states dele- gated the whole power over controverted 261 BOUNTIES. boundaries to Congress, to appoint and its court to decide, as judges, and give a final sentence and judgment upon it, as a judicial question, settled by a specially appointed ju- dicial power, as the substitute of the kind in council, and the court of chancery in a proper case; before the one as a political, and the other as a judicial question.” Ba.pwin, J. Rhode Island v. Massachusetts, 12 Pet. 743. “At the time of the adoption of the Con- stitution there existed controversies between eleven states, in respect to bound- aries, which had continued from the first settlement of the colonies. The necessity for the creation of some tribunal for the settle- ment of these and like controversies that might arise, under the new government to be formed, must, therefore, have been perceived by the framers of the Constitution, and, con- sequently, among the controversies to which the judicial power of the United States was extended by the Constitution, we find those between two or more states. And that a con- troversy between two or more states, in re- spect to boundary, is one to which, under the Constitution, such judicial power extends, is no longer an open question in this court.” Haran, J. U. S. v. Texas, 143 U. S. 639, “Contests for rights of sovereignty and jurisdiction between states over any partic- ular territory, are not, in my judgment, the subjects of judicial cognizance and control, to be recovered and enforced in an ordi- nary suit; and are, therefore, not within the grant of judicial power contained in the Constitution.” Taney, C. J., dissenting. Rhode Island v. Massachusetts, 12 Pet. 753. —— Remedy by Bill and Cross-bill. “We take occasion here to say, on a mat- ter of practice, that bill and cross-bill is deemed the most appropriate mode of pro- ceeding applicable to cease like the present [cases relating to disputed boundaries], as it always offers an opportunity to the court of making an affirmative decree for the one side or the other, and of establishing by its authority the disputed line, and of hav- ing it permanently marked by commissioners of its own appointment, if that be neces- sary.” Catron, J. Missouri v. Iowa, 7 How. 667. — Decree Relates Back. “When no other matter affects a boundary, a decree settles it as having been by orig- inal right at the place decreed; in the same manner where it is settled by treaty or compact.” Baupwin, J. Rhode Island v, Massachusetts, 12 Pet. 734. — Conclusiveness of Decision. “Under our government, a boundary be- tween two states may become a judicial ques- tion, to be decided in this court. And, when it assumes that form, the assent or dissent of the United States cannot influence the decision. The question is to be decided upon the evidence adduced to the court; and that decision when pronounced, is conclusive upon the United States, as well as upon the states that are parties to the suit.” Taney, C. J. Florida v. Georgia, 17 How. 494. BOUNTIES. As rewards for military and naval service, see ARMY AND Navy. And see CaprurE, RECAPTURE, CONFISCA- TION, AND PRIZE, Nature. : “Bounties granted by a government are never pure donations, but are allowed either in consideration of services rendered or to be rendered, objects of public interest to be obtained, production or manufacture to be stimulated, or moral obligations to be recog- nized. To grant a bounty irrespective alto- gether of these considerations would be an act. of pure agrarianism; and to determine who is entitled to the benefit of the bounty is but little more than to determine who has rendered the consideration.” Brown, J. Allen v. Smith, 173 U. S. 402. “A bounty may be direct, as where a cer- tain amount is paid upon the production or exportation of particular articles.” Brown, J. Downs v. U. S., 187 U. S. 502. Protective Tariff as Bounty. “A bounty upon production operates to a certain extent as a bounty upon exportation, since it opens to the manufacturer a for- eign market for his merchandise produced in excess of the demand at home. A protective tariff is the most familiar instance of this, since it enables the manufacturer to export the surplus for which there is no demand at home. If there were no tariff at all, and the expense of producing a certain article at home were materially greater than the expense of producing the same article abroad, there would be none produced, and, of course, none to export.” Brown, J. Downs v. U. S., 187 U.S. 513. Effect. “ All manufacturers would prefer to sell at home if they could realize a greater price 262 BRIDGES. than by selling abroad, but if by being paid a drawback, or by a remission of taxes, they can find a profitable market in a foreign coun- .try, so much sugar as not needed at home will be sent abroad.” Brown, J. Downs v. U. S. 187 U. S. 515. BOXES. Definition. “By boxes... we under- stand those encasements which are not usually of permanent value, and such as are ordinarily used for the convenient transpor- tation of their contents.” Brown, J. U. S. v. Nichols, 186 U. S. 300. ' BRIBERY. Offer to Bribe. “A promise to a public officer, that if he will do a certain unlawful act he shall be paid a certain compensation, is an offer to bribe him to do the unlawful act.” Gray, J. In re Palliser, 136 U. S. 264. BRIDGES. See Ferrres; FRANCHISES; NAVIGABLE Waters; TurNpIKES AND ToLL Roaps. Nature — Highway. “ At common law a bridge was a common highway.” Woops, J. Washer v. Bullitt County, 110 U. S. 564. “All bridges intended and used as throughfares are public highways, whether subject to toll or not.” Braptey, J. Dodge County Com’rs v. Chandler, 96 U. S. 209. —Connecting Links of Streets, and Railroads. “Bridges are merely connecting links of turnpikes, streets, and railroads. Fietp, J. Hamilton v. Vicksburg, etc. R., 119 U. S. 282, Turnpikes, — Like Ferries. “Bridges are of the same nature with ferries, and are undoubtedly within the category thus laid down.” Swayne, J. Gilman v. Philadelphia, 3 Wall. 726. County Charge. “* At common law a bridge was a common highway, and the county was bound to re- pair it.’ Woops, J. Washer v. Bullitt County, 110 U. S. 564. — Toll. “Regularly, all public bridges are a county charge, and the courty is bound to erect and maintain them. But others may be charged with this duty, and a toll is the commonest of means for obtaining compensation for its performance.” BRap- Ley, J. Dodge County Com’rs v. Chandler, 96 U. S. 209. Power of States. “The power of the states to regulate mat- ters of internal police includes the construction of roads and bridges.” FIE.p, J. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 215. — Interference with Navigation. “In the various bridge cases that have come before the courts of the United States, where bridges (or dams) have been erected by state authority across navigable streams, the refusal to ‘interfere with their erection has always been based upon the absence of prohibitory legislation by Congress, and the power of the states over the subject in the absence of such legislation. Where the reg- ulation of such streams by Congress has been only a general character, such as the es- tablishment of ports and collection districts thereon, it has been held that the erection of bridges, furnished with convenient draws, so as not materially to interfere with nav- igation, is within the power of the states, and not repugnant to such general regula- tion.” BraDLeEy, J. Transportation Co. v. Parkersburg, 107 U. S. 704. “Bridges over navigable streams, which are entirely within the limits of a state, are of the latter class [subject to local regula- tion]. The local authority can better appre- ciate their necessity, and can better direct the manner in which they shall be used and regulated than a government at a distance. It is, therefore, a matter of good sense and practical wisdom to leave their control and management with the states, Congress having the power at all times to interfere and super- sede their authority whenever they act ar- bitrarily and to the injury of commerce.” Fietp, J. Escanaba v. Chicago, 107 U. S. 687. “Tt has often been held, that in throw- ing a bridge across a navigable river or arm of a lake, or the sea, the sovereign power of the state in some form may authorize it, under such restrictions and conditions as may be considered best for the public. But this power must always be so exercised as not materially to obstruct navigation. Over this public right Congress exercises exclusive legislation, except where the Constitution re- stricts it; and the judicial power can never 263 BRIDGES. interpose, except in regard to private in- juries.” McLean, J., dissenting. Pennsyl- vania v. Wheeling, etc., Bridge Co., 18 How. 442. 4 —— License and Regulation. “The legislature has the power to license bridges, and so to regulate them, that no rival bridges can be estab- lished within certain fixed distances.” Davis, J. The Binghamton Bridge, 3 Wall. 81. Right of Individuals to Build. “No individual citizen has any right to build a bridge over navigable waters; and consequently he is deprived of no right, when a grant is made to any other persons for that purpose.” Story, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 604. Power of Congress — Over Streams. “When Congress acts directly with refer- ence to the bridges authorized by the state, its will must control so far as may be nec- essary to secure the free navigation of the streams.” Fietp, J. Cardwell v. American . Bridge Co., 113 U. 'S. 209. Navigable “The doctrine of a paramount power in Congress over bridges crossing navigable streams — either to authorize their construc- tion, or regulate them, that is, control them when constructed — derives no support from its power to protect the free navigation of such streams. If a bridge, for example, built under the law of a state, should cross a navigable stream, at so high a point, and in such a way, as in no manner to obstruct its free navigation, Congress could not in- terfere with the structure. Its permission would not authorize the building, nor its command authorize the removal, of the bridge. And while Congress may declare that bridges of particular height and dimen- sions shall not be deemed an obstruction to the free navigation of the streams, it can- not interfere with bridges of a different size and character, unless they prove to - be an impediment to such navigation.” Fre.p, J., dissenting. Newport, etc., Bridge Co. v. U. S., 105 U. S. 489. “T do not think that the assent of Congress to the erection of the bridge was at all essen- tial to its character as a lawful structure. That depended upon the legislation of Ken- tucky and Ohio, and upon the contingency of the bridge not interfering with the free nav- igation if the river. The assent of Con- gress, as already stated, only removed all ground of complaint of the structure as in- terfering with the public right of naviga- tion, so far as that right was under the protection of the federal government. No one could afterwards complain that the bridge, if built in conformity with the di- rections specified, constituted a public nui- sance, because interrupting the free naviga- tion of the river as secured under the laws of Congress, and proceed to obtain its abate- ment.” Fietp, J., dissenting. Newport, etc. Bridge Co. v. U. S., 105 U. S. 500. ——Under Power to Establish Post Roads. “The settled opinion now seems -to be, that to establish post roads within the meaning of the Constitution is to designate them. In this sense Congress may establish post roads extending over bridges, but it can neither build them nor exercise any control over them, except the mere use for the conveyance of the mail on paying toll.” McLean, J., dissenting. Pennsylvania vw. Wheeling, etc., Bridge Co., 18 How. 442. — Under Commercial Power. “Ts there a power in Congress to legalize a bridge over a navigable water within the jurisdiction of any state or states? It has the power to regulate commerce among the several states, requiring two or more states to authorize the regulation. But this does not necessarily include the power to con- struct bridges which may obstruct com- merce, but can never increase its facil- ities on a navigable water. Any power which Congress may have in regard to such a structure is indirect, and results from a commercial regulation. It may, under this power, declare that no bridge shall be built which shall be an obstruction to the use of a navigable water. And this, it would seem, is as far as the commer- cial power by Congress can be exercised.” McLean, J., dissenting. Pennsylvania v. Wheeling, etc., Bridge Co., 18 How. 442. “Tf, under the commercial power, Con- gress may make bridges over navigable waters, it would be difficult to find any lim- itation of such a power. Turnpike roads, railroads, and canals might on the same principle be built by Congress. And if this be a constitutional power, it cannot be re- stricted or interfered with by any state reg- ulation. So extravagant and absorbing a federal power as this has rarely, if ever, been claimed by any one. It would, in a great degree, supersede the state govern- 264 BRIDGES. ments by the tremendous authority and pat- ronage it would exercise. But if the power be found in the Constitution, no principle is perceived by which it can be practically restricted. This dilemma leads us to the conclusion that it is not a constitutional power.” McLean, J., dissenting. Pennsyl- vania v. Wheeling, etc., Bridge Co., 18 How. 443. “T am not able to agree with the majority of the court in their judgment in this case, nor in the reasons assigned for it. Their opinion proceeds upon a theory of the power of Congress over bridges crossing nav- igable waters to which I cannot assent. Its power to authorize the construction of such bridges, not being conferred in express terms by the Constitution, must, if it exist, be deduced from the power to regulate com- merce with foreign nations and among the several states. This latter power authorizes Congress to prescribe rules by which com- merce in its various forms may be conducted between our people and those of other coun- tries, and between the people of different states; and also to adopt measures to fa- cilitate and increase. it. When the Consti- tution was adopted, commerce with foreign nations and even between the several states was carried on principally by means of ves- sels. Its regulation, therefore, required such control over our harbors, bays, and navigable streams connecting them or different states, as might be necessary to keep havigation free from unnecessary obstructions; and might legitimately extend to making such improvements as would facilitate the pass- age of vessels, render their anchorage safe, and expedite the discharge of their car- goes and the landing of their passengers and crews. To this extent its power over navi- gable waters goes, under the commercial clause; no further. Unless, therefore, the free navigation of the public waters is im-- peded by what a state may do or permit, Congress cannot interfere with its action.” Frexp, J., dissenting. Newport, etc., Bridge Co. v. U. S., 105 U. S. 489. —- Delegation of Power to Compel Law- ful Structure. “The mere delegation [by Congress] of power to direct a change in lawful structures so as to cause them not to interfere with commerce cannot be construed as confer- ring on the officer named the right to de- termine when and where a hridge may be built.”. Waite, J. Lake Shore, etc, R. Co. v. Ohio, 165 U. S. 368. “The mere delegation to the secretary [of war] of the right to determine whether a structure authorized by law has been so built as to impede commerce, and to direct, when reasonably necessary, its modification so as to remove such impediment, does not confer upon that officer power to give orig- inal authority to build bridges.” Wouute, J. Lake Shore, etc., R. Co. v. Ohio, 165 U. S. 368. — Ordering Changes — Compensation. “Tt was competent for Congress to have declared that the bridge, as it was in prog- ress of construction, had proved to be a substantial and material obstruction to the free navigation of the river, and for that reason the assent of Congress to its erection was withdrawn. Or that it would be such an obstruction unless certain modi- fications of the plan were made. But it did neither. It based no action on the assumption that the bridge was or would be an obstruction to navigation; but it de- termined to change the bridge from a low bridge with a draw, to a high bridge without a draw.” Muer, J., dissenting. Newport, etc., Bridge Co. v. U. S., 105 U. S. 486. “Nothing is more reasonable, therefore, than that Congress, resorting to its high prerogative of requiring a structure which would not only be no substantial or mate- rial obstruction to navigation, — words well understood, — but one which would impose no delay in passing it, nor interfere in the slightest possible manner with naviga- tion, should see that equity and justice re- quired compensation for the loss inflicted by this change. It did see this, and provided for the situation. Until the structure was completed, no one could tell the cost of the changes required. When completed, the safest tribunal, as Congress thought, to de- termine this was a court. And that the court might not be restricted by the rigid rules of a court of law, it referred the matter to a court of equity, with instructions to proceed as in other cases in equity. It required the court to determine ‘the act- ual and necessary costs and expenditures reasonably required to be incurred in mak- ing the changes ordered,’ and it instructed the Secretary of the Treasury to pay the amount so found. It required the court to ascertain, ‘first, whether the bridge, accord- ing to the plans on which it has progressed at the passage of this act, has been con- structed so as to substantially comply with provisions of law relating thereto.’ The 265 BURDEN OF PROOF. court found that the bridge was in conformity to law, including, of course, the joint resolu- tion giving the assent of the Congress. ‘ Sec- ond, the liability, if any there be, of the United States to said company by reason of the changes by this act required.’” MILLEr, J., dissenting. Newport, etc., Bridge Co. wv. U. S., 105 U. S. 487. “Congress might, also, while declining to ascertain for itself whether the bridge, as authorized, was likely to prove a substantial and material obstruction to navigation, have made compensation for the change they or- dered to depend upon the existence or non- existence of that fact, and left it to the court to determine. This court refuses to inquire into this question, and notwith- standing the fact, which the court was expressly required to find, is found in favor of the appellant, it proceeds on what I think is a fallacious view of the statute, namely, that Congress intended to refer to the court the question of its con- stitutional power to change the character of the bridge, and it decides in favor of that power, thus disregarding the whole structure of the two acts on which the right to compensation is based. I think that Congress intended to waive that ques- tion, and in favor of justice and fair deal- ing to pay for the losses’incurred under the very act which gave the compensation, if it was found that the bridge, as far as it had progressed, was in conformity to law, and would not be a substantial and material obstruction to navigation if completed on that plan.” Murer, J., dissenting. New- port, etc., Bridge Co. v. U. S., 105 U. S. 488. “Tt follows, I think, from what has been said, that the position of the majority of the court, as to the paramount power of Congress over bridges crossing navigable streams, is not tenable. Congress cannot in- vade the rights of a state, nor can a state impede the exercise of the just powers of the federal government. The conclusion I draw is, that a bridge constructed by the authority of a state, if it does not inter- fere with the free navigation of the stream, is a lawful structure, and can neither be taken nor destroyed by Congress or by the states, except as other private property may be thus taken, that is, for public purposes upon making just compensation.” Frexo, J., dissenting. Newport, etc., Bridge Co. v. U. S. 105 U. S. 492. “T dissent from the judgment of the court in this case, and will briefly state my reasons. The central reason is, that the 261 bridge, as it stood, nearly completed when the Act of March 3, 1871, c. 121, directing it to be taken down or altered, was passed, was a lawful structure, and in the lawful possession of the appellants as their private property; and, being such, I think that Congress could not constitutionally require its demolition, or reconstruction, without providing for compensation to the owners.” BrabiEy, J., dissenting. Newport, etc, Bridge Co. v. U. S., 105 U. S. 506. “By virtue of its plenary power to regu- late commerce among the several states, as well as with foreign nations, Congress may undoubtedly require the removal of all nui- sances and unlawful obstructions in the nav- igable rivers of the United States, without giving compensation to any persons who may be incidentally affected. It also has the power to improve the navigation of such rivers; but in making or authorizing im- provements, other than the removal of un- lawful obstructions, it cannot take private property without complying with that clause of the Fifth Amendment to the Constitution which declares, ‘Nor shall private property be taken for public use without just com- pensation.’ This proposition would be con- ceded where the property taken for that purpose consists of lands, houses, buildings, or other structures standing on the natural banks of a river; but I think that it is equally true where erections are made on the margin of a river, or where a bridge is constructed across it, in accordance with the laws of the state and with the consent of Congress. Such structures are lawful and are private property, entitled to the consti- tutional protection.” Braptey, J., dissenting. Newport, etc., Bridge Co. v. U. S., 105 U. S. 507. BROKERS. See Factors AND BRroKeErs. BROUGHT. See AcTIons. BURDEN OF PROOF. See BrockavE; CoLLision; CoNTRIBUTORY NEGLIGENCE; NEGLIGENCE; NEGOTIABLE In- STRUMENTS; PATENTS. In Criminal Cases. “Strictly speaking, the burden of proof, as those words are understood in criminal law, is never upon the accused to establish his innocence or to disprove the facts neces- CAPTURE, RECAPTURE, CONFISCATION, AND PRIZE. sary to establish the crime for which he is indicted. It is on the prosecution from the beginning to the end of the trial and applies to every element necessary to constitute the crime.” Haran, J. Davis v. U. S., 160 U.S. 487. “Tn criminal cases the true rule is that the burden of proof never shifts; that in all cases, before a conviction can be had, the jury must be satisfied from the evidence, beyond a reasonable doubt, of the affirma- tive of the issue presented in the accusa- tion that the defendant is guilty in the manner and form as charged in the indict- ment.” CtiFForD, J. Lilienthal’s Tobacco v. U. S. 97 U. S. 266. BUSINESS. See Carry On; Doinc Business. _. CALL LOANS. See Loans, CANALS. As Navigable Waters. “The only distinction between canals and other navigable waters is that they are ren- dered navigable by artificial means, and sometimes, though by no means always, are wholly within the limits of a particular state.” Brown, J. The Robert W. Par- sons, 191 .U. S. 26. “Was there, then, such a canal construct- ed over and upon the lands in question as the internal improvement act, under which the appropriation was made, contem- plated? A canal in the sense which that term implies in this connection means a navigable public highway for the transpor- tation of persons and property. It must not only be in a condition to hold water that can be used for navigation, but it must have in it, as part of the structure itself, the water to be navigated ready for use.” Warte, C. J. Kennedy v. Indianapolis, 103 U. S. 604, Jurisdiction of State or General Govern- ment. “The [Erie] canal was built by the state, is owned by the state, and it cannot for one moment be assumed that the national gov- ernment can interfere to restrict the state as to the size of the canal, the depth of water, the construction of bridges, or other things in respect’ to which it has full con- trol over the natural navigable waters.” Brewer, J., dissenting. The Robert W. Par- sons, 191 U. S. 54. See also ADMIRALTY, CANCELLATION. See Rescission, CANCELLATION, AND REF- ORMATION. CAPITAL. “When used with respect to the property of a corporation or association the term [capital] has a settled meaning; it applies only to the property or means contributed by the stockholders as the fund or basis for the business or enterprise for which the cor- poration or association was formed. As to them the term does not embrace temporary loans, though the moneys borrowed be di- rectly appropriated in their business or un- dertakings. And when used with respect to the property of individuals in any particular business, the term has substantially the same import.” Fuexp, J. Bailey v. Clark, 21 Wall. 286. CAPTURE, RECAPTURE, CONFISCATION, AND PRIZE. I, In GENERAL. II. ConriscaTtion AND CAPTURE ON LaNnp. III. Capture anp REcAPTuRE AT SEA. IV. Prize. V. Priz—E Courts AND JURISDICTION oF Prize Causes. VI. PRocEEDINGS IN PrizE CAUSES. CROSS-REFERENCES. For other matters related to this ttle, see BLOCKADE; Conquests; INTERNATIONAL Law; Marine Insurance; Martian Law; Mruirary Law; Privateers; SHIPS AND SHrppinc; War. I. IN GENERAL. Capture and Prize Distinguished. ““Capture’ and ‘prize’ are not converti- ble terms, and . . for the subject of capture to be made prize for the benefit of the captors the taking must meet the conditions imposed by the statutes.” Futter, C. J. The Manila Prize Cases, 188 U. S. 259. 267 CAPTURE, RECAPTURE, CONFISCATION, AND PRIZE. Capture and Search Distinguished. “The right of capture applies only to enemy ships or goods; the right of search to enemy goods on board a neutral carrier.” Jounson, J. The Atlanta, 3 Wheat. 424. Property Subject to Capture or Confisca- tion. “All the property of the people of the two countries [at war with each other] on land or sea are subject to capture and con- fiscation by the adverse party as enemies’ property, with certain qualifications as it re- spects property on land, all treaties between the belligerent parties are annulled, the ports of the respective countries may be blockaded, and letters of marque and reprisal granted as rights of war, and the law of prizes as defined by the law of na- tions comes into full and complete opera- tion, resulting from maritime captures, jure belli.” Netson, J., dissenting. Prize Cases, 2 Black 687. Attitude of United States Government as to Capture) of Private Property. “Tt is, as we think, historically accurate to say ‘that this government has always been, in its views, among the most advanced of the governments of the world in favor of mitigating, as to all non-combatants, the hardships and horrors of war. To accom- plish that object it has always advocated those rules which would in most cases do away with the right to capture the private Property of an enemy on the high seas. The refusal of this government to agree to the Declaration of Paris was found- ed in part upon the refusal of the other governments to agree to the proposition ex- empting private property, not contraband, from capture upon the sea.” PrckHaAm, J. The Buena Ventura, 175 U. S. 388. “Tt being plain that merchant vessels of the enemy carrying on innocent commercial enterprises at the time or just prior to the time when hostilities between the two countries broke out, would, in accordance with the later practice of civilized nations, be the subject of liberal treatrnent by the executive, it is necessary when his procla- mation has been issued, which lays down rules for treatment of merchant vessels, to put upon the words used therein the most liberal and extensive interpretation of which they are capable; and where there are two or more interpretations which possibly might be put upon the language, the one that will be most favorable to the belligerent party, in whose favor the proclamation is: issued, ought to be adopted.” PrEckHam, J. The Buena Ventura, 175 U. S. 388. II. CONFISCATION AND CAPTURE ON LAND. Right Given by State of War. “That war gives to the sovereign full right to take the persons and confiscate the property of the enemy wherever found, is conceded.” Marsuatt, C. J. Brown v. U.S, 8 Cranch 122. “The right to confiscate the property of enemies, during war, is derived from a state of war, and is called the rights of war. This right originates from self-preservation, and is adopted as one of the means to weak- en an enemy, and to strengthen ourselves. Justice, also is another pillar on which it may rest; to wit, a right to reimburse the expense of an unjust war.” CHAsgE, J. Ware v. Hylton, 3 Dall. 227. — Civil War. “Every reason for the allowance of a right to confiscate in case of foreign wars exists in full force when the war is do- mestic or civil.” Strone, J. Miller v. U. S., 11 Wall. 307. — Declaration of War Does Not Ope- rate as Confiscation per Se. “The proposition that a declaration of war does not, in itself, enact a confiscation of the property of the enemy within the terri- tory of the belligerent, is believed to be entirely free from doubt.” MarsHatt, C. J. Brown v. U. S., 8 Cranch 127. “War, in our jurisprudence, is not an absolute confiscation of the property of the enemy, but simply confers the right of con- fiscation.” CtuiFForD, J., dissenting. Bur- bank v. Conrad, 96 U. S. 309. Purpose of Confiscation. “Property captured during the [civil] war was not taken by way of punishment for the reason of the owner, any more than the life of a soldier slain in battle was taken’ to punish him. He was killed be- cause engaged in war, and posed to its dangers. So property was captured because it had become involved in the war, and its removal from the enemy was necessary in order to lessen their warlike power. It was not taken because of its ownership, but be- cause of its character.’ Wartz, C. J. Young v. U. S.. 97 UL S. 67. “The whole doctrine of confiscation is built upon the foundation that it is an 268 . mediately confiscated.” CAPTURE, RECAPTURE, CONFISCATION, AND PRIZE. instrument of coercion, which, by depriving an enemy of property within reach of his power, whether within his territory or with- out it, impairs his ability to resist the con- fiscating government, while at the same time it furnishes to that government means for carrying on the war. Hence any property which the enemy can use, either by actual appropriation or by the exer- cise of control over its owner, or which the adherents of the enemy have the power of devoting to the enemy’s use, is a proper subject of confiscation.” Strone, J. Miller v. U. S., 11 Wall. 306. “Tts purpose [that of the Confiscation Act of July 17, 1862], as well as its justification, was to strengthen the government, and to enfeeble the public enemy by taking from the ‘adherents of that enemy the power to use their property in aid of the hostile cause.” Stronc, J. Wallach v. Van Ris- wick, 92 U. S. 207. —— Not Punishment for Treason or Other Crime. “Proceedings [in rem] under the confis- cation act in question [July 17, 1862], are justified as an exercise of belligerent rights against a public enemy, and are not, in their nature, a punishment for treason. CuirForD, J. Semmes v. U. S., 91 U. S. 27. “All private property used, or intended to be used, in aid of an insurrection, with the knowledge or consent of the owner, is made the lawful subject of capture and judi- cial ‘condemnation; and this, not to punish the owner for any crime, but to weaken the insurrection.” Wate, C. J. Kirk v. Lynd, 106 U. S. 316. “Property captured in war is not taken to punish its owner any more than the life of a soldier slain in battle is taken to pun- ish him. The property as well as the life is taken only as a means of lessening the warlike strength of the enemy.” Waits, C. J. Kirk v. Lynd, 106 U. S. 317, Confiscation of the Property of Enemies Found in Domestic Territory. “The modern rule then would seem to be, that tangible property belonging to an en- emy and found in the country at the com- mencement of war, ought not to be im- MarsHatt, C. J. Brown v. U. S., 8 Cranch 125. “On the Declaration of Independence, it was in the option of any subject of Great Britain, to join their brethren in America, or to remain subjects of Great Britain. Those who joined us were entitled to all the benefits of our freedom and independ- ence; but those who elected to continue subjects of Great Britain, exposed them- selves to any loss, that’ might arise there- from. By their adhering to the enemies of the United States, they voluntarily be- came parties to the injustice and oppres- sion of the British government; and they also contributed to carry on the war, and to enslave their former fellow citizens. As members of the British government, from their own choice, they became personally answerable for the conduct of that govern- ment, of which they remained a part; and their property, wherever found (on land or water) became liable to confiscation. CuaseE, J. Ware v. Hylton, 3 Dall. 225. “Tt may be admitted that the right of a belligerent to confiscate the property of en- emies found within its territory cannot be impaired by a sale of the property during the war, but it is not perceived that on any other ground the sale could be invali- dated. A conveyance in such case would pass the title subject to be defeated, if the government should afterwards proceed for its condemnation.” Fretp, J. Conrad v. Wa- ples, 96 U. S. 287. Property Subject to Capture or Confisca- tion — Property Used or Intended for Hostile Purposes. “Like property of other like kind in ordinary international wars, [that which be- longed to the hostile organizations or was employed in actual hostilities on land] be- came, wherever taken, ipso facto, the prop- erty of the United States.” CuHasr, C. J. U. S. v. Klein, 13 Wall. 136. “ All public property which is movable in its nature, possessed by one belligerent, and employed on land in actual hostilities, passes by capture.” Furep, J., dissenting. Sprott v. U. S., 20 Wall. 468, « “All property within enemy territory is in law enemy property, just as all persons in the same territory are enemies. A neu- tral, owning property within the enemy’s lines, holds it as enemy property, subject to the laws of war; and, if it is hostile property, subject to capture.” Warts, C. J. Young v. U. S, 97 U. S. 60. “In war the capture of property in the hands of the enemy, used, or intended to be used, for hostile purposes, is allowed by CAPTURE, RECAPTURE, CONFISCATION, AND PRIZE. all civilized nations, and this whether the ownership be public or private.” WAITE, C. J. Kirk v. Lynd, 106 U. S. 317. — Arms and Munitions of War. “Tt has never been doubted that arms and munitions of war, however owned, may be seized by the conquering belligerent up- on conquered territory. The reason is that, if left, they may, upon a reverse of the fortunes of war, help the strength of the adversary.” Warre, C. J. Young v. U. S, 97 U. S. 60. — Cotton. “That cotton, though private property, was a legitimate subject of capture [during the war of the rebellion], is no longer an open question in this court.” Warts, C. J. Lamar v. Browne, 92 U. S. 194. “During the [civil] war, cotton, found within the Confederate territory, though the private property of non-combatants, was a legitimate subject of capture by the national forces. We have many times so decided, and always without dissent.” Waste, C. J. Young v. U. S., 97 U. S. 58. —— All Movable Property of Enemy. “Tt appears to me, that every nation at war with another is justifiable, by the general and strict law of nations, to seize and con- fiscate all movable property of its enemy, (of any kind or nature whatsoever) wher- ever found, whether within its territory or not.” CuHAsE, J. Ware v. Hylton, 3 Dall. 226. — Private Property Exempt from Con- fiscation. “Private property on land, except such as becomes booty when taken from enemies in the field or besieged towns, or is lev.-d as a military contribution upon the inhabit- ants of the hostile territory, is exempt from confiscation by the general law of na- tions.” Fretp, J., dissenting. Sprott w. U. S., 20 Wall. 468. 2 Confiscation of Debts to Alien Enemy — Allowed by Strict Law of Nations. “By the rigor of the law of nations, private debts to enemies might be confisca- ted, as well as any other of their property; but that a general custom had prevailed in Europe to the contrary; founded on com- mercial reasons.” CHasg, J. Ware v. Hyl- ton, 3 Dall. 227. “That the debts due from the citizens of a belligerent state to the citizens of the state with whom the former is at war may be confiscated is undoubted international law.” Stronc, J. Planters’ Bank v. Union Bank, 16 Wall. 504. — Allowed at Common Law. “The principles of the common law of England, as appears from a case I shewed to the bar, do undoubtedly recognize the forfeiture of a chose in action due to an enemy. At the utmost it only requires that ‘an inquisition should be completed during the war, so as, by ascertaining the fact, fully to establish the title of the crown.” IREDELL, J. Ware v. Hylton, 3 Dall. 264. —— Considered Disreputable by Enlight- ened Nations. “Confiscation of debts is considered a disreputable thing among civilized nations of the present day; and indeed nothing is more strongly evincive of this truth, than that it has gone into general desuetude, and whenever put into practice, provision is made by the treaty, which terminates the war, for the mutual and complete restoration of contracts and payment of debts.” Part- ERSON, J., concurring. Ware v. Hylton, 3 Dall. 255. “In former times the right to confiscate debts was admitted as an acknowledged doc- trine of the law of nations, and in strictness it may still be said to exist, but it may well be considered as a naked and impolitic right, condemned by the enlightened caon- science and judgment of modern times.” CuirrorD, J. Hanger v. Abbott, 6 Wall. 536, “When the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement. By every nation, whatever is its form of government, the confiscation of lebts has long been considered disrepu- tabl: and, we know, that not a single con- fiscation of that kind stained the code of any of the European powers who were en- gaged in the war, which our revolution pro- duced. Nor did any authority for the con- fiscation of debts proceed from Congress (that body which clearly possessed the right of confiscation, as an incident of the powers of war and peace) and, therefore, in no instance can the act of confiscation be con- sideerd as an act of the nation.” Wiuzson, J., concurring. Ware v. Hylton, 3 Dall. 281. “National differences should not affect private bargains. The confidence, both of an individual and national nature, on which the 270 CAPTURE, RECAPTURE, CONFISCATION, AND PRIZE. contracts were founded, ought to be pre- served inviolate.” PatERsoNn, J., concurring. Ware v. Hylton, 3 Dall. 255. — Considered Unjust and Impolitic. “ The truth is that the confiscation of debts is at once unjust and impolitic; it destroys confidence, violates good faith, and injures the interests of commerce; it is also unpro- ductive, and in most cases impracticable.” PATERSON, J., concurring. Ware v. Hylton, 3 Dall. 254. ° “Trading, which supposes the making of contracts, and which also involves the neces- sity of intercourse and correspondence, is necessarily contradictory to a state of war, but there is no exigency in war which re- quires that belligerents should confiscate or annul the debts due by the citizens of the other contending party.” C.rrrorD, J. Han- ger v. Abbott, 6 Wall. 536. — Confiscation No Longer Practiced. “Individual debts, as a general remark, are no longer the subject of confiscation, and the rule is universally admitted that if not confiscated during the war, the return of , peace brings with it both ‘the right and the remedy.’” CuirForp, J. Hanger v. Ab- bott, 6 Wall. 539. “Old decisions, made when the rule of law was that war annulled all debts be- tween the subjects of the belligerents, are entitled to but little weight.” C.rFForp, J. Hanger v. Abbott, 6 Wall. 540. — Confiscation Bars Recovery. “T think a confiscation, either whole or partial, or any less exercise of that power de facto, though not de jure, would in this state have been perfectly binding, and in legal contemplation as effectual to bar a recovery, as if the law of nations had been strictly and unquestionably pursued.” Ire- DELL, J. Ware v. Hylton, 3 Dall. 269. “T believe there can be no doubt, but that according to the law of nations, even on the most modern notions of it, a seques- tration merely for the purpose of recovering the debts, and preventing the remittance of them to the enemy, and thereby strengthen- ing him, and weaking the government, would be allowable, and if so, surely it follows, as a matter of course, (perhaps it would fol- low without a solemn declaration) that when, in virtue of any such act, the money was paid to the government, the debtor was wholly discharged, and the government, if it thought proper, not to proceed to confisca- tion afterwards, became itself liable.” IreE- DELL, J. Ware v. Hylton, 3 Dall. 269. -What Amounts to Capture. “ Property is captured on land when seized or taken from hostile possession by the mili- tary forces under orders from a command- ing officer.” Waite, C. J. Lamar uw. Browne, 92 U. S. 193. “Property taken on a field of battle is not usually collected until after resistance has ceased; but it is none che less on that account captured property. The larger the field, the longer the time necessary to make the collection. By the battle, the enemy has been compelled to let go his possession; and the conqueror may proceed with the collection of all hostile property thus brought within his reach, so long as he holds the field.” Warts, C. J. Lamar v. Browne, 92 U. S. 193. Necessity of Condemnation of Captured Property. “The rightful capture of movable prop- erty on land transfers the title to the gov- ernment of the captor as soon as the capture is complete, and it is complete when reduced to ‘firm possession.’ There is no necessity for judicial condemnation. In this respect, captures on land differ from those at sea.” Waite, C. J. Young wv. U. S., 97 U. S. 60. “The title to movable property in hostile use, captured on land, passes to the captor as soon as the capture is complete; that is to say, as soon as the property is re- duced to firm possession.” Warre, C. J. Kirk v. Lynd, 106 U. S. 317%. “Tn regulating the capture of private prop- erty devoted to the use of an insurrection against the authority of the United States, Congress has provided for a judicial in- quiry into the facts and a sentence of con- demnation before the title can pass out of the owner.” Waite, C. J. Kirk v. Lynd, 106 U. S. 317. Captured and Abandoned Property Act. “TThe intention of Congress] was that all property captured or found abandoned during the war, after the date of the law, should be turned into money under the direction of the Treasury Department; and that the proceeds should be placed in the treasury, subject to the right of any person prefer- ring a claim against any portion of the property, to have the net proceeds restored to him on proof of his ownership, of his right to the proceeds, and that he never 271 CAPTURE, RECAPTURE, CONFISCATION, AND PRIZE. ’ gave any aid or comfort to the rebellion.’ Cuasz, C. J. U.S. v. Padelford, 9 Wall. 538. “While all residents within the Confed- erate territory were in law enemies, some were in fact friends. In the indiscriminate seizure of private property, it seemed to Con- gress that friends might sometimes suffer. Therefore, to save them, it was provided that property, when captured, should be sold, and the proceeds paid into the treas- ury of the United States. That being done, any person claiming to have been the owner might, at any time within two years after the close of the rebellion, bring suit in the Court of Claims for the proceeds.” Watrte, C. J. Young v. U. S., 97 U.S. 61. “Captured property was defined by a cir- cular of the Treasury Department, issued on the 3d of July, 1863, to be ‘that which has been seized or taken from hostile pos- session by the military or naval forces of the United States.” Frerp, J., dissenting. Lamar v. Browne, 92 U. S. 201. — Appointment of Agents to Receive and Collect Property. “Discretionary authority was vested in the Secretary of the Treasury to appoint spe- cial agents to receive and collect abandoned or captured property in any state or terri- tory designated as in insurrection by the proclamation of the President issued for that purpose, subject to the condition that the power ‘shall not include property which has been used or intended to be used’ to aid the rebellion.” CiirForp, J. Whiteside v. U. S., 93 U. S. 248. -—— Persons Entitled to Recover Proceeds of Sale. “Plainly it was the intention of Congress, manifested in the statute [12 U. S. Stat. at L. 820], that no person should be per- mitted to recover out of the treasury any of the proceeds of sale of the property cap- tured or abandoned, except those who had given no aid or comfort to the rebellion.” Strone, J. U.S. v. Villalonga, 23 Wall. 44. “The ‘owner,’ spoken of in the third section of the Captured and Abandoned Property Act, ‘having a right to the pro- ceeds thereof,’ is he who has the legal in- terest in those proceeds.” Srrone, J. U. S. v. Villalonga, 23 Wall. 44. III. CAPTURE AND RECAPTURE AT SEA. Capture Defined. “A capture, as defined by some of the most eminent writers on insurance within the policy, is a taking by the enemy of vessel or cargo as prize, in time of open war, or, by way of reprisal, with intent to de- prive the owner of it.” Ne son, J. Mau- ran v. Alliance Ins. Co., 6 Wall. 10. Enemy Property Defined. ““Enemy property’ is a technical phrase peculiar to prize courts, and depends upon Principles of public policy as distinguished from the common law.” Futier, C. J. The Benito Estenger, 176 U. S. 571. “By the general law of prize, property engaged in an illegal intercourse with the enemy, is deemed enemy property. Story, J. The Sally, 8 Cranch 384. Recapture Defined. “Recapture by force of the term would seem most properly applied to cases where an inchoate title only was vested by cap- ture. Can it be said, in strict propriety of language, that property captured from an enemy, which at the time is the lawful prop- erty of an enemy purchaser, is recaptured from his hands? The recapture is always supposed to be from those who are the orig- inal captors, not from the persons who have, by operation of law, succeeded to the title acquired under a decree of condemnation.” Story, J. The Star, 3 Wheat. 90. Law of Nations Authorizes Capture Dur- ing State of War. “The right of one belligerent not only to coerce the other by direct force, but also to cripple his resources by the seizure or destruction of his property, is a necessary result of a state of war.’ GriErR, J. Prize Cases, 2 Black 671. “War necessarily interferes with the pur- suits of commerce and navigation, as the belligerent parties have a right, under the law of nations, to make prize of the ships, goods, and ‘effects of each other upon the high seas.” CLiFForD, J. The William Bag- aley, 5 Wall. 405. “Tf the object of thé seizure is to pro- mote the reduction of an enemy, it is an exercise of the rights of war.” JoHNson, J., dissenting. Rose v. Himely, 4 Cranch 290. — Captor Entitled to Prize Won by His Valor. “He who puts his property on- the issue of battle, must stand or fall by the event of the contest, The law of neutrality is si- 272 CAPTURE, RECAPTURE, CONFISCATION, AND PRIZE. lent when arms are appealed to in order to decide rights; and the captor is entitled to the whole prize won by his gallantry and valor.” Story, J., dissenting. The Nereide, 9 Cranch 453. Capture and Recapture Are Hostile Acts. “This suspension of the law of nations, this right of ‘capture and recapture, can only be authorized by an act of the govern- ment, which is, in itself, an act of hostility.” CuasE, J., concurring. Bas v. Tingy, 4 Dall. 44. Whose Property May Be Captured. “Property of the enemy, if at sea, may be captured as prize of war, but the prop- erty of a friend cannot be lawfully captured, provided he observes his neutrality.” Cx1r- ForD, J. The William Bagaley, 5 Wall. 405. —— Liability to Capture Not Dependent on Personal Allegiance of Owner. “Whether property be liable to capture as ‘enemies’ property’ does not in any man- ner depend on the persona! allegiance of the owner. . . It is of no consequence whether it belongs to an ally or a citizen.” Grier, J. Prize Cases, 2 Black, 674. ‘ —— Rule for Determining Ownership of Property Captured. “Tn general, the rules of the prize court, as to the vesting of property, are the same with those of the common law, by which the thing sold, after the completion of the contract, is properly at the risk of the pur- chaser.” ‘Story, J. The St. Joze Indiano, 1 Wheat. 212. —— Ship and Owner Bound by Flag. “When a ship is captured as prize of war she is bound by the flag and pass under which she sailed. Owners are also bound by those insignia of national ‘ character. Established rule is that when the owners agree to take the flag and pass of another country they are not permitted, as matter of convenience, in case of capture, to change the position they have voluntarily chosen, but others are allowed to allege and prove the real character of the vessel.” CuiFr- ForD, J. The William Bagaley, 5 Wall. 410. What Property Subject to Capture —In General. “Money and wealth, the products of agri- culture and commerce, are said to be the sinews of war, and as necessary in its con- duct as numbers and physical force. Hence it is, that the laws of war recognize the right of a belligerent to cut. these sinews 1 Os. Dic.—18 of the power of the enemy, by capturing his property on the high seas.” Grier, J. Prize Cases, 2 Black 671. “The produce of the soil of the hostile territory, as well as other property engaged in the commerce of the hostile power, as the source of its wealth and strength, are al- ways regarded as legitimate prize, without regard to the domicil of the owner, and much more so if he reside and trade within their territory.” Grier, J. Prize Cases, 2 Black 674. —— Vessels Employed for Discovery or for Scientific Purposes. “By the practice of all civilized nations, vessels employed only for the purposes of discovery or science are considered as exempt from the contingencies of war, and_ there- fore not subject to capture. It has been usual for the government sending out such an expedition to give notice to other powers; but it is not essential.” Gray, J. The Pa- quette Habana, 175 U. S. 709. —— Coast Fishing Vessels. “The exemption [of cdéast fishing vessels from capture as prizes of war], of course, does not apply to coast fishermen or their vessels, if employed for a warlike purpose, or in such a way as to give aid or informa- tion to the enemy; nor when military or naval operations create a necessity to which all private interests must give way. Nor: has the exemption been extended to ships or vessels employed on the high sea in tak- ing whales or seals, or cod or other fish which are not brought fresh to market, but are salted or otherwise cured and made a regular article of commerce.” Gray, J. The Paquette Habana, 175 U. S. 708. —— Enemy Goods in Neutral Vessels. “The neutral flag constitutes no protec- tion to enemy property.” MarsHALL, C. J. The Nereide, 9 Cranch 419. “The rule that the goods of an enemy found in the vessel of a friend are prize of war, and that the goods of a friend found in the vessel of an enemy are to be restored, is believed to be a part of the original law of nations, as generally, perhaps universally, acknowledged. Certainly it has been fully and unequivocally recognized by the United States. This rule is founded on the sim- ple and intelligible principle that war gives a full right to capture the goods of an enemy, but gives no right to capture the goods of a friend.” MarsHatt, C. J. The Nereide, 9 Cranch 418. 273 | CAPTURE, RECAPTURE, CONFISCATION, AND PRIZE. “Constant use and practice of belligerent nations from the earliest times subjected enemy’s goods in neutral vessels to capture and condemnation as prize of war, but the maxim is now universally acknowledged that ‘free ships make free goods’ which is another victory of commerce over the feelings of avarice and revenge.” CLiF- ForD, J. Hanger v. Abbott, 6 Wall. 539. ~—— Property Shipped Prior to Declara- tion of War. “Tf a cargo be innocently put on board in an enemy country, if at that time it be lawful to import it into the United States, the importation cannot be rendered unlawful by a detention occasioned, in the course of the voyage, either by the perils of the sea, or the act of the enemy, unless this effect be produced by some positive act of the legislature.” MarsHatt, C. J. The Mary Stafford, 9 Cranch 148, — Vessel which has Broken Continuity of Voyage. “The decisions of this court . . . I think, refute the cohtention that the ultimate termination of an outward voyage may be disregarded, in order to create a new voy- age because of the touching of a vessel at an intermediate port. The rule, consecra- ted by the previous decisions of this court, according to my understanding, is that the real intention of a vessel as to her outward bound port is the determining factor in concluding whether in consequence of her voyage she is or is not subject to capture as lawful prize.” Wuute, J., dissenting. The Pedro, 175 U. S. 373. “Where there is a question as to the condemnation of a vessel as lawful prize, the fact that, between her point of departure and her point of ultimate destination she has touched or unladen her cargo or a portion thereof at an intermediary port, will not be considered as breaking the continuity of the voyage or as destroying the ulterior des- tination, and therefore if that destination be unlawful the voyage will be continuous from the point of departure to such ulterior destination, and the vessel will consequently be condemned. These rules are subject to the following exceptions: Where it becomes necessary to disregard the foregoing princi- ples as to ulterior destination they will be given no weight, and the voyage will be treated as having terminated at an inter- mediary point, and consequently the vessel will be condemned because the voyage was not continuous. The result being in any event, to subject the vessel to condemna- tion.” Wuurte, J., dissenting. The Pedro, 175 U. S. 375. Validity of Capture in Neutral Waters. “A capture in neutral waters is valid as between belligerents. Neither a belligerent owner nor an individual enemy owner can be- heard to complain. But the neutral sov- ereign whose territory has been violated may interpose and demand reparation, and is entitled to have the captured restored.” Swayne, J. The “Florida,” 101 U. S. 42. Neutral Nation Not Concerned in Capture of Subject’s Vessel. “There appears to be a tacit convention between the neutral and belligerent; that, on the one hand, the neutral state shall not be implicated in the misconduct of the in- dividual; and on the other, that the offender shall be subjected to the exercise of bellig- erent right. In this view the situation of a captured ship of a citizen is precisely the same as that of any other captured neutral; or, rather, the obligation to abstain from interference between the captor and captured becomes greater, inasmuch as it is purchased by a concession from the belligerent, of no little importance to the peace of the world, and particularly of the nation of the offend- ing individual. The belligerent contents himself with cutting up the unneutral com- merce, and makes no complaint to the neu- tral power, not even where the individual rescues his vessel, and escapes into his own port after capture.” JoHNnson, J. L’Invin- cible, 1 Wheat. (255, — Neutral Nation Bound to Withhold Interference. “Neutrals are bound to withhold their interference between the captor and the cap- tured; to consider the fact of possession as conclusive evidence of the right. . It becomes unlawful to devest a captor of possession even of the ship of a citizen, when seized under a charge of having tres- passed upon belligerent rights.” JoHn- son, J. L’Invincible, 1 Wheat. 255. —— Offender Forfeits Claim to Protection of His Sovereign. “The seizure of a ship upon the high- seas, after she has committed an act of for- feiture within a territory, is not inconsist- ent with the sovereign rights of the nation to which she belongs, because it is the law of reason, and the general understand- ing of nations, that the offending individual forfeits his claim to protection, and every nation is the legal avenger of its own 274 CAPTURE, RECAPTURE, CONFISCATION, AND PRIZE. wrongs.” JoHNSON, J., dissenting. Rose v. Himely, 4 Cranch 287. Probable Cause Justifies Capture. “A belligerent cruiser who with probable cause seizes a neutral and takes her into port for adjudication, and proceeds regular- ly, is not a wrongdoer. The act is not tor- tious.” MarsHaLi, C. J. Jennings v. Car- son, 4 Cranch 28. “In time of war, the party who makes a seizure does not always act at his peril, and is not always liable to damages and costs if he fails to establish the forfeiture of the vessel.” Davis, J. The Thompson, 3 Wall. 162. “In respect to the former [cases of cap- ture jure belli] no principle is better settled in the law of prize than the rule that prob- able cause will not merely excuse, but even, in some cases, justify a capture. If there be probable cause, the captors are entitled, as of right, to an exemption from damages; and if the case be of strong and vehement suspicion, or requires further proof to en- title the claimant to restitution, the law of prize proceeds, yet farther, and gives the captors their costs and expenses in proceeding to adjudication.” Story, J. The Apollon, 9 Wheat. 372. “Rightful capture according to the law of nations might be construed to mean capture for a cause which would justify condemna- tion according to the law of nations as con- strued in the United States. But capture will always be made on suspicion of what the belligerent construes to be the cause of forfeituré, and capture authorizes aban- donment.” MarsHatt, C. J. Livingston v. Maryland Ins. Co., 7 Cranch 540. “Concealment and even spoliation of pa- pers, do not ordinarily induce a condemna- tion of the [a ship’s] property; but they always afford cause of suspicion, and justify capture and detention. In many cases the penal effects extend in reality, though in- directly, to confiscation.” Story, J., dissent- ing. Livingston wv. Maryland Ins. Co. 7 Cranch 544. _Capture by Vessel Equipped in Neutral Territory. “A neutral nation may, if so disposed, without a breach of her neutral character, grant permission to both belligerents to equip their vessels of war within her territory. But without such permission the subjects of such belligerent powers have no right to equip vessels of war, or to increase or aug- ment their force, either with arms or with men, within the territory of such neutral nation. Such unauthorized acts violate her sovereignty and her rights as a neutral. All captures made by means of such equip- ments are illegal in relation to such nation, and it is competent to her courts to punish the offenders, and, in case the prizes taken by her are brought infra praesidia, to order them to be restored.” WaAsHINGTON, J. The Brig Alberta, 9 Cranch 365. Title to Captured Property — Capture Ef- fects Divestiture of Title. “As between the belligerents, the cap- ture undoubtedly produces a complete de- vesture of prosperity. Nothing remains to the original proprietor but a mere scintilla juris, the spes recuperandi.” Jounson, J. The Adventure, 8 Cranch 226. “Tt is admitted, on all sides, by public jurists, that in cases of capture a firm pos- session changes the title to the property.” Story, J. The Star, 3 Wheat. 86. — Capture Overrides Prior Mortgage of Vessel. “Tt would require pretty strong authority to induce us to import into the prize courts the strict common-law doctrine, which is sometimes applied to the relation of a mort- gagee to the property mortgaged. It is cer- tainly much more in accordance with the liberal principles which govern admiralty courts to treat mortgages as the equity courts treat them, as mere securities for the debt for which they are given, and there- fore no more than a lien on the property conveyed.” Mutter, J. The Hampton, 5 Wall. 374, —— Title Vests Primarily in the Govern- ment. “Captures in war inure to the government and can become private property only by its grant.” Futter, C. J. The Manila Prize Cases, 188 U. S. 258. For substantially the same language, see Brown v. U. S.,-8 Cranch 134, per Story, J., dissenting. “Before the revolution, all captures from the enemy accrued to the government, to be distributed according to law; and the revo- lution could not strip the government of this exclusive prerogative, and vest it in in- dividuals.” MarsHatt, C. J. The Dos Her- manos, 10 Wheat. 310. “Captures made by government vessels be- long to the government, and no title exists 275 CAPTURE, RECAPTURE, CONFISCATION, AND PRIZE. in the captors, except to their distributive shares of the proceeds after condemnation.” NEtson, J., dissenting. The Siren, 7 Wall. 163, “The title to captured property always vests primarily in the government of the captors. The rights of individuals, where such rights exist, are the results of local law or regulations.” Swayne, J. The “Florida,” 101 U. S. 42. — Individual Acquires Inchoate Statu- tory Right. “By capture the individual acquires an inchoate statutory right, an interest which can only be defeated by the supreme legisla- tive power of the Union. Condemnation does nothing more than ascertain that each individual case is within the prize act, and thus throws the individual upon his right acquired by belligerent capture. Should the prize act, in the interim, be repealed, or its operation be suspended by the provisions of a treaty, there no longer exists a law to em- power the courts to adjudge the prize to the individual captor.’ Jounson, J. The Mary and Susan, 1 Wheat. 58. — Necessity of Condemnation to Vest Title to Prize in Captors. “Until condemnation captors acquire not absolute right of property in a prize, though then the right attaches as of the time of the capture, and it is for the government to determine when the public interests require a different destination.” Futter, C. J. The Manila Prize Cases, 188 U. S. 278. “The right of captors to prizes is but an inchoate right, and, until a condemnation, no absolute title attaches. But when con- demnation has passed upon the property, it relates back to the capture, and although the parties have died in the intermediate time, the title vests in proprio vigore in their rep- resentatives.” -Story, J. Jones v. Shore, 1 Wheat. 473. “As a general rule, it is the duty of the captor to bring it [the prize] within the jurisdiction of the prize court of the nation to which he belongs, and to institute pro- ceedings to have it condemned.” Taney, C. J. Jecker v. Montgomery, 13 How. 516. “Tt is the practice with civilized nations, when a vessel is captured at sea as a prize of war, to bring her into some convenient port of the government of the captor for adjudication. The title is not transferred by the mere fact of capture, but it is the duty of the captor to send his prize home, in order that a judicial may be instituted to determine whether the capture was law- ful, and if so, to settle all intervening claims of property. Until there is a sentence of condemnation or restitution, the capture is held by the government in trust for those who, by the decree of the court, may have the ultimate right to it.’ Davis, J. The Nassau, 4 Wall. 640. “Property captured at sea can never be converted by the captor until it has been brought to legal adjudication; and it is his duty, with all practical dispatch, to bring: his prize into some convenient court for that purpose.” Warts, C. J. Lamar v. Browne, 92 U. S. 195. —— Circumstances Authorizing Sale Be- fore Condemnation. “Where the commander of a national ship cannot, without weakening inconveniently the force under his command, spare a sufficient prize crew to man the captured vessel; or where the orders of his government prohibit him from doing so, he may lawfully sell or otherwise dispose of the captured property in a foreign country; and may afterwards proceed to adjudication in a court of the United States.” Taney, C. J. Jecker wu Montgomery, 13 How. 516. Title to Recaptured Property. “Property recaptured from an enemy after condemnation would by the law of nations be lawful prize of war, in whomsoever the antecedent title might have vested.” Srory, J. The Star, 3 Wheat. 86. “The lawful owners of recaptured prop- erty, which has been, already, lawfully con- demned, is not the original proprietor, but the person who has succeeded to that title under the decree of condemnation.” Story, J. The Star, 3 Wheat. 89. Right to Salvage on Recapture. “On a recapture made by a neu- tral power, no claim for salvage can arise, because the act of retaking is a hostile act, not justified by the situation of the nation to which the vessel making the recapture belongs, in relation to that from the posses- sion of which such recaptured vessel was taken. The degree of service rendered the rescued vessel is precisely the same as if it had been rendered by a belligerent; yet the rights accruing to the recaptor- are not the same, because no right can accrue from an act in itself unlawful.” MarsHALt, C. J. Talbot v. Seeman, 1 Cranch 28, 276 CAPTURE, RECAPTURE, CONFISCATION, AND PRIZE. “Tf the recapture of vessels of one de- scription, not expressly authorized by the very terms of the Act of Congress, be yet a rightful act, recognized by Congress as the foundation for a claim to salvage, which claim Congress proceeds to regulate, then it would seem that other recaptures from the same enemy are equally rightful; and where the claim they afford for salvage has not been regulated by Congress, such claim must be determined by the principles of general law.” MarsHatt, C. J. Talbot v. Seeman, 1 Cranch 33. “The recapture having been made law- fully, then the right to salvage, on general principles, depends on the service rendered. We cannot presume this service to have been unacceptable to the Hamburger, because it had bettered his condition; but a recapture must always be made without consulting the recaptured. The act is one of the incidents of war, and is in itself only offensive as against the enemy. The subsequent fate of the recaptured depends on the service he has received, and on other circumstances.” MarsHaLt, C. J. Talbot v. Seeman, 1 Cranch 41. Remedies for Wrongful Capture — In Gen- eral. “The courts of the captor are still open for redress. The injured neutral, it is to be presumed, will there receive indemnity for a wanton or illicit capture; and if justice be refused him, his own nation is bound to vin- dicate, or indemnify him.” JoHnson, J. L’Invintible, 1 Wheat. 256. — Forfeiture of Prize. “Tf captors are guilty of gross miscon- duct, or laches, in violation of their duty, courts of prize will visit upon them the penalty of the forfeiture of the rights of prize, especially where the government chooses to interpose a claim to assert such forfeiture.” Story, J. The Anne, 3 Wheat. 448. ——Indemnity is Not Mere Matter of Grace. “The theory that an indemnifi- cation for unjust captures is to be deemed, if not a mere donation, as in the nature of a donation, as contrasted with ‘right, is not admissible.” Story, J. Comegys v. Vasse, 1 Pet. 216. — Liability of Captors for Freight. “ Although capture be deemed, in the prize courts, in many cases, equivalent to delivery, yet the captors cannot be liable for more than the freight of the goods actually re- ceived by them. The capture of a neutral ship, having enemy’s property on board, is a strictly justifiable exercise of the rights of war. It is no wrong done to the neutral, even though the voyage be thereby defeated. The captors are not, therefore, answerable in penam to the neutral for the losses which he may sustain by a lawful exercise of bel- ligerent rights. It is the misfortune of the neutral, and not the fault of the belliger- ent. By the capture, the captors are sub- stituted in lieu of the original owners, and they take the property cum onere. They are, therefore, responsible for the freight which then attached upon the property, of which the sentence of condemnation ascer- tains them to be the rightful owners suc- ceeding to the former proprietors.” Story, J. The Antonia Johanna, 1 Wheat. 169. —- Damages for Detention for Adjudica- tion. “In cases of capture, strictly so called, no decision has been cited in which, if the capture itself was justifiable, the subsequent detention for adjudication has ever been punished by damages.” Story, J. The Mar- ianna Flora, 11 Wheat. 54. “Tf the captured vessel be plainly an enemy, immediate condemnation is certain and proper. But the vessel and cargo may be neutral, and may be captured on suspi- cion. This is a grievous vexation to the neutral, which ought not to be increased by prolonging his detention, in the hope that something may be discovered from some other source, which may justify condemna- tion. If his papers are all clear, and if the examinations in preparatorio all show his neutrality, he is and ought to be immediately discharged. In a fair transaction this will often be the case. If anything suspicious appears in the papers, which involves the neutrality of the claimant in doubt, he must blame himself for the circumstance, and can+ not complain of the delay which is neces- sary for the removal of those doubts.” MarsHaLL, C. J. The George, 1 Wheat. 409. —— Wrongful Captors Not Liable as Com- mon-law Trespassers. ~ “At sea the naval forces ought not to make capture of any thing not lawful prize; but if they do, and the captured property is restored to its owner by the prize court, the captors are not liable to suit at common law for the trespass. The prize courts alone have jurisdiction for the redress of such wrongs.” Waiter, C. J. Lamar v. Browne, 92 U. S. 197. 277 CAPTURE, RECAPTURE, CONFISCATION, AND PRIZE. IV. PRIZE. Prize Defined. “Generally speaking, movables taken on the high seas [are called] prize.” Futter, C. J. The Manila Prize Cases, 188 U. S. 271. -—— Recaptures are Prizes. “Recaptures are emphatically cases of prize; for the definition of prize goods is, that they are goods taken on the high seas, jure belli, out of the hands of the enemy. When so taken the captors have an un- doubted right to proceed against them as belligerent property in a court of prize; for in no other way, and in no other court, can the question presented on a capture jure belli be properly or effectually examined.” Story, J. The Schooner Adeline, 9 Cranch 284. Prize Causes Determined by Law of Na- tions. “TI think all prize causes whatsoever ought to belong to the national sovereignty. They are to be determined by the law of nations.” IrepELt, J., concurring. Penhal- low v. Doane’s Adm’rs, 3 Dall. 91. Law of Prize Not Fully Covered by Ele- mentary Treatises. “Elementary writers rarely explain the principles of public law with the minute dis- tinctions which legal precision requires. Many of the most important doctrines of the prize courts will not be found to be treated of, or even glanced at, in the elaborate treat- ises of Grotius, or Puffendorf, or Vattel.” Story, J., dissenting. The Nereide, 9 Cranch 437. American Prize Law Based on British. “The United States having, at one time, formed a component part of the British em- pire, their prize law was our prize law. When we separated, it continued to be our prize law, so far as it was adapted to our circumstances and was not varied by the power which was capable of changing it.” MarsHatt, C. J. Thirty Hogsheads Sugar v. Boyle, 9 Cranch 198. Control of Congress over Law of Prize. “We do not deny the full control of Con- gress over the law of prize as it may be ad- ministered in the courts of the United States whenever they choose to exercise it.’ MuL- LER, J. The Hampton, 5 Wall. 376. — Prize Money Required to be Depos- ited in United States Treasury. “Since the Act of Congress of the 3d of March, 1849, it appears to be the inten- tion and the positive mandate of Congress, that all prize money arising from captures by vessels of the navy of the United States, whether received by marshals for the sale of prizes, or in the hands of prize agents, should be deposited in the treasury of the United States.” Danzer, J. Jecker v. Montgom- ery, 18 How. 125. Liberal Construction of Prize Laws. “War is not waged for predatory pur- poses, but Congress chose to grant reward for success, and in doing so cannot be as- sumed to have intended that such reward should be subjected to the restrictions of close bargains.” Futter, C. J. The Manila Prize Cases, 188 U. S. 265. What Property May Be Prize—In Gen- eral. “The language of the Act of 1864, that the captors should be entitled to ‘the net proceeds of all the property condemned as prize,’ operated to so far remove the re- striction as to permit the statute to extend to other property [than ships and cargoes] fairly coming within accepted rules of prize.” Futter, C. J. The Manila Prize Cases, 188 Uz. S. 276. — Ships, Vessels, and Vessels of War. “The word ‘ship’ embraces her boats, tackle, apparel and appurtenances because part of the ship as a going concern, and, for the same reason, ‘ship or vessel of war’ includes her armament, search lights, stores, everything, in short, attached to or on board the ship in aid of her operations.” FuLuer, C. J. The Manila Prize Cases, 188 U. S. 268. “Ship or vessel of war belonging to an enemy, as employed in s. 4635 [Rev. Stat. U. S.J, covered armament, outfit, and ap- purtenances, including provisions, money to pay the crew or for necessary expenditures, everything necessary to be used for the pur- poses of the vessel, and as a vessel of war.” Fourier, C. J. The Infanta Maria Teresa, 188 U. S. 289. ““Ship or vessel of war belonging to the enemy’ are sufficiently comprehensive to em- brace not only everything essential to the ship’s navigation, but to the purposes of her existence.” FuLier, C. J. The Manila Prize Cases, 188 U. S. 270. —— Vessels and Cargo. “Cargo is the lading of a ship or vessel, and may be prize when the vessel is not, or the vessel may be, when the cargo is not.” 278 CAPTURE, RECAPTURE, CONFISCATION, AND PRIZE. Futrer, C. J. The Manila Prize Cases, 188 U. S. 267. —— Neutral Vessel. “Tt is well known that a vessel libelled as enemy’s property is condemned as prize, if she act in such manner as to forfeit the protection to which she is entitled by her neutral character. If, for example, a search be resisted, or an attempt be made to enter a blockaded ‘port, the laws of war, as ex- ercised by belligerents, authorize a condem- nation as enemy’s property, however clearly it may be proved that the vessel is, in truth, the vessel of a friend.” Marsuatt, C. J. Maley v. Shattuck, 3 Cranch 488, Mode of Distributing Prize Money. “We are not at liberty to entertain any discussions in relation to the policy of the government, except so far as that policy is brought judicially to our notice in the pos- itive enactments, and declared will of the ‘legislature. We must interpret, therefore, this clause of the prize act by the general rules of construction applicable to all stat- utes; and in this view we are of opinion that the doctrine contended for by the claimant ought not to prevail.” Story, J. The Star, 3 Wheat. 88. “Whatever may have been the reasons on which the general rules of distribution laid down in the prize act were founded, it is enough to say that those rules are fixed and definite, governing all cases coming within their terms, and are the only guides of all courts and officers charged with the duty of administering the prize act. The share of the commander of a ship is the same, whether he is leading in action or lying dis- abled in his berth; and the share of the ad- miral commanding the squadron is not in- creased if the capture is made by his flag- ship, nor diminished if [it] is made without his participation or knowledge by another ship belonging to his command.” Gray, J. U.S. v. Steever, 113 U. S. 752. “In those rules [Prize Act of 1864] the words ‘single ship’ are used in contradistinc- tion to the words ‘vessel or vessels,’ which include more than one; and upon a view of the whole act, it is manifest that the word ‘ship, in the few instances in which it occurs, has no restricted sense, implying three square-rigged masts, or any masts at all, but is synonymous with the general words ‘vessel of the navy,’ or simply ‘vessel,’ as used throughout the act.” Gray, J. U.S. 2. Steever, 113 U. S. 752. “The courts cannot depart from the ex- press law [in distributing prize money] be- cause of the peculiar bravery or merit of the captors, or any of them, in a particular case.” Gray, J. U.S. v. Steever, 113 U. S. 752. “ Although prize money is, strictly speak- ing, a matter of bounty and not of right and no one has any absolute title to it before ad- judication, yet unless the government, act- ing through the proper department, has clearly manifested an intention to revoke the grant, or to alter the mode of distribution, it is to be awarded and distributed according to the laws in force and the facts existing at the time of the capture.” Gray, J. U.S. v. Steever, 113 U. S. 753. Persons Entitled to Share in Distribution. “The books of a ship are but the usual evi- dence of service on board; and neither the omission to keep books, nor the neglect of the proper officers to enter names upon them, can be held to cut off those lawfully assigned to duty on board, and actually doing such duty, from participation in. prize money awarded to the ship.” Gray, J. U. S. 2. Steever, 113 U. S. 753. — Evidence as to Persons Entitled. “Where several cruisers claim a share of the prize, extrinsic testimony is admitted to establish their rights. They are not, and ought not to be, confined to the testimony which may be extracted from the crew.” MarsuHatt, C. J. The George, 1 Wheat. 410. V. PRIZE COURTS AND JURISDIC- TION OF PRIZE CAUSES. Prize Courts are International Tribunals. “A prize court is, in effect, a court of all the nations in the world, because all persons, in every part of the world, are concluded by its sentences, in cases clearly coming within its jurisdiction.” IrepELL, J., concurring. Penhallow v. Doane’s Adm’rs, 3 Dall. 91. “The court of prize is emphatically a court of the law of nations; and it takes neither its character nor its rules from the mere municipal regulations of any country.” Story, J. The Schooner Adeline, 9 Cranch 284. “A prize court is in its very nature an in- ternational tribunal.” Hunt, J., concurring. New Orleans v. Steamship Co., 20 Wall. 398, Prize Courts as Courts of Admiralty. * A court of prize being equally grounded on the law of nations as a court of ad- 279 CAPTURE, RECAPTURE, CONFISCATION, AND PRIZE. miralty, and proceeding also, as that does, on the principles of the civil law, must, in com- mon reason, have the same authority.” IreE- DELL, J., concurring. Penhallow v. Doane’s Adm’rs, 3 Dall. 97. “The necessity of proceeding to condemna- tion as prize, does not arise from any dis- tinction between the instance court of ad- miralty and the prize court. In England, they are different courts; and, although the jurisdiction of each of them is always ex- ercised by the same person, yet he holds the offices by different commissions. But, under the Constitution of the United States, the instance court of admiralty and the prize court of admiralty are the same court, act- ing under one commission.” Taney, C. J. Jecker v. Montgomery, 13 How. 517. Jurisdiction of Prize Courts —In General. “The primary object of their [prize courts’] institution, is to inquire whether a taking as a prize, is sanctioned by the authority of their sovereign, or the unauthorized act of an individual. From this it would seem to fol- low, that the decision of such a court, is the only legal organ of communication, through which the sanction of a sovereign can be ascertained, and that no other court is at liberty to deny the existence of sovereign au- thority, for a seizure which a prize court has declared to be the act of its sovereign.” Jounson, J., dissenting. Rose v. Himely, 4 Cranch 282. “To maintain that prize courts can only exercise jurisdiction over captures, made consistently with the law of nations is, in effect, to deprive them of all jurisdiction, since it leaves no means of deciding the question on which their jurisdiction rests.” Jounson, J., dissenting. Rose v. Himely, 4 Cranch 284. “Tf the object and end. of constituting a prize court be to give redress against un- lawful capture, and, as the books say, in such a case to restore velis levatis, how can it make reparation to the injured individual if it loses its jurisdiction?” JoHNson, J., dis- senting. Rose v. Himely, 4 Cranch 284. — Jurisdiction Determined by Fact of Capture. “The fact of capture determines the juris- diction, and not the filing of a libel.” Davis, J. The Nassau, 4 Wall. 641. — Over Civil and Private Rights. “Prize courts are not instituted to de- termine civil and private rights, but for the purpose of trying judicially the lawfulness of captures at sea, according to the principles of public international law, with the double object of preventing and redressing wrong- ful captures, and of justifying the rightful acts of the captors in the eyes of other na- tions. The ordinary course of proceeding in prize causes is ill adapted to the ascertain- ment of controverted titles between individ- uals. It is wholly different from those which prevail in municipal courts of common law or equity, in the determination of questions of Property between man and man.” Gray, J. Cushing v. Laird, 107 U. S. 76. , —— Determination of Conflicting Claims of Title. “Even when conflicting claims of title are put in, the prize court will not ordinarily determine between them, unless one of the claimants is a citizen of its own country.” Gray, J. Cushing v. Laird, 107 U. S. 81. — Liability of Captors for Damages, Expenses, and Costs. “ As incidental to the question of the law- fulness of the capture, prize courts have doubtless jurisdiction to determine the liabil- ity of the captors for damages, expenses, and costs, occasioned by their own wrongful acts, or by the fault of those in charge of the prize while in their custody.” Gray, J. Cushing v. Laird, 107 U. S. 82. “In case of gross misbehavior, not only costs, but damages will be allowed by the court of prize.” IrepeLt, J., concurring. Penhallow v. Doane’s Adm’rs, 3 Dall. 104. “The District Courts of the United States have original exclusive jurisdiction in ques- tions of prize, and are authorized to decree restitution in whole or in part when the cap- ture is wrongful; and if it be made without probable cause, may order and decree dam- ages and costs against the captors.” Davis, J. The Thompson, 3 Wall. 162. — Claims for Maritime Torts. “There is ne just foundation for the ob- jection that claims for maritime torts can- not be dealt with and adjusted by a prize court.” Fretp, J. The Siren, 7 Wall. 161. Captor’s Courts Have Exclusive Jurisdic- tion Generally. “To the courts of the nation to which the captor belongs, and from which his commis- sion issues, exclusively appertains the right of adjudicating on all captures and questions of prize.” Livincston, J. The Estrella, 4 Wheat. 307. 280 . CAPTURE, RECAPTURE, CONFISCATION, AND PRIZE. “The exclusive cognizance of prize ques- tions belongs to the capturing power.” Jounson, J. L’Invincible, 1 Wheat. 254. “The question of prize or no prize belongs solely to the courts of the captor.” Mar- SHALL, C. J. The Antelope, 10 Wheat. 125. “All captures jure belli are for the benefit of the sovereign under whose authority they are made; and the validity of the seizure and the question of prize or no prize can be de- termined in his own courts only, upon which he has conferred jurisdiction to try the ques- tion.” Taney, C. J. Jecker v. Montgomery, 13 How. 515. “A seizure on the high seas by an unau- thorized individual, is a mere trespass, and produces no change of right, but such a seizure made by sovereign authority, vests the thing seized in the sovereign; for the fact of possession must have all the beneficial ef- fects of the right of possession, as the justice or propriety of it cannot be inquired into by the courts of other nations.” Jounson, J., dissenting. Rose v. Himely, 4 Cranch 282. Conclusiveness of Decision. “Tf the possession of the captor is the possession of his sovereign, and his courts have a right therefore to adjudicate property captured, or carried into a foreign port, it ap- pears to me to be immaterial on what ground the capture is made. The fact of dispos- session by sovereign authority, judicially as- certained, deprives all other courts of the right to act upon the case.” Jounson, J., dissenting. Rose v. Himely, 4 Cranch 286. “Tf in the purchase of articles of merchan- dise in a foreign port, under: the sanction of sovereign authority, it is nevertheless nec- essary, in order to acquire a good property, that a merchant should know whether they were captured by law or without law, under the law of nations, or under municipal law, the officer of a lawyer will be as necessary to his education as the counting house.” JoHNson, J., dissenting. Rose v. Himely, 4 Cranch 291. “ After going beyond the fact of seizure by sovereign authority within his own territory (where he is supreme), or upon the ocean (where he is equal to all others), unaffected by escape, recapture, or release (by which property is restored to its state before seizure), the approbatory sentence of his own ‘court (by which alone it can be judicially known to be the act of the sovereign), be- yond these limits every step that a court takes can only be productive of doubt, litigation, and uncertainty, and involve the commercial world in endless embarrassment, at the same time that it compromits the peace of nations, among whom it is a received and correct opin- ion that a want of due deference to the ju- risdiction of their maritime courts is a just cause of war.” JoHNSON, J., dissenting. Rose v. Himely, 4 Cranch 292. —— Circumstances under which Decree May be Questioned. “When a seizure [of a vessel] is thus made for the violation of a municipal law, the mode of proceeding must be exclusively regulated by the sovereign power of the coun- try, and no foreign court is at liberty to question the correctness of what is done, unless the court passing the sentence loses its jurisdiction by some circumstance which the law of nations can notice. Recapture, escape, or a voluntary discharge of the captured ves- sel would be such a circumstance, because the sovereign would be thereby deprived of the possession of the thing, and of his power over it. While this possession remains, the res may be restored or sold, the sen- tence of the court can be executed, and there- fore this possession seems to be the essen- tial fact on which the jurisdiction of the court depends.” Marsuatr, C. J. Hudson wv. Guestier, 4 Cranch 294. —— Cases in which Neutrals May Exercise Jurisdiction. “The general rule is undeniable, that the trial of captures made on the high seas, jure belli, by a duly commissioned vessel of war, whether from an enemy or a neutral, belongs exclusively to the courts of that nation to which the captor belongs. To this rule there are exceptions which are as firmly established as the rule itself. If the capture be made within the territorial limits of a neutral country into which the prize is brought, or by a privateer which had been illegally equip- ped in such neutral country, the prize courts of such neutral country not only possess the power, but it is their duty to restore the property so illegally captured to the owner. This is necessary to the vindication of their own neutrality.” Wasuincton, J. The Brig Alberta, 9 Cranch 364. “That the mere fact of seizure as prize does not, of itself, oust the neutral admiralty court of its jurisdiction, is evident from this fact that there are acknowledged cases in which the courts of a neutral may interfere to devest possessions, to wit, those in which her own right to stand neutral is invaded; 281 CAPTURE, RECAPTURE, CONFISCATION, AND PRIZE. and there is no case in which the court of a neutral may not claim the right of determin- ing whether the capturing vessel be, in fact, ‘the commissioned cruiser of a_ belligerent power. Without the exercise of jurisdiction thus far, in all cases, the power of the ad- miralty would be inadequate to afford pro- tection from piratical capture.” JouNson, J. L’Invincible, 1 Wheat. 258. Common-law Courts Have No Jurisdiction. “A court of common law has no juris- diction of the question of prize.” IrepELt, J., concurring. Bingham wv. Cabbot, 3 Dall. 41. District Courts of United States Have Jurisdiction. “Original jurisdiction in prize, as well as in all other admiralty causes, is vested ex- clusively in the District Courts.” CLFFoRD, J. The William Bagaley, 5 Wall. 412. “Judicial cognizance of prize cases is de- rived from that article of the Constitution which ordains that the judicial power shall extend to all cases of admiralty and maritime jurisdiction; and the District Courts for many years exercised jurisdiction in such cases without any other authority from Congress than what was conferred by the ninth section of the Judiciary Act, which gave those courts exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including the seizures therein mentioned, the rule adopted being that prize jurisdiction was involved in the general delegation of ad- miralty and maritime cognizance, as conferred by the language of that section.” CLIFFORD, J. U.S. uv. Ames, 99 U. S. 35. — Jurisdiction of Offenses Committed in Other Districts. “The United States might enable the ad- miralty courts of one district to decide on captures made for offenses committed in an- other district. It is an internal regulation, to be expounded by our own courts, and of which the law of nations can take no notice. The possession of the thing would be in the sovereign power of the state, and it is com- petent to that power to give jurisdiction over it to any of its tribunals.” MarsHatt, C. J. Hudson v. Guestier, 4 Cranch. 294, Military Courts. “Neither the President nor any military officer can establish a court in a conquered country, and authorize it to decide upon the rights of the United States, or of individuals in prize cases, nor to administer the laws of nations.” Taney, C.J. Jecker v. Montgom- ery, 13 How. 515. “The courts established or sanctioned in Mexico during the war by the commanders of the American forces, were nothing more than the agents of the military power, to assist it in preserving order in the conquered territory, and to protect the inhabitants in their persons and property while it was oc- cupied by the American arms. They were subject to the military power, and their de- cisions under its control, whenever the com- manding officer thought proper to interfere. They were not courts of the United States, and had no right to adjudicate upon a ques- tion of prize or no prize.” Taney, C. J. Jecker v. Montgomery, 13 How. 515. VI. PROCEEDINGS IN PRIZE CAUSES. Procedure Modeled on Civil Law. “Tn prize causes, in an especial manner, the allegations, the proofs and the proceed- ings are, in general, modelled upon the civil law, with such additions and alterations as the practice of nations and the rights of bel- ligerents and neutrals unavoidably impose.” Story, J. The Schooner Adeline, 9 Cranch 284, ——Common-law Procedure Does Not Obtain. “Tt is essential to the correct ad- ministration of prize law, that the regular modes of proceeding should be observed with the utmost strictness; and it is a great mis- take to allow common-law notions in respect to evidence or practice, to prevail in proceed- ings which have very little analogy to those at common law.” Story, J. The Dos Her- mandos, 2 Wheat. 80. Proceedings Summary in Nature. “From the necessity of the case, and in order to interrupt as little as may be the exercise of the belligerent duties of the cap- tors, or the voyage and trade of the captured vessel if neutral, the proceedings [in prize] are summary. The libel is filed as soon as possible after the prize has been brought into a port of the government of the captors, and does not contain any allegation as to title, nor even set forth the grounds of condem- nation, but simply prays that the vessel may be forfeited to the captors as lawful prize of war. The monition issued and published upon the filing of the libel summons all per- sons interested to show cause against the condemnation of the property as prize of war, and is returnable within a very few days, too short a time to allow of actual notice to 282 CAPTURE, RECAPTURE, CONFISCATION, AND PRIZE. or appearance or proof in behalf of owners residing abroad.” Gray, J. Cushing v. Laird, 107 U.S, 77. —— Necessity for Prompt Decision. “Tt is certainly a general rule in prize causes that the decision should be prompt; and should be made, unless some good reason for departing from it exist, on the papers and’ testimony afforded by the captured vessel, or which can be invoked from the papers of other vessels in possession of the court.” MarsHa.t, C. J. The George, 1 Wheat. 409. Prosecution Is by United States. “In every case of a proceeding for con- demnation, upon captures made by the public ships of war of the United States, whether the same be cases of prize, strictly jure belli, or upon public acts in the nature of captures jure belli, the proceedings are in the name and authority of the United States, who prosecute for themselves as well as for the captors.” Story, J. The Palmyra, 12 Wheat. 11. Claim of Title— By Whom Made. “Where the principal is without the coun- try, or resides at a great distance from the court, the admission of a claim and test af- fidavit by his agent, is the common course of the admiralty. But where the principal is within a reasonable distance, something more than a formal affidavit by his agent is expected. At least the suppletory oath of the principal as to the facts, should be tendered; for otherwise its absence might produce unfavorable suspicions.” Story, J. The Schooner Adeline, 9 Cranch 286. “The prize court will not indeed permit a stranger to dispute the right of the cap- tors, and generally requires a claim to be made by or in behalf of the general owner, and upon oath. But the claimant is required to give evidence of a title to the property, not for the purpose of having that title es- tablished by the decree of the prize court, but only for the purpose of showing that he is acting in good faith, and is entitled to con- test the question of prize or no prize, and to have restitution of possession in case of ac- quittal. From the necessity of the case, the claim is often put in by the master on behalf of the owner, and it is sufficient if the mas- ‘ter’s oath is to belief only.” Gray, J. Cushing v. Laird, 107 U. S. 78. —— Sufficiency of Test Affidavit. “Regularly the test affidavit should state that the property, at the time of shipment and also at the time of capture, did belong, and will, if restored, belong to the claimant; but an irregularity of this nature has never been supposed to be fatal. It might, in a case of doubt or suspicion, or in a case calling for the application of the doctrine as to the legal effect of changes of property in transitu, have justified an order for further proof: or, in cases of gross negligence or pregnant fraud, have drawn upon the party more severe con- sequences. But in ordinary cases, it is not deemed to work any serious consequences.” Story, J. The Schooner Adeline, 9 Cranch 286. —— Burden of Proof. “Tt has often been said by judges of high authority that the claimant has the burden of proving his title to the property. But in the leading cases in which this was said there was but a single claimant.” Gray, J. Cushing v. Laird, 107 U.S. 79. Evidence in Preparatorio. “ The law of nations presumes and requires that in time of war every neutral vessel shall have on board papers showing her character, and shall also have officers and crew able to testify to facts establishing her neutrality. The captors are therefore required immedi- ately to produce to the prize court the ship’s papers, and her master or some of her prin- cipal officers or crew to be examined on oath upon standing interrogatories and without communication with or instruction by counsel. The cause is heard in the first instance upon these proofs and if they show clear grounds for condemnation or for acquittal no further proof is ordinarily required or permitted. If the evidence in preparatorio shows no ground for condemnation and no circumstances of suspicion the captors will not ordinarily be allowed to introduce further proof, but there must be an acquittal and restitution.” Gray, J. Cushing v. Laird, 107 U. S. 77. “ Whenever a prize is brought to adjudica- tion in the admiralty, if, upon the hearing of the cause upon the ship’s papers, and the evi- dence taken in preparatory, the property ap- pears to belong to enemies, it is immediately condemned.” Story, J. The Harrison, 1 Wheat. 299. “Tt is a general rule of the prize law not to admit claims which stand in entire oppo- sition to the ship’s papers, and to the prepara- tory examinations, where the voyages have originated after the war. The rule is founded upon this simple reason, that it would open a door to fraud in an incalculable extent, if per- sons were not required to describe their prop- 283 CAPTURE, RECAPTURE, CONFISCATION, AND PRIZE. erty with perfect fairness. The rule, how- ever, is not inflexible; it yields to cases of necessity, or where, by the course of the trade, simulated papers become indispensable, as in a trade licensed by the state with a pub- lic enemy.” Story, J. The Dos Hermandos, 2 Wheat. 90. “In a prize proceeding] the ship’s papers ought to have been brought into court, and verified, on oath, by the captors, and the ex- aminations of the captured crew ought to have been taken upon the standing interroga- tories, and not vive voce in open court. Nor should the captured crew have been per- mitted to be re-examined in court. They are bound to declare the whole truth upon their first examination; and if they then fraudu- lently suppress any material facts, they ought not to be indulged with an opportunity to disclose what they please, or to give color to their former statements after counsel has been taken, and they know the pressure of the cause. Public policy and justice equally point out the necessity of an inflexible adherence to this rule. It is upon the ship’s papers, and the examination thus taken in preparatory, that the cause ought, in the first instance, to be heard in the District Court; and upon such hearing it is to judge whether the cause be of such doubt as to require further proof; and if so, whether the claimant has entitled him- self to the benefit of introducing it.” Srory, J. The Pizarro, 2 Wheat. 240. Frankness Required of Officers of Cap- tured Vessels. “ Frankness and truth are especially required of the officers of captured vessels when ex- amined in preparation for the first hearing in prize.” Cuasz, C. J. The Springbok, 5 Wall. 22. “Prize courts must distinguish between misrepresentations which may be ascribed to error of judgment, and which are, as soon as possible, corrected by the party who has made them, and wilful falsehoods which are de- tected by the testimony of others, or con- fessed- by the party when detection becomes inevitable. In the first case there may be cause for a critical and perhaps suspicious ex- amination of the claim and of the testimony by which it is supported; but it would be harsh indeed to condemn neutral property, in a case in which it was clearly proved to be neutral, for one false step, in some degree equivocal in its character, which was so soon corrected by the party making it.” Mar- SHALL, C. J. The Nereide, 9 Cranch 417. Adjudication when Prize Is Not in Court’s Hands. “A prize court, when a proper case is made for its interposition, will proceed to ad- judicate and condemn the captured property or award restitution, although it is not ac- tually in the control of the court. It may always proceed in rem whenever the prize or proceeds of the. prize can be traced to the hands of any person whatever.” Taney, C. J. Jecker v. Montgomery, 13 How. 515. Decree — Operates in Rem. “ As it [a decree of acquittal and restitution of a prize court] operates in rem, it is not in- validated by the fact that pending the pro- ceedings the sole claimant has died and his representatives have not been made parties.” Gray, J. Cushing v. Laird, 107 U. S. 80. — Form of Decree of Condemnation. “The common form of drawing up de- crees, in cases of condemnation, is, that the proceeds be distributed according to law. But if any difficulty arises, upon petition, the court always proceeds to decide who are the parties entitled to distribution, and to make a supplementary decree. But it may do the same in the first instance, and make the par- ticulars of the distribution a part of the orig- inal decree.” Story, J. The Josefa Segunda, 10 Wheat. 324. — Decree Relates Back to Date of Cap- ture. “When the question of title is settled by decree it takes effect by relation as of the date of the capture.” Furter, C. J. The Manila Prize Cases, 188 U. S. 263. —— Decree of Restitution. “When no other person interposes a claim [in a prize cause] restitution of ship or goods is ordinarily decreed to the master as rep- resenting the interests of all concerned, or to the person who by the ship’s papers or by the master’s oath appears to be the owner.” Gray, J. Cushing v. Laird, 107 U. S. 81. —— Conclusiveness of Decree. “The proceedings of a prize court being in vem, its decree as is now universally ad- mitted, is conclusive, against all the world, as to all matters decided and within its jurisdiction.” Gray, J. Cushing v. Laird, 107 U. S. 80. “A decree of acquittal and restitution con- clusively determines as to all the world that the vessel is not lawful prize of war.” Gray, J. Cushing v. Laird, 107 U. S. 80. 284. CARRIERS. “Tf the vessel is condemned as prize and sold by order of the court, the decree of con- demnation and sale is conclusive evidence of the lawfulness of the capture and of the title of the purchaser. But if, as is usual, it does not state the ground of condemnation, it is not even conclusive that the vessel is enemy’s property, for it may have been neutral prop- erty condemned for resisting a search, or at- tempting to enter a blockaded port.” Gray, J. Cushing v. Laird, 107 U. S. 80. CARLISLE TABLES. “There is high authority for the proposi- tion that courts can take judicial notice of the Carlisle tables, and can use them in es- timating the probable length of life, whether they were introduced in evidence or not.” Surras, J. Lincoln v. Power, 151 U. S. 441. And see JupicraL Notice; Lire INSURANCE. CARRIERS. I. DEFINITION AND NATURE. II. Contract oF CARRIAGE. III. Ricuts, Duties, anp LIABILITIES. 1. In General. 2. With Relation to Passengers. 3. Duty to Carry. a. General Rule. b. As to Goods. (1) In General. (2) Charge and Payment of Freight. c. As to Passengers. d. Duty to Carry Safely. (1) Custody, Transport, and Deliv- ery (2) Liability in Nature of Insurer. (3) Carriers of Live Stock. (4) Carriers of Passengers. aa. In General. bb. Conduct of Servants. e. Restriction of or Exemption from Liability. f. As to Forwarding by Connecting Lines. CROSS-REFERENCES. See generally AccipENT; BAGGAGE; BILLS oF LADING; CHARTER-PARTIES; COLLISION; Ex- PRESS COMPANIES; INSURANCE; INTERSTATE ComMERcE; NEGLIGENCE; RAILROADS; SHIPS AND SHIPPING; SLEEPING Cars; STREET RaAIL- ROADS; TOWAGE; TRANSPORTATION. I. DEFINITION AND NATURE. Common Carrier. “A common carrier is one who undertakes for hire to transport the goods of those who may choose to employ him from place to place.” CxtFrorp, J. The Propeller Niagara v. Cordes, 21 How. 22. Carriers by Land and Water. “Common carriers are usually described as of two kinds, namely, carriers by land and carriers by water.” C.iFForp, J. The Pro- peller Niagara v. Cordes, 21 How. 22. _ “Carriers of merchandise by water, seeking general employment, are to be regarded as common carriers.” CLiFForD, J. The Lady Pike, 21 Wall. 14. —— Ships. “A general ship carrying goods for hire, whether employed in internal, in coasting or in foreign commerce, is a common carrier.” Gray, J. The J. P. Donaldson, 167 U. S. 603. — Railroads. “ Railroad companies are by law carriers of both persons and property.” Waite, C. J. Express Cases, 117 U. S. 23. Nature of Employment. “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 these responsibilities is re- stricted by law or by contract, the nature of his occupation makes him a common carrier still.” Gray, J. Liverpool, etc., Steam Co. v. Phenix Ins. Co., 129 U. S. 440. “Common carriers exercise a sort of pub- lic office, and have duties to perform in which the public is interested. Their business is, therefore, ‘affected with a public interest,’ within the meaning of the doctrine which Lord Hale has so forcibly stated.” Warre, Cc. J. Munn v. Illinois, 94 U. S. 130. —— Vessels Used Are Private Property. “Special and important duties indubitably are imposed upon carriers of passengers for the benefit of the travelling public; but it must not be forgotten that the vehicles and vessels which such carriers use do not be- long to the public. They are private prop- erty, the use and enjoyment of which belong to the proprietors.” CurrForp; J., con- curring. Hall v. DeCuir, 95 U. S. 502. —— Private Carrier. “A common carrier may become a private carrier, or a bailee for hire, when, as a mat- ter of accommodation or special engagement, 285 CARRIERS. he undertakes to carry something which it is not his business to carry. Gray, J. Liver- pool, etc., Steam Co. v. Phenix Ins. Co., 129 U. S. 440. “A common carrier may, undoubtedly, be- come a private carrier, or a bailee for hire, when as a matter of accommodation or special engagement, he undertakes to carry some- thing which it is not his business to carry.” Brapey, J. New York Cent. R. Co. v. Lock- wood, 17 Wall. 377. Hiring Vessel for Purpose of Transporta- tion. “The carrier may hire his vehicle, or his team, or his servant, for the purpose of trans- portation; or he may undertake to employ them himself in the act of transporting the goods of another. It is in the latter case only that he assumes the liabilities and ac- quires the rights of a common carrier.” Jounson, J. Gracie v. Palmer, 8 Wheat. 632. “The shipowner, who let his ship to hire to another, whether manned and equipped or not, enters into a contract totally distinct from that of him who engages to employ her him- self in the transportation of the goods of an- other. In the former case, he parts with the possession to another, and that other be- comes the carrier; in the latter, he retains the possession of the ship, although the hold may be the property of the charterer; and being subject to the liabilities, he re- tains the rights incident to the character of a common carrier.” JoHnson, J. Gracie v. Palmer, 8 Wheat. 633. II. CONTRACT OF CARRIAGE. Parol or Written. “No particular form or solemnity of execu- tion is required for a contract of a common carrier to transport goods. It may be by parol, or it may be in writing, in either case it is equally binding.” Woops, J. Mobile, etc, R. Co. v. Jurey, 111 U. S. 591, Assumption of Legal Duties. “The contract of a common carrier ordi- narily is an assumption by him of the exact duty which the law affixes to the relation into which he enters when he undertakes to carry.” Stronc, J. Southern Express Co. v. Caldwell, 21 Wall. 266. Not Question of Local Law. “What constitutes a contract of carriage is not a question of local law, upon which the decision of a state court must control. It is a matter of general law, upon which this “court will exercise its own judgment.” Fietp, J. Myrick v. Michigan Cent. R. Co., 107 U. S. 109. See also Courts. III. RIGHTS, DUTIES, AND LIABIL- ITIES. 1. IN GENERAL. Law Unvarying. “The law of the common carrier is the same to-day as when transportation on land was by coach and wagon, and on water by canal boat and sailing vessel, yet in its actual operation it touches and regulates transpor- tation by modes then unknown, the railroad train and the steamship.” Brewer, J. In re Debbs, 158 U. S. 591. Rules Governing Duties Changed by Judiciary. “Most of the rules of law prescribing the duties of a carrier for hire, and regulating the manner of their exercise, have existed for centuries, and they cannot be modified or relaxed except by the interposition of the legislative power of the Constitution. Time and experience have shown their value and demonstrated their utility and justice, and they ought not and cannot be changed by the judiciary.” Ctrrrorp, J. The Propeller Niagara v. Cordes, 21 How. 25. Cannot Be Rule as to Measure of Liability Yields to Exigencies of Modern Commerce. “The law recognizes the fact that the meas- ure of liability originally applied to a cart- er’s wain or a waterman’s hoy may often be illy adapted to the exigencies of modern com- merce.” Brown, J. Queen of the Pacific, 180 U. S. 57. Driver of Public Conveyance Servant of Owner. “The owner of a public conveyance is a carrier, and the driver or the person managing it is his servant. Neither of them is the servant of the passenger.” Fretp, J. Little v, Hackett, 116 U. S. 375. “Those on a hack do not become respon- sible for the negligence of the driver if they exercise no control over him further than to indicate the route they wish to travel or the places to which they wish to go.” FIELp, J. Little v. Hackett, 116 U. S. 379. Invitation to Pass over Wharf or Plat- form. “A railroad or steamboat company, by the departure and arrival of their conveyances, 286 CARRIERS. give an invitation to all who desire to ap- proach their boats or cars to pass over their wharf or platform.” Hunt, J. New Or- leans, etc, R. Co. v. Hanning, 15 Wall. 659. 2. WiTH RELATION TO PASSENGERS. Nature of Relation of Passenger in Gen- eral. “A person who takes passage upon a steamer or a seat in a railway carriage does not ‘employ’ such steamer or carriage in any just sense.” Brown, J. U. S. uv. Thomas, 195 U. S. 426. — Formal Contract Unnecessary. “Mistakes sometimes occur in the investi- gation of such a case [action by passenger for personal injuries] by overlooking the fact that it is the carrier, whether shipowner, cor- poration, or individual that assumes the ob- ligation, for a breach of which a right of ac- tion accrues to the passenger. Proof of a formal contract is not required, as the ob- ligation of the carrier is implied from his un- dertaking to transport the passenger.” CLIF- ForpD, J. The “City of Panama,” 101 U. S. 463. Furnishing Passenger Trains. “ Passenger trains have from the beginning been provided for the transportation primarily of passengers and their baggage. This must be done with reasonable promptness and with reasonable comfort to the passenger.” Waite, C. J. Express Cases, 117 U. S. 24. “Where the passenger embarks without making any special contract, and without knowledge as to what accommodations will be afforded, the law implies a contract which obliges the carrier to furnish suitable accom- modations according to the room at his dis- posal; but the passenger in such a case is not entitled to any particular apartments orf special accommodations.” CiFForD, J., con- curring. Hall v. DeCuir, 95 U. S. 503. When Contract of Carriage Completed. “ A contract with the passenger may or may not be completed on arriving in port, without landing, according as the parties may have pleased to stipulate.” Woopsury, J., dissent- ing. Passenger Cases, 7 How. 539. Passenger on Interstate Train Protected by State Laws. “ Persons travelling on interstate trains are as much entitled, while within a state, to the protection of that state, as those who travel on domestic trains.” Gray, J. Chi- cago, etc, R. Co. v. Solan, 169 U. S. 137. 38. Duty To CARRY. a. General Rule. Must Carry to Extent of Capacity. “Every common carrier must carry for all to the extent of his capacity, without undue or wmnreasonable discrimination either in charges or facilities. The Constitution has taken from the legislature the power of abol- ishing this rule as applied to railroad com- paniés.” Waite, C. J. Atchison, Topeka, etc., R. Co. v. Denver, etc., R. Co., 110 U. S. 674, “They [railroad companies] no more dare to refuse to transport persons and property of the general public over the whole or any part of their road than a ferryman would refuse to do the same thing over his ferry.” Mur- LER, J, dissenting. Lake Superior, etc., R. Co. v. U. S., 93 U. S. 457, b. As to Goods. (1) In GENERAL. Must Carry All Offered. “He [common carrier] is bound to receive and carry all the goods offered for transpor- tation, subject to all the responsibilities in- cident to the employment, and is liable to an action in case of refusal.” Nertson, J. New Jersey Steam Nav. Co, v. Merchants’ Bank, 6 How. 382. To the same effect see the lan- guage of CLIFForD, J., in The Propeller Niagara v, Cordes, 21 How. 22; Fiexp, J., dissenting, in Express Cases, 117 U. S. 34; York Co. v. Illinois Cent. R. Co., 3 Wall. 112. (2) CHARGE AND PAYMENT oF FREIGHT. Charge Must Be Reasonable. “Tt [a railroad’company] must carry when called upon to do so, and can charge only a reasonable sum for the carriage. In the ab- sence of any legislative regulation upon the subject, the courts must decide for it, as they do for private persons, when controversies arise, what is reasonable.” Warts, C. J. Chicago, etc., R. Co. v. Iowa, 94 U. S. 161. — Common-law Duty. “Tt was a common-law duty of a carrier to make no unreasonable charge.” Brewer, J., dissenting. Missouri Pac. R. Co. v. U.S, 189 U. S. 289. As to control of railroads by legislation, see RAILROADS. Uniformity — Discrimination. “While at common law a mere difference in the prices charged by the carrier to two shippers respectively might not have been for- 287 CARRIERS. bidden, yet it may well be doubted whether, if the difference was so great as to amount to an unreasonable discrimination, the rule would not have been otherwise.” BREWER, J., dissenting. Missouri Pac. R. Co. v. U. S. 189 U. S. 290. “Common carriers, whether engaged in in- terstate commerce or in that wholly within the state, are performing a public service. They are endowed by the state with some ‘of its sovereign powers, such as the right of eminent domain, and so endowed by reason of the public service they render. As a conse- quence of this, all individuals have equal rights both in respect to service and charges. Of course, such equality of right does not prevent differences in the modes and kinds of service and different charges based thereon. There is no cast-iron line of uniformity which prevents a charge from being above or below a particular sum, or requires that the service shall be exactly along the same lines. But that principle of equality does forbid any difference in charge which is not based upon difference in service, and even when based upon difference of service, must have some reasonable relation to the amount of differ- ence.” BREwER, J. Western Union Tel. Co. v, Call Pub. Co., 181 U. S. 99. Time of Payment. “(Freight] without a different stipulation by the parties, is only payable when the merchandise is in readiness to be delivered to the person having the right to receive it. Then the freight must be paid before an ac- tual delivery can be called for. In other words, the rule is, in the absence of any agreement to the contrary of it, that freight, under an ordinary bill of lading, is only demandable by the owner, master, or con- signee of the ship, when they are ready to deliver the goods in the like good order as they were when they were received on board the ship.” Wayne, J. Brittan v. Barnaby, 21 How. 533. “Tn all cases where there is no special agreement to the contrary, he [the carrier] is entitled to demand the price of carriage be- fore he receives the goods; and if paid, he may refuse to receive them; but if he takes charge of them for transportation, the non- payment of the price of carriage in advance will not discharge, affect, or lessen his liabil- ity as a carrier in the case, and he may afterwards recover the price of the service performed. When he receives the goods, it is his duty to take all possible care of them in their passage, make due transport and safe and right delivery of them at the time agreed upon; or, in the absence of any stip- ulation in that behalf, within a reasonable time.” Ctirrorp, J. The Propeller Niagara v. Cordes, 21 How. 22. Payment to Connecting Carrier. “In making payment to a connecting car- rier of its freight charges the carrier is not a mere volunteer.” Brewer, J. Wabash R. Co. v. Pearce, 192 U. S. 187. Lien. “That a carrier has a lien for his charges upon the thing carried, and may retain pos- session of such thing until such charges are paid, is too clear for argument.” Brown, J. Knapp, etc., Co. v. McCaffrey, 177 U. S. 644, “The carrier has a lien on the goods for his freight, if not paid in advance; but sub- ject to this claim he can set up no right of property or of possession against the general owners.” NeEtson, J. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 380. —— Charges of Connecting Carrier. “Tt is the common-law duty of the car- rier to receive, carry and deliver goods; that by virtue of this obligation it is entitled to retain possession until its charges are paid. Nor is this lien confined to the charges for its own transportation.” Brewer, J. Wa- bash R. Co. v. Pearce, 192 U. S. 187. c. As to Passengers. Duty to Carry All Indifferently. “The latter [common carriers of passen- gers by railway] undertake, for hire, to carry all persons indifferently who apply for pas- sage.” Fiztp, J. Shoemaker v. Kingsbury, 12 Wall. 376. — Excuse for Refusal to Carry. “Common carriers of passengers are obliged to carry all persons who apply for passage, if the accommodations are suf- ficient unless there is a proper excuse for refusal.” Davis, J. Pearson v. Duane, 4 Wall. 615. Right to Make Reasonable Regulations. “ Proprietors of the kind [of transportation facilities] may make rules and regulations, but they must be reasonable; and the court held in that case that to be so they should have for their object the accommodation of the passengers, including every thing to ren- der the transportation most comfortable and least annoying, not to one or two or any given majority at any particular time, but to 288 ; CARRIERS. the great majority ordinarily transported ; and ‘they also held that such rules and regula- tions should be of a permanent nature, and not be made for a particular occasion or emergeticy.” CLiFFoRD, J., concurring. Hall v. DeCuir, 95 U. S. 502. —— Objections to Character or Conduct. “Steamers carrying passengers for hire are bound, if they have suitable accommodation, to take all who apply, unless there is objec- tion to the character or conduct of the appli- cant. Applicants to whom there is no such valid objection have a right to a passage, but it is not an unlimited right. On the con- trary, it is subject to such reasonable regula- tions as the proprietors may prescribe for the due accommodation of passengers and the due atrangetnent of the business of the carrier.” Cutrrorp, J., concurring. Hall vz. DeCuir, 95 U. S. 501. “Proprietors [of transportation facilities] have not only that right, but the farther right to consult and provide for their own ‘ifiterests in the management of the vessel as a common incident to their right of prop- etty. They ate not bound to admit passen- gers on board who refuse to obey the rea- sonable regulations of the vessel, or who are guilty of gross and vulgar habits of conduct, ot who make disturbances on board, or whose chatacters are doubtful, dissolute, sus- picious, or unequivocally bad. Nor are they bound to admit passengers on board whose object it is to interfere with the interests of the patronage of the proprietors, so as to make their business less lucrative or their management less acceptable to the public.” Cuirrorp, J., concurring. Hall v, DeCuir, 95 U. S. 501. Equality of Rights — Separate Accommo- dations. “ Substantial equality of right is the law of tke state and of the United States; but equality does not mean identity, as in the nature of things identity in the accommoda- tion afforded to passengers, whether colored or white, is impossible, unless our commer- cial marine shall undergo an entire change. Adult male passengers are never allowed a passage in the ladies’ cabin, nor can all be accommodated, if the company is large, in the state-rooms. Passengers are entitled to proper diet and lodging; but the laws of the United States do not reqttire the master of a steamer to put persons in the same apart- ment who would be repulsive or disagree- able to each other.” Ctrrrorp, J., concur- ring. Hall v. DeCuir, 95 U. S. 503. 1 Os. Dic.—19 “Steamers carrying passengers as a ma- terial part of their employment are common carriers, and as such enjoy the rights and are subject to the duties and obligations of such carriers; but there was and is not any law of Congress which forbids such a car- rier from providing separate apartments for his passengers. What the passenger has a right to require is such accommodation as he has contracted for, or, in the absence of any special contract, such suitable accommo- dations as the room and means at the dis- posal of the carrier enable him to supply; and in locating his passengers in apartments and at their meals it is not only the right of the master, but his duty, to exercise such reasonable discretion and control as_ will promote, as far as practicable, the comfort afid convenience of his whole company.” CuirForp, J., concurring. Hall v. DeCuir, 95 U. S. 504. “Governed by the laws of Congress, it is clear that a steamer carrying passengers may have separate cabins and dining-saloons for white persons and persons of color, for the plain reason that the laws of Congress con- tain nothing to prohibit such an arrange- ment.” CLiFForD, J., concurring. Hall wv. DeCuir, 95 U. S. 500. “The purpose of the first section of the Act of Congress of March 1, 1875, was to prevent race discrimination in respect of the accommodations and facilities of inns, pub- lic conveyances, and places of public amuse- ment. It does not assume to define the gen- eral conditions and limitations under which inns, public conveyances, and places of pub- lic amusement may be conducted, but only declares that such conditions and limitations, whatever they may be, shall not be applied so as to work a discrimination solely be- cause of race, color, or previous condition of servitude. The second section provides a penalty against any one denying, or aiding or inciting the denial, to any citizen, of that equality of right given by the first section, except for reasons by law applicable to citi- zens of every race ot color and regardless of any previous condition of servitude.” Harran, J., dissenting. Civil Rights Cases, 109 U. S. 26. See also Crvit Ricnts. —— Implied Power to Determine Who Is White and Who Colored. ; “The power to assign [a person] to a par- ticular coach obviously implies the power to determine to which race the passenger be- oo as well as the power to determine CARRIERS. who, under the laws of the particular state, is to be deemed a white, and who a colored person.” Brown, J. Plessy v. Ferguson, 163 U. S. 549. —— Interstate Passengers. “Whether interstate passengers of one race, should, in any portion of their jour- ney, be compelled to share their cabin ac- commodations with passengers of another race, was a question of interstate commerce, and to be determined by Congress alone.” Brewer, J. Louisville, etc, R. Co. v. Mis- sissippi, 133 U. S. 590. Ejection — For Misconduct. “Suppose a passenger is guilty of grossly indecent language and conduct in the pres- ence of lady passengers, and the conductor forcibly removes him from their presence, there is no misconduct in such removal; and, if only necessary force is used, noth- ing which gives to the party any cause of action against the carrier. In such a case, the passenger, by his own misconduct, has broken the contract of carriage, and he has no cause of action for injuries which result to him in consequence thereof. Brewer, J. New Orleans, etc, R. Co. vw. Jopes, 142 U. S. 25. Person Drunk, Insane, or of Bad Character. “ Although a railroad or steamboat com- pany can properly refuse to transport a drunken or insane man, or one whose char- acter is bad, they can not expel him, after having admitted him as a passenger, and received his fare, unless he misbehaves dur- ing the journey.” Davis, J. Pearson vw. Duane, 4 Wall. 615. Passenger Carried Without Charge. “A carrier is not bound, any more than any other owner of property who grants a privilege, to hunt the party to whom the privilege is given, and see that all the con- ditions attached to it are made known. The duty rests rather upon the one receiving the privilege to ascertain these conditions.” Brewer, J. Boering v. Chesapeake Beach R. Co., 193 U. S. 450. d. Duty to Carry Safely. (1) Custopy, TRANSPORT, AND DELIVERY. General Rule. “Common carriers are liable for the safe custody, due transport, and right delivery of goods and merchandise intrusted to them to be conveyed from one port or place to another.” CzirForD, J. The Com- mander-in-Chief, 1 Wall. 50. “A railway company is a carrier of goods for the public, and, as such, is bound to carry safely whatever goods are intrusted to it for transportation, within the course of its business, to the end of its route, and there deposit them in a suitable place for their owners or consignees.” Fiexp, J. Myrick v. Michigan Cent. R. Co., 107 U. S. 106. —— Duty to Provide Seaworthy Vessel, Crew, etc. “Standard authorities show that the. first duty of the carrier, and one that is implied by law, is to provide a seaworthy vessel, well furnished with proper motive power, and furniture necessary for the voyage.” CLiF- ForD, J. The Lady Pike, 21 Wall. 14. “A carrier’s first duty, and one that is implied by law, when he is engaged in trans- porting goods by water, is to provide a sea- worthy vessel, tight and stanch, and well furnished with suitable tackle, sails or mo- tive power, as the case may be, and furni- ture necessary for the voyage. She must also be provided with a crew, adequate in number and sufficient and competent for the voyage, with reference to its length and other particulars, and with a competent and skilful master, of sound judgment and dis- cretion; and, in general, especially in steam- ships and vessels of the larger size, with some person of sufficient ability and experi- ence to supply his place temporarily, at least, in case of his sickness or physical disquali- fication. Owners must see to it that the master is qualified for his situation, as they are, in general, in respect to goods trans- ported for hire, responsible for his acts and negligence. He must take care to stow and arrange the cargo, so that the different goods may not be injured by each other, or by the motion of the vessel, or its leakage; unless, by agreement, this duty is to be per- formed by persons employed by the shipper. In the absence of any special agreement, his duty extends to all that relates to the lading, as well as the transportation and delivery of the goods; and for the faithful performance of those duties the ship is liable, as well as the master and owners.” CriFrorp, J. The Propeller Niagara v. Cordes, 21 How. 23. —— Duty of Master to Carry in His Own Ship. “As agent of the owner, the master is bound to carry the goods to their place of destination in his own ship, unless he is pre- vented from so doing by some cause arising from irresistible force, over which he has no control, and which cannot be guarded against 290 CARRIERS. by the watchful exertions of human skill and prudence.” CuiFForp, J. The Propeller Niagara v. Cordes, 21 How. 24, Custom to Carry on Deck. “In the case of a parol shipment, the mas- ter is allowed to show a local custom to carry the goods on deck in a particular trade. It must, however, be a custom so generally known and recognized, that a fair presump- tion arises that the parties in entering into the contract agreed that their rights and duties should be regulated by it.” CLrFForp, J. The Propeller Niagara wv. Cordes, 21 How. 23. Property Not Baggage Offered with Pas- senger. “Tf property offered with the passenger is not represented to be baggage, and it is not so packed as to assume that appearance, and it is received for transportation on the pas- senger train, there is no reason why the car- rier shall not be held equally responsible for its safe conveyance as if it were placed on the freight train, as undoubtedly he can make the same charge for its carriage.” Frevp, J. Hannibal R. Co. v. Swift, 12 Wall. 274. See also BaccacE. Proceeding Without Delay or Deviation. “Having received the goods for trans- portation, in the absence of any stipulation as to the period of sailing, the master must commence the voyage within a reasonable time, without delay, and as soon as the wind, weather, and tide, will permit. After having set sail, he must proceed on the voyage, in the direct, shortest, and usual route, to the port of delivery, without unnecessary devia- tion, unless there has been an express con- tract as to the course to be pursued; and where the vessel is destined for several ports and places, the master should proceed to them in the order in which they are usually visited, or that designed by the contract, or, in certain cases, by the advertisement relating to the particular voyage. A deviation from the direct route may be excusable if rendered necessary to execute repairs for the preserva- tion of the ship, or the prosecution of the voyage, or to avoid a storm, or an enemy, or pirates, or for the purpose of obtaining necessary supplies of water and provisions, or, in case of a steamer, to obtain necessary supplies of wood or coal for the prosecution of the voyage, or for the purpose of assisting another vessel in distress.” CLiFForD, J. The Propeller Niagara v. Cordes, 21 How. 24, - wise.” Quarantine Regulations as Excuse. “The railroad company was bound to dis- charge its duties as a carrier unless relieved therefrom by such quarantine regulations under the laws of Texas as were consistent with the Constitution of the United States. It could not plead in defense of its action the quarantine regulations adopted by the state sanitary commission and the proclama- tion of the governor of that state, if such regulations and proclamation were void under the Constitution of the United States.” Hartan, J., dissenting. Smith v. St. Louis, etc., R. Co., 181 U. S. 259. ‘ Liability Commences from Delivery and Acceptance. “The liability of a carrier commences when the goods are delivered to him or his author- ized agent for transportation, and are ac- cepted. Hunt, J. Pratt v. R. Co., 95 U. S. 43. “The elementary rule is that the liability of a common carrier depends upon the de- livery to him of the goods which he is to carry.” Wut, J. Missouri Pac. R. Co. wv. McFadden, 154 U. S. 160. “While the authorities may differ upon the point of what constitutes delivery to a carrier, the rule is nowhere questioned that when delivery has not been made to the car-' rier, but, on the contrary, the evidence shows that the goods remained in the possession of the shipper or his agent after the signing and passing of the bill of lading, the carrier is not liable as carrier under the bill. Of course, then, the carrier’s liability as such will not attach on issuing the bill in a case where not only is there a failure to deliver, but there is also an understanding between the parties that delivery shall not be made till a future day, and that the goods until then shall remain in the custody of the shipper.” Wuirte, J. Missouri Pac. R. Co. v. Me- Fadden, 154 U. S. 161. — What Is Delivery. “Tf the deposit of the goods is a mere ac- cessory to the carriage, that is, if they are deposited for the purpose of being carried without further orders, the responsibility of the carrier begins from the time they are received; but, when they are subject to the further order of the owner, the case is other- Hunt, J. Pratt v. R. Co, 95 U. S. 44. Carrier Exempted from Liability if Owner Keeps Exclusive Possession. “A carrier may also be exempted from 291 CARRIERS. liability by the conduct of the owner of prop- erty, in keeping the exclusive possession atid control of it, and thereby withholding it from the care and management of the carrier.” Dank, J., dissenting. New Jersey Steam Nav. Co. v, Merchants’ Bank, 6 How, 417. Delivery to Consignee, “The duty of a comton catrier is not metely to carty safely the goods intrusted to him, but also to deliver them to the party des- ignated by the terms of the shipment, or to his order, at the place of destination. There are no conditions which would release him from this duty, except such as would also release him from the safe carriage of the goods. The undertaking of the carrier to transport goods necessarily iticludes the duty of de- livering them.” Fre_p, J. North Penn. R. Co. v. Commercial Bank, 123 U.~S. 733. “The common carrier who receives prop- erty to transport, and does not deliver it, is always held prima facie liable.” Woonsury, J., concurring. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 423. “Where the consignor is known to the car- rier to be the owner, the carrier must be understood to contract with him only, for his interest, upon such terms as he dictates in regard to the delivery, and that the con- signees are to be regarded simply as agents selected by him to receive the goods at a place indicated. Where he is an agent mere- ly, the rule is different.” Hunt, J. South- ern Express Co. vi Dickson, 94 U. S. 551. “Tf the person to whom the goods are ordered to be delivered, is only an agent of the shipper, he has no property in them, and cannot maintain an action against the master for not delivering them, nor for damaze for negligence of ‘the carrier. And if the goods are shipped at the risk of the consignor, though the freight is payable by the consignee, the property remains in the former.” Netson, J. Grove uv. Brien, 8 How. 439. —Usages of Port and Trade. “The contract of the carrier, in this case, is ‘to deliver, in like good order and con- dition, at the port of Boston, unto Goddard & Pritchard.’ What constitutes a good de- livery, to satisfy the exigency of such a con- tract, will depend on the known and estab- lished usages of the particular trade, and the well-known usages of the port in which the delivery is to be made.” Grter, J. Richard- son wv, Goddard, 23 How. 38. “The policy of the law holds the carrier to a tigorous liability; and in the discharge of it, he is not boutid to await the convenience or accommodate himself to the caprice or conscientious scruples of the consigtiee. The master of a ship tually has a certaitt nirn- ber of lay-days. He is bound to expedite the unlading of his vessel in order to relieve the owners from the expense of demurrage, and to liberate the ship from the oherous liax bility of the contract of affreightrnent as soon as possible. He has six days of the week iti which to petform this task, and has a right to demand the acceptance of his freight by the consignee. The consignee may think it proper to keep Saturday as his Sabbath, and to observe Friday as a fast day, or other church festival, or he may postpone the re- moval of the goods because his warehouse is not in order to receive them; but he cannot exercise his rights at the expense of others, and compel the carrier to stand as insurer of his property, to suit his convenience or his conscience.” Grier, J. Richardson v. God dard, 23 How. 40. —— Live Stock. “A railroad comparly, it is triié, is not a cartier of live stock with the same responsi- bilities which attend it as a carrier of goods. The nature of the property, the in- herent diffictilties of its safe trafisporation, atid the necessity of furnishing to the animals food atid water, light and air, and protecting them from injuring each othet, impose duties in many respects widely different from those devolvirig upon a mere carriet of goods. The most scruptlous care in the perfortnance of his duties will not always secure the carrier from foss. But notwithstanding this differ- ehce in duties and responsibilities, the rail- road company, wher it undertakes generally to carry stich freight, bécomies subject, under similar coriditions, to the sate obligations, so fat as the delivery of the animals which ate safely transported is concerned, as in the case of goods. They ate to be delivered at the place of destination to the party desig- nated to receive them if he presents himself, or can with reasonable efforts be found, of to his order. No obligation of the cartier, whethet the freight consists of goods or of live stock, is mote strictly enforced.” Frexp, J. North Perinsylvania R. Co. v. Commercial Bank, 123 U. S. 734. Seée also infra, III. 3. d. (8). —— Safe Custody, “Safe custody is as much.the duty of the carriét as due transport and right of delivery; and although the defendants were forbidden 202 CARRIERS. to transport goods over the railroad, or to~ deliver the same on ‘a ‘Sabbath day,’ yet they might safely and securely keep such as were in their custody, and it was their duty so to do.” CuiFForD, J. Powhatan Steam- boat Co. v. Appomattox R. Co., 24 How. 255. — Safe Custody in Case of Wreck. “Safe custody is as much the duty of a carrier as conveyance and delivery; and when he is unable to carry the goods forward to their place of destination, from causes which he did not produce, and over which he has no control, as by the stranding of the vessel, he is still bound by the original obligation to take all possible care of the goods, and is responsible for every loss or injury which might have been prevented by human fore- sight, skill and prudence.” Ctirrorp, J. The Propeller Niagara v. Cordes, 21 How. 27. — Delivery at Warehouse of Consignee — Must Keep Safely. “By these [the general usages of the com- mercial and maritime law] it is well settled that the carrier by water shall carry from port to port, or from wharf to wharf. He is not bound to deliver at the warehouse of the consignee; it is the duty of the consignee to receive the goods out of the ship or on the wharf. But to constitute a valid delivery on the wharf, the carrier should give due and reasonable notice to the consignee, so as to afford him a fair opportunity of providing suitable means to remove the goods, or put them under proper care and custody. Such a delivery, to be effectual, should not only be at the proper place, which is usually the wharf, but at a proper time. A carrier who would deposit goods on a wharf at night or on Sunday, and abandon them without a proper custodian, before the consignee had proper time and opportunity to take them into his possession and care, would not fulfil the obligation of his contract. When goods are not accepted by the consignee, the carrier should put them in a place of safety; and when he has so done, he is no longer liable on his contract of affreightment.” Gnrugr, J. Richardson v. Goddard, 23 How. 39. “Duties remain to be performed by the owner, or the master as the agent of the owner, after the vessel is wrecked or dis- abled, and after he has ascertained that he can neither procure another vessel nor re- pair his own, and those, too, of a very im- portant character, arising immediately out of the original undertaking to carry the goods safely to their place of destination, His obligation to take all possible care of the goods still continues, and is by no means discharged or lessened, while it appears that the goods have not perished with the wreck, and certainly not where the vessel is only stranded on the beach.” CtirForp, J. The Propeller Niagara v. Cordes, 21 How. 26. —— Duty to Deliver to Proper Party. “If the consignee is absent from the place of destination, or cannot, after reasonable inquiries, be found, and no one appears to represent him, the carrier may place the goods in a warehouse or store with a re- spensible person to be kept on account of and at the expense of the owner. He cannot re- lease himself from the responsibility by abandoning the goods or turning them over to one not entitled to receive them.” FUEL», J. North Pennsylvania R. Co. v. Commer- cial Bank, 123 U. S. 734. — Carrier by Wagon, “A carrier by wagon may be bound to deliver his freight at the warehouse of the consignee; carriers by railroad and canal usually deliver at warehouses belonging to themselves or others. Where the contract is to carry by sea, from port to port, an actual or manual tradition of the goods into the possession of the consignee, or at his ware- house, is not required in order to discharge the carrier from his liability as such.” GRIER J. Richardson v. Goddard, 23 How. 39. Proof of Loss — Presumption. “The contract of the carrier being to carry safely, the proof of the injury usually es- tablishes a prima facie case, which the carrier must overcome.” Fietp, J. Nitro-Glycerine Case, 15 Wall. 537. “Carriers may be answerable for the goods, although no actual blame is imputed to them; and after the damage is established, the burden lies upon the respondents to show that it was occasioned by one of the perils from which they are exempted in the con- tract or shipment or bill of lading.” Curr- ForD, J. The Propeller Niagara v. Cordes, 21 How. 29. “The law raises against him [a carrier] a conclusive presumption of misconduct, or breach of duty, in relation to every loss not caused by excepted perils. Even if innocent, in fact, he has consented by his contract to be dealt with as if he were not so. He does not stand, therefore, on the same footing with that of an insurer, who may have entered into his contract of indemnity, relying upon the carrier’s vigilance and responsibility. In all cases, when liable at all, it is because he 293 CARRIERS. is proved, or presumed to be, the author of : contract to carry goods. For the goods, the the loss.” Strone, J. Hall v. Railroad Com- panies, 13 Wall. 372. (2) Lrapitiry 1n NaTuRE OF INSURER. General Rule Stated. “At common law, a carrier by land is in the nature of an insurer, and is bound to keep and carry the goods intrusted to his care safely, and is liable for all losses, and in all events, unless he can prove that the loss happened from the act of God, or the public enemy, or by the act of the owner of the goods.” Cuirrorp, J. The Propeller Niagara uv. Cordes, 21 How. 22. To the same effect see the language of CuiFForD, J., in Railroad Co. v. Varnell, 98 U. S. 480; The Delaware, 14 Wall. 597; The Lady Pike, 21 Wall. 14; of Netson, J., in New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 381; of Gray, J., in The J. P. Donaldson, 167 U. S. 603; of Strone, J., in Kentucky Bank v. Adams Ex. Co., 93 U. S. 181; of Fiexp, J., in York Co. v. Illinois Cent. R. Co., 3 Wall. 112. “Where there is no provision in the con- tract of affreightment varying the liability of the carrier, he cannot relieve himself from liability for injuries to goods intrusted to his care, except by proving that it was the result of some natural or inevitable neces- sity superior to all human agency, or of a force exerted by a public enemy.” CLIFForRD, J. The Propeller Niagara v. Cordes, 21 How. 27. Not Strictly an Insurer, “A carrier is not an insurer, though often loosely so called. The extent of his respon- sibility may be equal to that of an insurer, and even greater, but its nature is not the same. His contract is not one for indemnity, independent of the care and custody of the geods. He is not entitled to a cession of the remains of the property, or to have the loss adjusted on principles peculiar to the con- tract of insurance; and when a loss occurs, unless caused by the act of God, or of a public enemy, he is always in fault.” Strone, J. Hall v. Railroad Companies, 13 Wall. 372. Loss by Fire. “Common carriers are liable for losses by fire, though guilty of no neglect, unless it happened by lightning.” Woopzsury, J., con- curring. New Jersey Steam Nav. Co. w. Merchants’ Bank, 6 How. 425. Carriers of Goods and Passengers Distin- guished. “Tt is certainly a sound principle that a contract to carry passengers differs from a carrier is answerable, at all events, yet his undertaking and liability as to them, go to this extent: that he, or his agent, if, as in this case, he acts by agent, shall possess competent skill; and that as far as human care and foresight can go, he will transport them safely.” Barzour, J. Stokes v. Salton- stall, 13 Pet. 191, Measure of Damages. “Tt is well settled as a general rule that the measure of damage in the case of a common carrier is the value of the goods en- trusted to it for transportation, with interest from the time when they ought to have been delivered. But when the matters ap- pears to’ have been regulated by statute in the state, and the statute has been inter- preted by its highest court, the regulation of the statute will be followed in the courts of the United States.” BtatcHrorp, J. New York, etc, R. Co. v. Estill, 147 U. S. 622. “The carrier has the actual and manual Possession of the goods; the identity of the goods which he receives with those which he delivers can hardly be mistaken; their value can be easily estimated, and may be ascer- tained by inquiry of the consignor, and the carrier’s compensation fixed accordingly; and his liability in damages is measured by the value of the goods.” Gray, J. Primrose v. Western Union Tel. Co., 154 U. S. 14. ——Ignorance of Value of Package. “As a general rule, and in the absence of fraud or imposition, a common carrier is answerable for the loss of a package of goods though he is ignorant of its con- tents, and though its contents are ever so valuable, if he does not make a special ac- ceptance.” BriatcHrorp, J. Hart v. Penn- sylvania R. Co., 112 U. S. 340. (3) Carriers oF Live Stock. Nature of Liability. “A railroad company, it is true, is not a carrier of live stock with all the responsi- bilities that attend it as a carrier of goods. ‘ There are recognized limitations upon the duty and responsibility of carriers of in- animate property that do not apply to car- riers of live stock. These limitations arise from the nature of the particular property transported.” Haran, J. Covington Stock- Yards Co. v. Keith, 139 U. S. 134. “Although a railroad company is not a common carrier of live animals in the same sense that it is a carrier of goods, its re- 294 CARRIERS. sponsibilities being in many respects different, yet when it undertakes generally to carry such freight it assumes, under similar con- ditions, the same obligations, so far as the route is concerned over which the freight is to be carried.” Fietp, J. Myrick v. Michi- gan Cent. R. Co., 107 U. S. 107. Commencement and Termination of Li- ability. “The transportation of live stock begins with their delivery to the carrier to be loaded upon its cars, and ends after the stock is unloaded and delivered, or ‘offered to be de- livered, to the consignee, if to be found, at such place as admits of their being safely taken into possession.” Harian, J. Cov- ington Stock-Yards Co. v. Keith, 139 U. S. 136. (4) Carriers oF PASSENGERS. aa. In General. Liability for Injury Generally. “The general liability of a railroad com- pany for injuries, caused by the negligence of its servants, to passengers and others not in its service is conceded. It covers all in- juries to which they do not contribute.” Fretp, J. Chicago, etc., R. Co. v. Ross, 112 U. S. 382. To the same effect, see the lan- guage of Fietp, J., dissenting, in Vicksburg, etc, R. Co. v. O’Brien, 119 U. S. 109. “Whatever care and precaution may be taken in conducting its business [the business of a common carrier of passengers] or in selecting its servants, if injury happen to the passengers from the negligence or incom- petency of the servants, responsibility there- for at once attaches to it. The utmost care on its part will not, relieve it from liability, if the passenger injured be himself free from contributory negligence.” Frexp, J. Missouri R. Co. v. Mackey, 127 U. S. 209. Character of Vehicles. “Life and limb are as valuable, and there is the same right to safety, in the caboose as in the palace-car. The same formidable power gives the traction in both cases.” Swayne, J. Indianapolis, etc, R. Co. v. Horst, 93 U. S. 296. “The law, for the protection of travelers, subjects such carriers [of passengers] to a very strict responsibility. It imposes upon them the duty of providing for the safe con- veyance of passengers, so far as that is prac- ticable by the exercise of human care and foresight.” Fretp, J. Shoemaker v. Kings- bury, 12 Wall. 376. “The law will not permit a railroad com- pany, engaged in the business of carrying persons for hire, through any device or ar- rangement with a sleeping-car company whose cars are used by the railroad company, and constitute a part of its train, to evade the duty of providing proper means for the safe conveyance of those whom it has agreed to convey.” Hartan, J. Pennsylvania Co. v. Roy, 102 U. S. 457. — Defense that Defective Conveyance Was Purchased of Another. “Persons transported in such [steam] con- veyances contract with the proprietors or owners of the conveyance and not with their agents as principals, and the question of the liability of the proprietor or owner is wholly unaffected by the fact that the defective ship, car, engine, or other apparatus was pur- chased of another, if the defect is one that might have been discovered by any known means.” CLiFForD, J. The City of Panama, 101 U. S. 462. Defect in Road, Rails, or Ties. “The engagement of a railroad company is to carry its passengers safely; and, for any injury arising from the defect in its road, or in the rails or ties, which could have been guarded against by the exercise of proper care, it is liable.” Fre.p, J., dissenting. Vicksburg, etc., R. Co. v. O’Brien, 119 U. S. 109, Not Insurer, but Utmost Care and Skill Required. “Though as a carrier of passengers it [a railroad compafiy] is not, like a carrier of property, an insurer against all accidents ex- cept those caused by the act of God or the public enemy, it is charged with the utmost care and skill in the performance of its duty.” Tien, J., dissenting. Vicksburg, etc., R. Co. v. O’Brien, 119 U. S. 109. “When carriers undertake to convey per- sons by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence, the true requirement being that the personal safety of the passengers shall not be left to the sport of chance or the negligence of careless agents.” CuiF- ForD, J. The “City of Panama,” 101 U. S. 462. ‘ “They [passengers] at least, have the right to expect the highest or utmost, not simply a great degree of diligence on the part of passenger carriers and all persons employed 295 CARRIERS. by them.” Hartan, J. Wabash R. Co. 2. McDaniels, 107 U. S. 462. —— Higher Degree than Required of Owner of Stage-coaches. “Carriers of passengers even in street- cars are bound to a higher degree of care, skill and vigilance in the preparation and management of their vehicles. of conveyance than were required of the owners of the stage-coaches, as well on account of the greater number transported at the same time as the constant ingress and egress of the persons entering or leaving the car.” CLIF- ForD, J. Railroad Co. v. Varnell, 98 U. S. 480. —Gross Negligence. “When carriers undertake to convey per- sons by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. And whether the con- sideration for such transportation be pecuni- ary or otherwise, the personal safety of the passengers should not be left to the sport of chance or the negligence of careless agents. Any negligence, in such cases, may well de- serve the epithet of ‘gross.’” Gnrizr, J. Philadelphia, etc, R. Co. v. Derby, 14 How. 486. ; —— Carriage of Passengers and Carriage of Merchandise Distinguished. “Owners of vessels engaged in carrying passengers assume obligations somewhat dif- ferent from those whose vehicles or vessels are employed as common carriers of mer- chandise. Obligations of the kind in the former case are in some respect less ex- tensive and more qualified than in the latter, as the owners of the vehicle or vessel carry- ing passengers are not insurers of the lives of their passengers, nor even of their safety, but in most other respects the obligations assumed are equally comprehensive, and perhaps even more stringent.” Cxrrrorp, J. Railroad Co. v. Varnell, 98 U. S. 479. To the same effect see the language of CLIFFORD, J. in The “City of Panama,” 101 U. S. 462. Risks of Traveler. “Travelers must take the risk necessarily incident to the mode of travel which they select; but those risks in the legal sense are only such as the utmost care, skill and caution of the carrier in the preparation and management of the vehicle of conveyance is unable to avert.” CxirForp, J. Railroad Co. v. Varnell, 98 U. S. 480. To the same effect, see the language of Cuirrorp, J, in The “ City of Panama,” 101 U. S. 462. bb. Conduct of Servants. Wilful Assault. “Qwing to the peculiar circumstances which surround the carrying of passengers, as stated, a more stringent rule of liability has been cast upon the employer; and he has been held liable although the assault [by an employee] was wanton and wilful, and out- side the scope of the employment.” Brewer, J. New Orleans, etc, R. Co. v. Jopes, 142 U~ S. +27. Self-defense. “There is no misconduct when a con- ductor uses force and does injury in simply self-defense; and the rules which determine what is self-defense are of universal, appli- cation, and are not affected by the character of the employment in which the party is en- gaged. Indeed, while the courts hold that the liability of a common carrier to his pas- sengers for the assaults of his employés, is of a most stringent character, far greater than that of ordinary employers for the actions of their employés, yet they all limit the liability to cases in which the assault and injury are wrongful. Brewer, J. New Or- leans, etc., R. Co. v. Jopes, 142 U. S. 26. Question One of General Jurisprudence. “The single question presented for our decision is whether a railroad cor- poration can be charged with punitive or ex- emplary damages for the illegal, wanton and oppressive conduct of a conductor of one of its trains towards a passenger. This ques- tion, like others affecting the liability of a railroad corporation as a common carrier of goods or passengers—such as its right to contract for exemption from responsibility for its own negligence, or its liability beyond its own line, or its liability to one of its servants for the act of another person in its employment — is a question, not of local law, but of general jurisprudence, upon which this court, in the absence of express statute regulating the subject, will exercise its own judgment, uncontrolled by the decisions of the courts of the several states.” Gray, J. Lake Shore, etc, R. Co. v. Prentice, 147 U. S. 106. e. Restriction of or Exemption from Lia- bility. By Notice. “He [the carrier] cannot screen himself from liability by any general or special notice, nor can he coerce the owner to yield assent to a limitation of responsibility by making exorbitant charges when such assent is re 296 CARRIERS. fused.” Fieup, J. York Co. v. Illinois Cent. R. Co., 3 Wall. 112. “The carrier cannot in this way [by notice seeking to limit responsibility] exonerate himself from duties which the law has an- nexed to his employment.’ Netson, J. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 382. “He [a common carrier] is in the exercise of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned. And this is not to be implied or inferred from a gen- eral notice to the public, limiting his obliga- tion, which may or may not be assented to.” Netson, J. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 382. No Implied Exemption from Duties. “The burden of proof lies on the carrier, and nothing short of an express stipulation by parol or in writing should be permitted to discharge him from duties which the law has annexed to his employment. The exemp- tion from these duties should not depend upon implication or inference, founded on doubtful and conflicting evidence; but should be specific and certain, leaving no room for controversy between the parties.” NELSON, J. New Jersey Steam Nav. Co. v. Mer- chants’ Bank, 6 How. 383. Contract Not to Perform Duties of Carrier Void. “A contract of a carrier, whether an in- dividual or a corporation, not to carry pas- sengers or goods over a particular route, may be reasonable and valid. But a con- tract by which a corporation, chartered to perform the duties of a common carrier, or any other duties to the public, agrees that it will not perform those duties at all, any- where, for ninety-nine years, is clearly un- reasonable and void.” Gray, J. Central Transp. Co. v. Pullman’s Palace Car Co., 139 U. S. 53. Special Contract Cannot Destroy Charac- ter as Carrier. “When a carrier has a regularly estab- lished business for carrying all or certain ar- ticles, and especially if that carrier be a cor- poration created for the purpose of the carry- ing 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 the character.” Brapiey, J. New York Cent, R. Co. v. Lockwood, 17 Wall. 37. To the same effect see the language of Gray, J., in Liverpool, etc., Steam Co. wv. Phenix Ins. Co., 129 U. S. 440. Stipulations Limiting Extent of Obliga- tion. “In this country, it was at one time. : . insisted that, exercising a public em- ployment, the carrier owed duties at com- mon law, from which public policy de- manded that he should not be discharged even by express agreement with the owner of the goods delivered to him for transpor- tation.” Fretp, J. York v. Illinois Cent. R. Co., 3 Wall. 111. ‘ “The right of a common carrier to limit his responsibility by special contract has long been the settled law in England. It was the subject of frequent adjudication in her courts, and had there ceased to be a contro- verted point before the passage of the Car- rier’s Act of 1830.” Fretp, J. York Co. z. Illinois Cent. R. Co., 3 Wall. 111. “To secure care, diligence and fidelity in the discharge of his important public func- tions, the common law charged the common carrier as an insurer; but the rigor of the rule has been relaxed so as to allow reason- able limitations upon responsibility at all events, to be imposed by contract.” FULLER, C. J. Inman v. South Carolina R. Co., 129 U. S. 139. To the same effect see the lan- guage of Stronc, J., in Southern Express Co. v. Caldwell, 21 Wall. 267; of McKenna, J., in Cau v. Texas, etc, R. Co. 194 U. S. 430; of Netson, J., in New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 382; of Frexp, J., in York Co. v. Illinois Cent. R. Co., 3 Wall. 112. “A carrier may, in a given case, be ex- empted from liability for loss, without fraud, by express agreement with the person for whom he undertakes; for I cannot well im- agine a principle creating a disability in a particular class of persons to enter into a contract fraught with no criminal or immoral element,— a disability, indeed, extending in- juriously to others, who might find it ma- terially beneficial to make a contract with them.” DanizL, J., dissenting. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 417. “Stipulations in the nature of exceptions may be made limiting the extent of the ob- ligation of the carrier, and in that event the bill of lading is evidence of the ordinary contract of affreightment, subject, of course, 297 CARRIERS. to the exceptions specified in the instrument.” CuiFForD, J. The Delaware, 14 Wall. 597. —— Illustrations. “ 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 hap- pening 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 dam- aged — unless informed of their character or value; or for perishable articles or live ani- mals, when injured without default or negli- gence of the carrier.” Gray, J. Liverpool, etc., Steam Co. v. Phenix Ins. Co., 129 U. S. 441, —— Requiring Claim for Loss to be Made Within Fixed Period. “A common carrier is always responsible for his negligence, no matter what his stipu- lations may be. But that an agreement that in case of failure by the carrier to deliver the goods, a claim shall be made by the bailor, or by the consignee, within a specified period, if that period be a reasonable one, is altogether of a different character. It contravenes no public policy. It excuses no negligence.” ‘Stronc, J. Southern Express Co. v. Caldwell, 21 Wall. 268. , -— Liability to Extent of Agreed Valua- tion. “By specific regulations brought distinctly to the notice of the passenger or shipper, to agree upon the valuation of the property carried, with a rate of freight based on the condition that the carrier assumed liability only to the extent of the agreed valuation, even in case of loss or damage by the negli- gence of. the carrier, and that such con- tracts will be upheld as a lawful method of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives, and of protecting himself of extravagant and fanciful valua- tions.” Brown,J. Calderon v. Atlas Steam: ship Co. 170 U. S. 278. “Even a carrier of goods may, by special contract with the owner, restrict the sum for which he may be liable, even in case of a loss by the carrier’s negligence.” Gray, J. Primrose v. Western Union Tel. Co., 154 U. S. 15. — Stipulation Must Be Clear and Rea- sonable. “Certainly it ought not to be admitted that a common carrier can be relieved from the full measure of that responsibility which ordi- narily attends his occupation without a clear and express stipulation to that effect ob- tained by him from his employer. And even when such a stipulation has been obtained the court must be able to see that it is not un- reasonable.” Stronc, J. Southern Express Co. v. Caldwell, 21 Wall. 266. “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.” Gray, J. Liverpool, etc. Steam Co. v. Phenix Ins. Co., 129 U. S. 441. “Tt is undoubtedly true that special con- tracts with their [carriers’] employers limit- ing their liability are recognized as valid, if in the judgment of the courts they are just and reasonable—if they are not in con- flict with sound legal policy.” Strone, J. Southern Express Co. v. Caldwell, 21 Wall. 266. i “We think the law of to-day may be fairly stated as follows: . . That exemp- tions claimed by carriers must be reasonable and just, otherwise they will be regarded as extorted from the customers by duress of cir- cumstances, and therefore not binding. Sutras, J. Baltimore, etc., R. Co. v. Voight, 176 U. S. 507. “There can be no stipulation for any ex- emption by a carrier which is not just and reasonable in the eye of the law.” Mc- Kenna, J. Cau v. Texas, etc., R. Co. 194 U. S. 431. “By special contract with his employers he [a common carrier] may, it is true, to some extent, be excused, if the limitations to his responsibility stipulated for are, in the judgment of the law reasonable, and not inconsistent with sound public policy.” Stronc, J. Kentucky Bank v. Adams Ex. Co., 93 U. S. 181. —— Construction of Contract. “There is no doubt of the general propo- sition that restrictions upon the liability of a common carrier, inserted by him in the bill of lading for his own benefit and in language chosen by himself, must be nar- rowly construed, still they ought not to be wholly frittered away by an adherence to the letter of the contract in obvious disre- gard of its intent and spirit.” Brown, J. Queen of the Pacific, 180 U. S. 52. 298 CARRIERS. “Exceptions in a bill of lading or charter party, inserted by the shipowner for his own benefit, are unquestionably to be construed most strongly against him.” Gray, J. Com- pania La Flecha v. Brauer, 168 U. S. 118. “The ordinary contract of a common car- rier by sea involves an obligation on his part to use due care and skill in navigating the vessel and in carrying the goods; and an ex- ception, in the bill of lading, of perils of the sea, or other specified perils, does not excuse him from that obligation, nor exempt him from liability or damage from one of those perils, to which the negligence of himself or his servants has contributed.” Gray, J. Compania La Flecha v. Brauer, 168 U. S. 118. “Because the owner may, when he has used due diligence to furnish a seaworthy ship, contract against the obligation of sea- worthiness, it does not at all follow that when he has made no contract to so exempt himself he nevertheless is relieved from furnishing a seaworthy ship, and is subjected only to the duty of using due diligence. To make it unlawful to insert in a contract a provision exempting from unseaworthiness where due diligence has not been used, can- not by any sound rule of construction be treated as implying that where due diligence has been used, and there is no contract ex- empting the owner, his obligation to furnish a seaworthy vessel has ceased to exist.” Waite, J. The Carib Prince, 170 U. S. 661. “A ship is never liable for an accident or breakage of machinery occasioned by perils of the sea, and the word ‘defects’ is never used in that connection. The words ‘latent defect,’ as ordinarily understood, apply to something existing at the time the ship or other vehicle was constructed, and such as was not discovered and could not be dis- covered by ordinary methods of examination. To exempt a vessel from the consequences of such a defect is neither unreasonable nor unjust, and most of the modern bills of lading contain a stipulation to that effect.” Brown, J., dissenting. The Carib Prince, 170 Uz. S. 663. Carrier Cannot Limit Obligations by His Own Act. “Admitting the right thus [by agreement] to restrict his [a carrier’s] obligation, it by no means follows that he can do so by any act of his own.” Netson, J. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 382. “Tt seems to me undeniable, that a carrier may select the particular line or description of business in which he engages, and that, so long as he with good faith adheres to that description, he cannot be responsible for anything beyond or inconsistent with it. The rule which makes him an insurer against everything but the act of God or the public enemy makes him an insurer as to perform- ances only which are consistent with his un- dertaking as carrier.” DantEt, J., dissenting. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 417. “There can be no limitation of liability without the consent of the shipper.” Mc- Kenna, J. Cau v. Texas, etc, R. Co. 194 U. S. 431. “A carrier must take no advantage of the shipper or practice no deceit upon him.” McKenna, J. Cau v. Texas, etc., R. Co., 194 Uz. S. 431. Exemption of Liability for Negligence. “All attempts of carriers, by general no- tices or special contract, to escape from liability for losses to shippers, or injuries to passengers, resulting from want of care or faithfulness, cannot be regarded as reason- able and just, but as contrary to a sound public policy, and therefore invalid.” Sutras, J. Baltimore, etc., R. Co. v. Voigt, 176 U. S. 507. To the same effect see the language of BiatcHForpD, J., in Hart v. Pennsylvania R. Co., 112 U. S. 338; of Sutras, J., in The Ir- rawaddy, 171 U. S. 190; of Gray, J., in Prim- rose v. Western Union Tel. Co., 154 U. S. 15; Chicago, etc., R. Co. v. Solan, 169 U. S. 135; Liverpool, etc., Steam Co. v. Phenix Ins. Co., 129 U. S. 441; Phoenix Ins. Co. v. Erie Transp. Co., 117 U. S. 322; of Mc- Kenna, J., in Cau v. Texas, etc., R. Co., 194 U. S. 432; of Warr, J., in The Kensington, 183 U. S. 268; of Futter, C. J., in Inman v. South Carolina R. Co., 129 U. S. 139. “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 employ- ment.” Gray, J. Liverpool, etc, Steam Co. v. Phenix Ins. Co., 129 U. S. 440. “Tf it is competent at all for the carrier to stipulate for the gross negligence of him- self, and his servants or agents, in the trans- 299 CARRIERS. portation of the goods, it should be required to be done, at least, in terms that would leave’ no doubt as to the meaning of the parties.” Netson, J. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 383. —— Character of Care Referred to. “Nor can those duties be waived in re- spect to his agents or servants, especially where the carrier is an artificial being, in- capable of acting except by agents and ser- vants. The law demands of the carrier care- fulness 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 com- mon carriers, as the business is now carried on, would be subversive of the very object of the law.” Gray, J. Liverpool, etc., Steam Co. v. Phenix Ins. Co., 129 U. S, 441. — Effect of State Decisions. “Tt is settled by ithe decisions of this court that a provision, in a contract between a railroad corporation and the -owner of goods received by it as a common carrier, that it shall not be liable to him for any loss or injury of the goods by the negligence of itself or its servants, is contrary to public policy, and must be held to be void in the courts of the United States, without regard to the decisions of the courts of the state in which the question arises.” Gray, J. Hart- ford Ins. Co. vw. Chicago, etc. R. Co., 175 U. S. 97. “The question of the right of a railroad corporation to contract for exemption from liability for its own negligence is, indeed, like other questions affecting its liability as a common carrier of goods or passengers, one of those questions not of merely local law, but of commercial law or general jurispru- dence, upon which this court, in the absence of express statute regulating the subject, will exercise its own judgment, uncontrolled by the decisions of the courts of the state in which the cause of action arises. But the law to be applied is none the less the law of the state; and may be changed by its legis- lature, except so far as restrained by the Constitution of the state or by the Constitu- tion or laws of the United States.” Gray, J. Chicago, etc., R. Co. v. Solan, 169 U. S. 136. —— Reasons on Which Rule Is Founded. “The reasons on which those decisions [denying the right of a common carrier to relieve itself by contract from liability for negligence] are founded are, that such a question is one of the general mercantile law; that the liability of a common car- Tier is created by the common law, and not by contract; that “to use due care and diligence in carrying goods intrusted to him is an _ essential duty of his employment, which he cannot throw off; that a common carrier is under an obligation to the public to carry all goods offered to be carried, within the scope and capacity of the business which he has held himself out to the public as doing; and that, in making special contracts for the carriage of such goods, the carrier and the customer do not stand on equal terms.” Gray, J. Hartford Ins. Co. v. Chicago, etc., R. Co., 175 U. S. 98. “The carrier and his customer do not stand upon a footing of equality. The in- dividual 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.” Gray, J. Liverpool, etc., Steam Co. v. Phenix Ins. Co., 129 U. S. 441. : — Before the Harter Act. “Before the Act of Congress of February 13, 1893, c. 105 (27 Stat. 445), known as the Harter Act, it was the settled law of this country, as declared by this court, that com- mon carriers, by land or sea, could not by any form of contract exempt themselves from re- sponsibility for loss or damage arising from negligence of their servants, and that any stipulation for such exemption was void as against public policy; although the courts in England and in some of the states held otherwise.” Gray, J. Knott v. Botany Mills, 179 U. S. 71. “By the law of this country, before the act [Act of Cong. Feb. 13, 1893], as de- clared upon much consideration by this court, common carriers, by land or sea, could not, by any form of contract with the owner of property carried, exempt themselves from re- sponsibility for loss or damage arising from negligence of their servants; and any stipu- lation for such exemption was contrary to public policy and void.” Gray, J. Compania La Flecha v. Brauer, 168 U. S. 117. “Doubtless, as the law stood before the passage of the act [the Harter Act], the owner could not contract against his liabil- ity and that of his vessel for loss occasioned by negligence or fault in the officers or crew, 800 CARRIERS. becatise such a contract was held by the federal courts to be contrary to public policy, and, in this particular, the owners of American vessels were at a disadvantage as compared with the owners of foreign vessels, who can contract with shippers against any liability for negligence or fault on the part of the officers or crew.’ Suiras, J. The Irrawaddy, 171 U. S. 193. —— Statutory Modification of Rule. “By the Act of February 13, 1893, 27 Stat. 445, known as the Harter Act, . « « the general rule . . [against exemption from negligence] was modified so as to ex- empt vessels, when engaged in the classes of carriage coming within the terms of the statute, from liability for negligence in cer- tain particulars. But whilst this statute changed the general tule in cases which the act embraced, it left such rte in all other cases tihimpaired. Indeed, in view of the well-settled nature of the general rule at the time the statute was adopted, it must fe- sult that legislative approval was by clear implication given to the gerieral tule as then existing in all cases where it was not changed.” Wiart#, J. The Kensitigton, 183 Uz. S. 268. “As the Harter Act is a novelty in mari- time legislation, of course it would be vain to search for authorities based upon a similar enactment: but cases are by no means wanting where a sitnilar question has arisen upon stipulations in bills of lading exempting the owner of the ship from the consequencés of faults or errors in navigation. While it is concéded in this country that such stipula- tions are of no avail, it is equally well settled that by the law of England, and of some, if not all, of the maritime nations of continental Europe, they are held to be valid and bind- ing.” Brown, J., dissenting. The Irrawaddy, 171 U. S. 197. “Tt is to be noticed that by the first séc- tion fof the Harter Act, 1893] the carrier shall not be ‘relieved from liability’ for the loss or damages arising from negligence in the proper stowage 6f proper delivery of the goods, while by the second section the car- rier shall not insert any covenant or agree- ment in the bill of lading whereby thé obli- gations of the carrier to carefully stow and properly deliver the cargo shall be ‘lesseried, weakened or avoided.’ These two sections, in their general ptrrpose, so far as respects that care and delivery of the cargo, are not esseritially different, although it is possible that a somewhat ampler measure of fiability was intended utidet the second section, which detiotinces atiy covenatit whetéby the obliga- tiotis of the ship to properly deliver the cargo shall in anywise be lessened, weaketted or avoided.” Brown, J. Calderon wv. Atlas Stearnship Co., 170 U. S. 277. “In many lower courts of the United States it has been held, independently of the Harter Act, that a stipulation that a con tract should be governed by the law of Eng- larid in this respect was void, and could not be enforced in a court of the United States; but the poitit has not been decided by this court.” Gray, J. Knott v. Botany Mills, 179 U. S. 71. —— Congress May Change Standard of Duty. “ Although the foundation of the rule that forbade shipowners to contract for exenip- tion from liability for negligence in their agents arid employees, was in the decisions of this court that such contracts were against public policy, it was nevertheless competent for Congress to make a change iti the stand- ard of duty, and it is plainly the duty of the courts to conform in their decisions to the policy so declared.” Sutras, J. The Ir rawaddy, 171 U. S. 198. —In England. “By the modern decisions in England, on the other hand, made siricé it has becorne to us a foreign country, common carriers, éx- cept so far as controlled by the provisioris of the Railway and Canal Traffic Act of 1854, were permitted to exempt themselves by express contract for responsibility for losses occasioned by negligence of their ser- vants.” Gray, J. Compania La Flecha v. Brauer, 168 U. S. 117. f. As to Forwarding by Connecting Lines. No Common-law Responsibility to Carry over Other Lines, “Thete is, as already stated, no comnion- law responsibility devolving upon a carrier to transport goods over other than its own lines, atid the laws of [llinois restricting the right to limit such responsibility do not, therefore, totich the case. Not was thé com- mon-law liability of the defendant corpora- tion enlarged by the fact that a notice of the charges for through transportation was posted in the defendant’s station-house. Fretp, J. Myrick v. Michigan Cent. R. Co, 107 U. S, 108. —— Notlée on Margin of Receipt. “Nor was the liability of the company fas CARRY ON. a common carrier] affected by the fact that the notice on the margin of the receipt stated that the ticket given might be “exchanged for a through bill of lading.” It would seem to indicate that the receipt was not deemed of itself to constitute a through contract. The through bill of lading may also have contained a limitation as to the extent of the route over which the company would under- take to carry the cattle. Besides, if weight is to be given to this notice as characteriz- ing the contract made, it must be taken with the rule to which it also calls attention, that the company assumed responsibility only for transportation over its own line.” Fretp, J. Myrick v. Michigan Cent. R. Co., 107 U. S. 109. / Undertaking to Carry Beyond Its Own Line. “Té£ the road of the company connects with other roads, and goods are received for trans- portation beyond the termination of its own line, there is superadded to its duty as a common carrier that of a forwarder by the connecting line; that is, to deliver safely the goods to such line,— the next carrier on the route beyond. This forwarding duty arises from the obligation implied in taking the goods for the point beyond its own line.” Fretp, J. Myrick v. Michigan Cent. R. Co., 107 U. S. 106. — General Agent May Contract. “A railroad company has the power, as we have seen, to make such a contract of carriage beyond its lines. A general agent would be presumed to have such power. If the com- pany have the power some individual must exercise it. It would not be supposed that the board of directors would be consulted and authority given by it every time such a contract was to be made. Who is a more proper or fit person to make the contract than the general agent of the company? He must necessarily have large powers in order to conduct the business of his office, and, prima facie, such power is within the scope of such agency.” PrECKHAM, J. Northern Pac..R. Co. v. American Trading Co., 195 U. S. 462. —— Undertaking to Perform Entire Ser-- vice — Subagency. “A common carrier who undertakes for himself to perform an entire service has no authority to constitute another person or cor- poration the agent of his consignor or con- signee. He may employ a_ subordinate agency; but it must be subordinate to him, and not to one who neither employs it nor pays it, nor has any right to interfere with it.” Srronc, J. Kentucky Bank v. Adams Ex. Co., 93 U. S. 182. Law Requiring Transportation to Point of Connection with Other Line. “The requirement [of the Kentucky Con- stitution] to deliver, transfer, and transport freight to any point where there is a physical connection between the tracks of the rail- road companies, must be taken to refer to cases where the freight is destined to some further point by transportation over a con- necting line. It cannot be intended to sanc- tion the snatching of the freight from the transporting company at the moment and for the purpose of delivery.” Hotmes, J. Cen- tral Stock Yards Co. v. Louisville, etc, R. Co., 192 U. S. 571. “Suppose that the Southern Railway sta- tion and the Louisville and Nashville station were side by side, and that their tracks were connected within or just outside the limits of the station grounds. It could be said that the defendant was giving an undue or un- reasonable, disadvantage of it if it insisted on delivering live stock which it had carried to the end of the transit at its own yard.” Hotmes, J. Central Stock Yards Co. v. Louisville, etc., R. Co., 192 U. S. 570. Terminating or Altering Liability of Pre- ceding Carrier. “Whatever may generally be the effect of a notice to a connecting carrier, upon the question of terminating or altering the liabil- ity of a preceding carrier for the goods, it is quite clear that it has no effect in diminish- ing the liability until actual delivery in a case where the preceding carrier still con- tinues to have full control over the goods and has a choice between connecting carriers, and may, notwithstanding such general notice, deliver the goods under certain circumstances to another carrier for further transportation. Until actual delivery in such case, the preced- ing carrier is not divested of his liability.” PeckHaAM, J. Texas, etc., R. Co. v. Callen- der, 183 U. S. 641. : CARRY. See TRANSPORT. CARRYING WEAPONS. See ConcEALED WEAPONS. CARRY ON. “The meaning of the phrase ‘to carry on’ when applied to business is well settled. 302 CAUSE AND EFFECT. In Worcester’s Dictionary the definition is: ‘To prosecute, to help forward, to continue, as to carry on business.’ The definition given to the same phrase in Webster’s Dictionary is: ‘To continue, as to carry on a design; to manage or prosecute, as to carry on hus- bandry or trade.’” Woops, J. Cooper Mfg. Co. v. Ferguson, 113 U. S. 734. And see Dotnc BusINEss. CARS. See Freicut Cars. CARTONS. Definition. “ By cartons, we understand those encasements which are not usually of perma- nent value, and such as are ordinarily used for the convenient transportation of their contents.” Brown, J. U. S. wv. Nichols, 186 U. S. 300. See also BoxEs* CaAsEs. CASE. See Action; ASSUMPSIT; Suit; TRESPASS. MANDAMUS; Action on the Case. “Case is a generic term, which embraces many different species of actions. ‘ There are two, however, of more frequent use than any other form of action whatever: they are assumpsit and trover.” Swayne, J. Carrol v. Green, 92 U. S. 513. “ Blackstone thought that one of the most important amendments of the law during the century in which he lived was affected ‘by extending the equitable writ of trespass on the case, according to its primitive institution by King Edward the First, to almost every instance of injustice not remedied by any other process.” Swayne T. Carrol vw. Green, 92 U. S. 514. “Case” and “ Cause.” “The words ‘case’ and ‘cause’ are con- stantly used as synonyms in statutes and judi- cial decisions, each meaning a proceeding in court, a suit, or action.” Strone, J. Blyew v. U. S., 18 Wall. 595. See also APPEAL AND ERROR. Case at Law. “ A ‘case at law,’ as I have already shown, means the same thing as a ‘suit.”’” Taney, C. J., dissenting. Kendall v. U. S., 12 Pet. 634. “Case or Controversy.” “Whenever the claim or contention of a party takes such a form that the judicial power is capable of acting upon it, then it has become a case or controversy [within the meaning of the Constitution].” Fretp, J. Smith v. Adams, 130 U. S. 173. CASES. Definition. “By . cases we under- stand those encasements which are not usual- ly of permanent value, and such as are ordi- narily used for the convenient transportation of their contents.” Brown, J. U. S. uw. Nichols, 186 U. S. 300. See also Boxes; Cartons. CASHIERS. See BANKs AND BANKING CATTLE. See ANIMALS. “Tn its limited sense it [the word ‘cattle ’] is used to designate the different varieties of horned animals, but it is also frequently used with a broader signification as embracing animals in general which serve as food for man.” Davis, J. Decatur Bank v. St. Louis Bank, 21 Wall. 299. “In England, even in a criminal case, where there is a greater strictness of con- struction than in a civil controversy, pigs are held to be included within the words ‘any cattle.’ And in other cases in that country involving life and liberty, the word has been construed so as to embrace animals not used for food.” Davis, J. Decatur Bank v. St. Louis Bank, 21 Wall. 300. “The rule of the common law was ad- mitted to be that a land owner is not bound to fence his land against the cattle of others. The owner of such cattle must confine them to his own land, and will be liable for tres- passes committed by them upon the unen- closed lands of others. Brown, J. Lazarus v. Phelps, 152 U. S. 84. CAUSE. See Action; Case; Civit CAUSE. CAUSE AND EFFECT. See Conrrisutory NEGLIGENCE; EFFECT; INSURANCE; NEGLIGENCE. “Sound philosophy attributes effects to their approximate causes.” JoHNson. J. Osborn v. Bank of U. S., 9 Wheat. 890. 303 CERTIORARL “It [the word ‘effect’] is often used in the setise of acting injuriously upon persons and things.” Davis, J, Ryan v. Carter, 93 U.S. 84. “The consequence of a man’s acts are not his acts. Between the consequence and the disclosure that lead to it there may be : immediate agencies.” Stronc, J. Shuey v. U. S., 92 U. S. 76. CAVEAT. “The caveat is a remedy given to prevetit a patent from issuing in certain cases where the ditections of the law have been violated to the injury of the commonwealth, or wheré some other person hath a better right.” Mar- SHALL, C. J. Wilson v. Mason, 1 Cranch 101. CAVEAT EMPTOR. See JupictaL SALES; SALES. CEMETERIES. Dedication for Charitable Use. “A grant for the maintenance of a church- yard or burial ground in connection with a church or religious society, ot of a public burial ground, or a burial ground of all per- sons of a ceftain race, class of neighborhood, might be considered as in the nature of a dedication for a pious and charitable use.” Gray, J. Hopkins v. Grinishaw, 165 U. S. 352. CENSUS. Duty of Citizen to Furnish Information. “It is unquestionably the duty of every cit- izen to respond to the inquiries made by the census officers and furnish the information desired.” Brewer, J., dissenting. Interstate Commerce Comm. v. Brimson, 155 U. S. 10. CERTAINTY. “The law regards that as certain which is capable of being ascertained and definitely fixed.” Jackson, J. Mobile, etc., R. Co. v. Tennessee, 153 U. S, 497, “That is ceftain which is by necessary reference made certain.” Story, J. U.S. v. Smith, 6 Wheat. 159. CERTIFICATES. “A certificate under seal, when invested with legal force and effect, is a2 solemn in- strument, and ought to be complete, certain, and final in itself, without any collateral ad- ‘ dition or commentary. Its very form and character as a certificate presuppose that it has the verification and protection of the au- thenticating signature and seal. Any matter extraneous, that is, not contained in the body of the instrument, has not this verification and protection.” Braptey, J. Merrell vw. Tice, 104 U. S. 561. CERTIFICATES OF DEPOSIT. See BANKS AND BANKING, CERTIFICATES OF STOCK. See Corporations; NeEcoTtaBLeE INsfru- MENTS; STOCK AND STOCKHOLDERS. CERTIFY. See Banxs anv BANKING. CERTIORARI. In connection with habeas corpus, see Hazeas Corpus. Use at Common Law. “At common law, the writ of certiorari is used for two purposes: 1. As an appellate proceeding for the re-examination of some action of an inferior tribunal; and, 2. As auxiliary process to enable a court to obtain further information in respect to some matter already before it for adjudication.” Warts, C.J. U.S. v. Young, 94 U. S. 259. To Remove Indictment into Court of King’s Bench. “In England, the court of King’s Bench has a superintendence over all courts of an inferior criminal jurisdiction, and may, by the plenitude of its power, award a certiorari to have an indictment removed and brought before it; and where such certiorari is allow- able, it is awarded at the instance of the king, because every indictment is at the suit of the king, and he has a pretogative of suing in whatever court he pleases.’ Wayne, J. Ex p. Vallandigham, 1 Wall. 249. Authority of United States Courts, “The courts of the United States derive authority to issue such writ from the Consti- tution and the legislation of Congress.” Wayne, J. Hye p. Vallandigham, 1 Wall. 249, “There is no analogy between the power given by the Constitution and’ law of the United States to the Supreme Court and the othet inferior courts of the United States, 304 CHAMBERS. and to the judges of them, to issue such proc- esses [as certiorari], and the prerogative power by which it is done in England. The purposes for which the writs are issued’ are alike, but there is no similitude in the origin of the power to do it.” Wayne, J. Ex p. Vallandigham, 1 Wall. 249. Not Issued Freely. “This court, while not doubting its power, has been chary of action in respect to cer- tioraries.” Brewer, J. Forsyth v. Ham- mond, 166 U. S. 513. “This court, and the Circuit and District Courts of the United States, have also been empowered by Congress ‘to issue all writs, not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.’ Under this provision, the court might doubtless issue writs of certiorari, in proper cases. But the writ of certiorari has not been issued as freely by this court as by the Court of the Queen’s Bench in England.” Gray, J. American Constr. Co. v. Jacksonville Ry., etc., Co., 148 U.S. 380. Proper Use — When Important Questions Involved. “Certiorari will only be issued where ques- tions of gravity and importance are involved or in the interest of uniformity of decision.” Futter, C. J. Lau Ow Bew v. U. S., 144 Uz S. 58. — As Auxiliary Process. “Tt [the writ of certiorari] was never is- sued to bring up from an inferior court of the United States for trial a case within the exclusive jurisdiction of a higher court. It was used by this court as an auxil- iary process only, to supply imperfections in the record of a case already before it; and not, like a writ of error, to review the judg- ment of an inferior court.” Gray, J. Amer- ican Constr. Co. v. Jacksonville Ry., etc., Co., 148 U. S. 380. — To Quash Void Decree. “Tf the. decree of the Circuit Court of Appeals is void, because one of the judges who took part in the decision was forbidden by law to sit at the hearing, a writ of cer- tiorari to that court to bring up and quash its decree is manifestly a more decorous, as well as a more appropriate, form of proceed- ing than a writ of mandamus to the Circuit Court to disregard the mandate of the appel- late court.” Gray, J. American Constr. Co. v. Jacksonville, etc., Ry. Co., 148 U. S. 388. 1 Os. Dic.—20 Discretion in Granting. “The writ of certiorari when sought as between private parties and on the ground that the proceedings below are void, . . . will be granted or denied in the sound dis- cretion of the court, and will be refused where there is a plain and adequate remedy by ap- peal or otherwise. , ” Fupver; C€. J. In re Huguley Mfg., etc., Co., 184 U. S. 301. “When sought as between private persons, the general rule is that the writ of certiorari, will be granted or denied, in the sound discretion of the court, on special cause or ground shown.” Futter, C. J. J re Tampa Suburban R. Co., 168 U. S. 587. Issue Before or After Decree. “That certiorari can issue, and, indeed, is ordinarily only issued, after a final decree in the Court of Appeals, was settled by this court although it may be issued be- fore, if this court be of opinion that the facts of the case require an earlier interposition.” Brown, J. The Conqueror, 166 U. S. 113. When in Nature of Writ of Error. “A writ of certiorari, when its object is not to remove a case before trial, or to supply defects in a record, but to bring up after judgment the proceedings of an inferior court or tribunal whose procedure is not ac- cording to the course of the common law, is in the nature of a writ of error.” Gray, J. Harris v. Barber, 129 U. S. 369. Decision of Merits After Writ Granted. “The writ of certiorari, authorized by the Act of 1891, and prayed for in this case, being in the nature of a writ of error to bring up for review the decree of the Circuit Court of Appeals, the question whether the writ should be granted rests in the discretion of this court; but when the writ has been granted, and the record certified in obedience to it, the questions arising upon that record must be determined according to fixed rules of law.” Gray, J. Harris v. Barber, 129 U. S. 366, 369; American Constr. Co. v. Jacksonville, etc. R. Co., 148 U. S. 387. Only Matters on Face of Record Brought Up. “ Affidavits cannot add anything to the record, and the writ of certiorari can [not] bring into review anything not apparent or the face of the record.” CuiFForp, J., dis- senting. Ex p. Lange, 18 Wall. 188. CHAMBERS. See TERM AND VACATION. 805 CHARITIES. CHAMPERTY AND MAIN- TENANCE. See ATTORNEY AND CLIENT. Nature — Criminal Offense. “At common law and by statute, both in England and in many of. the United States, champerty was a criminal offense. But at the present time, in most of the States, to aid the lawful suit of another with money or ser- vices in consideration of a share in the re- covery, is not considered or punished as a crime. But in many of the States champer- tous contracts are considered void. This is the case in Missouri.” Woops, J. Burnes v. Scott, 117 U. S. 589. No Application of Doctrine to Sovereign. “Tt has been sometimes said that the doc- trine of maintenance and champerty have no application to the sovereign. But this can alone be justified by taking into view the high attributes which pertain to sovereignty.” Wuirte, J., dissenting. South Dakota v. North Carolina, 192 U. S. 350. Necessity to Sue to Enforce Right to Property Conveyed Not Controlling. “When property is conveyed, the fact that the grantee may be compelled to bring a suit to enforce his rights to the property does not render the conveyance void.” Woops, J. Traer v. Clews, 115 U. S. 539. Agreement of Attorney to Prosecute Suit at His Own Expense. “ According to the common law, as gen- erally recognized in the United States, wher- ever it has not been modified by statute, and certainly as prevailing in the District of Co- lumbia, an agreement by an attorney at law to prosecute at his own expense a suit to re- cover land in which he personally has and claims no title or interest, present or con- tingent, in consideration of receiving a cer- tain proportion of what he may recover, is contrary to public policy, unlawful and void, as tending to stir baseless litigation.” Gray, J. Peck v. Heurich, 167 U. S. 630. Assignment of Right to File Bill. “There is rule that an assignment of a mere right to file a bill in equity for fraud committed upon the assignor will be void as contrary to public policy and savoring of maintenance.” Woops, J. Traer v. Clews, 115 U. S. 539. Assignment of Interest in Debt After Suit. “There is no principle in equity which pre- vents a creditor from assigning an interest in a debt, after institution of a suit therefor, as being within the statutes against champerty and maintenance; nor will the want of a full “money consideration, as between father and son, and brother and brother, subject the transaction to such imputation, without further proof.” Grier, J. Lewis v. Bell, 17 How. 617. Conveyance of Land Held Adversely. “In many parts of the United States, and probably in Maryland and consequently in the District of Columbia, the ancient English statutes of champerty and maintenance have either never been adopted, or have become obsolete, so far as they prohibited all con- veyances of lands held adversely.” Gray, J. Peck v. Heurich, 167 U. S. 629. “The ancient policy, which prohibited the sale of pretended titles, and held the convey- ance to a third person of lands held adversely at the time to be an act of maintenance, was founded upon a state of society which does not exist in this country.” GriER, J. Rob- erts v. Cooper, 20 How. 483. CHANCE. Definition. “By the word chance, as defined by Web- ster, is meant ‘something that befalls, as the result of unknown and unconsidered forces; the issue of uncertain conditions; an event not calculated upon; an unexpected occur- rence; a happening; accident, fortuity, casu- alty.” Brown, J. Public Clearing House v. Coyne, 194 U. S. 512. Presumption Against Chance. “Curious results sometimes happen by chance, but when those results happen so largely along the lines of the purposes of those who have control of the supposed chance, it is not strange that outsiders are apt to feel that purpose, and not chance de- termined the result.” Brewer, J., dissent- ing. Taylor v. Beckham, 178 U. S. 584. CHANGE OF VENUE. See VENUE. CHARITIES. J. DEFINITION. II. Nature, VAipity, AND ENForcE- MENT. III. JurispicTion anp ADMINISTRA- TION. 306 CHARITIES. ' CROSS-REFERENCES. See also CEMETERIES; COLLEGES AND UNI- VERSITIES; PERPETUITIES; RELIGIOUS Sociz- Ties; TRUSTS AND TRUSTEES; WILLS. I. DEFINITION. In General. “Charity is generally defined as gift for the public use. ‘Such is its legal meaning.” Stronc, J. Kain v. Gibboney, 101 U. S. 365. “A charity is a gift to a general public use, which extends to the rich, as well as to the poor.” Wayne, J. Perin v. Carey, 24 How. 506. “All property held for public purposes is held as a charitable use, in the legal sense of the term charity.” Wayne, J. Perin v. Carey, 24 How. 506. Matter of Description. “Charity, in a legal sense, is rather a mat- ter of description than of definition; and the word perpetuity in law is only deter- mined by the circumstances of such cases.” Wayne, J. Perin v. Carey, 24 How. 494. II. NATURE, VALIDITY, AND EN- FORCEMENT. In General. “Tt has now become an established prin- ciple of American law, that courts of chan- cery will sustain and protect such a gift, de- vise, or bequest, or dedication of property to public charitable uses, provided the same is consistent with local laws and public policy, where the object of the gift is a dedication specific and capable of being carried into ef- fect according to the intentions of the donor.” Wayne, J. Perin v. Carey, 24 How. 501. “A charitable use, where neither the law nor public policy forbids, may be applied to almost any thing that tends to promote the well-doing and well-being of social man.” Swayne, J. Ould v. Washington Hospital, etc., 95 U. S. 811. “Generally, devises and bequests having for their object establishments of learning are considered as given to charitable uses, under the statute of Elizabeth, but that does not make a devise good to a col- lege for purposes not of a collegiate charac- ter, intended chiefly to gratify the vanity of the testator. And we cannot be mistaken, that a devise to a corporation in trust for any person is good, and will be effectuated in equity. . , And a fortiori, a devise to a charitable corporation in trust for any other charitable use will be good.” Wayne, J. Perin v. Carey, 24 How. 506. Endowment — Discretion of Legislature. “Whether the endowment of a charity is of more concern to the state than the en- dowment of a university for learning, is within the power of the legislature to de- termine.” Davis, J. Washington Univer- sity v. Rouse, 8 Wall. 440. Charitable Bequests Favored. “Charitable bequests, from their nature, receive almost universal commendation. But when we look into the history of charities in England, and see the gross abuses which have grown out of their administration, not- withstanding the enlarged powers of the courts, aided by the prerogative of the sov- ereign and the legislation of Parliament, doubt may be entertained whether they have, upon the whole, advanced the public good.” McLean, J. Wheeler v. Smith, 9 How. 78. “Charities have been administered, both at common law and in chancery, from an early period of England jurisprudence. But the earlier decisions in that country are often inconsistent, and of no great weight of au- thority. The prerogative of the king was invoked as parens patrie where the charter ° was indefinite, and a most liberal construc- tion was given to the act of the 43rd of Elizabeth; and under these influences a sys- tem has grown up in England favorable to the policy of charitable bequests. So far has this policy been carried, that where the de- vise has been uncertain or impracticable, it has been sustained in some instances by what was supposed to be the intent of the testator, or by approaching as near to it as practi- cable.” McLean, J. Wheeler v. Smith, 9 How. 77. Dependent upon Forms and Principles of Common Law. “There is ‘no subject of judicial action which requires the exercise of this discrim- ination [ascertainment of the common law of a state] more than the administration of charities. No branch of jurisprudence is more dependent than this upon the forms and principles of the common law.” Mc- Lean, J. Wheeler v. Smith, 9 How. 78. Construction Favorable to Enforcement. “ Charitable uses are favorites with courts of equity. The construction of all instru- ments where they are concerned is liberal in their behalf.” Swayne, J. Ould v. Wash- ington Hospital, etc, 95 U. S. 313. 307 CHARITIES. “Instruments creating [trusts for charitable uses] should be so construed as to give them effect if possible, and to carry out the general intention of the donor, when clearly manifested, even if the particular form or manner pointed out by him cannot be fol- lowed. They may, and indeed must, be for the benefit of an indefinite number of per- sons; for if all the beneficiaries are per- sonally designated, the trust lacks the essen- tial element of indefiniteness, which is one characteristic of a legal charity. If the founder describes the general nature of the charitable trust, he may leave the details of its administration to be settled by trustees under the superintendence of a court of chan- cery.” Gray, J. Russell v. Allen, 107 U. S. 166, — Where Private Trusts Would Fail. “By the law of England from before the statute of 43 Eliz., c. 4, and by the law of this country at the present day (except in those ‘states in which it has been restricted by statute or judicial decision, as in Virginia, Maryland, and more recently in New York), trusts for public charitable purposes are up- held under circumstances under which pri- vate trusts would fail.” Gray, J. Russell v. Allen, 107 U. S. 166. “In Virginia charitable bequests’ stand upon the same footing as other trusts, and consequently require the same certainty as to the objects of the trust and the mode of its administration.” McLean, J. Wheeler v. Smith, 9 How. 80. — Vague and Indefinite Description of Object. “A court of chancery of the United States must, in my opinion, deal with be- quests and trusts for charity as they deal with bequests and trusts for other lawful purposes; and decide them upon the same principles and by the same rules. And if the object to be benefited is so indefinite and so vaguely described, that the bequest could not be supported in the case of an ordinary trust, it cannot be established in a court of the United States upon the ground that it is acharity And if, from any cause, the cestui que trust, in an ordinary case of trust, would be incapable of maintaining a suit in equity to establish his claim, the same rule must be applied where charity is the object, and the complainant claims to be recognized as one of its beneficiaries.” Taney, ,C. J. Fontain v. Ravenel, 17 How. 395. “The general principle, that a vague legacy, the object of which is indefinite, cannot be established in a court of equity, is admitted. It follows, that he who contends that chari- ties formed originally an exception to the rule, must prove the proposition.” Mar- SHALL, C. J. Philadelphia Baptist Assoc. v. Hart, 4 Wheat. 43. In the Absence of Positive Provisions of the Law. “ The law respecting property held for charitable use of course depends upon the legislat’ n and jurisprudence of the country in which the property is situated and the uses are carried out; and when the positive law affords no specific provision for actual cases that arise, the subject must neces- sarily be governed by those principles of rea- son and public policy which prevails in all civilized and enlightened communities.” Braptey, J. Mormon Church v. U. S., 136 U. S. 50. Not Within Rule Against Perpetuities. “Being for objects of permanent interest and benefit to the public, [trusts for charitable purposes] may be perpetual in their duration, and are not within the rule against perpetuities.” Gray, J. Russell v. Allen, 107 U. S. 166. — Where Uses Are Consummated. “When such [charitable] uses are consum- mated and no longer im fert, the law of per- petuity has no application.” Swayne, J. Ould v. Washington Hospital, etc., 95 U. S. 312. © Charity for Instruction. “Hitherto it has been supposed, that a charity for the instruction of the poor might be good and valid in England even if it did not go beyond the establishment of a grammar-school. And in America, it has been thought, in the absence of any express legal prohibitions, that the donor might se- lect the studies, as well as the classes of persons, who were to receive his bounty without being compellable to make religious instruction a necessary part of those studies. It has hitherto been thought sufficient, if he does not require anything to be*taught in- consistent with Christianity.” Story, J. Vidal v. Girard, 2 How. 201. Benevolent, but Not Charitable, Purposes. “It is only when a gift might be applied to benevolent purposes which are not chari- table in that sense, that the gift fails.” Gray, J. Jones v. Habersham, 107 U. S. 185. Conditional Contributions. “Where contributions to a charity are Proposed to be made upon certain express 308 CHARITIES. conditions, the rights of the donors stand upon the contract; and if the conditions are not performed, their obligation to con- tribute is discharged.” BRaApLEy, J. Ameri- can Printing House v. Trustees, 104 U. S. 727. Devise or Grant to One Not in Esse. “A devise to a corporation to be created by the legislature is good as an executory devise. A distinction is taken between a de- vise in presenti to one incapable, and a devise in futuro to an artificial being, to be created and enabled to take.” Swayne, J. Ould v. Washington Hospital, etc., 95 U. S. 313. “There may be such an interval of time between the gift and the consummation of the use as will be fatal to the former.” Swayne, J. Ould v. Washington Hospital, etc., 95 U. S. 312. “A devise to a charitable use may be made to a grantee not im esse, and vest and take effect when the grantee shall exist.” Swayne, J. Hoopet v. Robinson, 98 U. S. 537. “Land, at common law, may be granted to pious uses, before there is a grantee in ex- istence competent to take it; and in the mean- time, the fee will be in abeyance.” McLean, J. Vincennes University v. Indiana, 14 How. 274. To the same effect see the language of Swayne, J., in Ould v. Washington Hos- pital, etc, 95 U. S. 312. “A gift in trust for a charity not existing at the date of the gift, and the beginning of whose existence is uncertain, or which is to take effect upon a contingency that may possibly not happen within a life or lives in being and twenty-one afterwards, is valid, provided there is no gift of the property meanwhile to or for the benefit of any private corporation or person.” Gray, J. Russell v. Allen, 107 U.S. 171. Statute of Elizabeth. “To me it appears demonstrable, that the 48rd Elizabeth introduces no new law of charities, makes none valid not valid before it passed, but simply places the right and power of the court over charities in other hands.” Jouwson, J., concurring. Inglis v. Sailor’s Snug Harbour, 3 Pet. 140. “The object of the statute [43 Eliz, c. 4.] was to create a cheaper and a speedier rem- edy for existing abuses.” Swayne, J. Ould v. Washington Hospital, etc., 95 U. S. 310. “The plain object of the Act of 43 Eliz. is to place in commission a troublesome branch of the royal prerogative, and to vest the commissioners with power to institute inquests of office, or by other means to dis- cover charities, or the abuse of misapplica- tion of charities, and to authorize the board to exercise the same reach of discretion over such charities as the crown possessed; sub- ject, however, to a revising and controlling power in the lord chancellor; not a mere judicial power, but a ministerial legislation and abuse of power; a power, however, sec- ondary or appellative in its nature, not orig- inal.” Jounson, J., concurring. Inglis v. Sailor’s Snug Harbour, 3 Pet. 139. “The theory that the English law of chari- table uses, which, it was admitted, would sustain the bequest, had its origin in the statute of Elizabeth, which had been repealed in Virginia. [That theory] has since, upon a more thorough examination of the precedents, been cléarly shown to be errone- ous.” Gray, J. Russell v. Allen, 107 U. S. 167. “The statute of 43 Eliz., though not tech- nically in force in Pennsylvania, yet, by com- mon usage and constitutional recognition, the principles of the statute are acted upon in cases involving charities.” McLean, J. Fontain v. Ravenel, 17 How. 386. “The statute of 43 Eliz, c. 4, was never in force in Maryland.” Swayne, J. Ould v. Washington Hospital, etc., 95 U. S. 309. “Tt would seem from the preamble to the 43d statute of Elizabeth, that its object was mainly to institute a remedy where the char- itable intent of the founders had not been carried out, by reason of frauds, breaches of trust, and negligence in those that should pay, etc. All the objects specified in that statute are denominated charities, though they embrace ‘the repairing of bridges, ports, havens, causeways, churches, sea-banks, high- ways,’ etc. There are some cases of charity, from their nature, though not specified in the statute.” McLean, J. Wheeler v. Smith, 9 How. 77. “When cases occur not enumerated in the statute of Elizabeth, or not strictly analogous thereto, the crown still exercises the power of disposing of them by sign manual.” Jounson, J., concurring. Inglis v. Sailor’s Snug Harbour, 3 Pet. 139. “What then was the law of that day, of the time when the 43 Elizabeth was passed, on the subject of ‘charitable donations? It 809 CHARITIES. was a system peculiar to the subject, and governed by rules which were applicable to no other; a system borrowed from the civil law, almost copied verbatim into the common law writers.” JoHNsON, J., concurring. In- glis v. Sailor’s Snug Harbour, 3 Pet. 140. III. JURISDICTION AND ADMINIS- TRATION. Power of the Sovereign. “The power of the crown to superintend and enforce charities existed in very early times; and there is much difficulty in mark- ing the extent of this branch of the royal prerogative before the statute [of 43d Eliza- beth].” Marsuatt, C. J. Philadelphia Bap- tist Assoc. v. Hart, 4 Wheat. 47. “The manner in which the due administra- tion and application of charitable estates is secured, depends upon the judicial institu- tions and machinery of the particular govern- ment to which they are subject. In England, the court of chancery is the ordinary tribunal to which this class of cases is delegated, and there are comparatively few which it is not competent to administer, There are some cases, however, which are beyond its jurisdiction; as where, by statute, a gift to certain uses is declared void and the prop- erty goes to the king; and in some other cases of failure of the charity. In such cases the king as parens patrig, under his sign manual, disposes of the fund to such uses, analogous to those intended, as seems to him expedient and wise.” BRapiey, J. Mormon Church v. U. S., 136 U. S. 51. — Confined to Valid Charities. “It is not to be admitted that legacies not valid in themselves can be made so by force of prerogative, in violation of private rights. This superintending power of the crown, therefore, over charities, must be confined to those which are valid in law.” Mar- SHALL, C. J. Philadelphia Baptist Assoc. v. Hart, 4 Wheat. 48. “It is one thing to enforce a charitable trust, and quite another thing to destroy the legal rights of the parties to which it is at- tached.” Story, J., dissenting. Inglis w. Sailor’s Snug Harbour, 3 Pet. 153. Chancery Jurisdiction. “Original chancery jurisdiction over char- ities existed in England, and was exercised there, before the statute of Elizabeth was passed.” Wayne, J. Perin v, Carey, 24 How. 501. “Generally, in this country, it has been set- tled that courts of equity have an original and inherent jurisdiction over charities though the English statute is not in force, and independently of it. It is believed that such |is the accepted doctrine in all the states of the Union, except Virginia, Mary- land, and North Carolina.” Strone, J. Kain v. Gibboney, 101 U. S. 366. “TA charity for ecclesiastical purposes] is a peculiar subject of the jurisdiction of that ccurt, and in cases of abuse, or misuse of the charity by the trustees or agents in charge of it, this court will interpose to correct such abuses, and enforce the execution of the char- itable purpose of the founder.” Nexson, J. Stanley v. Colt, 5 Wall. 169. “When a charitable trust has been fully constituted, and the funds have passed out of the hands and control of the donors, and into the hands of the proper institution, or organization, intended for its administra- tion, the court of chancery, or some analo: gous jurisdiction, becomes its legal guardian and protector, and will take care that the objects of the trust are duly pursued, and the funds rightfully appropriated.” Brap- Ley, J. American Printing House v. Trus- tees, 104 U. S. 727. — Where Bequest Cannot Vest under Rigid Rules of Law. “T consider it as too plain to be ques- tioned, that the powers which the Court of Chancery in Great Britain exercises over be- quests of charities, in cases. where the in- terest cannot vest under the rigid rules of law, as applied to other bequests, is vested in that court ‘by, or rather usurped under, the statute of Elizabeth.” Jouwnson, J., con- curring. Inglis v. Sailor’s Snug-Harbour, 3 Pet. 138. Branch of Prerogative Power of Sov- ereign. “The power which the chancellor exercises over donations to charitable uses, so far as it differs from the power he exercises in other cases of trust, does not belong to the Court of Chancery as a court of equity, nor is it a part of its judicial power and jurisdiction. It is a branch of the prerogative power of the king as parens patrie, which he ex- ercises by the chancellor.” Tanezy, C. J. Fontain v. Ravenel, 17 How. 392. “There can be no doubt that decisions have been made in this country, on the subject of charities, under the influence of English decrees, without carefully discriminating 310 ; CHARITIES. whether they resulted from the ordinary ex- ercise of chancery powers, or the prerogatives of the crown.” McLean, J. Fontain v. Ravenel, 17 How. 384. —— Extent of Power — Abuse of Trust. “ An eleemosynary, like every other corpo- ration, is subject to the general law of the land. It may forfeit its corporate franchises, by misuser or nonuser of them It is subject to the controlling authority of its legal vis- itor, who, unless restrained by the terms of the charter, may amend and repeal its stat- utes, remove its officers, correct abuses, and generally superintend the management of the trusts. Where, indeed, the visitatorial power is vested in the trustees of the charity in vircue of their incorporation, there can be no amotion of them from their corporate capacity. But they are not, therefore, placed beyond the reach of the law. As managers of the revenues of the corporation, they are subiect to the general superintending power of the court of chancery, not as itself pos- sessing a visitatorial power, or a right to control the charity, but as possessing a general jurisdiction in all cases of an abuse of trusts to redress grievances, and suppress frauds. And where a corporation is a mere trustee of a charity, a court of equity will go yet farther; and though it cannot appoint or remove a corporator, it will yet, in a case of gross fraud, or abuse of trust, take away the trust from the corporation, and vest it in other hands.” Story, J. Dart- mouth College v. Woodward, 4 Wheat. 675. Devise to Corporation — Intervention of Sovereign. “Tt cannot admit of a doubt that, where there is a valid devise te a corporation, in trust for charitable purposes, unaffected by any question. as to the validity because of superstition, the sovereign may interfere to enforce the execution of the trusts, either by changing the administrator, if the cor- poratior. be dissolved, or, if not, by modify- ing or enlarging its franchises, provided the trust be not perverted, and no wrong done to the beneficiaries. Where the trustee is a corporation, no modification of its franchises, or change in its name, while its identity re- mains, can affect its rights to hold prop- erty devised to it for any purpose. Nor can a valid vested estate, in trust, lapse or be- come forfeited by any misconduct in the trus- tee, or inability in the corporation to execute it, if suck existed. Charity never fails; and it is the right, as well as the duty of the sovereign, by its courts and public officers, the charities properly administered.” Grrek, J. Girard v. Philadelphia, 7 Wall. 14. “A private donation, vested in a trustee for objects of a general nature, does not thereby become a public trust, which the gov- ernment may, at its pleasure, take from the trustee, and administer in its own way.” Story, J. Dartmouth College wv. Wood- ward, 4 Wheat. 697. Power of Visitation. “To all eleemosynary corporations a visit- atorial power attaches, as a necessary inci- dent; for these corporations being composed of individuals, subject to human infirmities, are liable, as well as private persons, to de- viate from the end of their institution. The law, therefore, has provided, that there shall somewhere exist a power to visit, inquire into, and correct all irregularities and abuses in such corporations, and to compel the orig- inal purpose of the charity to be faithfully fulfilled.” Story, J. Dartmouth College v. Woodward, 4 Wheat. 673. — of Government Confined to Eléemosy- nary Corporations. “The power [the visitatorial power of the government over its own corporations], is applicable only to eleemosynary corporations, such as colleges, schools, and hospitals, and the visitauon is always through the medium ot courts of justice. It is judicial and not legislative.” Stronc, J., dissenting: Sink- ing-Fund Cases, 99 U. S. 743. —— Right of Founder and His Heirs. “And of common right by the dotation the founder and his heirs are the legal visitors, unless the founder has appointed and as- signed another person to be visitor. For the founder may, if he please, at the time of the endowment, part with his visitatorial power, and the person to whom it is assigned will, in that case, possess it in exclusion of the founder’s heirs. This visitatorial power is, therefore, an hereditament founded in property, and valuable in intendment of law; and stands upon the maxim that he who gives his property has a right to regulate it in future. It includes also the legal right of patronage.” Story, J. Dartmouth Col- lege v. Woodward, 4 Wheat. 674. Implied Contract as to Right of Founder of Private Charity. “There is also an implied contract, that the founder of a private charity, or his heirs, or other persons appointed by him for that purpose, shall have a right to visit, and to as also by legislation (if needed), to have , govern the corporation, of which he is the 311 CHARITIES. acknowledged founder and patron, and also, that in case of its dissolution, the reversion- ary right of the founder to the property, with which he had endowed it, should be preserved inviolate.” WASHINGTON, J. Dartmouth College v. Woodward, 4 Wheat. 658. — Right to Assign to Trustees of Cor- poration. “There are other rights and privileges belonging to the trustees collectively, and severally, which are deserving of notice. They are intrusted with the exclusive power to manage the funds, to choose the officers, and to regulate the corporate concerns, ac- cording to their own discretion. The jus patronatus is vested in them. The visita- torial power, in its most enlarged extent, also belongs to them. When this power de- volves upon the founder of a charity, it is an hereditament, descendible in perpetuity to his heirs, and in default of heirs, it escheats to the government. It is a valuable right founded in property, as much so as the right of patronage in any other case. It is a right which partakes of a judicial nature. May not the founder as justly contract for the possession of this right in return for his endowment as for any other equivalent? and, if instead of holding it as an hereditament, he assigns it in perpetuity to the trustees of the corporation, is it less a valuable her- editament in their hands? The right is not merely a collective right in all the trustees; each of them also have a franchise in it.” Story, J. Dartmouth College v. Wood- ward, 4 Wheat. 703. — How Power Vested or Assigned. “No technical terms are necessary to assign or vest the visitatorial power; it is sufficient if, from the nature of the duties to be performed by particular persons under. the charter, it can be inferred that the founder meant to part with it in their favor; and he may divide it among various persons, or subject it to any modifications or control, by the fundamental statutes of the corpora- tion. But where the appointment’ is given in general terms, the whole power vests in the appointee.” Story, J. Dartmouth Col- lege v. Woodward, 4 Wheat. 674. — Trustees or Governors Incorporated to Manage. “Tn the construction of charter, too, it is a general rule that if the objects of the char- ity are incorporated, as for instance, the mas- ter and fellows of a college, or the master and peor of a hospital, the visitatorial power in the absence of any special appointment, si- lently vests in the founder and his heirs. But where trustees or governors are incorporated to manage the charity, the visitatorial power is deemed to belong to them in their cor- porate character.” Story, J. Dartmouth College v. Woodward, 4 Wheat. 674. — Property to be Devoted to Purposes of Giver. “It is intended that what is given shall be perpetually devoted to the purpose of -the giver.” Swayne, J. Ould v. Washington Hospital, etc., 95 U. S. 312. Where the Particular Use Fails. “The principles of the law of charities are not confined to a particular people or nation, but prevail in all civilized countries pervaded by the spirit of Christianity. They are found imbedded in the civil law of Rome, in the laws of European nations, and especially in the laws of that nation from which our in- stitutions are derived. A leading and prom- inent principle prevailing in them all is, that property devoted to a charitable and worthy object, promotive of the public good, shall be applied to the purposes of its dedi- cation, and protected from spoliation and from diversion to other objects. Though de- voted to a particular use, it is considered as given to the public, and is, therefore, taken under the guardianship of the laws. If it cannot be applied to the particular use for which it was intended, either because the ob- jects to be subserved have failed, or because they have become unlawful and repugnant to the public policy of the state, it will be ap- piled to some object of kindred character so as to fulfil in subtance, if not in man- ner and form, the purpose of its consecra- tion.” BrapLey, J. Mormon Church vw, U. S., 136 U. S. 51, ; — Reverting to Donor. “By the Spanish law, whatever was given to the service of God, became incapable of private ownership, being held by the clergy as guardians or trustees; and any part not required for their own support, and the re- pairs, books and furniture of the church, was devoted to the works of piety, such as feeding and clothing the poor, supporting orphans, marrying poor virgins, redeeming captives and the like. When prop- erty was given for a particular object, as a church, a hospital, a convent or a community, etc., and the object failed, the property did not revert to the donor, or his heirs, but devolved to the crown, the church or other convent or community, unless the donation 312 CHARTER-PARTIES. contained an express condition in writing to the contrary.” Braptey, J. Mormon Church v. U. S., 186 U. S. 53. “Tt is true, that in some of the states of the Union in which charities are not favored, gifts to unlawful or impracticable objects, and even gifts affected by merely technical difficulties, are held to be void, and the prop- erty is allowed to revert to the donor or his heirs or other representatives. But this is in cases where such heirs or representatives are at hand to claim the property, and are ascertainable. It is difficult to see how this could be done in a case where it would be impossible for any such claim to be made — as where the property has been the resulting accumulation of ten thousand petty contribu- tions, extending through a long period of time, as is the case with all ecclesiastical and community funds.” Braptey, J. Mormon Church v.' U. S., 136 U. S. 58. No Failure for Want of Trustee. “An omission to name trustees, or the death or declination of the trustees named, will not defeat the trust, but the court will appoint new trustees in their stead.” Gray, J. Russell v. Allen, 107 U. S. 166. “The property given to a charity becomes in a measure public property, only appli- cable as far as may be, it is true, to the specific purposes to which it is devoted, but within those limits consecrated to the public use, and become part of the public resources for promoting the happiness and well being of the people of the state. Hence, when such property ceases to have any other owner, by the failure of the trustee, by for- feiture for illegal application, or for any other cause, the ownership naturally and necessarily falls upon the sovereign power of the state; and thereupon the court of chan- cery, in the exercise of its ordinary juris- diction, will appoint a new trustee to take the place of the trustees that have failed or that have been set aside, and will give di- rections for the further management and ad- ministration of the property; or if the case is beyond the ordinary jurisdiction of the court, the legislature may interpose and make such disposition of the matter as will accord with the purposes of justice and right. The funds are not lost to the public as charity funds; they are not lost to the general ob- jects or class of objects which they were intended to subserve or effect. The state by its legislature or its judiciary, interposes to preserve them from dissipation and de- struction, and to set them up on a new basis of usefulness, directed to lawful ends, coin- cident, as far as may be, with the objects originally proposed.” Braptey, J. Mormon Church v. U. S., 136 U. S. 59. Sale of Property Devised for Charitable Use. “Of course the legislature, or a court of equity under proper circumstances, could au- thorize or require a sale [of property de- vised for a charitable use] to be made.” Swayne, J. Ould v. Washington Hospital, etc., 95 U. S. 312, CHARTERED BY LAW. “The words ‘chartered by law’ are not to be understood as referring simply to cor- porations incorporated under special acts. A corporation which is organized under a gen- eral law is as much ‘chartered by law’ as one whose organization is provided for by special act.” Brewer, J. Lindsay, etc. Co. v. Mullen, 176 U. S. 136. And see Corpo- RATIONS. CHARTER-PARTIES. See CARRIERS; SHIPS AND SHIPPING. Definition. . “A charter-party is defined to be a con- tract by which an entire ship, or some prin- cipal part thereof, is let to a merchant for the conveyance of goods on a determined voyage to one or more places.” Grizr, J. Vandewater v. Mills, 19 How. 91. “A charter-party is defined to be ‘a con- tract by which a ship, or some principal part thereof, is let to a merchant, for the conveyance. of goods on a determined voyage to one or more places.” Grier, J. Ward v. Thompson, 22 How. 333. : Distinguished from Other Affreightment Contracts. ; “ Affreightment contracts are of two kinds, and they differ from. each other very widely in their nature as well as in their terms and legal effect. Charterers or freight- ers may become the owners for the voyage without any sale or purchase of the ship, as in cases where they hire the ship and have by the terms of the contract, and assume in fact, the exclusive possession, command, and navigation of the vessel for the stipulated voyage. But where the general owner re- tains the possession, command, and naviga- tion of the ship and contracts for a specified voyage, as, for example, to carry a cargo 313 CHARTER-PARTIES. from one port to another, the arrangement in contemplation of law is a mere affreight- ment sounding in contract and not a demise of the vessel, and the charterer or freight- ers is not clothed with the character or legal responsibility of ownership. Unless the ship herself is let to hire, and the owner parts with the possession, command, and naviga- tion of the same, the charterer or freighter is not to be regarded as the owner for the voyage, as the master, while the owner re- tains the possession, command, and naviga- tion of the ship, is the agent of the general owner and the mariners are regarded as in his employment and he is responsible for their conduct. Courts of justice are not inclined to regard the contract as a demise of the ship if the end in view can conven- iently be accomplished without the transfer of the vessel to the charterer, but where the vessel herself is demised or let to hire, and the general owner parts with possession, command, and navigation of the ship, the hirer becomes the owner during the term of the contract, and if need be he may appoint the master and ship mariners, and he be- comes responsible for their acts.” CLiFForD, J. Reed v. U. S., 11 Wall. 600. Construction — Liberal and According to Intent of Parties. “ Charter-parties, it should be remembered, are commercial instruments, subject to the rules applicable to commercial contracts, where the rule of construction, as univer- sally acknowledged, is that it shall be liberal, agreeably to the intention of the parties and conformable to the usages of trade in gen- eral, and to the particular trade to which the contract relates.” CLiFForD, J., dissent- ing. Lowber v. Bangs, 2 Wall. 744. “The charter-party, like many mercantile instruments in common use, is drawn up in brief and disjointed sentences; and must be construed according to the intent of the parties as manifested by the whole in- strument, rather than by the literal mean- ing of any particular clause, taken by it- self.” Gray, J. Crossman wv. Burrill, 179 U. S. 106. “Charter-parties are so frequently inaptly and incautiously drawn, that they may be said almost to have the indefiniteness of com- mercial guaranties.” Wayne, J. Raymond v. Tyson, 17 How. 68, — Intent of Parties and Usages of Trade. “The general rule which our courts of law have adopted in the construction of charter-parties, as well as other mercantile instruments, is, that the construction shall be liberal, agreeable to the intention of the parties, and conformable to the usage of trade in general, and of the particular trade to which the contract relates.” Wayne, J. Raymond v. Tyson, 17 How. 69. See also UsacEes AND CUSTOMS. — to Preserve Lien. “The charter-party is to be construed liberally, for the purpose of preserving a lien given by the law, if the manner of it shall be only a matter of doubt. But that doubt cannot be helped by contingencies out- side of the charter-party not plainly antici- pated or growing out of one of its stipula- tions.” Wayne, J. Raymond v. Tyson, 17 How. 68. —— Covenants as Conditions Precedent. “ Consequence of a breach of a covenant or Promise on one side, which is a condition precedent, undoubtedly is that the proof of the fact is a sufficient excuse for the en- tire disregard of all the dependent cove- nants or promises by the other party. Such a construction of a charter-party is never favored by courts of justice.” CLIFFoRD, J., dissenting. Lowber v. Bangs, 2 Wall. 744. — Subsequent Solvency or Insolvency of Parties. “Tntention of the parties in the contract of affreightment, as in other commercial con- tracts, must be ascertained from the lan- guage employed, the subject-matter, and the surrounding circumstances, and it is clear that the question of construction cannot be affected in the smallest degree by the sub- sequent solvency or insolvency of one of the contracting parties.” CxirForD, J. The Bird of Paradise, 5 Wall. 560. Liabilities Under. “Usually the charter-party contains a clause binding the ship to the merchandise and the merchandise to the ship, but the law merchant imposes that mutual obli- gation even if it be omitted.” CzzFForp, J. The Bird of Paradise, 5 Wall. 563. ‘ —— Seaworthiness of Vessel. _ “The rule is well settled that the charterer is bound to see that his vessel is seaworthy and suitable for the service for which she is to be employed, while no obligation to look after the matter rests upon the owner of the cargo. If there be a defect, although latent and unknown to the charterer, he is not excused.” Furzer, C. J. The Edwin I. Morrison, 153 U. S. 210. 314 “CHATTEL MORTGAGES. —— Parties Contract with Reference to Laws of Their Countries. “ Americans and Englishmen, entering into a charter-party of an English ship for an Ocean voyage, must be presumed to look to the general maritime law of the two coun- tries, and not to the local law of the state in which the contract is signed.” Gray, J. Watts v. Camors, 115 U. S. 362. —— Exemptions from Liability. “The exemption of the owners or char- terers from loss resulting from ‘faults or errors in navigation or in the management of the vessel, and for certain other designated causes, in no way implies that because the owner is thus exempted when he has been duly diligent that thereby the law, has also relieved him from the duty of furnishing a seaworthy vessel’ The immunity from risks of a described character, when due diligence has been used, cannot be so extended as to cause the statute to say that the owner when he has been duly diligent is not only ex- empted in accordance with the tenor of the statute from the limited and designated risks which are named therein, but is also relieved, as respects every claim of every other de- scription, from the duty of furnishing a sea- worthy vessel.” Wuute, J. The Carib Prince, 170 U. S. 661. “Perils of the sea were excepted by the charter-party, but the burden of proof was on the respondents to show that the vessel was in good condition and suitable for the voyage at its conception, and the exception did not exonerate them from liability from loss or damage from one of those perils to which their negligence, or that of their ser- vants, contributed.” Futter, C. J. The Ed- win I, Morrison, 153 U. S. 211. “A failure of contract on the part of the charterer, ‘caused by a direct and immediate vis major, or something like it,’ would not be a ‘default,’ within the meaning of the charter-party.” Gray, J. Crossman wv. Bur- rill, 179 U. S. 112. Payment of Freight. “Tf the owner of a ship stipulates to re- ceive her freight at a time and place having no reference to the place for the delivery of the cargo, or at variance with such time and place, he is to be considered as having waived his lien.” Wayne, J. Raymond vw. Tyson, 17 How. 69. “Place for the payment of freight, other than that for which the cargo is shipped and discharged, amounts to a stipulation that freight will not be demanded at the last, as a condition for the cargo’s delivery.” WaAyNE, J. Raymond v. Tyson, 17 How. 65. CHASTITY. As to the presumption of chastity, see SE- DUCTION. CHATTEL. Definition. “The word chattel, in its ordinary sig- nification, includes every ‘specie of property which is not real estate or freehold.” Mut- LER, J. Gay’s Gold, 13 Wall. 362. CHATTEL MORTGAGES. For the distinctions between chattel mort- gages and conditional sales, see SALES. See also Mortcaces; FRAUDULENT SALES AND CONVEYANCES. Bill of Sale with Defeasance. “A chattel mortgage is only a bill of sale with a defeasance incorporated in it.” Swayne, J. Gibson v. Warden, 14 Wall. 247, Rules Concerning Are Matter of State Regulation. “While chattel mortgages are instru- ments of general use, each state has a right to determine for itself under what circum- stances they may be executed, the extent of the rights conferred thereby, and the con- ditions of their validity. They are instru- ments for the transfer of property, and the rules concerning the transfer of property are primarily, at least, a matter of state regula- tions.” Brewer, J. Etheridge v. Sperry, 139 U. S. 276. What Passes Under — Pledge Distin- guished. “By a mortgage of personal property, dif- fering in this respect from a pledge, it is not merely the possession or a special property that passes; but, both at law and in equity, the whole title is transferred to the mortga- gee, as security for the debt, subject only to be defeated by performance of the condi- tion, or by redemption on bill in equity with- in a reasonable time; and the right of possession, where there is no express stipula- tion to the contrary, goes with the right of property.” Gray, J. Waterman v. Macken- zie, 138 U. S. 258. 315 CHINESE EXCLUSION ACTS. Stipulations to Shield Property from Cred- itors. “Tt [the law] will not allow the creditor to make use of his debt for any other pur- pose than his own indemnity. If he goes beyond this, and puts into the contract stip- ulations which have the effect to shield the property of his debtor, so that creditors are delayed in the collection of their debts, a court of equity will not lend its aid to en- force the contract.” Davis, J. Robinson v. Elliott, 22 Wall. 523. See also FRAUDULENT SALES AND CONVEYANCES. -—— Retention and Use, and Power to Dis- pose of Property. “It is not difficult to see that the mere retention and use of personal property until default is altogether a different- thing from the retention of possession accompanied with a power to dispose of it for the benefit of the mortgagor alone.” Davis, J. Robinson v. Elliott, 22 Wall. 523, Reservation of Surplus. “Whatever may be the rule with regard to general assignments for the benefit of credit- ors, there can be no doubt that, in cases of chattel mortgages, the reservation of a surplus to the mortgagor is only an expression of what the law would imply without a reservation, and is no evidence of a fraudulent intent.” Brown, J. Huntley v. Kingman, 152 U. S. 537. Foreclosure. “This remedy of a suit for foreclosure of a chattel mortgage has been adopted in most of the states, and has been much commended " by the courts and text writers as a safer and more adequate remedy for recovering debts secured by chattel mortgages, and enforcing the lien of the mortgagee, than that of ac- tual seizure and sale of the property. by the mortgagee, or than the action of replevin, detinue or trover. A judicial sale of the property and the application of the proceeds, as directed by the decree, make a record which will protect the mortgagee from the embarrassments and charges of unfairness in the conduct of the sale which attend the actual taking possession and sale of the prop- erty by the mortgagee without a decree of the court.” Lamar, J. Broom v. Arm- strong, 137 U.S. 277. . CHECKS. See Banks anp BANKING; NEGOTIABLE INSTRUMENTS. CHEMIST — CHEMISTRY. “Although the study of chemistry is the study of a science, yet a chemist who oc- cupies himself in the practical use of his knowledge of chemistry as his services may be demanded may certainly at this time be fairly regarded as in the practice of a pro- fession. [One] is none the less a chemist, and none the less occupied in the practice of his profession because he ‘ limits himself to that particular branch, which is to be applied in the course of the scientific manufacture of sugar, any more than a lawyer would cease to practice his profession by limiting himself to any par- ticular branch thereof or a doctor by con- fining his practice to some specialty which he particularly favored and was eminent in.” Pecxuam, J. U.S. v. Laws, 163 U. S. 266, 267. And see PRoFESSION, PRACTICE oF. “Tt [chemistry] is a science the knowl- edge of which is to be acquired only after patient study and application. The chemist who places his knowledge acquired from a study of the science to the use of others as he may be employed by. them, and as a vor cation for the purpose of his own mainte- nance, must certainly be regarded as one en- gaged in the practice of a profession which is generally recognized in this country.” PeckuaM, J. U. S. wv. Laws, 163 U. S. 266. CHILDREN. That children may be citizens, see CITIZENS AND CITIZENSHIP. See also Issue. Definition. “T cannot concur in so much of the opin- ion, just delivered, as construes the word ‘children,’ in this Act of Congress, to mean child and grandchildren. The legal significa- tion of the word children accords with its popular meaning, and designates the imme- diate offspring. It may be used in a more enlarged sense to include issue; but the intention so to employ it must be man- ifested by the context, or by the subject- matter.” Curtis, J., dissenting. Walton wv. Cotton, 19 How. 359.. CHINESE EXCLUSION ACTS. See ALIENS; CITIZENS AND CITIZENSHIP; DEPORTATION. Scope of Legislation. “The resilt of the legislation respecting the Chinese would seem to be this, that no 316 CHRISTIANITY. laborers of that race shall hereafter be per- mitted to enter the United States, or even to return after having departed from the country, though they may have previously re- sided therein and have left with a view of returning; and that all other persons of that race, except those connected with the dip- lomatic service, must produce a certificate from the authorities of the Chinese govern- ment, or of such other foreign government as they may at the time be subjects of, show- ing that they are not laborers, and have the permission of that government to enter the United States, which certificate is to be viséd by a representative of the government of the United States.” Fretp, J. Wan Shing v. U. S., 140 U. S. 428. “The Chinese exclusion acts operate upon two classes —one consisting of those who came into the country with its consent, the other of those who have come into the United States without their consent and in disre- gard of the law. Our previous decisions have settled that it is within the constitu- tional power of Congress to deport both of these classes, and to commit the enforcement of the law to executive officers.” SHrRAS, J. Wong Wing wv. U. S., 163 U. S. 234. Cannot Control Fourteenth Amendment. “The Acts of Congress, known as the Chi- nese Exclusion Acts, the earliest of which was passed some fourteen years after the adop- tion of the constitutional amendment [the Fourteenth Amendment], cannot control its meaning, or impair its effect, but must be construed and executed in subordination to its provisions. And the right of the United States, as exercised by and under those acts. to exclude or to expel from the county per- sons of the Chinese race, born in China, and continuing to be subjects of the emperor of China, though having acquired a commercial domicil in the United States, has been upheld by this court, for reasons applicable to all aliens alike, and inapplicable to citizens of whatever race or color.” Wong Kim Ark, 169 U. S. 699. Privilege of Transit Across the United States. “The privilege of transit, although it is one that should not be withheld without good cause, is nevertheless conceded only on such terms as the particular government pre- scribes in view of the well-being of its people. If then these regulations have the sforce of law, they bind the courts.” Fut- LER, C. J. Fok Yung Yo wv. U. S., 185 U. S. 302. Gray, J. U.S. wv ——- Abuse of Privilege. “The abuse of the privilege [of transit by Chinese across the United States] might con- sist in the use of passage across the country to reach a point from which to effect an entrance into it, contrary to law. The journey contemplated would in effect be con- tinuous, and the intermediate destination could not absolve from the guilt involved in the effort to attain that forbidden ulte- rior destination. Such an abuse of. the priv- ilege could only be prevented by arresting the journey on the threshold.” Futter, C. J. Fok Yung Yo v. U. S., 185 U. S. 303. CHOSE IN ACTION. See ASSIGNMENTS ; MENTS. Import of Term. “The term *chose in action’ is one of comprehensive import. It includes the in- finite variety of contracts, covenants, and promises, which confer on one party a right to recover a personal chattel or a sum of money from another, by action. It is true, a deed or title for land does not come within this description. And it is true, also, that: a mortgagee may avail himself of his legal title to recover in ejectment, in a court of law. Yet, even there, he is considered as having but a chattel interest, while the mortgagor is treated as the true owner.” Grier, J. Sheldon v. Sill, 8 How. 449. “There is a clear distinction between choses in action and chattel or freehold in- terests.” Jackson, J., dissenting. Burck v. Taylor, 152 U. S. 667. CHRISTIANITY. See Common Law; Law. “Tt is said, and truly, that the Christian religion is a part of the common law of Pennsylvania. But this proposition is to be received with its appropriate quali- fications, and in connection with the bill of rights of that state, as found in its constitu- tion of government.” Story, J. Vidal v. Girard, 2 How. 198. “We are compelled to admit that although Christianity be a part of the common law of the state [of Pennsylvania] yet it is so in this qualified sense, that its divine origin and truth are admitted, and therefore it is not to be maliciously and openly reviled and blasphemed against, to the annoyance of be-. lievers or the injury of the public.” Story, J. Vidal v. Girard, 2 How. 198. NEGOTIABLE INSTRU- 317 CITIZENS AND CITIZENSHIP. CHROMOLITHOGRAPHS. See ILLUSTRATIONS. CIGARETTES. Judicial Notice. “We should be shutting our eyes to what is constantly passing before them were we to affect an ignorance of the fact that a be- lief in the deleterious effects [of cigarettes], particularly upon young people, has be- come very general, and that communica- tions are constantly finding their way into the public press denouncing their use as fraught with great danger to the youth of both sexes.” Brown, J. Austin v. Tennessee, 179 U. S. 348. “Nor is it essential that they [cigarettes] shall have been formally re@orded in writ- ten history or science to entitle courts to take judicial notice of them.” Brewer, J., dissenting. Austin v. Tennessee, 179 U. S. 367. And see JupictaL Notice; Tosacco. CITIZENS AND CITIZENSHIP. I. DEFINITION AND NATURE. II. Waar Law Governs. III. ELements — Wuo Are CITIZENS. In General. . Women, Children, and Aged Persons. . Corporations. . Doctrine of Allegiance. a. In General. b. Expatriation. 5. Cession of Territory and Change of Government. mow De CROSS-REFERENCES. As to citizenship of Indians, see INDIANS; elections, see ELECTIONS; diverse citizenship, see Courts; ‘qualifications of jurors, see Jury; equal privileges, etc., see CIVIL RicHTs; domicil, see DomiciL; passport as evidence of citizenship, see PASSPORT. For other matters related to this title, see ALIENS; ANTENATI; CHINESE EXCLUSION Acts; Crvit RicHts; ConstTiTuTIONAL Law; EMIGRATION; GOVERNMENT; IMMIGRATION; Inpians; Inroxicatinc Liquors; INvoL- UNTARY SERVITUDE; NATURALIZATION; PER- sons; REMOVAL oF CAUSES; SLAVERY; THIRTEENTH AMENDMENT; WHITE PERSONS. I, DEFINITION AND NATURE. General Definition. “The most general and appropriate defini- tion of the term citizen is ‘a freeman.’” McLean, J., dissenting. Scott v. Sandford, 19 How. 531. Etymology. “Upon the principle of etymology alone, the term citizen, as derived from civitas, con- veys the idea of connection or identification with the state or government, and a partici- pation of its functions.” DANIEL, J. Scott v. Sandford, 19 How. 476. Importing Equality of Privileges. “There is not, it is believed, to be found, in the theories of writers on government, or in any actual experiment heretofore tried, an exposition of the term citizen, which has not been understood as conferring the actual pos- session and enjoyment, or the perfect right of acquisition and enjoyment, of an_ entire equality of privileges, civil and political.” DaniEL, J. Scott v. Sandford, 19 How. 476. “The proud title of Roman citizen, with the immunities and rights incident thereto, and as contradistinguished alike from the condition of conquered subjects or of the lower grades of native domestic residents, was maintained throughout the duration of the republic, and until a later period of the eastern empire, and at last was in effect destroyed less by an elevation of the inferior classes than by a degradation of the free, and the previous possessors of the rights and immunities civil and political, to the in- discriminate abasement incident to absolute and simple despotism.” DawnteL, J. Scott v. Sandford, 19 How. 478. Use of Terms “ Citizen” and “ Subject.” “The term citizen will be found rarely oc- curring in the writers upon English law; those writers almost universally adopting, as descriptive of those possessing rights or sustaining obligations, political or social, the term subject, as more suited to their pecul- iar local institutions. But, in the writers of other nations, and under systems of polity deemed less liberal than that of Eng- land, we find the term citizen familiarly re- viving, and the character and the rights and duties that term implies, particularly defined.” DanteEL, J., dissenting. Rundle v. Delaware, etc., Canal Co., 14 How. 97. “Under our own systems of policy, the term, citizen, implying the same or similar relations to the government and to society 318 \ CITIZENS AND CITIZENSHIP. which appertain to the term, subject, in Eng- land, is familiar to all. Under either system, the term used is designed to apply to man in his individual character, and to his nat- ural capacities; to a being, or agent, pos- sessing social and political rights, and sustaining social, political, and moral obliga- tions. It is in this acceptation only, there- fore, that the term, citizen in the article of the Constitution [art. 3] can be received and understood.” DanreL, J., dissenting. Run- dle v. Delaware, etc., Canal Co., 14 How. 98. “The meaning of the term citizen or sub- ject in the apprehnsion of English jurists, as indicating persons in their natural char-- acter, in contradistinction to artificial or fic- titious persons created by law, is further elucidated by those jurists, in their treatises upon the origin and capacities and objects of those artificial persons designated by the name of corporations.” DanieL, J., dissent- ing. Rundle v. Delaware, etc., Canal Co., 14 How. 97. Citizenship and Inhabitancy Distinguished. “ Alienage or citizenship is one thing, and inhabitancy quite another. In the Constitu- tion and laws of the United States citizen- ship is affirmed of a state, or of the United States; inhabitancy may be affirmed either of the United States, a state, or a subordi- nate locality.” Brown, J. Galveston, etc., R. v. Gonzales, 151 U. S. 506. Residence Does Not Import Citizenship. “ Although citizenship implies the right of residence, the latter by no means implies citizenship.” Dantet, J., dissenting. Run- dle v. Delaware, etc., Canal Co. 14 How. 101. “Citizenship and residence, as often de- clared by this court, are not synonymous terms.” Harian, J. Robertson v. Cease, 97 U. S. 648. To the same effect see the language of Brewer, J., dissenting, in Blake v. McClung, 172 U. S. 263. Political Sense of Term in Constitution. “In the Constitution and laws of the United States the word ‘citizen’ is generally, if not always, used in a political sense to designate one who has the rights and priv- ileges of a citizen of a state or of the United States. It is so used in section 1 of Article XIV of the amendments of the Constitution.” Ware, C. J. Baldwin v. Franks, 120 U. S. 690. “In a political, or legal sense, none can be treated or dealt with by the government as citizens, but those who are citizens in reality.” DANIEL, J., dissenting. Rundle v. Delaware, etc., Canal Co., 14 How. 101. Nationality. “Nationality is essentially a political idea, and belongs to the sphere of public law.” Futter, C. J., dissenting. U. S. v. Wong Kim Ark, 169 U. S. 707. “There cannot be a nation without a peo- ple. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection.” Waite, C. J. Minor v. Happersett, 21 Wall. 165. Does Not Import Condition of Being Private Property, “Who, it may be asked, is a citizen? What do the character and status of citizen import? Without fear of contradiction, it does not import the condition of being pri- vate property, the subject of individual power and ownership.” Dantet, J. Scott v. Sand- ford, 19 How. 476. Municipal Corporations. “When the Act of 1888 was passed it was the established law that a municipal corpora- tion created under the laws of a state with power to sue and be sued and to incur obli- gations was to be deemed a citizen of that for the purposes of suit by or against it in the courts of the United States.” Harian, J. Loeb v. Columbia Tp. Trustees, 179 U. S. 485, “We perceive nothing in that act [the Ju- diciary Act of 1888] indicating any pur- pose of Congress to exclude from the juris- diction of the Circuit Courts of the United ~ States suits by or against municipal corpo- rations having authority by the laws creating them to sue or to incur liabilities in their cor- porate name.” Haran, J. Loeb v. Colum- bia Tp. Trustees, 179 U. S. 486. State Not a Citizen. “A state is not a citizen.” Gray, J. Pos- tal Tel. Cable Co. v. Alabama, 155 U. S. 487. “A state is not a citizen within the mean- ing of the Removal Acts.” Brewer, J. Missouri, etc. R. Co. v. Missouri R., etc., Com’rs, 183 U. S. 58. Kinds of Allegiance — Natural and Local. © Blackstone distinguished allegiance into two sorts, the one natural and perpetual; 319 CITIZENS AND CITIZENSHIP. the other local and temporary. Natural al- legiance so called, was allegiance resulting from birth in subjection to the crown, and indelibility was an essential, vital and nec- essary characteristic.” FULLER, C. J., dis- senting. U.S. v. Wong Kim Ark, 169 U. S. yal — Difference Between American and English Rule. “It is beyond dispute that the most vital constituent of the English common-law rule has always been rejected in respect of citizen- ship of the United States.” Futter, C. J., dissenting. U. S. v. Wong Kim Ark, 169 U.S. 714. ‘ Effect of Commission of Crime. “A citizen is still a citizen, though guilty of crime and visited with punishment. His political rights may be put in abeyance or forfeited. The result depends upon the rule, as defined in the law, of the sovereign against whom he has offended. If he lose his rights he escapes none of his disabilities and liabili- ties which before subsisted. Certainly he can have no new rights or immunities arising from his crime.’ Swayne, J. White vw. Hart, 13 Wall. 651. National Citizenship Created by Four- teenth Amendment. “Tt [the Fourteenth Amendment] rec- ognized, if it did not create, a national citi- zenship, and made all persons citizens except those who preferred to remain under the pro- tection of a foreign government; and de- clared that their privileges and immunities, which embrace the fundamental rights be- longing to citizens of all free governments, should not be abridged by any state.” FIExp, J. Bartemeyer v. Iowa, 18 Wall. 140. II. WHAT LAW GOVERNS. Every Independent State May Fix Qualifi- cations. “Tt is the inherent right of every inde- pendent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship.” Gray, J. U. S. v. Wong Kim Ark, 169 U. S. 668. “The only power expressly granted to Con- gress to legislate concerning citizenship, is confined to the removal of the disabilities of foreign birth.” Curtis, J., dissenting. Scott v. Sandford, 19 How. 578. — Change of Status. “It is generally agreed by writers upon in- ternational law, and the rule has been judi- cially applied in a great number of cases, that wherever any question may arise concerning the status of a person, it must be determined according to that law which has next previ- ously rightfully operated on and fixed that status. And, further, that the laws of a country do not rightfully operate on and fix the status of persons who are within its limits im itinere, or who are abiding there for definite temporary purposes, as for health, curiosity, or occasional business; that these laws, known to writers on public and private international law as personal statutes, op- erate only on the inhabitants of the country. Not that it is or can be denied that each in- dependent nation may, if it thinks fit, apply them to all persons within their limits. But when this is done, not in conformity with the Principles of international law, other states are not understood to be willing to rec- ognize or allow effect to such applications of personal statutes.” Curtis, J., dissenting. Scott v. Sandford, 19 How. 595. “It must be admitted that the inquiry whether the law of a particular country has rightfully fixed the status of a person, so that in accordance with the principles of inter- national law ‘that status should be recognized in other jurisdiction, ordinarily depends on the question whether the person was domi- ciled in the country whose laws are asserted to have fixed his status. But, in the United States, questions of this kind may arise where an attempt to decide solely with ref- erence to technical domicil, tested by the rules which are applicable to changes of places of abode from one country to another, would not be consistent with sound princi- ples.” Curtis, J., dissenting. Scott v. Sand- ford, 19 How. 597. “Undoubtedly, every sovereign state may refuse to recognize a change wrought by the law of a foreign state, on the status of a person, while within such foreign state, even in cases where the rules of international law require that recognition. Its will to refuse such recognition may be manifested by what we term statute law, or by the customary law of the state. It is within the province of its judicial tribunals to inquire and ad- judge whether it appears, from the statute or customary law of the state, to be the will of the state to refuse to recognize such changes of status by force of foreign law, a6 320 CITIZENS AND CITIZENSHIP. the rules of the law of nations require to be recognized. But, in my opinion, it is not within the province of any judicial tribunal to refuse such recognition from any political considerations, or any view it may take of the exterior political relations between the state and one or more foreign states, or any impressions it may have that a change of foreign opinion and action on the sub- ject of slavery may afford a reason why the state should change its own action. To un- derstand and give just effect to such con- siderations, and to change the action of the state in consequence of them, are functions of diplomatists and legislators, not of judges.” Curtis, J., dissenting. Scott vw. Sandford, 19 How. 594. International Principles. “Obviously, where the Constitution deals with common-law rights and uses common- law phraseology, its language should be read in the light of the common law; but when the question arises as to what constitutes citizenship of the nation, involving as it does international relations, and political as con- tradistinguished from civil status, interna- tional principles must be considered, and, un- less the municipal law of England appears to have been affirmatively accepted, it cannot be allowed to control in the matter of con- struction.” FuLuer, C. J., dissenting. U. S. v. Wong Kim Ark, 169 U. S. 707. “Whenever a person is bona fide domiciled in a particular country, the character of the country irresistibly attaches to him. The tule has been applied with equal imparti- ality in favor and against neutrals and bellig- erents. It is perfectly immaterial what is the trade in which the party is engaged, or whether he be engaged in any. If he be set- tled bona fide in a country with the intention of indefinite residence, he is, as to all for- eign countries, to be deemed a subject of that country.” Story, J., dissenting. Liv- ingston v. Maryland Ins. Co., 7 Cranch 542. Citizens of States. “A state may, by rule uniform in its opera- tion as to citizens of the several states, re- quire residence within its limits for a given time before a citizen of another state who becorhes a resident thereof shall exercise the right of suffrage or become eligible to office. It has never been supposed that regulations of that character materially interfered with the enjoyment by citizens of each state of the privileges and immunities secured by the Constitution to citizens of the several states. The Constitution forbids only such legislation 1 Os. Dic.—21 affecting citizens of the respective states as will substantially or practically put a cit- izen of one state in a condition of alienage when he is within or when he removes to another state, or when asserting in another state the rights that commonly appertain to those who are part of the political community known as the People of the United States, by and for whom the government of the Union was ordained and established.” Hartan, J. Blake v. McClung, 172 U. S. 256. “ Previous to the adoption of the Consti- tution of the United States, every state had the undoubted right to confer on whomso- ever it pleased the character of citizen, and to endow him with all its rights. But this character of course was confined to the boundaries of the state, and gave him no rights or privileges in other states beyond those secured to him by the laws of the nations and the comity of states. Nor have the several states surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each state may still confer them upon an alien, or any one it thinks proper, or upon any class or description of persons; yet he would not be a citizen in the sense in which that word is used in the Consti- tution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other states. The rights which he would ac- quire would be restricted to the state which gave them.” Taney, C. J. Scott v. Sand- ford, 19 How. 405. “T think it to be very clear, both in principle and the authority of adjudged cases, that the several states have a right to remove from among their people, and to pre- vent from entering the state, any person, or class or description of persons, whom it may deem dangerous or injurious to the interests and welfare of its citizens; and that the state has the exclusive right to determine, in its sound discretion, whether the danger does or does not exist, free from the control of the general government.” Taney, C. J, dissenting. Passenger Cases, 7 How. 467. III. ELEMENTS — WHO ARE CITI- ZENS. 1. In GENERAL. Birth Within Dominion and Allegiance. “Two things usually concur to create citi- zenship ; first, birth locally within the domin- ions of the sovereign; and, secondly, birth within the protection and obedience, or, in 321 CITIZENS AND CITIZENSHIP. other words, within the ligeance, of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto”’ Story, J., dissenting. Inglis v. Sailor’s Snug Harbour, 3 Pet. 155. “To constitute a citizen, the party must be born not only within the territory, but within the ligeance of the government.” Story, J., dissenting. Inglis v. Sailor’s Snug Harbour, 3 Pet. 167. “The rule commonly laid down in the books is, that every person who is born within the ligeance of a sovereign is a sub- ject; and, e converso, that every person born without such allegiance is an alien. This, however, is little more than a mere defini- tion of terms, and affords no light to guide us in the inquiry, what constitutes allegiance, and who shall be said to be born within the allegiance of a particular sovereign; or, in other words, what are the facts and circum- stances from which the law deduces the con- clusion of citizenship or alienage.” Story, J., dissenting. Inglis v. Sailor’s Snug Har- bour, 3 Pet. 155. “Undoubtedly, . . it is a principle of public law, recognized by the Constitution itself, that birth on the soil of a country both creates the duty and confers the rights of citizenship.” Curtis, J., dissenting. Scott v. Sandford, 19 How. 578. “The fundamental principle of the com- mon law with regard to English nationality was birth within the allegiance, also called ‘ligealty,’ ‘ obedience,’ ‘faith’ or ‘power,’ of the king. The principle embraced all peo- ple born within the king’s allegiance and subject to his protection. Such allegiance and protection were mutual—as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not re- stricted to natural-born subjects and natu- ralized subjects, or to those who had taken an oath of allegiance; but were predicable of. aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born sub- jects. But the children, born within the realm, of foreign ambassadors, or the chil- dren of alien enemies, born during and with- in their hostile occupation of part of the king’s dominions, were not natural-born subjects, because not born within the alle- giance the obedience, or the power, or, as would be said at this day, within the juris- diction of the king.” Gray, J. U. S. w, Wong Kim Ark, 169 U. S. 655. “By the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English sovereign; and therefore every child in England of alien parents was a natural-born subject, un- less the child of an ambassador or other dip- lomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born. The same rule was in force in all the English colonies upon this continent down to,the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.” Gray, J. U.S. v. Wong Kim Ark, 169 U. S. 658. Persons Born or Naturalized in U. S. “All persons born or naturalized in the United States, and subject to the jurisdic- tion thereof, are citizens of the United States,” and of the state wherein they reside.” ~ Waite, C. J. Baltimore, etc, R. Co. v. Koontz, 104 U. S. 12. “ Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization.” Warts, C. J. Minor v. Happersett, 21 Wall. 167. “ At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were na- tives, or natural-born citizens, as distinguished from aliens or foreigners. Some author- ities go further and include as citizens chil- dren born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.” Warts, C. J. Minor v. Happersett, 21 Wall. 167. “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” Waite, C. J. Minor vw. Happersett, 21 Wall. 167, “ Persons born or naturalized in the United States and subject to the jurisdiction thereof, 322 CITIZENS AND CITIZENSHIP. are citizens thereof; and the Fourteenth Amendment also provides, that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Congress may, doubtless, prohibit any violation of that provision, and may provide that any person convicted of violating the same shall be guilty of an offense, and be subject to such reasonable punishment as Congress may prescribe.” Warts, C. J. U.S. v. Cruikshank, 92 U. S. 563. “T can find nothing in the Constitution which, proprio vigore, deprives of their citi- zenship any class of persons who were cit- izens of the United States at the time of its adoption, or who should be native-born citizens of any state after its adoption; nor any power enabling Congress to disfranchise persons born on the soil of any state, and entitled to citizenship of such state by its Constitution and laws. And my opinion is, that, under the Constitution of the United States, every free person born on the soil of a state, who is a citizen of that state by force of its Constitution or laws, is also a citizen of the United States.” Curtis, J., dissenting. Scott v. Sandford, 19 How. 576, — Distinction. “The distinction between citizenship by birth and citizenship by naturalization is clearly marked in the provision of the Con- stitution.” Gray, J. Elk v. Wilkins, 112 U.S. 101, Children Born to Citizens or Subjects of Other Countries, “To hold that the Fourteenth Amend- ment of the Constitution excludes from citi- zenship the children, born in the United States, of citizens or subjects of other coun- tries, would be to deny citizenship to thou- sands of persons of English, Scotch, Irish, German or other Europearr parentage, who have always been considered and treated as citizens of the United States.” Gray, J. U. S. v. Wong Kim Ark, 169 U. S. 694. “So far as we are informed, there is no authority, legislative, executive or judicial, in England or America, which maintains or intimates that the statutes (whether con- sidered as declaratory, or as merely pros- pective), conferring citizenship of foreign- born children of citizens, have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion. Even these authorities in this country, which have gone the farthest towards holding such statutes to be declaratory of the common law, have distinctly recognized and emphat- ically asserted the citizenship of native-born children of foreign parents.” Gray, J. U.S. v. Wong Kim Ark, 169 U. S. 674. “Both in England and in the United States, . . . statutes have been passed, at various times, enacting that certain issue born abroad of English subjects, or of Amer- ican citizens, respectively, should inherit, to some extent at least, the rights of their par- ents. But those statutes applied only to cases coming within their purport; and they have never been considered, in either country, as affecting the citizenship of persons born with its dominion.” Gray, J. U.S. v. Wong Kim Ark, 169 U. S. 668. “That all children, born within the do- minion of the United States, of foreign par- ents holding no diplomatic office, became citizens at ‘the time of their birth, does not appear to have been contested or doubted until fifty years after the adoption of the Constitution, when the matter was elaborate- ly argued in the Court of Chancery of New York, and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship.” Gray, J. U. S. v. Wong Kim Ark, 169 U. S. 664. “Nothing is better settled at the common law than the doctrine, that the children even of aliens born in a country, while the par- ents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.” Story, J., dissenting. Inglis v. Sailor’s Snug Harbour, 3 Pet. 164. “ Whether it was the rule at com- mon law that children of British subjects born abroad were themselves British subjects —nationality being attributed to parentage instead of locality——has been variously de- termined.” Futter, C. J., dissenting, U. S. v. Wong Kim Ark, 169 U. S. 714. —— Exception as to Children of Ambassa- dors or Ministers. “Tt is beyond doubt that, before the enact- ment of the Civil Rights Act of 1866 or the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, except- ing only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.” Gray, J. U.S. v. Wong Kim Ark, 169 U. S. 674, 323 CITIZENS AND CITIZENSHIP. “The children of an ambassador are held to be the subjects of the prince whom he represents, although born under the actual protection and in the dominions of a for- eign prince.” Story, J., dissenting. Inglis v. Sailor’s Snug Harbour, 3 Pet. 155. — Construction of 14th Amendment. “The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, ‘All persons born in the United States,’ by the addition, ‘and subject to the jurisdiction thereof,’ would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar rela- tion to the national government, unknown to the common law) the two classes of cases—children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state—both of which by the law of England, and by our own law, from the time of the first settlement of the English colonies in Amer- ica, had been recognized exceptions to the fundamental rule of citizenship ‘by birth within the country.” Gray, J. U. S. uw. Wong Kim Ark, 169 U. S. 682. “The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the alle- giance and under the protection of the coun- try, including all children here born of resident aliens, with the exceptions or quali- fications (as old as the rule itself) of chil- dren of foreign sovereigns or their ministers, or born on foreign public ships, or of ene- mies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in mani- fest intent, includes the children born, with- in the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every ‘citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate.” Gray, J. U. S. v. Wong Kim Ark, 169 U. S. 693. “*Born in the United States, and subject to the jurisdiction thereof,’ and ‘naturalized in the United States, and subject to the ju- risdiction thereof’ [in the Fourteenth Amend- ment of the U. S. Constitution], mean born or naturalized under such circumstances as to be completely subject to that jurisdiction, that is, as completely as citizens of the United States, who are of course not subject to any foreign power, and can of right claim the exercise of the power of the United States on their behalf wherever they may be. When, then, children are born in the United States to the subjects of a foreign power, with which it is agreed by treaty that they shall not be naturalized thereby, and as to whom our own law forbids them to be naturalized, such children are not born so subject to the jurisdiction as to become citizens, and en- titled on that ground to the interposition of our government, if they happen to be found in the country of their parents’ origin and allegiance, or any other.” Futter, C. J., dissenting. U. S. v. Wong Kim Ark, 169 U. S. 729. —— Presumption from Birth Rebuttable. “Undoubtedly all persons born in a coun- try are presumptively citizens thereof, but the presumption is not irrebuttable.” Fut- LER, C. J., dissenting. U. S. v. Wong Kim Ark, 169 U. S. 718. “Birth within the dominions of a sov- ereign is not always sufficient to create citi- zenship, if the party at the time does not derive protection from the sovereign in virtue of his actual possession; and on the other hand, birth within the allegiance of a foreign sovereign does not always constitute alienage, if that allegiance be of a temporary nature within the dominions of another sov- ereign. Thus the children of enemies, born in a place within the dominions of an- other sovereign, then occupied by them by conquest, are still aliens; but the children of the natives, born during such temporary oc- cupation by conquest, are, upon a recon- quest, or reoccupation by the original sover- eign, deemed by a sort of postliminy, to be subjects from their birth, although they were then under the actual sovereignty and al- legiance of an enemy.” Srory, J., dissent- nS Inglis v. Sailor’s Snug Harbour, 3 Pet. “The rule in respect of citizenship of the United States prior to the Fourteenth Amendment differed from the English com- mon law rule in vital particulars. ‘ If children born in the United States were deemed presumptively and generally citizens, this was not so when they were born of aliens whose residence was merely tempo- rary, either in fact, or in point of law.” Fut- Ler, C. J., dissenting. U. S. v. Wong Kim Ark, 169 U. S, 729, 324 CITIZENS AND CITIZENSHIP. “The English common law rule recognized no exception in the instance of birth during the mere temporary or accidental sojourn of the parents. As allegiance sprang from the place of birth regardless of parentage and supervened at the moment of birth, the in- quiry whether the parents were permanently or only temporarily within the realm was wholly immaterial. And it is settled in England that the question of domicil is entirely distinct from that of allegiance. The one relates to the civil, and the other to the political status. But a differ- ent view as to the effect of a permanent abode on nationality has been expressed in this country.” Futrer, C. J., dissenting. U. S. v. Wong Kim Ark, 169 U. S. 718. “ Now I take it that the children of aliens, whose parents have not only not renounced their allegiance to ‘their native country, but are forbidden by its system of government, as well as by its positive laws, from doing so, and are not permitted to acquire another citizenship by the laws of the country into which they come, must necessarily remain themselves subject to the same sovereignty as their parents, and cannot, in the nature of things, be, any more than their parents, completely subject to the jurisdiction of such other country.” Futier, C. J., dissenting. U. S. v. Wong Kim Ark, 169 U. S. 725. “Considering the circumstances surround- ing the framing of the Constitution, I sub- mit that it is unreasonable to conclude that ‘natural-born citizen’ applied to everybody born within the geographical tract known as the United States, irrespective of circum- stances; and that the children of foreigners, happening to be born to them while passing through the country, whether of royal par- entage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.” Futter, C. J., dis- senting. U.S. v. Wong Kim Ark, 169 U. S. 715. — Chinese Born in United States. “The fact . . . that Acts of Congress or treaties have not permitted Chinese per- sons born out of this country to become citi- zens by naturalization, cannot exclude Chi- nese persons born in this country from the operation of the broad and clear words of the Constitution, ‘all- persons born in the United States. and subject to the juris- diction thereof, are citizens of the United States.” Gray, J. U. S. v. Wong Kim Ark, 169 U. S. 704. “Whatever considerations, in the absence of a controlling provision of the Constitu- tion, might influence the legislative or the executive branch of the Government to de- cline to admit persons of the Chinese race to the status of citizens of the United States, there are none that can restrain or permit the judiciary to refuse to give full effect to the peremptory and explicit language of the Fourteenth Amendment, which declares and ordains that ‘ All persons born or nat- uralized in the United States, subject to the jurisdiction thereof, are citizens of the United States,” Gray, J. U.S. v. Wong Kim Ark, 169 U. S. 694. Children Born Abroad to Americans. “In my judgment, the children of our cit- izens born abroad were always natural-born citizens from the standpoint of this govern- ment. If not, and if the correct view is that they were aliens but collectively naturalized under the Acts of Congress which recognized them as natural-born, then those born since the Fourteenth Amendment are not citizens at all, unless they have become such by indi- vidual compliance with the general laws for naturalization of aliens, because they ‘are not naturalized, ‘in the United States.” FuLier, C. J., dissenting. U. S. v. Wong Kim Ark, 169 U. S. 714. “Tt seems to me that the rule partus se- quitur patrem has always applied to children of our citizens born abroad and that the Acts of Congress on this subject are clearly declaratory, passed out of abundant caution to obviate misunderstandings which might arise from the prevalence of the contrary rule elsewhere.” Futter, C. J., dissenting. U. S. v. Wong Kim Ark, 169 U. S. 714. Person Born on Ocean. “A person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place, where he has dominion in common with all other sovereigns.” Story, J., dissenting. Inglis v. Sailor’s Snug Har- bour, 3 Pet. 155. Not Dependent Upon Political or Civil Rights. “ Citizenship, under the Constitution of the United States, is not dependent on the pos- session of any particular political or even of all civil rights.” Curtis, J., dissenting. Scott v. Sandford, 19 How. 583. — Elective Franchise. “ Though I do not think the en- joyment of the elective franchise essential 825 CITIZENS AND CITIZENSHIP. to citizenship, there can be no doubt it is one of the chiefest attributes of citizenship under the American Constitutions; and the just and constitutional possession of this right is decisive evidence of citizenship.” Curtis, J., dissenting. Scott v. Sandford, 19 How. 581. See also ELEctions. Persons Made Citizens by Treaty. “On the question of citizenship, it must be admitted that we have not been very fas- tidious. Under the late treaty with Mexico, we have made citizens of all grades, com- binations and colors. The same was in the admission of Louisiana and Florida.” McLean, J., dissenting. Scott v. Sandford, 19 How. 533. Before 14th Amendment. “To determine . . . who were citi- zens of the United States before the adop- tion of the [Fourteenth] Amendment it is mecessary tO ascertain what persons origi- nally associated themselves together to form the nation, and what. were afterwards ad- mitted to membership.” Watts, C. J. Mi- nor v. Happersett, 21 Wall. 166. “There is . . . little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Consti- tution of the United States, there was any settled and definite rule of international law, generally recognized by civilized nations, in- consistent with the ancient rule of citizen- ship by birth within the dominion.” Gray, J. U. S. wv. Wong Kim Ark, 169 U. S. 667. Colored Persons. “The conclusions at which I have arrived ‘ are: First. That the free native- born citizens of each state are citizens of the United States. Second. That as free colored persons born within some of the states are citizens of those states, such citi- zens are also citizens of the United States. Third. That every such citizen, residing in any state, has the right to sue and is liable to be sued in the federal courts, as a citi- zen of that state in which he resides. Fourth. That as the plea to the jurisdic- tion in this case shows no facts, except that the plaintiff was of African descent, and his ancestors were sold as slaves, and as these facts are not inconsistent with his citizen- ship of the United States, and his resi- dence in the state of Missouri, the plea to the jurisdiction was bad, and the judgment of the Circuit Court overruling it was cor- rect.” Curtis, J., dissenting. Scott v. Sand- ford, 19 How. 588. “That Constitution [Constitution of the United States] was ordained and established by the people of the United States, through the action, in each state, of those persons who were qualified by its laws to act there- on, in behalf of themselves and all other citizens of that state. In some of the states colored persons were among those qualified by law to act on this subject. These colored persons were not only included in the body of ‘the people of the United States,’ by whom the Constitution was ordained and established, but in at least five of the states they had the power to act, and doubtless did act, by their suffrages, upon the ques- tion of its adoption. It would be strange, if we were to find in that instrument any- thing which deprived of their citizenship any part of the people of the United States. who were among those by whom it was establish- ed.” Curtis, J., dissenting. Scott v. Sand- ford, 19 How. 576. “The state may give the right to free negroes and mulattoes, but that does not make them citizens of the state, and still less of the United States. And the provi- sion in the Constitution giving privileges and immunities in other states, does not apply to them.” Taney, C. J. Scott wv. Sandford, 19 How. 422. —— Enslaved African Race. “Tt is too clear for dispute, that the en- slaved African race were not intended to be included, and form no part of the peo- ple who framed and adopted this dec- laration [Declaration of Independence].” Taney, C. J. Scott v. Sandford, 19 How. 410. “No one supposes that a slave is a citi- zen of the state or of the United States.” Taney, C. J. Scott v. Sandford, 19 How. 427, “Tt may be assumed as a postulate, that to a slave, as such, there appertains and can appertain no relation, civil or political, with the state or the Government. He is himself strictly property to be used in sub- serviency to the interests, the convenience, or the will, of his owner; and to suppose, with respect to the former, the existence of any privilege or discretion, or any obliga- tion to others incompatible with the mag- isterial rights just defined, would be by im- plication, if not directly, to deny the rela- tion of master and slave, since none can possess atid enjoy, as his own, that which another has a paramount right and power to withhold. Hence it follows, necessarily, 826 CITIZENS AND CITIZENSHIP. that a slave, the peculium or property of a master, and possessing within himself no civil or political rights or capacities, can- not be a citizen.” Danret, J. Scott w. Sandford, 19 How. 475. “With regard to slavery among the Ro- mans, it is by no means true that emanci- pation, either during the republic or the empire, conferred, by the act itself, or im- plied, the status or the rights of citizen- ship.” Daniet, J. Scott v. Sandford, 19 How. 478. “To determine whether any free persons, descended from Africans held in slavery, were citizens of the United States under the Confederation, and consequently at the time of the adoption of the Constitution of the United States, it is only necessary to know whether any such persons were citi- zens of either of the states under the Con- federation, at the time of the adoption of the Constitution.” Curtis, J., dissenting. Scott v. Sandford, 19 How. 572. “At the time of the ratification of the Articles of Confederation, all free native- born inhabitants of the states of New Hamp- shire, Massachusetts, New York, New Jer- sey, and North Carolina, though descended from African slaves, were not only citi- zens of those states, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens.” Curtis, J., dissenting. Scott v. Sandford, 19 How. 572. “Tt is clear, that under the Confedera- tion, and at the time of the adoption of the Constitution, free colored persons of Af- rican descent might be, and, by reason of their citizenship in certain states, were en- titled to the privileges and immunities of general citizenship of the United States.” Curtis, J., dissenting. Scott v. Sandford, 19 How. 575. : “Tt has been often asserted that the Con- stitution was made exclusively by and for the white race. It has already been shown that in five of the thirteen original states, colored persons then possessed the elective franchise, and were among those by whom the Constitution was ordained and establish- ed. If so, it is not true, in point of fact, that the Constitution was made exclusively by the white race. And that it was made exclusively for the white race is, in my opin- ion, not only an assumption not warranted by anything in the Constitution, but con- tradicted by its opening declaration, that it was ordained and established by the peo- ple of the United States, for themselves and their posterity. And free colored persons were then citizens of at least five states, and so in every sense part of the people of the United States, they were among those for whom and whose posterity the Consti- tution was ordained and established.” Cur- tis, J., dissenting. Scott v. Sandford, 19 How. 582. Under the 14th Amendment. “Tt [the Fourteenth Amendment] also recognized, if it did not create, a national citizenship, as contradistinguished from that of the states.” Fretp, J., dissenting. Ex p. Virginia, 100 U. S. 365. “The opening sentence of the Fourteenth Amendment is throughout affirmative and declaratory, intended to allay doubts and to settle controversies which had arisen, and not to impose any new restrictions upon citi- zenship.” Gray, J. U. S. v. Wong Kim Ark, 169 U.. S. 687. “The Fourteenth Amendment did not rad- ically change the whole theory of the re- lations of the state and federal govern- ment to each other, and of both govern- ments to the people. The same person may be at the same time a citizen of the United States and a citizen of a state. Protection to life, liberty and property rests primarily, with the states, and the amendment furnishes additional guaranty against any encroach- ment by the states upon those fundamental rights which belong to citizenship, and which the state governments were created to se- cure. The privileges and immunities of citi- zens of the United States, as distinguished from the privileges and immunities of citi- zens of the states, are indeed protected by it; but those are privileges and immunities arising out of the nature and essential char- acter of the national government, and grant- ed or secured by the Constitution of -the United States.” Futter, C. J. In re Kemmler, 136 U. S. 448. — Primary Object to Secure Liberty to Colored Race. “That the primary reason for that amend- ment [the Fourteenth Amendment] was to secure the full enjoyment of liberty to the colored race is not denied, yet it is not restricted to that purpose, and it applies to every one, white or black, that comes within its provisions.” Prckuam, J. Maxwell v. Dow, 176 U. S. 592. “TThe first clause of the Fourteenth Amendment] declared who are citizens of the 327 CITIZENS AND CITIZENSHIP. United States and of the states. It thus removed from discussion the question, which had previously been debated, and though de- cided, not settled, by the judgment in the Dred Scott Case, whether descendants of persons brought to this country and sold as slaves were citizens, within the meaning of the Constitution.” Fretp, J., dissenting. Ex p. Virginia, 100 U. S. 365. “In providing that persons born or nat- uralized in the United States, and subject to the jurisdiction thereof, are citizens, the Fourteenth Amendment undoubtedly had par- ticular. reference to securing citizenship to the members of the colored race, whose ser- vile status had been obliterated by the Thir- teenth Amendment, and who had been born in the United States, but were not and never had been subject to any foreign power. They were not aliens (and even if they could be so regarded, this oper- ated as a collective naturalization) and their political status could not be affected by any change of the laws for the naturalization of individuals.” Futter, C. J., dissenting. U.S. v. Wong Kim Ark, 169 U. S. 727. — Citizenship by Birth. “The Fourteenth Amendment of the Con- stitution, in the declaration that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,’ contemplates two sources of citizenship, and two only: birth and naturalization. . . . But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Con- stitution. Every person born in the United States, and subject to the jurisdiction there- of, becomes at once a citizen of the United States, and needs no naturalization.” Gray, J. U.S. v. Wong Kim Ark, 169 U. S. 702. Citizens of U. S. at Adoption of Constitu- tion. “Citizens of the United States at the time of the adoption of the Constitution can have been no other than citizens of the United States under the Confederation.” Curtis, J., dissenting. Scott v. Sandford, 19 How. 572. “Every person, and every class and de- scription of persons, who were at the time of the adoption of the Constitution recog- nized as citizens in the several states became also citizens of this new political body; but none other; it was formed by them, and for them and their posterity, but for no one else. And the personal rights and privileges guaranteed to citizens of this new sovereignty were intended to embrace those only who were then members of the several state communities, or who should afterwards by birthright or otherwise become members, ac- cording to the provisions of the Constitu- tion and the principles on which it was founded.. It was the union of those who were at that time members of distinct and separate political communities into one po- litical family, whose power, for certain spe- cified purposes, was to extend over the whole territory of the United States. And it gave to each citizen rightS and privileges outside of his state which he did not before pos- sess, and placed him in every other state upon a perfect equality with its own citi- zens as to rights of person and rights of property ; it made him a citizen of the United States.” Tanezy, C. J. Scott. v. Sandford, 19 How. 406. : “Laying aside the case of aliens, concerning which the Constitution of the United States has provided, and confining our view to free persons born within the several states, we find that the Constitution has rec- ognized the general principles of public law, that allegiance and citizenship depend on the place of birth; that it has not attempted practically to apply this principle by desig- nating the particular classes of persons who should or should not come under it; that when we turn to the Constitution for an answer to the question, what free persons born within the several states, are citizens of the United States, the only answer we can receive from any of its express provi- sions is, the citizens of the several states are to enjoy the privileges and immunities of citizens in every state, and their franchise as electors under the Constitution depends on their citizenship in the several states. Add to this, that the Constitution was or- dained by the citizens of the several states; that they were ‘the people of the United States,’ for whom and whose posterity the government was declared in the pream- ble of the Constitution to be made; that each of them was ‘a citizen of the United States at the time of the adoption of that Constitution,’ within the meaning of those words in that instrument; that by them the government was to be and was in fact or- ganized; and that no power is conferred on the government of the Union to discrim- inate between them, or to disfranchise any of them—the necessary conclusion is, that those persons born within the several states, who, by force of their respective Consti- tutions and laws, are citizens of the state, 328 CITIZENS AND CITIZENSHIP. are thereby citizens of the United States.” Curtis, J., dissenting. Scott v. Sandford, 19 How. 581. “ When the Constitution speaks of citizenship of the United States, exist- ing at the time of the adoption of the Constitution, it must necessarily refer to citizenship under the government which ex- isted prior to and at the time of such adop- tion.” Curtis, J., dissenting. Scott wv. Sandford, 19 How. 572. “Tt may be safely said that the citizens of the several states were citizens of the United States under the Confederation.” Curtis, J., dissenting. Scott v. Sandford, 19 How. 572. “The first section of the second article of the Constitution uses the language, ‘a native-born citizen.’ Undoubtedly, this lan- guage of the Constitution was used in refer- ence to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which re- fers citizenship to the place of birth.” Cur- Tis, J., dissenting. Scott v. Sandford, 19 How. 576. “So far as the original states were con- cerned, all those who were citizens of such states became upon the formation of the Union citizens of the United States.” Fu1- LeRR, C. J. Boyd v. Thayer, 143 U. S. 175. Colonies Before the Revolution. “Before the Revolution. all the colonies constituted a part of the dominions of the king of Great Britain, and all the colonists were natural born subjects, entitled to all the privileges of British born subjects, and capable of inheriting lands in any part of the British dominions, as owing a common allegiance to the British crown. But each colony there was a separate and independ- ent government established under the au- thority of the crown, though in subordina- tion to it.” Story, J., dissenting. Inglis v. Sailor’s Snug Harbour, 3 Pet. 157. Citizens of State and of United States. “A citizen of a state is ipso facto a citi- zen of the United States. No one can be the former without being also the latter; but the latter, by losing his residence in one state without acquiring it in another, al- though he continues to be the latter, ceases for the time to be the former.” Swayne, J., dissenting. Slaughter-House Cases, 16 Wall. 126. “Not only may a man be a citizen of the United States without being a citizen of a state, but an important element is nec- essary to convert the former into the latter. He must reside within the state to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union. It is quite clear, then, that there is a citi- zenship of the United States, and a citizen- ship of a state, which are distinct from each other, and which depend upon different char- acteristics or circumstances in the individual.” MILLER, J. Slaughter-House Cases, 16 Wall. 74, “The question is now settled by the Four- teenth Amendment itself, that citizenship of the United States is the primary citizenship in this country; and that state citizenship is secondary and derivative depending upon citizenship of the United States and the cit- izen’s place of residence. The states have not now, if they ever had, any power to re- strict their citizenship to any classes or persons.” Braviey, J., dissenting. Slaugh- ter-House Cases, 16 Wall. 112. “A citizen of a state is now only a citi- zen of the United States residing in that state. The fundamental rights, privileges, and immunities which belong to him as a free man and a free citizen, now belong to him as a citizen of the United States, and are as dependent upon his citizenship of any state.” Fretp, J., dissenting. Slaughter- House Cases, 16 Wall. 95. “Every citizen of a state owes a double allegiance; he enjoys the protection and par- ticipates in the government of both the state and the United States.” JoHNson, J., dis- senting. Houston v. Moore, 5 Wheat. 33. “Under the very peculiar Constitution of this government, although the citizens owe supreme allegiance to the federal govern- ment, they owe also a qualified allegiance to the state in which they are domiciled. Their persons and property are subject to its laws.” Grier, J. Prize Cases, 2 Black 673. “That the Constitution itself has defined citizenship of the United States by declaring what persons, born within the several states, shall or shall not be citizens of the United States, will not be pretended. It contains no such declaration.” Curtis, J., dissenting. Scott v. Sandford, 19 How. 577. “Every citizen of the United States is also a citizen of a state or territory.” CurF- ForD, J., dissenting. Coleman wv. Tennes- see, 97 U. S. 537. 329 CITIZENS AND CITIZENSHIP. Holding Property Subject to Condition. “The fact that property is held subject to a condition against alienation does not af- fect the civil or political status of the holder of the title.’ Brewer, J. Matter of Heff, i197 U. S. 509. 2. WomEN, CHILDREN, AND AGED PERSONS. Children and Aged Persons. “The aged above sixty, and children in their minority [are citizens].” Frevp, J., dissenting. Ex p. Virginia, 100 U. S. 365. Women. “There is no doubt that women may be citizens.” Warts, C. J. Minor v. Happer- sett, 21 Wall. 165, “Women are citizens.” Fretp, J., dissent- ing. Ex p. Virginia, 100 U. S. 365. “Sex has never been made one of the ele- ments of citizenship in the United States. In this respect men have never had an ad- vantage over women. The same laws pre- cisely apply to both. The Fourteenth Amendment did not affect the citizenship of women any more than it did of men.” Waite, C. J. Minor v. Happersett, 21 Wall. 170. “The records of the courts are full of cases in which the jurisdiction depends upon the citizenship of women, and not one can be found, we think, in which objection was made on that account. Certainly none can be found in which it has been held that women could not sue or be sued in the courts of the United States.” Warts, C. J. Minor v. Happersett, 21 Wall. 169. “There are a multitude of cases to be found in which the question has been pre- sented whether a woman was or was not an alien, and as such capable or incapable of inheritance, but in no one has it been insisted that she was not a citizen becatse she was a woman.” Waite, C. J. Minor v. Happersett, 21 Wall. 169. “British femes covert residing here with their husbands at the time of our independ- ence, and adhering to our side until the close of the war, have always been supposed to have become thereby American citizens, and to have been absolved from their an- tecedent British allegiance.” Story, J. Shanks v. Dupont, 3 Pet. 248, — Right to Vote. “Undoubtedly, a person may be a citizen, that is, a member of the community who form the sovereignty, although he exercises no share of the political power, and is in- capacitated from holding particular offices. Women and minors, who form a part of the political family, can not vote; and when a property qualification is required to vote or hold a particular office, those, who have not the necessary qualification cannot vote or hold the office, yet they are citizens.” Taney, C. J. Scott v. Sandford, 19 How. 422. “To what citizens the elective franchise shall be confided, is a question to be deter- mined by each state, in accordance with its own views of the necessities or expediencies of its condition. What civil rights shall be enjoyed by its citizens, and whether all shall enjoy the same, or how they may be gained or lost, are to be determined in the same way. One may confine the right of suffrage to white male citizens; another may extend it to colored persons and females; one may al- low all persons above a prescribed age to convey property and transact business; an- other may exclude married women. But whether native-born women, or persons un- der age, or under guardianship because in- sane or spendthrifts, be excluded from vot- ing or holding office, or allowed to do so, I apprehend no one will deny that they are citizens of the United States.” Curtis, J, dissenting. Scott v. Sandford, 19 How. 583. —* Children ” Includes “ Females.” “ All children born of citizen parents with- in the jurisdiction are themselves citizens. The words ‘all children’ are certainly as comprehensive, when used in this connection, as ‘all persons,’ and if females are included in the last they must be in the first.” Warts, C. J. Minor v. Happersett, 21 Wall. 168. 3. CORPORATIONS. _ As to citizenship of corporations affecting suits by or against them, see CouRTS. Citizen of State Where Created. “A domestic corporation is both a citizen and an inhabitant of the state in which it is incorporated.” Brown, J. Galveston, etc., R. v. Gonzales, 151 U. S. 502. “In the jurisprudence of the United States a corporation is regarded as in ef- fect a citizen of the state which created it. It has no faculty to emigrate. It can exer- cige its franchises extraterritorially only so far as may be permitted by the policy or comity of other sovereignties. By the con- sent, express or implied, of the local gov- ernment, it may transact there any business ultra vires, and, ‘like a natural person, may 330 CITIZENS AND CITIZENSHIP. have a special or constructive residence, so as to be charged with taxes and duties or be subjected to a special jurisdiction.’ It is for the local sovereign to prescribe the terms and conditions upon which its presence by its agents and the conducting of its affairs shall be permitted.” Swayne, J. St. Louis v. Wiggins Ferry Co., 11 Wall. 429. Corporation as Such Not a Citizen. “That invisible, intangible, and artificial being, that mere legal entity, a corporation aggregate, is certainly not a citizen, and, consequently, cannot sue or be sued in the courts of the United States, unless the rights of the members, in this respect, can be exercised in their corporate name. If the corporation be considered as a mere faculty, and not as a company of individuals, who, in transacting their joint concerns, may use a legal name, they must be excluded from the courts of the union.” MarsHALt, C. J. U. S. Bank v. Deveaux, 5 Cranch 86. “A corporation itself can be a citizen of no state in the sense in which the word ‘citizen’ is used in the Constitution of the United States.” Srrone, J. Muller wv. Dows, 94 U. S. 445. “This court does not hold, that either a voluntary association of persons, or an asso- ciation into a body politic, created by law is a citizen of a state within the meaning of the Constitution.” Curtis, J. Lafayette Ins. Co. v. French, 18 How. 405. “A corporation is not a citizen. It may be an artificial person, a moral person, a juridical person, a legal entity, a faculty, an intangible, invisible being.” Danze, J., dis- senting. Marshall v. Baltimore, etc., R. Co., 16 How. 351. Broader Sense as Term Is Used by Con- gress. “Congress has frequently in its legisla- tion, as also the treaty-making power, used the words ‘citizens of the United States’ in the broadest sense, and as embracing cor- porations created by state law.” Waite, J. U. S. v. Northwestern Express Stage, etc., Co., 164 U. S. 688. “That corporations composed of citizens are considered by the legislature as citizens, under certain circumstances, is to be strong- ly inferred from the registering act. It never could be intended that an American registered vessel, abandoned to an insurance company composed of citizens, should lose her character as an American vessel.” MarsHal, C. J. U.S. Bank v. Deveaux, 5 Cranch 91. 4, DOCTRINE OF ALLEGIANCE. a. In General. Allegiance Defined. “ Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is; and allegiance by birth, is that which arises from being born within the dominions and under the protection of a particular sovereign.” ‘Story, J., dissenting. Inglis v. Sailor’s Snug Harbour, 3 Pet. 155. Mutual Compact. “The doctrine of allegiance rests on the ground of a mutual compact between the government and the citizen or subject, which it is said cannot be dissolved by either party without the concurrence of the other. It is the tie which binds the governed to their government, in return for the protec- tion which the government affords them.” Tuompson, J. Inglis v. Sailor’s Snug Har- bour, 3 Pet. 124. “Tn the language of the law of nations, which is always to be consulted in the inter- pretation of treaties, a person domiciled in a country, and enjoying the protection of its sovereign, is deemed a subject of that country. He owes allegiance to the coun- try, while he resides in it; temporary, in- deed, if he has not, by birth or naturalization, contracted a permanent allegiance; he fol- lows the character of that country, in war as well as in peace.” Story, J. The Pi- zarro, 2 Wheat. 246. “Another privilege of a citizen of the United States is to demand the care and protection of the federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States.” Mutter, J. Slaughter-House Cases, 16 Wall. 79 —No Allegiance Due from Exile. “There can be no allegiance due, where the sovereign expressly denies all protec- tion, and compels the party to a perpetual exile.” Inglis v. Sailor’s Snug Harbour, 3 Pet., 169. 331 CITIZENS AND CITIZENSHIP. — Right of Citizen to Protection of His Country Abroad. “The American citizen who goes into a foreign country, although he owes local and temporary allegiance to that country, is yet, if he performs no other act changing his condition, entitled to the protection of his own government; and if, without the viola- tion of any municipal law, he should be op- pressed unjustly, he would have a right to claim that protection, and the interposition of the American government in his favor would be considered as a justifiable inter- position. But his situation is completely changed, where by his own act he has made himself the subject of a foreign power.” MarsHaLt, C. J. Murray uv, Charming Betsy, 2 Cranch 120. Question of Allegiance One of State Cog- nizance. “With regard to state decisions upon this question [of allegiance], it is one so exclusively of state cognizance, that the courts of the respective states must be: held to be best acquainted with their own law upon it.” Jounson, J., dissenting. Shanks v. Dupont, 3 Pet. 265. “Because an officer of a state may be a citizen of the United States it does not fol- low that the tribunals of the United States can alone determine that fact, and that the decision of the state in respect to it can be supervised and controlled by the federal authorities.” Freip, J., dissenting. Boyd v. Thayer, 143 U. S. 183. b. Expatriation. At Common Law. “The common law altogether denies the right of putting off allegiance.” JoHNSOoN, J., dissenting. Shanks v. Dupont, 3 Pet. 259. “The common law declares that the in- dividual cannot put off his allegiance by any act of his own.” JoHNsoN, J., concurring. Inglis v. Sailor’s Snug Harbour, 3 Pet. 136. “There is not a writer who treats upon thé subject, who does not qualify the exer- cise of the right to emigrate, much more than that of putting off or changing our al- legiance, with so many exceptions as to time and circumstances, as plainly to show that it cannot be considered as an unalienable or even perfect right. A state of war, want of inhabitants, indispensable talents, transfer of knowledge and wealth to a rival, and various other grounds, are assigned by writers on public law, upon which a nation may lawfully and reasonably limit and restrict the exercise of individual volition in emigrating or put- ting off our allegiance.” JouwNson, J., dis- senting. Shanks v. Dupont, 3 Pet. 262. “In the course of nature, man has need of protection and improvement long before he is able to reciprocate those benefits, These are purchased by the submission and ser- vices of our parents; why then should not those to whom we must be indebted for ad- vantages so indispensable to the development of our powers, be permitted, to a certain ex- tent, to bind us apprentice to the community from which they have been and are pro- cured?” Jounson, J., dissenting. Shanks v. Dupont, 3 Pet. 262. — Natural Allegiance of British Sub- jects. “British subjects are permitted, when not prohibited by statute (as in the case with regard to her citizens), to seek their fortunes where they please, but always subject to their natural allegiance. And although it is not regarded as a crime to swear allegiance to a foreign state, yet their government stands uncommitted in the subject of the embar- rassments in which a state of war between the governments of their natural and that of their adopted allegiance may involve the individual. On this subject the British gov- ernment acts as circumstances may dictate to her policy. That policy is generally lib- eral; and as war is the calling of many of her subjects, she has not been rigorous in punishing them even when found with arms in their hands, where there has been no de- sertion, and no proclamation of recall. The right, however, to withdraw from their natural allegiance is universally denied by the common law.” JoHNsoN, J., dissenting. Shanks v. Dupont, 3 Pet. 259. In Time of War. “In some instances, even in time of war, expatriation may be fairly permitted. It ought not then to be restrained. But who is to permit it? The legislature surely; the constant guardian of the public interests, where a new law is to be made, or an old one dispensed with. If they may take cogni- zance in one instance (as for example, in time of war), because the public safety may require it, why not in any other instance, where the public safety, for some unknown cause, may equally require it? Upon the eve of war, it may be still more important to exercise it, as we often see in the case of embargoes.” IREDELL, J., concurring. Tal- bot v. Janson, 3 Dall. 163. 332 eee CITIZENS AND CITIZENSHIP. “Some writers on the subject of expatria- tion say, a man shall not expatriate in time of war, so as to do a prejudice to his coun- try. But if it be a natural, unalienable right, upon the footing of mere private will, who can say that this shall not be exercised in time of war, as well as in time of peace, since the individual, upon that principle, is to think of himself only? I therefore think that the principle goes to a state of war, as well as peace, and it must involve a time of the greatest public calamity, as well as the profoundest tranquility.” Ire- DELL, J., concurring. Talbot v. Janson, 3 Dall. 162. 1 “The very statement of an exception in time of war, shows that the writers on the law of nations, upon the subject [of expatria- tion] in general, plainly mean, not that it is a right to be always exercised without the least restraint of his own will and pleasure, but that it is a reasonable and moral right which every man ought to be allowed to ex- ercise, with no other limitation than such as the public safety or interest requires, to which all private rights ought and must forever give way.” Irepeu, J., concurring. Talbot v. Janson, 3 Dall. 163. Persons in Exercise of Public Trust. “ As every man is entitled to claim rights in society, which it is the duty of the society to protect; he, in his turn, is under a solemn obligation to discharge all those duties faith- fully, which he owes, as a citizen, to the society of which he is a member and as a man to the several members of the. society individually with whom he is associated. Therefore, if he has been in the exercise of any public trust, for which he has not fully accounted, he ought not to leave the society until he has accounted for it.” IrEpELL, J., concurring. Talbot v. Janson, 3 Dall. 162. Act Must be Bona Fide. “The act of expatriation should be bona fide, and manifested, at least, by the emi- grant’s actual removal, with his family and effects, into another country.” CusHING, J., concurring. Talbot v. Janson, 3 Dall. 169. “T do not think that merely taking such an oath [to another country] and being ad- mitted as a citizen there, in itself, is evidence of a bona fide expatriation, or completely dis- charges the obligations he owes to his own country.” IREDELL, J., concurring. Talbot v. Janson, 3 Dall, 164, Duty to Country. “Did any man suppose, when the rights of citizenship were so freely and honorably bestowed on the unfortunate Marquis de la Fayette, that that absolved him, as a sub- ject or citizen of his own country? It had only this effect, that whenever he came into this country, and chose to reside here, he was ipso facto to be deemed a citizen, without any thing farther.” IREDELL, J., concurring. Talbot v. Janson, 3 Dall. 164. American Doctrine. “From the Declaration of Independence to this day, the United States have rejected the doctrine of indissoluble allegiance and maintained the general right of expatriation, to be exercised in subordination to the pub- lic interests and -subject to regulation.” Futter, C. J., dissenting. U. S. v. Wong Kim Ark, 169 U. S. 711. “The rule in respect of citizenship of the United States prior to the Fourteenth Amendment differed from the English com- mon law rule in vital particulars, and, among others, in that it did not recognize allegiance as indelible, and in that it did recognize an essential difference between birth during temporary, and birth during permanent, res- idence.” Futter, C. J., dissenting. U. S. v. Wong Kim Ark, 169 U. S. 729. “As to the jura corone, including therein the obligation of allegiance, the extent to which these ever were applicable in this country depended on circumstances, and it would seem quite clear that the rule making locality of birth the criterion of citizenship because creating a permanent tie of alle- giance, no more survived the American Rev- olution than the same rule survived the French Revolution.” FuLier, C. J., dissent- ing. U. S. v. Wong Kim Ark, 169 U. S. 710. ‘The supposition that the power [of ex- patriation] may be abused, is of no impor- tance, if the public good requires its exer- cise.” IREDELL, J., concurring. Talbot v. Janson, 3 Dall. 163. Subject of Municipal Regulation. “Whenever an individual proposes to re- move, a question of right or obligation arises between himself and the community, which must be decided on in some mode. And what other mode is there but a reference to the positive legislation or received prin- ciples of the society itself? It is therefore a subject of municipal regulation; and the 333 CITIZENS AND CITIZENSHIP, security of the individual lies in exerting his influence to obtain laws which will neither expose the community unreasonably on the one hand, nor restrain one individual un- justly on the other. JOHNSON, J., dissenting. Shanks v, Dupont, 3 Pet. 262, “A legislature must be weak to the ex- treme verge of folly, to wish to retain any man as a citizen, whose heart and affections are fixed on a foreign country, in preference to his own. They would naturally wish to get rid of him as soon as they could, and, therefore, perhaps, the proper precaution would be, to restrain acts of banishment Cif such could be at all permitted), rather than to limit the legislative control over ex- patriation.” IrepELt, J,, concurring. Talbot v. Janson, 3 Dall. 163, “T£ the legislature had prescribed a mode [of expatriation] every one would know, whether it had or had not been pursued, and all rights, private as well as public, would be equally guarded; but upon the present doctrine no rights are secured, but those of the expatriator himself.” IRepEL1, J., concurring. Talbot v. Janson, 3 Dall. 164. 5. CESSION OF TERRITORY AND CHANGE OF GOVERNMENT. Cession of Territory — When Nationality Changes, “ Where the territory is ceded by one sov- ereign to another, the nationality of the in- habitants of the ceded territory is not changed until the stipulations of the treaty are executed by a formal delivery given, and by possession taken.” Wayne, J., dissenting. U.S. v. Castillero, 2 Black 350. “The general principle of the common law also is, that the allegiance thus due by birth cannot be dissolved by any act of the sub- ject. It remains perpetual, unless it is dis- solved by consent of the sovereign or by operation of law. Upon the cession of a country, it passes to the new sovereign; for the sovereign power is competent to transfer it by a voluntary grant. Upon the conquest of the country it passes by operation of law to the conqueror; who, as sovereign de facto, has a right to the allegiance of all, who are subdued by his power, and submit to the protection of his arms. Upon the abdication of the government by one prince, it passes to operation of law to him whom the nation appoints as his successor.” Srory, J., dis- senting. Inglis v. Sailor’s Snug Harbour, 3 Pet. 156, “Tt was competent for the British gov- ernment to insist, at all times during the Rev- olutionary War, upon retaining the allegiance of all persons, who were born or became subjects; and for the American states to in- sist in like manner; the treaty of peace of 1783 released all persons from any other allegiance than that of the party to whom they then adhered, and under whose allegiance they were then, de facto, found.” Story, J., dissenting. Inglis v. Sailor’s Snug Harbour, 3 Pet. 170. Annexation of Texas. “By the annexation of Texas, under a joint resolution of Congress of March 1, 1845, and its admission into the Union on an equal footing with the original states, De- cember 29, 1845, all the citizens of the former republic became, without any express dec- laration, citizens of the United States.” Futter, C.J. Boyd v. Thayer, 143 U. S. 169. Citizenship Not Condition of Annexation. “Tt is doubtful if Congress would ever as- sent to the annexation of territory upon the condition that its inhabitants, however for- eign they may be to our habits, traditions and modes of life, shall become at once citizens of the United States.’ Brown, J. Downes v. Bidwell, 182 U. S. 279. New Government Established by War. “When a country is divided by a civil war, and each party establishes a separate and in- dependent form of government, there, if the old government is completely overthrown, and dissolved in ruins, the allegiance by birth would seem by operation of law to be dis- solved, and the subjects left to attach them- selves to such party, as they may choose, and thus to become the voluntary subjects, not by birth but by adoption, of either of the new governments. But where the old gov- ernment, notwithstanding the division, re- mains in operation, there is more difficulty in saying, upon the doctrine of the common law, that their native allegiance to such govern- ment is gone, by the mere fact, that they ad- here to the separated territory of their birth, unless there be some act of the old govern- ment virtually admitting the rightful exist- ence of the new. By adhering to the new government, they may indeed acquire all the rights, and be subject to all the duties of a subject to such government. But it does not follow, that they are thereby absolved from all allegiance to the old government. A person may be, what is not a very uncom- mon case, a subject owing allegiance to both governments, ad utriusque fidem regis. But if 334 CITIZENS AND CITIZENSHIP. he chooses to adhere to the old government, and not to unite with the new, though gov- erning the territory of his birth, it is far more difficult to affirm that the new govern- ment can compel or claim his allegiance in virtue of his birth, although he is not within the territory, so as to make him responsible criminally to its jurisdiction. It may give him the privileges of a subject, but it does ‘not follow, that it can compulsively oblige him to renounce his former allegiance. Per- haps the clearest analogy to govern such cases is to bring them within the rule, that applies to cases of conquest, where those only are bound to obedience and allegiance, who remain under the protection of the con- queror.” Story, J., dissenting. Inglis v. Sailor’s Snug Harbour, 3 Pet. 156. Separation of Colonies from Great Britain. “Tt is universally admitted, both in the English courts and in those of our own coun- try, that all persons born within the colonies of North America, whilst subject to the crown of Great Britain, were natural born British subjects, and it must necessarily fol- low that their character was changed by the separation of the colonies from the parent state, and the acknowledgment of their in- dependence.” THompson, J. Inglis v. Sail- or’s Snug Harbour, 3 Pet. 120. “ All white persons or persons of Euro- pean descent who were born in any of the colonies, or resided or had been adopted there, before 1776, and had adhered to the cause of independence up to July 4, 1776, were by the Declaration invested with the privileges of citizenship.” Futter, C. J. Boyd wv. Thayer, 143 U. S. 163. “Antecedent to the Revolution, the in- habitants of the colonies, whether natives of the colonies, or of any other of the British dominions, owed nc allegiance except to the British crown. There was not, according to the common law, any secondary or subor- dinate allegiance to the colony itself, or the government therein established, as contra- distinguished from the general allegiance to the British crown. When, therefore, the Declaration of Independence absolved all the states from allegiance to the British crown, it was an act of one party only. It did not bind the British government, which was still at liberty to insist, and did insist, upon the absolute nullity of the act, and claimed the allegiance of all the colonists as perpetual and obligatory.” Story, J., dissenting. In- glis v. Sailor’s Snug Harbour, 3 Pet. 158. “The general doctrine, asserted in the American courts, has been, that natives who were not here at the Declaration of Inde- pendence, but were then, and for a long while afterwards remained, under British protection, if they returned before the treaty of peace, and were here at that period, were to be deemed citizens. If they adhered to the British crown up to the time of the treaty, they were deemed aliens. . . . In respect to British subjects, not natives, who joined us at any time during the war, and remained with us up to the peace, a similar rule of deeming them citizens has been, adopted.” Story, J., dissenting. Inglis v. Sailor’s Snug Harbour, 3 Pet. 161. “At the Declaration of Independence, and ever ‘since, the received general doctrine has been, in conformity with the common law, that free persons born within either of the colonies were subjects of the king; that by the Declaration of Independence, and the subsequent acquisition of sovereignty by the several states, all such persons ceased to be subjects, and became citizens of the several states, except so far as some of them were disfranchised by the legislative power of the states, or availed themselves, seasonably, of the right to adhere to the British crown in the civil contest, and thus to continue British subjects.” Curtis, J., dissenting. Scott v. Sandford, 19 How. 576. — Election. “ Prima facie, and as a general rule, the character in which the American antenati are to be considered, will depend upon, and be determined by the situation of the party and the election made at the date of the Declaration of Independence, according to our rule; or the treaty of peace, according to the British rule. But this general rule must necessarily be controlled by special circum- stances attending particular cases. And if the right of election is at all admitted, it must be determined, in most cases, by what took place during the struggle, and between the Declaration of Independence and the treaty of peace. To say that the election must have been made before, or immediately at the Declaration of Independence, would render the right nugatory.” Inglis v. Sail- or’s Snug Harbour, 3 Pet. 121, | “Under the peculiar circumstances of the Revolution, the general, I do not say the uni- versal, principle adopted, was to consider all persons, whether natives or inhabitants, upon the occurrence of the Revolution, entitled to 335 CIVIL RIGHTS. make their choice, either to remain subjects of the British crown, or to become members of the United States. This choice was nec- essarily to be made within a reasonable time.” Story, J., dissenting. Inglis v. Sailor’s Snug Harbour, 3 Pet. 159. —— Allegiance to Particular Colony. “The commencement of the Revolution found us all indeed professing allegiance to the British crown, but distributed into sepa- rate communities; altogether independent of each other, and each exercising within its own limits sovereign powers, legislative, ex- ecutive, and judicial. We were dependent, it is true, upon the crown of Great Britain, but as to all the world beside, foreign and independent. It lies then at the basis of our Revolution that when we threw off our alle- giance to Great Britain, every member of each body politic stood in the relation of subject to no other power than the com- munity of which he then constituted a mem- ber. Those who owed allegiance to the king as of his province of South Carolina thence- forward owed allegiance to South Carolina. The courts of this country all consider this transfer of allegiance as resulting from the Declaration of Independence; the British from its recognition by the treaty of peace.” Jounson, J., dissenting. Shanks v. Dupont, 3 Pet. 255. CIVIL ACTION. See AcTIons. CIVIL CAUSE. See AcTIONS. Application of Term. “Though the term ‘civil causes’ is often descriptively applied, in contradistinction to ‘criminal causes’; yet, it is not uncommon to apply it, likewise, in contradistinction to causes of maritime and admiralty jurisdic- tion.” Witson, J., dissenting. Wiscart v. Dauchy, 3 Dall. 325. CIVIL LAW. See Capture, RECAPTURE, CONFISCATION, AND Prize; Copes; Common Law. Retaining in Annexed Territory. “In the future growth of the nation, as heretofore, it is not imposible that Congress may see fit to annex territories whose juris- prudence is that of the civil law. One of the considerations moving to such annexation might be the very fact that the territory so annexed should enter the Union with its tra- ditions, laws and systems of administration unchanged. It would be a narrow construc- tion of the Constitution to require them to abandon these, or to substitute for a system, which represents the growth of generations of inhabitants, a jurisprudence with which they had had no previous acquaintance or sympathy.” Brown, J. Holden v. Hardy, 169 U. S. 389. ‘ In Louisiana. “ Accustomed to the civil law, the first settlers of Louisiana, their descendants and emigrants thereto, cling to it, as we of the old states do, and our ancestors did cling to the common law, as a cherished inheritance.” BALpwIin, J., dissenting. Livingston v. Story, 11 Pet. 397. “The common law has been adopted in Illinois, and all the states except Louisiana. In that state, the courts of the United States have been compelled to adopt the forms of pleading and practice peculiar to the civil law and the code. That system knows no dis. tinction between law and equity. All cases are tried alike, on petition and answer, with or without the intervention of a jury, as the parties may elect.” Grier, J. Graham v. Bayne, 18 How. 61. “Tn the state of Louisiana, the principles of the common law are not recognized; neither do the principles of the civil law of Rome furnish the basis of their jurispru- dence. They have a system peculiar to themselves, adopted by their statutes, which embodies much of the civil law, some of the principles of the common law, and, in a few instances, the statutory provisions of other states. This system may be called the civil law of Louisiana, and is peculiar to that state.” McLean, J., dissenting. Parsons v. Bedford, 3 Pet. 450. “Tn introducing into Louisiana that part of the common law which constitutes the law and practice of courts of equity, the other part of the same system being concomitant, cannot be excluded; if it is to be done, or can be done, it is only by the legislative power.” Batpwin, J., dissenting. Living- ston Story, 11 Pet. 400. CIVIL RIGHTS. I. FUNDAMENTAL RIGHTS IN GEN- ERAL, II. ConstiruTIoNAL AMENDMENTS AND Civit Ricuts Act GEN- ERALLY, 336 CIVIL RIGHTS. III. ConsiperATION OF PARTICULAR Ricuts SECURED BY THE COoN- STITUTION. . Protection of Life, Liberty, and Prop- erty. 2. Equal Protection of the Laws. 8. Privileges and Immunities of Citizen- ship of United States. 4. Right to Follow Ordinary Employ- ments. 5. Freedom of Speech and of the Press. 6. Right to Petition for Redress of Grievances. 7. Right to Vote for Electors and Right of Officers to Protection. 8. Rights Subject to Lawful Regulation. CROSS-REFERENCES. As to qualifications of jurors, see Jury; right to require a license to follow a calling, see LICENSE; right to regulate immigration, see Im- MIGRATION ; right of a corporation to enter a for- eign state, see ForEIGN CoRPorRA- TIONS ; effect of Fourteenth Amendment and Civil Rights Act on act regulating enrolment of coasting vessels, see SHIPS AND SHIPPING. For other matters related to this title, see CarrIERS; CONSTITUTIONAL Law; District oF CoLtumsBIA; Due Process or Law; INNS AND INNKEEPERS; Liperty; LicENSES; PER- sons; Potice Power; RicHts; TAXES; THE- ATRES AND Priaces oF PusBLic AMUSEMENT. I. FUNDAMENTAL RIGHTS IN GENERAL. Inherent and Inalienable Rights. “With the gift of life there necessarily goes to every one the right to do all such acts, and follow all such persuits, not incon- sistent with the equal rights of others, as may support life and add to the happiness of its possessor.” Frup, J., dissenting. Pow- ell v. Pennsylvania, 127 U. S. 692. “The theory upon which our political in- stitutions rest is, that all men have certain inalienable rights — that among these are life, liberty, and the pursuit of happiness; and that in the pursuit of happiness all avoca- tions, all honors, all positions, are alike open to everyone, and that in the protection of these rights all are equal before the law. Any deprivation or suspension of any of these rights for past conduct is punishment. and can be in no otherwise defined.” Frexp. J. Cummings v. Missouri, 4 Wall. 321. “Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life. 1 Os. Dic.—22 Joab liberty, and property. These are the funda- mental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all; and these rights, I contend, belong to the citizens of every free government.” Brap- LEY, J., dissenting. Slaughter-House Cases, 16 Wall. 116. — Right to Fruits of Labor. “That every man has a natural right to the fruits of his own labor, is generally ad- mitted; and that no other person can right- fully deprive him of those fruits, and ap- propriate them against his will, seems to be the necessary result of this admission.” MarsHa.Lt, C, J. The Antelope, 10 Wheat. 120. Individual Rights Foundation of Govern- ment. “The rights of individuals and the justice due to them, are as dear and precious as those of states. Indeed, the latter are founded upon the former; and the great end and ob- ject of them must be, to secure and support the rights of individuals, or else, vain is government.” CusHinc, J. Chisholm wu. Georgia, 2 Dall. 468. “As in our intercourse with our fellow men certain principles of morality are as- sumed to exist, without which society would be impossible, so certain inherent rights lie at the foundation of all action, and upon a recognition of them alone can free institu- tions be maintained.” Fretp, J. Butchers’ Union Co. v. Crescent City Co.,111 U.S. 756. “Due protection of the rights of property has been regarded as a vital principle of republican institutions.” Haran, J. Chi- cago, etc., R. Co. v, Chicago, 166 U. S. 235. Natural and Artificial or Remedial Rights. “We suggest, without intending to decide. that there may be a distinction between cer- tain natural rights, enforced in the Constitu- tion by prohibition against interference with them and what may be termed artificial or remedial rights, which are peculiar to our system of jurisprudence. Of the former class are the rights of one’s own religious opinion and to a public expression of them, or, as sometimes said, to worship God according to the dictates of one’s own conscience; the right to personal liberty and individual prop- erty; to freedom of speech and of the press; to free access to courts of justice; to due a of law and to an equal protection of CIVIL RIGHTS. the laws; to immunities from unreasonable’ searches and seizures, as well as cruel and unusual punishments; and to such other im- munities as are indispensable to a free gov- ernment. Of the latter class are the rights of citizenship, to suffrage . . and to the particular methods of procedure pointed out in the Constitution, which are peculiar to Anglo-Saxon jurisprudence, and some of. which have already been held by the states to be unnecessary to the proper protection of individuals.” Brown, J. Downes v. Bidwell, 182 U. S. 282. II. CONSTITUTIONAL AMEND- MENTS AND CIVIL RIGHTS ACT GENERALLY. Fourteenth Amendment. “As we have repeatedly held, the Four- teenth Amendment was not intended to cur- tail the powers of the states to so amend their laws as to make them conform to the wishes of their citizens, to changed views of admmistration, or to the exigencies of their social life.’ Brown, J. Bolln vw. Nebraska, 176 U. S. 88. “A state may not, by any of its agencies, disregard the prohibitions of the Fourteenth Amendment.” ‘Harran, J. Chicago, etc., R. Co. v. Chicago, 166 U. S. 234. “Tf the court had not ruled otherwise, I should have thought it indisputable that when by the Fourteenth Amendment it was de- clared that no state should make or enforce any law abridging the privileges or immu- nities of citizens of the United States, nor deprive any person of life, liberty or property without due process of law, the people of the United States put upon the states the same restrictions that had been imposed upon the national government in respect as well of the privileges and immunities of citizens of the United States as of the pro- tection of the fundamental rights of life, liberty and property.” Haran, J., dissent- ing. Maxwell v. Dow, i176 U. S. 614. —— Fourteenth Amendment and Civil Rights Act— Acts Not Imputable to State. “As the state, in the administration of its government, acts through its executive, legis- lative and judicial departments, the inhibition [of the Civil Rights Act and of the Four- teenth Amendment] applies to them. But the executive and judicial departments only con- strue and enforce the laws of the state; the inhibition, therefore, is in effect against pass- ing and enforcing any laws which are de- signed to accomplish the ends forbidden. If an executive or judicial officer exercises power with which he is not invested by law, and does unauthorized acts, the state is not responsible for them. The action of the ju- dicial officer in such a case, where the rights of a citizen under the laws of the United States are disregarded, may be re- viewed and corrected or reversed by this court: it cannot be imputed to the state, sc as to make it evidence that she in her sov- ereign or legislative capacity denies the rights invaded or refuses to allow their en- forcement. It is merely the ordinary case of an erroneous ruling of an inferior tribunal. Nor can the unauthorized action of an execu- tive officer, impinging upon the rights of the citizen, be taken as evidence of her inten- tion or policy so as to charge upon her a denial of such rights.” Frevp, J. Virginia v. Rives, 100 U. S. 334. “Civil rights, such as are guaranteed by the Constitution against state aggression cannot be impaired by the wrongful acts of individuals unsupported by state authority in the shape of law, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such au- thority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the state, or not done under state authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the state for redress. An in- dividual cannot deprive a man of his right to vote, to hold property, to buy and sell, to sue in the courts, or to be a witness or a juror; he may, by force or fraud, interfere with the enjoyment of the right in a par- ticular case; he may .commit an assault against the person, or commit murder, or use ruffian violence at the polls, or slander the good name of a fellow citizen, but, unless protected in these wrongful acts by some shield of state !aw or state authority, he can- not destroy or injure the right; he will only render himself amenable to satisfaction or punishment; and amenable therefor to the laws of the state where the wrongful acts are committed. Hence, in all those cases where the Constitution seeks to protect the rights of the citizen against discriminative and unjust laws of the state by prohibiting such laws, it is not individual offenses, but abrogation and denial of rights, which it de- nounces, and for which it clothes the Con- gress with power to provide a remedy. This 338 CIVIL RIGHTS. abrogation and denial of rights, for which the states alone were or could be responsible, was the great seminal and fundamental wrong which was intended to be remedied. And the remedy to be provided must neces- sarily be predicated upon that wrong. It must assume that in the cases provided for, the evil or wrong actually committed rests upon some state law or state authority for its excuse and perpetration.” Braptey, J. Civil Rights Cases, 109 U. S. 17. Thirteenth Amendment. “The Thirteenth Amendment does not per- mit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged.” Haran, J., dissenting. Plessy v. Ferguson, 163 U. S. 555. “The power of Congress under the Thir- teenth Amendment is not necessarily re- stricted to legislation against slavery as an institution upheld by positive law, but may be exerted to the extent, at least, of protect- ing the liberated race against discrimination, in respect of legal rights belonging to free- men, where such discrimination is based upon race.” Haran, J., dissenting. Civil Rights Cases, 109 U. S. 37. “I do not contend that the Thirteenth Amendment invests Congress with authority by legislation to define and regulate the en- tire body of the civil rights which citizens enjoy, or may enjoy, in the several states. But I hold that since slavery, as the court has repeatedly declared . . . was the moving or principal cause of the adoption of that amendment, and since that institution rested wholly upon the inferiority, as a race of those held in bondage, their freedom neces- sarily involved immunity from, and protec- tion against, all discrimination against them, because of their race, in respect of such civil rights as belong to freemen of other races. Congress, therefore, under its express power to enforce that amendment, by appropriate legislation, may enact laws to protect that people against the deprivation, because of their race, of any civil rights granted to other freemen in the same state; and such legislation may be of a direct and primary character, operating upon states, their officers and agents, and, also, upon at least such in- dividuals and corporations as exercise public functions and wield power and authority under the state.” Hartan, J., dissenting. Civil Rights Cases, 109 U. S. 36. “That there are burdens and disabilities which constitute badges of slavery and ser- vitude, and that the power to enforce by ap- propriate legislation the Thirteenth Amend- ment may be exerted by legislation of a direct and primary character, for the eradication, not simply of the institution, but of its badges and incidents, are propositions which ought to be deemed indisputable. They lie at the foundation of the Civil Rights Act of 1866.” Hartan, J., dissenting. Civil Rights Cases, 109 U. S. 35. “Had the Thirteenth Amendment stopped with the sweeping declaration, in its first section, against the existence of slavery and involuntary servitude, except for crime, Con- gress would have had the power, by implica- tion to protect the freedom estab- lished, and consequently, to secure the enjoyment of such civil rights as were funda- mental in freedom. That it can exert its authority to that extent is made clear, and was intended to be made clear, by the ex- press grant of power contained in the second section of the Amendment.” Harzan, J., dissenting. Civil Rights Cases, 109 U. S. 35. “The Thirteenth Amendment, it is con ceded, did something more than to prohibit slavery as an institution, resting upon dis+ tinctions of race, and upheld by positive law. My brethren admit that it established and decreed universal civil freedom throughout the United States.” Har.an, J., dissenting. Civil Rights Cases, 109 U. S. 34. “We have seen that the power of Con- gress, by legislation, to enforce the master’s right to have his slave delivered up on claim was implied from the recognition of that right in the national Constitution. But the power conferred by the Thirteenth Amend- ment does not rest upon implication or in- ference. Those who framed it were not ignorant of the discussion, covering many years of our country’s history, as to the con- stitutional power of Congress to enact the Fugitive Slave Laws of 1793 and 1850. When, therefore, it was determined, by a change in the fundamental law, to uproot the institution of slavery wherever it existed in the land, and to establish universal freedom, there was a fixed purpose to place the author- ity of Congress in the premises beyond the possibility of a doubt. Therefore, ex indus- tria, power to enforce the Thirteenth Amend- ment, by appropriate legislation, was ex- 339 CIVIL RIGHTS. pressly granted. Legislation for that pur- pose, my brethren concede, may be direct and primary. But to what specific ends may it be directed? This court has uniformly held that the national government has the power, whether expressly given or not, to secure and protect rights conferred or guar- anteed by the Constitution.” Haran, J., dissenting. Civil Rights Cases, 109 U. S. 33. “The terms of the Thirteenth Amend- ment are absolute and universal. They em- brace every race which then was, or might thereafter be, within the United States. No race, as such, can be excluded from the benefits or rights thereby conferred. Yet, it is historically true, that that amendment was suggested by the condition, in this coun- try, of that race which had been declared, by this court, to have had—according to the opinion entertained by the most civilized portion of the white race, at the time of the adoption of the Constitution —‘no_ rights which the white man was bound to respect,’ none of the privileges or immunities secured by that instrument to citizens of the United States. It had reference, in a peculiar sense, to a people which (although the larger part of them were in slavery) had been invited by an Act of Congress to aid in saving from overthrow a government which, therefore, by all of its departments, had treated them as an inferior race, with no legal rights or privi- leges except such as the white race might choose to grant them.” Haran, J., dissent- ing. Civil Rights Cases, 109 U. S. 33. Thirteenth and Fourteenth Amendments — Political and Civil Rights Distinguished. “In the consideration of questions grow- ing out of these amendments much confusion has arisen from a failure to distinguish be- tween the civil and the political rights of citizens. Civil rights are absolute and per- sonal. Political rights, on the other hand, are conditioned and dependent upon the dis- cretion of the elective or appointing power, whether that be the people acting through the ballot, or one of the departments of their government. The civil rights of the indi- vidual are never to be withheld, and may be always judicially enforced. The political rights which he may enjoy, such as holding office and discharging a public trust, are qualified because their possession depends on his fitness, to be adjudged by those whom society has clothed with the elective author- ity. The Thirteenth and Fourteenth amend- ments were designed to secure the civil rights of all persons, of every race, color and con- dition; but they left to the states to deter- mine to whom the possession of political powers should be intrusted. This is manifest from ‘the fact that when it was desired to confer political power upon the newly made citizens of the states, as was done by in- hibiting the denial to them of the suffrage on account of race, color, or previous condition of servitude, a new amendment was re- quired.” Fre.p, J., dissenting. Ex p. Vir- ginia, 100 U. S. 368. “Many wrongs may be obnoxious to the prohibitions of the Fourteenth Amendment which are not, in any just sense, incidents or elements of slavery. Such, for example, would be the taking of private property without due process of law; or allowing persons who have committed certain crimes (horse stealing, for example) to be seized and hung by the posse comitatus without regular trial; or denying to any person, or class of persons, the right to pursue any peaceful avocations allowed to others. What is called class legislation would belong to this category, and would be obnoxious to the prohibitions of the Fourteenth Amendment, but would not necessarily be so to the Thir- teenth, when not involving the idea of any subjection of one man to another. The Thirteenth Amendment has respect, not to distinction of race, or class, or color, but to slavery. The Fourteenth Amendment ex- tends its protection to races and classes and prohibits any state legislation which has the effect of denying to any race or class, or to any individual, the equal protection of the laws.” Braptey, J. Civil Rights Cases, 109 Uz. S. 23. : “We must not forget that the province and scope of the Thirteenth and Fourteenth amendments are different; the former simply abolished slavery; the latter prohibited the states from abridging the privileges or im- munities of citizens of the United States; from depriving them of life, liberty, or prop- erty without due process of law, and from denying to any the equal protection of the laws. The amendments are different, and the powers of Congress under them are different. What Congress has power to do under one, it may not have power to do under the other. Under the Thirteenth Amendment, it has only to do with slavery and its incidents. Under the Fourteenth Amendment, it has power to counteract and render nugatory all state laws and proceedings which have the effect to abridge any of the privileges or immunities of citizens of the United States, or to deprive them of life, liberty or property without due process of law, or to 340 CIVIL RIGHTS. deny to any of them the equal protection of the laws. Under the Thirteenth Amend- ment, the legislation, so far as necessary or proper to eradicate all forms and incidents of slavery and involuntary servitude, may be direct and primary, operating upon the acts of individuals, whether sanctioned by state legislation or not; under the Four- teenth, as we have already shown, it must necessarily be, and can only be, corrective in its character, addressed to counteract and afford relief against state regulation or pro- ceedings.” Braptey, J. Civil Rights Cases, 109 U. S. 23: “Congress has not, in these matters, en- tered the domain of state control and super- vision. It does not, as I have said, assume to prescribe the general conditions and limi- tations under which inns, public conveyances, and places of public amusement, shall be conducted or managed. It simply declares, in effect, that since the nation has established universal freedom in this country, for all time, there shall be no discrimination, based merely upon race or color, in respect of the accommodations and advantages of public conveyances, inns, and places of public amuse- ment. I am of the opinion that such dis- crimination practiced by corporations and in- dividuals in the exercise of their public or quasi-public functions is a badge of servitude the imposition of which Congress may pre- vent under its power, by appropriate legis- lation, to enforce the Thirteenth Amend- ment, and, consequently, without reference to its enlarged power under the Fourteenth Amendment, the Act of March 1, 1875, is not, in my judgment, repugnant to the Con- stitution.” Hartan, J., dissenting. Civil Rights Cases, 109 U. S. 42. Fourteenth and Fifth Amendments. “The Fourteenth Amendment, it has been held, legitimately operates to extend to the citizens and residents of the states the same protection against arbitrary state legislation, affecting life, liberty and property, as is of- fered by the Fifth Amendment against simi- lar legislation by Congress; but that the federal courts ought not to interfere when what is complained of amounts to the en- forcement of the laws of a state applicable to all persons in, like circumstances and con- ditions, and that the federal courts should not interfere unless there is some abuse of law amounting to confiscation of property or a deprivation of personal rights.” PrckHam, J. Hibben v. Smith, 191 U. S. 325. Race Discrimination. “Colored persons, it is admitted, are citi- zens, and that citizens, without distinction of race or color or previous conditions of ser- vitude, have the same right to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property and to full and equal benefit of all laws and proceed- ings for the security of personal property, as is enjoyed by white citizens.” CLiFrorp, J., concurring. Hall v. DeCuir, 95 U. S. 508. “That amendment and its effect upon the rights of the colored race have been consid- ered by this court in a number of cases, and it has been uniformly held that the Constitu- tion of the United States, as amended, for- bids, as far as civil and political rights are concerned, discriminations by the general government, or by the states, against any citizen because of his race, but it has also been held, in a very recent case, to justify a removal from a state court to a federal court of a cause in which such rights are alleged to be denied, that such denial must be the result of the constitution or laws of the state, not of the administration of them.” McKenna, J. Williams v. Mississippi, 170 U. S. 219. “By the Fourteenth Amendment, all per- sons born or naturalized in the United States, and subject to the jurisdiction thereof, are made citizens of the United States and of the state wherein they reside; and the states are forbidden from making or enforcing any law which shall abridge the privileges or im- munities of citizens of the United States, or shall deprive any person of life, liberty or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws.” Brown, J. Plessy v. Ferguson, 163 U. S. 543. “Citizenship in this country necessarily imports at least equality of civil rights among citizens of every race in the same state. It is fundamental in American citi- zenship that, in respect of such rights, there shall be no discrimination by the state, or its officers, or by individuals or corporations ex- ercising public functions or authority, against any citizen because of his race or previous condition of servitude.” Haran, J., dis- senting. Civil Rights Cases, 109 U. S. 48. “But what was secured to colored citizens of the United States — as between them and their respective states—by the national grant to them of state citizenship? With what rights, privileges or immunities did this grant invest them? There is one, if there be no other — exemption from race dis- 341 CIVIL RIGHTS. crimination in respect of any civil right be- longing to citizens of the white race in the same state. That, surely, is their constitu- tional privilege when within the jurisdiction of other states. And such must be their con- stitutional right, in their own state, unless the recent amendments be splendid baubles, thrown out to delude those who deserved fair and generous treatment at the hands of the nation.” Haran, J., dissenting. Civil Rights Cases, 109 U. S, 48 “Tt is, therefore, an essential inquiry what, if any, right, privilege or immunity was given, by the nation, to colored persons when they were made citizens of the state in which they reside? Did the constitutional grant of state citizenship to that race, of its own force, invest them with any rights, privileges and immunities whatever? That they became en- titled, upon the adoption of the Fourteenth Amendment, ‘to all privileges and immunities of citizens in the several states,’ within the meaning of section 2 of article 4 of the Constitution, no one, I suppose, will for a moment question. What are the privileges and immunities to which by that clause of the Constitution, they became entitled? To this it may be answered, generally, upon the authority of the adjudged cases, that they are those which are fundamental in citizen- ship in a free republican government, such as are ‘common to the citizens in the latter states under their constitutions and laws by virtue of their being citizens.” Of that pro- vision it has been said, with the approval of this court, that no other one in the Con- stitution has tended so strongly to constitute the citizens of the United States one people.” Haran, J., dissenting. Civil Rights Cases, 109 U. S. 47%. “In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and under appropriate circumstances when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seemis proper. But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved.” Harian, J., dissenting. Plessy v. Ferguson, 163 U. S. 554. “But that amendment [the Thirteenth Amendment] having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the Fourteenth Amendment, which added greatly to the dignity and glory of American citizen- ship, and to the security of personal liberty, by declaring that ‘all persons born or natu- ralized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,’ and that ‘no state shall make or en- force any law which shall abridge the privi- leges or immunities of citizens of the United States; nor shall any state deprive any per- son of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” Harran, J., dissenting. Plessy v. Ferguson, 163 U. S. 585. “These two amendments [the Thirteenth and Fourteenth amendments] if enforced ac- cording to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship.” Haran, J., dissenting. Plessy v. Ferguson, 163 U.S. 555. “The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is, therefore, to be regretted that this high tri- bunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.” Har- LAN, J., dissenting. Plessy wv. Ferguson, 163 U. S. 559. “The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color- blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most power- ful.” Harran, J., dissenting. Plessy v. Fer- guson, 163 U. S. 559. “It seems that we have yet, in some of the states, a dominant race—a superior class of citizens, which assumes to regulate the en- joyment of civil rights, common to all citi- zens, upon the basis of race.” Haran, J., dissenting Plessy v. Ferguson, 163 U. S. 560. 342 : CIVIL RIGHTS. “Sixty millions of whites are in no danger from the presence here of eight millions of blacks.” Haran, J., dissenting. Plessy v. Ferguson, 163 U. S. 560. “State enactments, regulating the enjoy- ment of civil rights, upon the basis of race, and cunningly devised to defeat legitimate results of the war, under the pretense of recognizing equality of rights, can have no other result than to render pérmanent peace impossible, and to keep alive a conflict of races, the continuance of which must do harm to all concerned.” Harzan, J., dis- senting. Plessy v. Ferguson, 163 U. S. 560. “The sure guarantee of the peace and security of each race is the clear, distinct, unconditional recognition by our govern- ments, national and state, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States without regard to race.” Har.an, J., dissenting Plessy wv. Ferguson, 163 U. S. 560. “The destinies of the two races, in this country, are indissolubly:linked together, and the interests of both require that the com- mon government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citi- zens are so inferior and degraded that they cannot he allowed to sit in public coaches oc- cupied by white citizens?” Haran, J., dis- senting. Plessy v. Ferguson, 163 U. S. 560. — Statute Implying Distinction Between White and Colored Races. “A statute which implies merely a legal distinction between the white and colored races —a distinction which is founded in the color of the two races, and which must al- ways exist so long as white men are distin- guished from the other race by color —has no tendency fo destroy the legal equality of the two races, or re-establish a state of in- voluntary servitude.” Brown, J. Plessy vz. Ferguson, 163 U. S. 543. “Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the at- tempt to do so can only result in accentuat- ing the difficulties of the present situation. If the civil and political rights of both races be equal one cannot be inferior to the other esvilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.” Brown, J. Plessy v. Ferguson, 163 U. S. 551. “Tf the two races are to meet upon terms of social equality, it must be the result of mutual affinities, a mutual appreciation of each other’s merits and a voluntary consent of individuals.” Brown, J. Plessy v. Fer- guson, 163 U. S. 551. “It is true that the question of the pro- portion of colored blood necessary to con- stitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different states, some holding that any visible admix- ture of black blood stamps the person as belonging to the colored race, others that it depends upon the preponderance of blood, and still others that the pre- dominance of white blood must be in the proportion of three-fourths.” Brown, J. Plessy v. Ferguson, 163 U.S. 552. —— Separation. “The object of the [Fourteenth] amend- ment was undoubtedly to enforce the ab- solute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as dis- tinguished from political equality or a com- mingling of the two races upon terms unsatis- factory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been gen- erally, if not universally, recognized as with- in the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children which has been held to be a valid exercise of the legisla- tive power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.” Brown, J. Plessy v. Ferguson, 163 U. S. 544. See also CARRIERS. “The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theatres and railway car- riages has been frequently drawn by this court.” Brown, J. Plessy v. Ferguson, 163 U. S. 545. “There seems to be no substantial differ- ence between my brethren and myself as 343 CIVIL RIGHTS. to the purpose of Congress; for, they say that the essence of the law is, not to declare broadly that all persons shall be entitled to the full and equal enjoyment of the accom- modations, advantages, facilities, and priv- ileges of inns, public conveyances and theatres; but that such enjoyment shall not be subject to conditions applicable only to citizens of a particular race or color or who had been in a previous condition of servi- tude. The effect of the statute, the court says is, that colored citizens, whether for- merly slaves or not and citizens of other races, shall have the same accommodations and privileges in all inhs, public conveyances, and places of amusement as are enjoyed by white persons; and vice versa. The court adjudges, I think erroneously, that Congress is without power, under either the Thirteenth or Fourteenth Amendment to establish such regulations and that the first and second sec- tions of the statute are, in all their parts, unconstitutional and void.” Harran, J., dissenting. Civil Rights Cases, 109 U. S. 27, “The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly in- consistent with the civil freedom and the equality before the law established by the. Constitution. It cannot be justified upon any legal grounds.” Hartan, J., dissenting: Plessy v. Ferguson, 163 U. S, 562. “Tf evils will result from the commin- gling of two races upon public highways es- tablished for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of law which, practically, puts the brand of servitude and degradation upon a large class of our fellow-citizens, our equals before the law. The thin disguise of ‘equal’ accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done. Haran, J., dissenting. Plessy v. Ferguson, 163 U. S. 562. “Tf a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so, and no government, proceeding alone on grounds of race, can prevent it without in- fringing the personal liberty of each.” Har- LAN, J., dissenting. Plessy v. Ferguson, 163 U.S. 557. —— Law Operating upon White and Col- ored People Alike. “The operation of the Constitution and laws [of Mississippi], is not limited in their language or effects to one race. They reach weak and vicious white men as well as weak and vicious black men, and whatever is sin- ister in their intention, if anything, can be prevented by both races by the exertion of that duty whjch voluntarily pays taxes and refrains from crime.” McKenna, J. Wil- liams v. Mississippi, 170 U. S. 222. III. CONSIDERATION OF PARTICU- LAR RIGHTS SECURED BY THE CONSTITUTION. 1. Protection oF Lire, LIBERTY, AND PROPERTY. Extent of Guaranty. “Almost the identical words of Magna Charta were incorporated into most of the State constitutions before the adoption of our national Constitution. When they de- clared, in substance, that no person should be deprived of life, liberty, or property, ex- cept by the judgment of his peers or the law of the land, they intended to assert his right to the same guaranties that were given in the mother country by the great charter and the laws passed in furtherance of its fundamental principles.’ Haran, J., dis- senting. Hurtado wv. California, 110 U. S. 546. “The fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws.” Mattuews, J. Yick Wo v. Hopkins, 118 U. S. 370. “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the posses- sion and control of his own person, free from all restraint or interference of others, un- less by clear and unquestionable authority of law.” Gray, J. Union Pac. R. Co. w. Botsford, 141 U. S. 251. “Every public Act of Congress from 1803 till 1813, which authorized the President to take possession of Louisiana, or to establish therein a temporary government, and every law which related to the subject, contained an express guarantee of property.” BAaLp- win, J. Pollard v. Kibbe, 14 Pet. 375, 344 CIVIL RIGHTS. ERS Sw the owner is prohibited from using his building for the purposes for which it was designed, it is of little consequence that he is permitted to retain the title and possession; or, if he is compelled to take as compensation for its use less than the ex- penses to which he is subjected by its owner- ship, he is, for all practical purposes, de- prived of the property, as effectually as if the legislature had ordered his forcible disposses- sion.” Fretp, J., dissenting. Munn v. IIli- nois, 94 U. S. 142. “Prior to the adoption of that amend- ment [the Fourteenth] the constitutions of the several states, without perhaps an ex- ception, secured all persons against de- privation of life, liberty, or property, other- wise than by due process of law, and, in some form, recognized the right of all persons to the equal protection of the laws. Those rights, therefore, existed before that amend- ment was proposed or adopted, and were not created by it.’ Haran, J., dissenting. Civil Rights Cases, 109 U. S. 55. —— Right to Acquire Property. “As the possession of property, of which a person cannot be deprived, doubtless im- plies that such property may be acquired. it is safe to say that a state law which under- takes to deprive any class of persons of the general power to acquire property would also be obnoxious to the same _ provision.” Brown, J. Holden v. Hardy, 169 U. S. 391. “As property can only be legally acquired as between living persons by contract, a gen- eral prohibition against entering into con- tracts with respect to property, or having as their object the acquisition of property, would be equally invalid.” Brown, J. Holden v. Hardy, 169 U. S. 391. Right to Remove from One Place to Another. “Undoubtedly the right of locomotion, the right to remcve from one place to another ac- cording to inclination, is an attribute of per- sonal liberty, and the right, ordinarily, of free transit from or through the territory of any state is a right secured by the Four- teenth Amendment and by other provisions of the Constitution.” Furrer, C. J. Wil- liams v. Fears, 179 U. S. 274. “A citizen of the United States has a per- fect constitutional right to go to and reside in any state he chooses, and to claim citizen- ship therein, and an equality of rights with every other citizen.” Braptry, J., dissenting. Slaughter-House Cases, 16 Wall. 112. 2. EQuaL PRorecTION OF THE LAws. The Right Generally. “The equal protection of the laws is a right now secured to every person without regard to race, color or previous condition of servitude; and the denial of such protection by any state is forbidden by the supreme law of the land.” HarLan, J. Gibson v. Missis- sippi, 162 U. S. 582. “The main proposition advanced by the defendant is that his enjoyment upon terms of equality with all others in similar circum- stances of the privileges of pursuing an ordi- nary calling or trade, and of acquiring, hold- ing, and selling property, is an essential part of his rights of liberty and property, as guar- anteed by the Fourteenth Amendment. The court assents to this general proposition as embodying a sound principle of constitutional law.” Harvan, J. Powell v. Pennsylvania, 127 U. S. 684. “©The equal protection of the laws’ places all upon a footing of legal equality and givés the same protection to all for the preserva- tion of life, liberty, and property, and the pursuit of happiness.” Swayne, J., dissent- ing. Slaughter-House Cases, 16 Wall. 127. “This equality of right, with exemption from all disparaging and partial enactments, in the lawful pursuits of life, throughout the whole country, is the distinguishing privilege of citizens of the United States.” Fiexp, J., dissenting. Slaughter-House Cases, 16 Wall. 109. “The contention that persons within the territorial jurisdiction of this republic might be beyond the protection of the law was heard with pain on the argument at the bar —in face of the great constitutional amend- ment which declares that no state shall deny to any person within its jurisdiction the equal protection of the laws. Far nobler was the boast of the great French cardinal who ex- ercised power in the public affairs of France for years, that never in all his time did he deny justice to any one. ‘For fifteen years,’ such were his words, ‘while in these hands dwelt empire, the humblest craftsman, the obscurest vassal, the very leper shrinking from the sun, though loathed by charity, might ask for justice.” Fietp, J., dissenting. Wong Wing v. U. S., 163 U. S. 242. “When the Fourteenth Amendment or- dains that no state shall deny to any person within its jurisdiction ‘the equal protection of the laws’ it means equal protection not 345 * CIVIL RIGHTS. merely by the statutory enactments of the state, but equal protection by all the rules and regulations which, having the force of law, govern the intercourse of its citizens with each other and their relations to the public, and find expressions in the usages and customs of its people and in the decisions of its tribunals.” Fretp, J., dissenting. Balti- more, etc., R. Co. v. Baugh, 149 U. S. 398. Purpose of Provision, “The inhibition of the amendment that no state shall deprive any person within its jurisdiction of the equal protection of the laws was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation.” Fretp, J. Pembina Min. Co. wv. Pennsylvania, 125 U. S. 188. To the same effect, see the language of Futter, C. J., in McPherson v. Blacker, 146 U. S. 39, and of Brewer, J., in Atchison, etc., R. Co. v. Mat- thews, 174 U. S. 104. Applicable to Corporation. “Nothing has ever heretofore fallen from this court sustaining the proposition that the constitutional pledge of the equal protection of the laws admitted of a litigant, because of its corporate character, being denied in a court of justice privileges of a substantial kind accorded to its opponent.” Haran, J., dissenting. Atchison, ete, R. Co. vw. Mat- thews, 174 U. S. 124. Applicable to Women, Aged Persons, and Foreigners. “No one can truly affirm that women, the aged, and the resident foreigner, whether Caucasian or Mongolian, though excluded from acting as jurors, are not as equally pro- tected by the laws of the state as those who are allowed or required to serve in that ca- pacity. To afford equality of protection to all persons by its laws does not require the state to permit all persons to participate equally in the administration of those laws, or to hold its offices, or to discharge the trusts of goverment. Equal protection of the laws of a state is extended to persons within its jurisdiction,’ within the meaning of the amendment, when its courts are open to them on the same terms as to others, with like rules of evidence and modes of proced- ure, for the security of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; when they are subjected to no restrictions in the acquisition of property, the enjoyment of personal liberty, and the pursuit of hap- piness, which do not equally affect others; when they are liable to no other nor greater burdens or charges than such as are laid upon others, and when no different nor greater punishment is enforced against them for a violation of the laws. When this con- dition of things exists in a state, there is that equality before the law which is guaranteed to all persons within its jurisdiction.” Fiezp, J., dissenting. Neal v. Delaware, 103 U. S. 407. How. Denial of Right May Arise. “The denial by the state of the equal pro- tection of the laws to persons within its jurisdiction may arise as well from the fail- ure or inability of the state authorities to give that protection, as from unfriendly enactments.” Haran, J., dissenting. Bald- win v. Franks, 120 U. S. 700. “Equality of protection under the laws implies not only accessibility by each one, whatever his race, on the same terms with others, to the courts of the country for the security of his person and property, but that in the administration of criminal justice he shall not be subjected, for the same offense, to any greater or different punishment.” FreLp, J. Pace v. Alabama, 106 U. S. 584. “A private person cannot make constitu- tions or laws, nor can he with authority con- strue them. The only way, therefore, in which one private person can deprive another of the equal protection of the laws is by the commission of some offense against the laws which protect the rights of persons, as by theft, burglary, arson, libel, assault, or mur- der.” Woops, J. U.S. v. Harris, 106 U. S. 643. “The denial of the equal protection of the laws may occur in various ways. It will most often occur in the enforcement of laws im- posing taxes. An individual is denied the equal protection of the laws if his property is subjected by the. state to higher taxation than is imposed upon like property of other individuals in the same community. So, a corporation is denied that protection when its property is subjected by the state, under whose laws it is organized, to more burden- some taxation than is imposed upon other domestic corporations of the same class. So, also, a corporation of one state, doing bust ness, by its agents, in another state, by the latter’s consent, is denied the equal protec- tion of the laws if its busimess there is sub- jected to higher taxation than is imposed upon the business of like corporations from other states.” Harzan, J., dissenting. Phila- delphia Fire Assoc. vu. N. Y., 119 U. S. 120. 346 CIVIL RIGHTS. Difficulty in Determining What Is Denial. “ What is a denial of the equal protection of the laws is often difficult to determine, especially where the question relates to the property of a quasi-public corporation and the extent to which it may he subjected to public control.” Hartan, J. Smyth v. Ames, 169 U. S. 522. “Many cases have been before this court, involving the power of state legislatures to impose special duties or liabilities upon in- dividuals and corporations, or classes of them, and while the principles of separation between those cases which have been ad- judged to be within the power of the legis- lature and those beyond its power, are not dificult of comprehension ar statement, yet their application often becomes very trouble- some, especially when a case is near the di- viding line.” Brewer, J. Atchison, etc, R. Co. vw. Matthews, 174 U. S. 103. Classification Not Objectionable. ““Whenever the law operates alike on all persons and property, similarly situated, equal protection cannot be said to be denied.” Futier, C. J. Walston v. Nevin, 128 U. S. 582. . “The equal protection of the law which is guaranteed by the Fourteenth Amendment does not forbid classification. That has been asserted in the strongest language.” BREWER, J. Atchison, etc, R. Co. v. Matthews, 174 Uz. S. 103. “What satisfies this equality [the equal protection of the laws] has not been and probably can never be precisely defined. Gen- erally it has been said that it ‘only requires the same means and methods to be applied impartially to all the constituents of a class sa that the law shall operate equally and uniformly upon all persons in similar circum- stances.” . . It does not prohibit legis- lation which is limited, either in the objects to which it is directed or by the territory within which it is to operate.” McKenna, J Magoun vz. Hlinois Trust, etc., Bank, 170 U. S. 293. “There is therefore no precise application of the rule of reasonableness of classification, and the rule of equality permits many prac- tical inequalities. And necessarily so. In a classification for governmental purposes there cannot be an exact exclusion or inclusion of persons and things.” McKenna, J. Ma- goun v. Hlinois Trust, etc., Bank, 170 U. S. 296. “Tt is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the gen- eral public.” Brewer, J. Atchison, etc, R. Co. v. Matthews, (189) 174 U. S. 106. “The very idea of classification is that of inequality, so that it goes without saying that the fact of inequality in no manner de- termines the matter of constitutionality.” Brewer, J. Atchison, etc, R. Co. v. Mat- thews, 174 U. S. 106. —Arbitrary Classification, “Neither can it [the legislature] make a classification of individuals or corporations which is purely arbitrary, and impose upon such class special burdens and _ liabilities. Even where the selection is not obviously unreasonable and arbitrary, if the discrimina- tion is based upon matters which have no relation to the object sought to be accom- plished, the same conclusion of unconstitu- tionality is affirmed.” Atchison, etc., R. Co. v. Matthews, 174 U. S. 104. 3. PRIVILEGES AND IMMUNITIES OF CITIZENSHIP OF UNITED STATES. State Cannot Abridge. “Tt is conceded that there are certain priv- ileges or immunities possessed by a citizen of the United States, because of his citizen- ship, and that they cannot be abridged by any action of the states.” PrckHamM, J. Maxwell v. Dow, 176 U. S. 586. “A citizen of one state has no right to participate in the government of another. But if he ranks as a citizen in the state to which he belongs, within the meaning of the Constitution of the United States, then, whenever he goes into another state, the Constitution clothes him, as to the rights of person, with all the privileges and immuni- ties which belong to citizens of the state.” Taney, C. J. Scott v. Sandford, 19 How. 422. Colored Citizens. “No state may, by discrimination against a portion of its own citizens of a particular race, in respect of privileges and immunities fundamental in citizenship, impair the con- stitutional right of citizens of other states, of whatever race, to enjoy in that state all such privileges and immunities as are there accorded to her most favored citizens. A colored citizen of Ohio or Indiana, while in ‘the jurisdiction of Tennessee, is entitled to enjoy any privilege or immunity fundamental in citizenship, which is given to citizens of 347 CIVIL RIGHTS. the white race in the latter state.” HARLAN, J., dissenting. Civil Rights Cases, 109 U. S. 48. “No state can sustain her denial to col- ored citizens of other states, while within her limits, of privileges or immunities, fun- damental in republican citizenship, upon the ground that she accords such privileges and immunities only to her white citizens and withholds them from her colored citizens. The colored citizens of other states, within the jurisdiction of that state, could claim, in virtue of section 2 of article 4 of the Con- stitution, every privilege and immunity which that state secured to her white citizens.” Haran, J., dissenting. Civil Rights Cases, 209 U. S. 47. Object of Provision. “Tt was undoubtedly the object of the clause in question [giving the citizens of each state the privileges and immunities of the citizens of the several states] to place the citizens of each state upon the same footing with citizens of other states, so far as the advantages resulting from citizenship in those states are concerned.” Fretp, J. Paul v. Virginia, 8 Wall. 180. “The intention of section 2 of article 4 was to confer on the citizens of the several states a general citizenship, and to communi- cate all the privileges and immunities which the citizens of the same state would be en- titled to under like circumstances, and this includes the right to institute actions.” Fuiier, C. J. Cole v. Cunningham, ' 133 U.S. 113. Who Are Citizens. “The term citizens, as there used [in the clause that “the citizens of each state shall be entitled to all the privileges and immu- nities of citizens in the several states”] ap- plies only to natural persons, members of the body politic, owing allegiance to the state.” Fiety, J. Paul v. Virginia, 8 Wall. 177. What Privileges and Immunities Are Pro- tected. “ The Constitution does not define the priv- ileges and immunities of citizens. For that definition we must look elsewhere.” WaAi\IrTE, C. J. Minor v. Happersett, 21 Wall. 170. —— Those Recognized by the Constitu- tion. “What are the privileges and immunities of ‘citizens of the United States?’ Without attempting to enumerate them, it ought to be deemed safe to say that such privileges and 348 immunities embrace at least those expressly recognized by the Constitution of the United States and places beyond the power of Con- gress to take away or impair.” Hartan, J., dissenting. Maxwell v. Dow, 176 U. S. 606. — Privileges or Immunities Pertaining to Citizenship. “The privileges or immunities which, by the second clause of the amendment [Four- teenth], the states are forbidden to abridge are the privileges or immunities pertaining to citizenship of the United States.” FuLter, C. J., dissenting. U.S. v. Wong Kim Ark, 169 U. S. 728. — Full Equality Before the Law. “Citizenship of the United States ought to be, and, according to the Constitution, is, a sure and undoubted title to equal rights in any and every state in this Union, subject to such regulations as the legislature may right- fully prescribe. If a man be denied full equality before the law, he is denied one of the essential rights of citizenship as a citizen of the United States.” Brapiey, J., dissent- ing. Slaughter-House Cases, 16 Wall. 113. ‘ “The privileges and immunities’ of a citizen of the United States include, among other things, the fundamental rights of life, liberty, and property, and also the rights which pertain to him by reason of his mem- bership of the nation.” Swayne, J., dissent- ing. Slaughter-House Cases, 16 Wall. 126. “The privileges and immunities designated in the second section of the fourth article of the Constitution are those which of right belong to the citizens of all free gov- ernments, and they can be enjoyed under that clause by the citizens of each state in the several states upon the same terms and conditions as they are enjoyed by the citizens of the latter states. No discrimination can be made by one state against the citizens of other states in their enjoyment, nor can any greater imposition be levied than such as is laid upon its own citizens. It is a clause which insures equality in the enjoyment of these rights between citizens of the several states whilst in the same state.” Frexp, J, dissenting. Slaughter-House Cases, 16 Wall. 98. — Right to Resort to Courts. “Tf the state does provide a court to which its own citizens may resort in a certain class of cases, it may be that citizens of other states of the Union also would have a right to resort to it in cases of the same class. But that right, even when the suit CIVIL RIGHTS. was upon a judgment of another state, would not rest on the first section of article IV, but would depend on the second sec- tion, entitling the citizens of each state to all privileges and immunities of citizens in the several states.” Hoitmes, J. Anglo- American Prov. Co. v. Davis Prov. Co., No. 1, 191 U. S. 374. —— Discrimination Against Nonresidents. “Tf a state should attempt, by statute reg- ulating the distribution of the property of insolvent individuals among their creditors, to give priority to fhe claims of such in- dividual creditors as were citizens of that state over the claims of individual creditors citizens of other states, such legislation would be repugnant to the Constitution upon the ground that it withheld from citizens of other states, as such, and because they were such, privileges granted to citizens of the state enacting it.” Hartan, J. Blake v. Mc- Clung, 172 U. S. 253. Limitation of Provision — Regulation of Internal Affairs of a State. “We must not be understood as saying that a citizen of one state is entitled to en- joy in another state every privilege that may be given in the latter to its own citizens.” Haran, J. Blake v. McClung, 172 U. S. 256. “There are privileges that may be ac- corded by a state to its own people in which citizens of other states may not participate except in conformity to such reasonable reg- ulations as may be established by the state. For instance, a state cannot forbid citizens of other states from suing in its courts, that right being enjoyed by its own people; but it may-require a nonresident, although a citizen of another state, to give bond for costs, although such bond be not required of a resident. Such a regulation of the internal affairs of a state cannot reasonably be char- acterized as hostile to the fundamental rights of citizens of other states.” Haran, J. Blake v. McClung, 172 U. S. 256. Nonresident Can Claim No More than Resident. “A citizen of another state going into Michigan may be entitled under the federal Constitution to all the privileges and im- munities of citizens of that state; but under that Constitution he can claim no more. He walks the streets and highways in that state, entitled to the same rights and protection, but none other, than those accorded by its laws to its own citizens.” Brewer, J. De- troit v. Osborne, 135 U. S, 498. “The city of Detroit, in the discharge of its public duty in respect to keeping the streets and sidewalks in repair, is under no higher or different obligation to a citizen of Ohio than to one of the state of Michigan.” Brewer, J. Detroit v. Osborne, 135 U. S. 499. State May Regulate Privileges of Its Own Citizens, “A state may pass laws to regulate the privileges and immunities of its own citizens, provided that in so doing it does not abridge their privileges and immunities as citizens of the United States.” Woops, J. Presser v. Illinois, 116 U. S. 266. 4. RicHt To Fottow Orpinary Em- PLOYMENTS. Privilege of Citizenship. “T hold that the liberty of pursuit — the right to follow any of the ordinary callings of life—is one of the privileges of a citizen of the United States.” Braptey, J. Butch- ers’ Union Co. v. Crescent City Co. 111 U. S. 764. “When the colonies separated from the mother country no privilege was more fully recognized or more completely incorporated into the fundamental laws of the country than that every free subject of the British empire was entitled to pursue his happiness by following any of the known established trades and occupations of the country, sub- ject only to such restraints as equally af- fected all others.” Fretp, J., dissenting. Slaughter-House Cases, 16 Wall. 105. Right Beyond Invasion by State. “The right of any citizen to follow what- ever lawful employment he chooses to adopt (submitting himself to all lawful regulations) is one of his most valuable rights, and one which the legislature of a state cannot in- vade, whether restrained by its own constitu- tion or not.” Braptey, J., dissenting. Slaughter-House Cases, 16 Wall. 113. “A legislative body is no more entitled to destroy the equality of rights of citizens, nor to fetter the industry of a city, than a mu- nicipal government.” Frexp, J., dissenting. Slaughter-House Cases, 16 Wall. 108. Guaranteed by Fourteenth Amendment. “The enjoyment upon terms of equality with all others in similar circumstances of the privilege of pursuing an ordinary calling or trade, is an essential part of liberty as guaranteed by the Fourteenth Amendment,” 349 CIVIL RIGHTS. Haran, J., dissenting. Hooper v. Califor- nia, 155 U. S. 662. Pursuit of Happiness. “The right to follow any of the common occupations of life is an inalienable right; it was formulated as such under the phrase ‘pursuit of happiness’ in the Declaration of Independence.” Braptey, J. Butchers’ Un- ion Co. uv. Crescent City Co., 111 U. S. 762. Distinguishing Feature of Republican Gov- ernment. “It is undoubtedly the right of every cit- izen 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 re- spects be considered as a distinguishing fea- ture of our republican institutions.” Frevp, J. Dent v. West Virginia, 129 U. S. 121. State Cannot Limit Number Who May Pursue a Calling. “Tt cannot be that a state may limit to a specified number of its people the right to practice law, the right to practice medicine, the right to preach the gospel, the right to till the soil, or to pursue particular business or trades, and thus parcel out to different parties the various vocations and callings of life.” Frecp, J. Butchers’ Union Co. »w. Crescent City Co., 111 U. S. 758. “Tf it is not a denial of the equal protec- tion of the laws to grant to one man, or set of men, the privilege of following an ordinary calling in a large community, and to deny it to all others, it is difficult to understand what would come within the constitutional prohibition.” Braptey, J. Butchers’ Union Co. v. Crescent City Co., 111 U. S. 765. Right to Produce Articles of Food. “What greater invasion of the rights of the citizen can be conceived, than to prohibit him from producing an article of food, con- ceded to be healthy and nutritious, out of designated substances, in themselves free from any deleterious ingredients?” Frezp, J., dissenting. Powell v. Pennsylvania, 127 UL S. 698. “The right to preserve healthy and nu- tritious food, by which life may be preserved and enjoyed, and to manufacture it, is among these inalienable rights, which, in my judg- ment, no state can give and no state can take away, except in punishment for crime. It is involved in the right to pursue one’s hap- piness.” Fietp, J., dissenting. Powell vw. Pennsylvania, 127 U. S. 692. affairs.” 5. FREEDOM OF SPEECH AND OF THR PRESS. Right Secured by Constitution. “The freedom of speech and of the press, and that of assembling together to consult upon and discuss matters of public interest, are expressly secured by the Consti- tution. The spirit of this clause covers and embraces the right of every citizen to en- gage in such discussions, and to promote the views of himself and his associates freely, without being trammelled by inconvenient re- strictions.” Braptey, J., dissenting. Ex p. Curtis, 106 U. S. 377. “To take an interest in public affairs, and to further and promote these principles which are believed to be vital or important to the general welfare, is every citizen’s duty. Amongst the necessary and proper means for promoting political views, or any other views, are association and contribution of money for that purpose, both to aid dis- cussion and to disseminate information and sound doctrine. To deny to a man the privi- lege of associating and making joint con- tributions with such other citizens as he may choose, is an unjust restraint of his right to propagate and promote his views on public Brapiey, J., dissenting. Er p, Curtis, 106 U. S. 376. Limitations of the Right. “The freedom of speech and the press (art. 1) [of the Constitution] does not permit the publication of libels, blasphemous and _ in- decent articles, or other publications injurious to public morals or private reputation.” Brown, J. Robertson vw. Baldwin, 165 U. S. 281. 6. RicuHt To PETITION FoR REDRESS OF GRIEVANCES, “Among the rights and privileges which have been recognized by this court to be secured to the citizens of the United States by the Constitution, [is] the right to petition Congress for a redress of griev- ances.” Gray, J. In re Quarles, 158 U. S. 535. To the same effect see the language of BrAbDLey, J., dissenting, in ex p. Curtis, 101 U.S. 877. %. RIGHT TO VoTE FoR ELECTORS AND RiGHtT oF OFFICERS TO PROTECTION. “Among the rights and privileges, which have been recognized by this court to be secured to the citizens of the United States by the Constitution, are the right to vote for presidential electors and members 350 CIVIL RIGHTS. of Congress; . . and the right of every judicial and executive officer, or other per- son engaged in the service, or kept in the custody, of the United States, in the course of the administration of justice, to be pro- tected from lawless violence. There is a peace of the United States.” Gray, J. In re Quarles, 158 U. S. 535. See also ELEc- TIONS. 8. Ricuts Susyect To LAwFuL ReGu- LATION. In General. “Liberty is freedom from all restraints, but such as are justly imposed by law.” Swayne, J., dissenting. Slaughter-House Cases, 16 Wall. 127. “All laws and regulations are restrictive of natural freedom to some extent, and where no regulation is imposed by the govern- ment which has the exclusive power to reg- ulate, it is an indication of its will that the matter shall be left free.” Braptry, J. Brown wv. Houston, 114 U. S. 630. “T do not mean to say that there are no exclusive rights which can be granted, or that there are not many regulative restraints on civil action which may be imposed by law. There are such.” Braptey, J. Butch- ers’ Union Co. v. Crescent City Co. 111 U. S. 763. As to Right to Acquire and Dispose of Property. “The right to acquire, enjoy and dispose of property is declared in the constitutions of several states to be one of the inalienable rights of man. But ‘this declaration is not held to preclude the legislature of any state from passing laws respecting the acquisition, enjoyment. and disposition of property. What contracts respecting its acquisition and disposition shall be valid and what void or voidable; when they shall be in writing and when they may be made orally; and by what instruments it may be conveyed or mortgaged are subjects of constant legisla- tion.” Fretp, J. Crowley v. Christensen, 137 U. S. 90. “We are not prepared to say that a state, under its general legislative powers, by which all rights of property are held and modified as the public interest may seem to demand, might not, where unrestricted by constitu- tions or its own contracts, pass statutes prohibiting all sales of certain kinds of prop- erty, or all sales by certain classes of per- sons or corporations. . . . Such has often been the legislation as to property held in mortmain or by aliens or certain prescribed sects in religion.’ Woopsury, J. Planters’ Bank v. Sharp, 6 How. 325. . Use of Property. “States, or individuals who own lands, may if not forbidden by law, erect on those lands what buildings they please; but this power is entirely distinct from that of reg- ulating commerce, and may, we presume, be restrained, if exercised so as to produce a public mischief.” MarsHALL, C. J. Gibbons v. Ogden, 9 Wheat. 209. Regulation of Trade or Calling. “Every calling of life, is subject to the power of the state within whose limits it is pursued, to regulate it in any mode that does not violate the essential rights of liberty and property guaranteed by the Federal Consti- tution against hostile state action.” Haran, J., dissenting. Hooper v. California, 155 U.S. 662. “For the pursuit of any lawful trade or business, the law imposes similar conditions. Regulations respecting them are almost in- finite, varying with the nature of the busi- ness. Some occupations by the noise made in their pursuit, some by the odors they en- gender, and some by the dangers accompany- ing them, require regulations as to the lo- cality in which they shall be conducted. Some by the dangerous character of the articles used, manufactured or sold, require, also, special qualifications in the parties per- mitted to use, manufacture or sell them. All this is but common knowledge.” Fuetp, J. Crowley v. Christensen, 137 U. S. 90. — Qualifications of Calling or Profes- sion, “Tf they [the qualifications required] are appropriate to the calling or profession, and attainable by reasonable study or application, no objection to their validity can be raised because of the stringency or difficulty. It is only when they have no relation to such call- ing 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.” Fretp, J, Dent v. West Virginia, 129 U. S. 122, “[In the United States] all vocations are open to every one on like conditions. All may be pursued as sources of livelihood, some .Tequiring years of study and great learning for their successful prosecution. The inter- est, Or, as it is sometimes termed, the estate acquired in them, that is, the right to con- 351 CIVIL RIGHTS. tinue their prosecution, is often of great value to the possessors, and can not be arbi- trarily 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 be- cause of a failure to comply with the condi- tions imposed by the state for the protection _ of society.” Fiaip, J. Dent v. West Vir- ginia, 129 U. S. 121. “Tt is undoubtedly true that it is the right of every citizen of the United States to pur- sue any lawful trade or business, under such restrictions as are imposed upon all persons of the same age, sex and condition. But the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others.” Fretp, J. Crowley v. Christensen, 137 U. S. 89. Associations and Meetings. “Tt cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States.” Woops, J. Presser v. Illinois, 116 U.S. 267. Liberty of Contract. “That there is, generally speaking, a lib- erty of contract which is protected by the Fourteenth Amendment, may be conceded, yet such liberty does not extend to all con- tracts.” Brewer, J. Patterson v. Bark Eu- dora, 190 U. S. 174. When Private Property Is Devoted to Public Use. “When private property is devoted to a public use, it is subject to public regulation.” Waite, C. J. Munn v. Illinois, 94 U. S. 130. To the same effect see the language of Brewer, J., dissenting, in Budd v. New York, 143 U. S. 550. “Tt may be fit and proper for the govern- - ment, in the exercise of the high discretion confided to the executive, for great public purposes, to act on a sudden emergency, or to prevent an irreparable mischief, by sum- mary measures, which are not found in the text of the laws. Such measures are properly matters of state, and if the responsibility is taken, under justifiable circumstances, the legislature will doubtless apply a proper in- demnity. But this court can only look to the questions, whether the laws have been vio- lated; and if they were, justice demands that the injured party should receive a suitable redress.” Story, J. The Apollon, 9 Wheat. 366, “ Looking, then, to the common law, from whence came the right which the Constitu- tion protects, we find that when private prop- erty is ‘affected with a public interest, it ceases to be juris privati only.’ This was said by Lord Chief Justice Hale more than two hundred years. ago, in his treatise, De Porti- bus Maris, 1 Harg. Tracts 78, and has been accepted without objections as an essential element in the law of property ever since.” Waite, C. J. Munn v. Illinois, 94 U. S. 126. “Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large.” Warre, C. J. Munn v. Illinois, 94 U. S. 126. “Where the people are the sovereign, laws which are acts of preservation of the home, of the family, exclude the supposition of any adverse public interest, because none can be thought hostile to that.” Matruews, J. Fink v. O’Niel, 106, U. S. 285. Unreasonable Conditions Amount to De- privation of Right. “To burden the exercise of a constitutional right with conditions which materially impair its value, or which, practically, compel the abandonment of the right rather than to sub- mit to the conditions, is, in law, an infringe- ment of that right. Haran, J., dissenting. Transportation Co. v. Parkersburg, 107 U. S. 911. One’s Use of His Own Must Not Impair Rights of Others. “When one becomes a member of society, he necessarily parts with some rights or priv- ileges which, as an individual not affected by his relations to others, he might retain.” Warts, C. J. Munn », Illinois, 94 U. S. 124. “Every man is bound by law so to use his own property as not to injure the prop- erty of another.” CxirrorpD, J. Dutton v, Strong, 1 Black 33. 352 CLERKS OF COURTS. “ As to the enjoyment of property, the rule is generally that it must be accompanied with such limitations as will not impair the equal enjoyment by others of their property.” Fietp, J. Crowley v. Christensen, 137 U. S. 90. To the same effect see the language of CuirrorpD, J., in Dutton v. Strong, 1 Black. 83; of Brewer, J., dissenting, in Budd vw. New York, 143 U. S. 550. — Rule Applicable to Corporations. “The obligation to use one’s property in such a manner as not to injure that of others rests equally upon corporations and individ- uals.” Harztan, J. Delaware, etc, R. v. Converse, 139 U. S. 473. Legislation Securing Such Rights. “The legislation which secures to all pro- tection in their rights, and the equal use and enjoyment of their property, embraces an almost infinite variety of subjects. What- ever affects the peace, good order, morals, and health of the community, comes within its scope; and every one must use and enjoy his property subject to the restrictions which such legislation imposes.” Frexp, J., dissent- ing. Munn v. Illinois, 94 U. S. 145. “The doctrine that each one must so use his own as not to injure his neighbor — sic utere tuo ut alienum non ledas —is the rule by which every member of society must pos- sess and enjoy his property; and all legisla- tion essential to secure this common and equal enjoyment is a legitimate exercise of state authority. Except in cases where prop- erty may be destroyed to arrest a conflagra- tion or the ravages of pestilence, or be taken under the pressure of an immediate and over- whelming necessity to prevent a public calam- ity, the power of the state over the prop- erty of the citizen does not extend beyond such limits.” Fre.p, J., dissenting. Munn v- Illinois, 94 U. S. 145. CLAIM AND DELIVERY. See REPLEVIN. CLAIMS AGAINST THE UNITED STATES. “As this court has said, the object of Congress by section 3477 R. S. was to pro- tect the government, and not the claimant, and to prevent frauds upon the treasury. There was no purpose to aid in those sho had claims for money against the United States in disregarding the just demands of their creditors. We perceive in the words 1 Os. Dic.—23 Z or object of the statute that prevents any court of competent jurisdiction as to subject- matter and parties from making such orders as may be necessary or appropriate to pre- vent one who has a claim for money against the government from withdrawing the pro- ceeds of such claim from the reach of his creditors; provided such orders do not inter- fere avilhi the examination and allowance or rejection of such claim by the proper of- ficers of the government, nor in anywise obstruct any action that such officers may legally take under the statutes relating to the allowance or payment of claims against the United States. If a court, in an action against such claimant by one of his cred- itors, should, for the protection of the cred- itor, forbid the claimant from collecting his demand except through a receiver who should hold the proceeds subject to be dis- posed of according to the law under the order of court, we are unable to say that such action would be inconsistent with sec- tion 3477. It may be that the officers charged with the duty of allowing or dis- allowing claims against the government are not required to recognize a receiver of a claim appointed by a court, and may, if the claim be allowed, refuse to make payment except as provided in section 3477.” Har- LAN, J. Price v. Forrest, 173 U. S. 423. CLERICAL ERROR. “A clerical error, as its designation im- ports, is an error of a clerk or a subordinate officer in transcribing or entering an official proceeding ordered by another.” Frexp, J. Marsh v. Nichols, etc., Co., 128 U. S. 615. CLERKS OF COURTS. Appointment. “The appointment of dlerks of courts properly belongs to the courts of law; and that a clerk is one of the inferior officers contemplated by this provision in the Con- stitution cannot be questioned.” THompson, J. Ex p. Hennen, 13 Pet. 258. Duties May Be Imposed by Legislature. “That the legislature may direct the clerk of a court to perform a specified service, without making his act the act of the court, will not be controverted.” MarsHAtt, C. J. Curtiss v. Turnpike Co., 6 Cranch 236. Bond and Liability Thereon. “ By the terms of the statute a clerk’s bond remained in the custody or subject to the order of the court. In our opinion, Con- 353 COLLISION. gress intended that the required bond should protect private suitors as well as the United States, and therefore, no statute forbidding it, a private suitor may bring an action there- on for his benefit in the name of the obligee, the United States. Such must be held to be the legal intendment of existing statutory provisions. The United States, or rather the court which had custody of the bond, is to be regarded as a trustee for any party in- jured by a breach of its conditions.” Har- LAN, J. Howard w. U. S., 184 U. S. 692. “In our opinion, the bond of the clerk is for the benefit of every suitor injured by the failure of that officer faithfully to dis- charge his duties or seasonably to record the decrees, judgments and determinations of the court. It must have been so understood when the courts of the United States were established. and provision made for the ap- pointment of clerks who should be entitled to receive the moneys. of suitors when paid into court under its sanction or pursuant to any statute.” Haritan, J. Howard v. U. S., 184 U. S. 687. “As soon as he [a clerk ‘of a court] re- ceives the money, he becomes responsible for it under his bond, and that responsibility does not cease until he deposits it as required by law. If after receiving the money he ap- propriates it to his own use, or, which is the same thing, if he deposits it in bank to his individual credit, he becomes liable on his bond for the amount so misappropriated.” Hartan, J. Howard v. U. S., 184 U. S. 687. CLOTHING. “The words ‘clothing, ready made,’ would include coats, pants, vests and overcoats, at least.” Brewer, J. Arnold v. U. S., 147 U.S. 497. CLOUD ON TITLE. See Removat oF CLoup AND QUIETING TITLE. CLUBS. See VotuntTARY ASSOCIATIONS, COASTERS. See SHIPS AND SHIPPING. CODES. Declaration of Established Law. “When a code is adopted, the understand- ing is that such code is a declaration of estab- lished law, rather than an enactment of new and different rules. This is the idea of a code, except as to matters of procedure and jurisdiction, which often ignore the past, and require affirmative description.” Brewer, J. Bassett v. U. S., 187 U. S. 506. Declaratory of Common Law. “A large portion of the modern codes is but declaratory -of the common law as ex- pounded by the courts.” Netson, J. Cin- cinnati v. Morgan, 3 Wall. 293. Common Law Prevails Where Code Is Silent. “Where the code declares the law there can be no occasion to look further; but where the code is silent the common law prevails.” Fietp, J. Northern Pac. R. Co. v. Herbert, 116 U. S. 654. Construction of Louisiana Code. “Where the provisions of the Louisiana Code and the Code Napoleon are identical the expositions of the civil law writers and the adjudications of the French courts are persuasive as to the proper construction of the Louisiana Code.” Wuute, J. Meyer v. Richards, 163 U. S. 399. COLLATERAL ATTACK, See JUDGMENTS AND DECREES. COLLEGES AND UNIVERSI- TIES. Private Charity. “A college founded by an individual, or individuals, is a private charity, subject to the government and visitation of the founder, and not to the unlimited control of the gov- ernment.” WasuincrTon, J. Dartmouth Col- lege v. Woodward, 4 Wheat. 665. And see CuHaRrITIES, College Lands Are Lands Held for School Purposes. “The purpose of a college or university is to give youth an education. The money which comes from the sale or rent of land dedicated to that object aids this purpose. Land so held and leased is held for school purposes, in the fullest and clearest sense.” Mitter, J. Northwestern University v. Peo- ple, 99 U. S. 324. And see ScHOooLs AND ScHoot Lanps. COLLISION. I. Rutes oF DiricENcE ConTROLLING RIGHTS AND LIABILITY. 1. In General. 2. Fault of One Does Not Relieve Other of Duties. 354 COLLISION. 3. Imminence of Danger. 4. Parties Equally at Fault — Contribu- tory Negligence. 5. Precautions Required by Rules of Navigation. 6. Inevitable Accident. II. Lrasiritry anp ENFORCEMENT 1. Liability of Owner. 2. Liability of Vessel — Lien. 3. Enforcement of Lien or Liability. CROSS-REFERENCES. As to effect of taking insurance, see INSUR- ANCE; liability in case of towage, see Tow- AGE. See also ADMIRALTY; Martine INSURANCE; Maritime Liens; NAvIGATION; PILoTs; SALVAGE; SHIPS AND SHIPPING. I. RULES OF DILIGENCE CONTROL- LING RIGHTS AND LIABILITY. 1. In GENERAL. Plaintiff Must Show Care on His Part and Negligence of Defendant. “In a cause of collision, the plaintiff, in order to recover entire damages, must prove both care on his own part and want of it on the part of the defendant.” Swayne, J. The “ Clara,” 102 U. S. 203. “Tf the fault was committed by the re- spondent alone then the libelant is entitled to recover, or if by the libelant, then the libel must be dismissed.” CuirForp, J. The Clar- ita, 23 Wall. 13. To the same effect see the language of CuiFForp, J., in The Maria Mar- tin, 12 Wall. 42. “Where the fault is wholly on one side the party in fault must bear his own loss, and compensate the other party, if such party have sustained any damage. If neither be in fault, neither is entitled to compensation from the other. If both are in fault, the damages will be divided.” Swayne, J. The “ Clara,” 102 U. S. 203. Full Compensation Where Fault Is on One Side. “Tt [the collision] may have been the fault of the ship which run the other down, and in this case, the injured party would be entitled to entire compensation from the other.” McKintey, J. Strout v. Foster, 1 How 92. To the same effect see the lan- guage of CLiFForD, J., in The Sunnyside, 91 -U. S, 215. Vessel of Libelant in Fault. “Tf the vessel of the libelant is alone in fault, the proof of that fact is a sufficient defense to the libel.” Ctzrrorp, J. The Sunnyside, 91 U. S. 215. “Freedom from fault is a good defense in a cause of collision against a claim for dam- age promoted by an injured party, and it entitles the promoter of such a suit to full compensation from the opposite party, if proved to be guilty.” Ciirrorp, J. The “ Atlas,” 93 U. S. 312. To the same effect see the language of CiiFForD, J., in The City oi Hartford, 97 U. S. 325. Duty of Vessel Not Disabled to Render Assistance. “Where two vessels come in collision, if one is not disabled she is bound to render all possible assistance to the other, even though the other may be wholly in fault.” CutrrorD, J. The Clara, 23 Wall. 18. Evidence — Unreliability of Witnesses. “Tt is an opinion frequently expressed, and which seems to have become trite with many persons, with reference to cases of col- lision, that the crews of the different vessels are almost certain to swear to such facts as will justify the conduct of their own vessel ; or, in other words, will excuse or justify themselves, and cast the imputation of blame on the opposing vessel or party, even at the cost of perjury; and that, therefore, little or no faith can be given the oaths of the officers and crews of the respective vessels. With every proper allowance for the in- fluence of selfishness, or alarm, or falsehood, it may be remarked that extreme opinions, like the one just stated, are themselves cal- culated to lead to error, and would often de- feat the purpose which the diffidence or mistrust on which they rest would seek to at- tain. Collisions between vessels engaged in the navigation, either on the ocean or on rivers, rarely occur in the presence of specta- tors wholly detached from and indifferent to the events which really take place. The scene of such events is usually on the track of the ocean, the course of rivers, midst the darkness of night, where and when there are none to testify save those who participate in the catastrophe; and if such persons, under the influence of a foregone opinion, are to . be set aside as unworthy of faith, decisions upon cases of collision will, and indeed must, become so entirely the result of conjecture, or of an arbitrary rule, as to challenge but a small share of public confidence; and what is of more importance, may be the instru- 355 COLLISION. ments of injustice and oppression.” DantEL, J., dissenting. The Steamboat New York, etc., v. Rea, 18 How. 229. 2. Fautt oF One Does Nor RELIEVE OTHER OF DUTIES. General Rule. “Upon the water as upon the land, the law recognizes no inflexible rule, the neglect of which by one party, will dispense with the exercise of ordinary care and caution in the other. A man is not at liberty to cast him- self upon an obstruction which has been made by the fault of another, and avail himself of it, if he does not use common and ordinary caution to avoid it. One person being in fault will not dispense with another’s using ordinary care for himself.” Nexson, J. Williamson v. Barrett, 13 How. 109. —— Precautions Required by Rules of Navigation. “Errors committed by one of two vessels approaching each other from opposite direc- tions do not excuse the other from adopting every proper precaution required by the special circumstances of the case to prevent a collision, as the Act of Congress provides that in obeying and construing the prescribed rules of navigation due regard must be had to the special circumstances rendering a de- parture from them necessary in order to avoid immediate danger.” CuiFForD, J. The Maria Martin, 12 Wall. 47. “In any case of collision, whenever it ap- pears that one of the vessels has neglected the usual and proper measures of precaution, the burden is on her to show that the col- lision was not owing to her neglect.” Davis, J. The Great Republic, 23 Wall. 34. —— Even Flagrant Fault No Excuse. “Even flagrant fault committed by one of the two vessels approaching each other from opposite directions will not excuse the other from adopting every proper precaution to prevent a collision.” Cuirrorp, J. The “ America,” 92 U. S. 438. 3. IMMINENCE OF DANGER. Previous Fault. “Such an excuse [imminence of danger] cannot be admitted as a valid one where it appears that the imminence of the peril was occasioned by the negligence, carelessness, or unskilfulness of those in charge of the vessel setting up such an apology for a violation of a plain rule of navigation.” C.1FForD, J. The Dexter, 23 Wall. 76. “It frequently happens in cases of collision that the master of the vessel could not have prevented the accident at the moment it oc- curred, but this will not excuse him, if, by timely measures of precaution, the danger could have been avoided.” Davis, J. The Steamer Syracuse, 12 Wall. 172, “Inability to prevent a collision usually ex- ists at the time it occurs, and in order to de- termine where the fault lies it usually be- comes necessary to examine with care the conduct and orders of those in charge of the respective vessels from the time the vessels came in sight of each other to the time they came together, and such an examination fre- quently discloses the fact that the cause of the collision is to be found in some negligence or mismanagement of one or both vessels when they were at some distance from the theatre of the actual collision.” CxrFForp, J. The Wenona, 19 Wall. 54. “While it is a familiar law of collision that a wrong order given in extremis, or, as some of the authorities say, ‘to ease the blow,’ will not be treated as a fault, such principle manifestly has reference to a colli- sion between the vessel guilty of the wrong order and the approaching vessel.” Brown, J. The E. A. Packer, 140 U. S. 368. Errors Committed at Moment of Collision. “Errors committed at the moment of col- lision are to be regarded with less strictness than those committed when the vessels are more distant from each other, and such an error is often superinduced by an error of the other vessel committed at an earlier moment. In such a case much depends upon time and distance, as all experience shows that measures of precaution, in order to be effectual, must be seasonable, and it is well- settled law that if they are not so and a collision ensues in consequence of the de- lay, it is no valid defense on the part ‘of the delinquent vessel to aver that nothing could be done at the moment to prevent the disaster.” CxiFForp, J. The Wenona, 19 Wall. 54. 4, Parties EquaLity at Fautt — Con- TRIBUTORY NEGLIGENCE. Apportionment. “Tn the case of a collision between two vessels, by the fault of both, the maritime law everywhere, by what has been called rusti- cum judicium, apportions equally between both vessels the damages done to both.” Gray, J. Ralli v. Troop, 157 U. S. 406. 356 COLLISION. “If both parties were in fault then the damages must be apportioned equally be- tween the offending vessels.” CLirForD, J. The Clarita, 23 Wall. 13. To the same effect see the language of CLirForD, J., in The Maria Martin, 12 Wall. 42; The Sunnyside, 91 U. S. 215; The Atlas, 93 U. S. 319; of Swayne, J., in The Ariadne, 13 Wall. 479; of Mc- Kenna, J., in The Conemaugh, 189 U. S. 366. “ Cases arise where both [collid- ing] vessels are in fault; and the repeated decisions of this court have established the rule, that in that contingency the damages shall be equally apportioned between the of- fending vessels, as having been occasioned by the fault of both.” Czirrorp, J. The “ Atlas,” 93 U. S. 319. “Individual fault [in a collision between vessels} renders the party liable to the in- nocent loser, and is a complete answer to any claim made by the faulty party, except in a case where there is mutual fault, in which case the rule is that the combined amount of the loss shall be equally apportioned be- tween the offending vessels.” CxiFForp, J. The “ Atlas,” 93 U. S. 320. “Text-writers of standard authority, as well as courts hold, that, where both vessels are in fault, the loss must be ap- portioned between them, as having been oc- casioned by the fault of both.” CLirForp, J. The “ Atlas,” 93 U. S. 313. “The doctrine in admiralty of an equal division of damages in the case of a col- lision between two vessels when both are in fault contributing to the collision, has long prevailed in England and this country.” Futter, C.J. Belden v. Chase, 150 U. S. 691. “When there has been a want of due dil- igence or skill on both sides, in such case the rule of law is, that the loss must be ap- portioned between them, as having been oc- casioned by the fault of both.” McKintey, J. Strout v. Foster, 1 How. 92. “Tn cases of collision it frequently oc- curs that the libel alleges fault of the claim- ant’s vessel; the answer denies it, and al- leges fault of the libelant’s vessel. The court finds, on the proofs, that both were in fault, and apportions the damages.” Curtis, J. Dupont de Nemours v. Vance, 19 How. 172. -—— Where Injuries Are Not Equal. “As both parties were in fault, the dam- age done to both vessels should be added to- gether in one sum and equally divided, and a decree be pronounced in favor of the own- ers of the vessel which suffered most, against those of the vessel which suffered least, for one-half of the difference between the amounts of their respective losses.” BLATCH- ForD, J. The Manitoba, 122 U. S. 111. —— Foundation of Rule. “The rule of the equal apportionment of the loss where both parties were in fault would seem to have been founded upon the difficulty of determining, in such cases, the degree of negligetice in the one and the other.” BratcHrorp, J. The Max Morris, 137 U. S. 12. Contributory Negligence. “The doctrine of an equal division of dam- ages in admiralty, in the case of a collision between two vessels, where both are guilty of fault contributing to the collision, had long been the rule in England, but was first established by this court in the case of The ‘Schooner Catharine v. Dickinson, 17 How. 170, and has been applied by it to cases where, both vessels being in fault, only one of them was injured, as well as to cases where both were injured, the injured vessel, in the first case, recovering only one-half of its damages, and, in the second case, the damages suffered by the two vessels being added together and equally divided and the vessel whose damages exceeded such one-half recovering the excess against the other ves- ire BiatcHrorp, J. The Max Morris, 137 U.S. 8. “In England, the common-law rule that a. plaintiff who is guilty of contributory negli- gence can recover nothing, was made by statute to yield to the admiralty rule in respect to damages arising out of a collision between two ships.” Bratcurorp, J. The Max Morris, 137 U. S. 11. “Contributory negligence on the part of the libelant cannot defeat a recovery in col- lision cases, if it appears that the other party might have prevented the disaster, and that he also did not practice due diligence, and was guilty of negligence, and failed to exer- cise proper skill and care in the management of his vessel.” CurFForp, J. The “ Atlas,” 93 U. S. 316. 5. PRECAUTIONS REQUIRED By RULES oF NAVIGATION. In General. “The rules of navigation are very plain and may be readily applied without much 357 COLLISION. danger of mistake.” Wenona, 19 Wall. 54. CLIFForD, Purpose. “ Sailing rules are ordained to prevent col- lisions between ships employed in navigation, and to preserve life and property embarked in that perilous pursuit, and not to enable those whose duty it is to adopt, if possible, the necessary precautions to avoid such a disas- ter, to determine how little they can do in that direction without becoming responsible for its consequences, in case it occurs.” CuirForD, J. The “ America,” 92 U. S. 432. Binding Effect of Rules. “Persons engaged in navigating vessels upon navigable waters are bound to ob- serve nautical rules recognized by law in the management of their vessels on approach- ing a point where there is danger of colli- sion.” CxirForD, J. Bentley wv. Coyne, 4 Wall. 512. “Rules of navigation are obligatory from the time the necessity for precaution be- gins, and continue to be applicable as the vessels advance, so long as the means and opportunity to avoid the danger remain; but they do not apply to a vessel required to keep her course after the approach is so near that the collision is inevitable, and are equally inapplicable to vessels of every description while they are yet so distant from each other that measures of precaution have not become necessary.” C.LiFForD, J. The Ottawa, 3 Wall. 274. Port Regulations — Presumption of Knowledge. “Port regulations are supposed to be known to the shipowner before he sends his vessel on the voyage, and the rule of the maritime law is, that in sending her to any particular port he elects to submit to the lawful regulations established at that port, and that his vessel shall be responsible in case she unlawfully collides with another ves- sel engaged in lawful navigation. Contrary to the rule adopted in the English admiralty, the American courts have so held without an exception which has fallen under my obser- vation.” C.iFForD, J. The China, 7? Wall. 70. For substantially the same language, see The Merrimac, 14 Wall. 203, per CuiFForp, J. —— Compulsory. “All port regulations are compulsory. The provisions of the statute of New York are part of the series within that category. A damaging vessel is no more excused be- J. The cause she was compelled to obey one than another. The only question in all such cases is, was she in fault?” Swaynez, J. The China, 7 Wall. 68. Lookout. “The law requires of a colliding vessel, that she shall prove not only that she had a competent lookout stationed at the proper place, but also that the lookout was vigi- lantly performing his duty. And if he placed there persons who cannot be wit- nesses, it is his own fault; it was his own voluntary act, and can therefore be no suf- ficient reason for the absence of that proof which the law requires him to produce.” Taney, C. J. The Brig James Gray v. The Ship John Fraser, 21 How. 192. “Tt is well settled that the absence of a lookout is not material, where the presence of one would not have availed to prevent a collision.” BLATcHFoRD, J. The Blue Jacket, 144 U. S. 389. Signal Lights. “Proper signal lights as required on steamers are, a bright light forward, a red light on the larboard side, and a green light on the starboard side.” CLrFForp, J. The Ottawa, 3: Wall. 273. Right to Keep Course. “General rule of navigation undoubtedly is that a vessel on the starboard tack, if closehauled, has a right to keep her course, and that one on the larboard tack, although she is also closehauled, must give way or be answerable for the consequences.” CLiF- ForD, J. The Ann Caroline, 2 Wall. 544. Sailing in Darkness. “The general rule is that they [sailing ves- sels proceeding on their voyage in an open sea] may proceed on their voyage although it is dark, observing all the ordinary rules of navigation, and with such additional care and precaution as experienced and prudent navi- gators usually employ under similar circum- stances. They should never under such cir- cumstances hazard an extraordinary press of sail, and in case of unusual darkness, it may be reasonable to require them when nav- igating in a narrow pathway, where they are liable to meet other vessels, to shorten sail if the wind and weather will permit.” Ciir- ForD, J. The Morning Light, 2 Wall. 559. Duties as Between Steamer and Sailing Vessel. “TA steamer] meeting a sailing vessel pro- ceeding in such a direction as to invoke risk, 358 COLLISION. it was her duty to keep out of the way, and nothing but inevitable accident, or the con- duct and movements of the ship, can repel the presumption that she was negligent, aris- ing from the fact of collision. But this duty of the steamer implies a correlative obliga- tion of the ship to keep her course, and do nothing to mislead. Nor is a steamer called to act, except when she is approaching a ves- sel in such a direction as to invoke risk of collision. She is required to take no pre- cautions when there is no apparent danger.” Stronc,_J. The Scotia, 14 Wall. 181. “It is a mistake to suppose that a rigor- ous enforcement of the necessity of adopting precautionary measures, by the persons in charge of steamboats, to avoid damage to sailing vessels on our rivers and internal waters, will have the effect to produce care- lessness and neglect on the part of the per- sons in charge of the latter. The vast speed and power of the former, and consequent serious damage to the latter in case of a col- lision, will always be found a sufficient ad- monition to care and vigilance on their part. A collision usually results in the destruction of the sailing vessel, and, not infrequently, in the loss of the lives of persons on board.” Netson, J. Newton wv. Stebbins, 10 How. 607. “Tt seems to have become a favored doc- trine, that, in all cases of collision between steamboats and sailing vessels, the burden of proof, either for excuse or exculpation, is to be placed on the steamboat, because it is said that she is in a great degree independent of the winds and the tide, and possesses en- tire control of her movements. This rule, when applied within the limits of reason and the bounds of unquestioned or obvious right as to all parties, is just, and should be en- forced; but, if strained or perverted to the justification or toleration of wilful neglect, or caprice, or perverseness on the one side, and to the extension of penal infliction on those who have been involved, by the indulgence of such neglect or perverseness, the rule be- comes the source of greater mischiefs than it professes to prevent or cure.” Dawnirt, J., dissenting. The Steamboat New York, etc., v. Rea, 18 How. 227. — Duty of Sailing Vessel to Keep Course. “Under the rule that the steamer must keep out of the way she must of necessity determine for herself, independently of the sailing vessel, whether it is safer to go to the right or to the left or to stop, and in order that she may not be deprived of the means of determining the matter wisely, and that she may not be defeated or baffled in the at- tempt to perform her duty in the emergency, it is required by the rules of navigation that the sailing vessel shall keep her course and allow the steamer to pass either on the right or left, or to adopt such measures of pre- caution as she may deem best suited to en- able her to perform her duty and fulfil the requirements of the law to keep out of the way. Rules of navigation, such as have been mentioned, are obligatory upon such ves- sels, when approaching each other, from the time the necessity for precaution begins, and they continue to be applicable as the vessels advance, so long as the means and opportu- nity to avoid the danger remain. They do not apply to a vessel required to keep her course after the approach is so near that the collision is inevitable, and are equally in- applicable to vessels of every description while they are yet so distant from each other that measures of precaution have not become necessary to avoid a collision.” CLIFFoRD, J. The Wenona, 19 Wall. 51. “Sailing vessels, when approaching a steamer, are required to keep their course, and steamers, under such circumstances, are required to keep out of the way. Vessels propelled by sails are required to keep their course on acccunt of the correlative duty im- posed upon the steamer to keep out of the way, in order that the steamer may know the position of the object to be avoided and may not be led into error in her endeavor to comply with the requirement.” CziFForp, J. The Wenona, 19 Wall. 41. “Except in special cases, the sailing ship is required to keep her course where a steam- ship is approaching in such a direction as to involve risk of collision.” CLiFForD, J. The “ America,” 92 U. S. 433. As Between Vessel in Motion and at ’ Anchor. “Vessels in motion are required to keep out of the way of a vessel at anchor, if the latter is without fault, unless it appears that the collision was the result of inevitable ac- cident; the rule being that the vessel in mo- tion must exonerate herself from blame, by showing that it was not in her power to prevent the collision by adopting any prac- ticable precautions.’ C.iiFForD, J. The Vir- ginia Ehrman, 97 U. S. 315. “The schooner was lying at anchor with the signal light displayed required by the Act of Congress, and under those circumstances 359 COLLISION. the rule is well settled that the burden of proof is upon the respondents to show either that the steam-tug was without fault or that the collision was occasioned by the fault of the schooner, or that it was the fault of inevitable accident.” C.iFForD, J. The Clar- ita, 23 Wall. 13. In Fog — Speed. “Our rules of navigation, as well as the British rules, require every steamship, when in a fog, ‘to go at a moderate speed.’ What is such speed may not be precisely definable. That may be moderate and reasonable in some circumstances which would be quite immoderate in others. But the purpose of the requirement being to guard against dan- ger of collisions, very plainly the speed should be reduced as the risk of meeting ves- sels ‘is increased.” Stronc, J. The Penn- sylvania, 19 Wall. 133. —— Foghorn. “The legislature must have known it was important ships should have the earliest pos- sible notice of the proximity of other mov- ing vessels. They might be approaching each other. If so, they would come together sooner than they could if one of them was not under way. It may be assumed, there- fore, that the legislature acted under the conviction that a foghorn could be heard at a greater distance than a bell, and required the use of one rather than that of the other for that reason. Stronc, J. The Pennsyl- vania, 19 Wall. 137. 6. INEVITABLE ACCIDENT. Definition. “Inevitable accident, as applied to a case of this description, must be understood to mean a collision which occurs when both parties have endeavored, by every means in their power, with due care and caution, and a proper display of nautical skill, to pre- vent the occurrence of the accident, and where the proofs show that it occurred in spite of everything that nautical skill, care, and precaution could do to keep the vessels from coming together.” C.irrorp, J. The Mabey & Cooper, 14 Wall. 215. “Tnevitable accident in the case of a col- lision is where both parties have endeavored by all means in their power, with due care and proper display of nautical skill, to pre- vent its occurrence, or it may result from the darkness of the night if it clearly appears that both parties were without fault from the time the necessity for precaution began to the moment when every opportunity to avoid the danger ceased.” CiiFForD, J. The Teu- tonia, 23 Wall. 84. No Liability. “Where neither party is in fault, and the damage was the result of unavoidable acci- dent, the rule that the loss must be borne by the party on whom it fell is one of uni- versal application.” CuirForp, J. The “ At- las,” 98 U. S, 312. “Tt is admitted that where a collision oc- curs, as the result of uncontrollable cir- cumstances, no responsibility attaches to either party.” McLean, J. Culbertson wv. Shaw, 18 How. 587. —- Natural Causes. “Where the collision occurs exclusively from natural causes and without any fault on the part of the owner of either vessel or those intrusted with their control and man- agement, the maritime rule, as defined by the federal courts, is, that the loss shall. rest where it falls, on the principle that no one is responsible for such disaster when pro- duced by causes over which human skill and prudence can exercise no control. Ad- miralty courts everywhere have now adopted that rule.” Cizrrorp, J. The “Sunnyside,” 91 U. S. 215. For substantially the same language see the opinions of C.rFForp, J., in Union Steamship Co. v. New York, etc. Steamship Co., 24 How. 313; The Conti- nental, 14 Wall. 355. —— Storm, Darkness, or Other Vis Major. “When the loss is occasioned by a storm, or any other vis major, the misfor- tune must be borne by the party on whom it happens to light.” McKiniey, J. Strout v. Foster, 1 How. 92. “A vessel properly secured may, by the violence of a storm, be driven from her moor- ings and forced against another vessel, in spite of her efforts to avoid it, yet she cer- tainly would not be liable for damages which it was not in her power to prevent. So, also, ships at sea, from storms or darkness of the weather, may come in collision with one an- other without fault on either side, and in that case each must bear its own loss, al- though one is much more damaged than the other.” CiiFrorp, J. Sturgis v. Boyer, 24 Wall. 124. For practically the same lan- guage see the opinion of Taney, C. J., in The Brig James Gray vw. The Ship John Fraser, 21 How. 194. 360 COLLISION. Rule Not Applicable Where There Is Fault on Either Side. “Where negligence or fault is shown to have been committed by either party the rule that the loss must rest where it fell, as in case of inevitable accident, can have no application.” CrirrorpD, J. The Maria Mar- tin, 12 Wall. 42. “Tgnorance and unskilfulness being proved, the attempt to set up inevitable accident is vain, as such a defense can never be sus- tained even in a collision case, unless it ap- pears that neither party is in fault.” CxiF- FORD, J. The Lady Pike, 21 Wall. 17. “Different definitions are given of what is called inevitable accident, on account of the different circumstances attending the dis- aster, but there is no decided case which will support such a defense where it appears that the disaster was occasioned by the incom- petency, unskilfulness, or negligence of the master or pilot in charge of the deck.” Cu1F- ForD, J. The Lady Pike, 21 Wall. 17. “Such a defense [inevitable accident} can never be sustained where it appears that the disaster was caused by negligence.” CLIF- ForD, J. The Clarita, 23 Wall. 13. “ Attempt is not made to set up the defense of inevitable accident, nor could it have been successful if it had not been set up, as such a defense can only be maintained in a case where neither vessel is in fault.” C11FForD, J. The Teutonia, 23 Wall. 84. — Both Parties Must Have Used Care and Skill. “Unless it appears that both parties have endeavored by all means in their power, with due care and a proper display of nautical skill, to prevent the collision, the defense of inevitable accident is inapplicable to the case.” CLIFFORD, J. The Clarita, 23 Wall. 13. II. LIABILITY AND ENFORCEMENT. 1. LiaBitiry or Owner. American and English Statutes Different. “Tt is proper to remark that the British statutes on the subject of limited responsi- bility of shipowners, as well as those which regulate the forms of proceeding, are differ- ent from ours. The rule of limitation as ad- ministered by us is much more liberal to the shipowners than the English rule.” Bran.ey, J. The “North Star,” 106 U. S. 28. Liability for Acts of Master and Crew. “Vessels engaged in commerce are held liable for damage occasioned by collision on account of the complicity, direct or indirect, of their owners, or the negligence, want of care or skill on the part of those employed in their navigation. Owners appoint the master and employ the crew, and conse- quently are held responsible for their con- duct in the management of the vessel. CxiF- ForD, J. The Maria Martin, 12 Wall. 43. Liability Dependent upon Relation to Wrongdoer. “Whether the party charged ought to be held liable is made to depend, in all cases of the kind, upon his relation to the wrong- doer. Where the wrongful act is done by the party charged, or was occasioned by his negligence, of course he is liable, and he is equally so if it was done by one towards whom he bears the relation of principal, but the liability ceases, in such a case, where the relation of principal and agent entirely ceases to exist, unless the wrongful act was per- formed or occasioned by the party charged.” Cuirrorp, J. The Clarita, 23 Wall. 12. —— When Vessel Is Chartered. “When a vessel is chartered, the liability of the owner, in respect to a collision hap- pening in consequence of the faulty naviga- tion of the ship, depends upon the inquiry whether or not the master and crew can be considered to be his servants.” CtzFForp, J. The China, 7 Wall. 70. “Settled rule is that where the shipowner provides the vessel only, and the master and crew are selected by the charterer, the lat- ter and not the shipowner is responsible for their acts. But if the shipowner provides not merely the vessel, but also selects the mas- ter and crew, he is still liable, in case of col- lision, to the owners of the injured vessel, be- cause the vessel, in the absence of the mari- time law, is under his control, though the wages of the master and crew may be paid by the charterer. , Such liability in the for- mer-case is shifted from the real owner to the owner for the voyage; but the ship is as much liable in the one case as in the other to a suit im rem for the injury committed, be- cause she sailed on the voyage as the property of the real owner and by his consent.” Curr- ForD, J. The China, 7 Wall. 70. 2. LiaBILity oF VEsseL — Lien. Rule of Liability. “Vessels engaged in commerce are held liable for damages occasioned by collision on 361 COLLISION. account of the complicity, direct or indirect, of their owners, or the negligence, want of care or skill on the part of those employed in their navigation. Owners appoint the master and employ the crew, and consequently are held responsible for their conduct in the management of the vessel.” C.iFForD, J. Sturgis v. Boyer, 24 Wall. 123; The Clarita, 23 Wall. 11. To the same effect see the language of CuiFForp, J., in The Merrimac, 14 Wall. 200; The Continental, 14 Wall. 354. Public Vessel. “Tt is true, that in case of damage com- mitted by a public vessel a legal responsi- bility attaches to the actual wrongdoer, the commanding officer of the offending ship, and the injured party may seek redress against him; but this is not inconsistent with the existence of a claim against the vessel it- self.” Fretp, J. The Siren, 7 Wall. 156. Dependent on Relation of Owner and Wrongdoer. “Whenever, therefore, a fault is commit- ted whereby a collision ensues, that fault is imputed to the owners, and the vessel is just as much liable for the consequences as if it had been committed by the owner itself. Consequences of the kind, however, do not follow when the person committing the fault does not in fact or by implication of law stand in the relation of agent to the owners.” CuirForD, J. The Clarita, 23 Wall. 11. “Tt is well known that by the law of Eng- land a ship is not responsible to another for a collision brought about by the negligence of a compulsory pilot.” Brown, J., dissenting. The Irrawaddy, 171 U. S. 201. ' “No such consequences follow, however, when the person committing the fault does not, in fact, or by implication of law, stand in the relation of agent to the owners. Un- less the owner and the person or persons in charge of the vessel in some way sustain towards each other the relation of principal and agent, the injured party cannot have his remedy against the colliding vessel. By em- ploying a tug to transport their vessel from one point to another, the owners of the tow do not necessarily constitute’the master and crew of the tug their agents in performing the service. They neither appoint the mas- ter of the tug, nor ship the crew; nor can they displace either the one or the other. Their contract for the service, even though it was negotiated with the master, is, in legal contemplation, made with the owners of the vessel, and the master of the tug, notwith- standing the contract was negotiated with him, continues to be the agent of the own- ers of his own vessel, and they are respon- sible for his acts in her navigation.” CuzF- ForD, J. Sturgis v. Boyer, 24 Wall. 123. Lien Against Offending Vessel. “The collision, as soon as it takes place, creates, as security for the damages, maritime lien or privilege, jus in re, a proprietary in- terest in the offending ship, and which, when enforced by admiralty process in rem, relates back to the time of the collision. The offending ship is considered as herself the wrongdoer, and as herself bound to make compensation for the wrong done.” Gray, J. The John G. Stevens, 170 U. S. 122. “The foundation of the rule that collision gives to the party injured a jus in re in the offending ship is the principle of the maritime law that the ship, by whomsoever owned or navigated, is considered herself as the wrong- doer, liable for the tort, and subject to a maritime lien for the damages. This prin- ciple, as has been observed by careful text writers on both sides of the Atlantic, has been more clearly established, and more fully carried out, in this country than in Eng- land.” Gray, J. The John G. Stevens, 170 U. S. 120. “Owners of vessels damaged by collision, i have a maritime lien on the vessel in fault for such damages as may be awarded to them.” Cuirrorp, J. The Belfast, 7 Wall. 642. “ According to the admiralty law, the col- lision impresses upon the wrongdoing vessel a maritime lien. This the vessel carries with it into whosesoever hands it may come. It is inchoate at the moment of the wrong, and must be protected by subsequent proceedings. Unlike a common-law lien, possession is not necessary to its validity. It is rather in the nature of the hypothecation of the civil law. It is not indelible, but may be lost by laches or other circumstances.” Swayne, J. The China, 7 Wall. 68. — Depends upon Question of Fault. “The existence of a lien for collision de- pends upon the question of fault or no fault.” Brown, J. The Resolute, 168 U. S. 440. —— Priority of Lien. “The preference due to the lien for dam- ages from collision, over earlier claims founded on contract, has been carried so far as to allow the lien for damages to prevail over the claim of seamen for wages 362 ' COLLISION.. earned before the collision.” Gray, J. The John G. Stevens, 170 U. S. 119. “ By our law a claim for damages by collision and a claim for supplies are both maritime liens. The question of their comparative rank is now for the first time presented to this court for adjudication; and it has been the subject of conflicting decisions in other courts of the United States and es- pecially in those held within the state of New York.” Gray, J. The John G. Stevens, 170 U. S. 118. “Tt has been generally laid down in the English text-books that a maritime lien for damages by a collision takes precedence of all earlier maritime liens founded in contract. . And the English and Irish courts have even held that a claim for damages from a collision by the negligence of a for- eign ship creates a lien upon the whole value of the ship and freight, without de- duction for seamen’s wages, because, it has been said, the owner of the ship, being personally liable to the seamen for their wages, should not be permitted to deduct expenses for which he is liable, and thus benefit the wrongdoer at the expense of him to whom the wrong has been done. : That a claim for supplies furnished to a vessel should be preferred to a claim for damages for a subsequent collision appears never to have been even suggested in Eng- land, probably because by the law of Eng- land, materialmen, without possession, have no maritime lien for supplies, even to a for- eign ship, but a mere right to seize the ship by process in admiralty, in the nature of an- attachment. ‘Claims for necessaries,’ said Dr. Lushington, ‘do not possess, ab origine, a lien; but carry only a statutory remedy against the ves, which is essentially different’ . . . There can be no doubt, therefore, that in the English admiralty courts the lien for damages by collision would take precedence of an earlier claim for supplies.” Gray, J. The John G. Ste- vens, 170 U. S. 116. “That the maritime lien upon a vessel, for damages caused by her fault to another vessel, takes precedence of a maritime lien for sup- plies previously furnished to the offending vessel, is a reasonable inference, if not a necessary conclusion, from the decisions of this court. The owner of the in- jured vessel is entitled to proceed in rem against the offender, without regard to the question who may be her owners, or to the division, the nature. or the extent of their interests in her. With the relations of the owners of those interests, as among them- selves, the owner of the injured vessel has no concern. All the interests, existing at the time of the collision, in the offending ves- sel, whether by way of part ownership, of mortgage, of bottomry bond, or of other mar- itime lien for repairs or supplies, arising out of contract with the owners or agents of the vessel, are parts of the vessel herself, and as such are bound by and responsible for her wrongful acts. Any one who had furnished necessary supplies to the vessel before the collision, and had thereby acquired, under our law, a maritime lien or privilege in the ves- sel herself, was, as was said of the holder of an earlier bottomry bond, under the law of England, ‘so to speak, a part owner in interest at the date of the collision, and the ship in which he and others were interested was liable to its value at that date for the injury done, without reference to his claim.” Gray, J. The John G. Stevens, 170 U.S. 122. 3. ENFORCEMENT OF LIEN OR LIABILITY. Remedy — Proceeding in Rem or in Per- sonam. “The owner of the injured vessel is en- titled to proceed in rem against the offender, without regard to the question who may be her owners, or to the division, the nature or the extent of their interests in her.” Gray, J. The John G. Stevens, 170 U. S. 122. “Libelants in a suit for collision may pro- ceed against the ship and master or against the ship alone, or in personam against the master or the owner alone.” CutFForp, J. The Sabine, 101 U. S. 387. “Owners of vessels damaged by collision . . « May proceed in rem to enforce their claim for the damages, or they may waive the lien and bring the suit in personam against the master or owners of the vessel.” CuiFForD, J. The Belfast, 7 Wall. 642. —— Remedy at Common Law. “That there always has been a remedy at common law for damages by collision at sea cannot be denied.” Warts, C. J. Schoon- maker v. Gilmore, 102 U. S. 119. By Whom Suit Prosecuted —By Owner of Vessel for All Interested. “Collision suits are frequently prosecuted by the owners of the injured vessel for dam- ages to the cargo as well as to the vessel, and it does not appear that any serious em- barrassment has grown out of the practice. Manifestly, where the prosecution is instituted 363 COLLISION. by one or more parties for themselves and others not named, it would be more regular that it should be so averred in the libel; but as there can only be one prosecution for the same collision, it is not perceived that the omission of that averment can operate to the prejudice of the claimant. Persons ap- pearing as claimants may object to the want of proper parties, and it may be that, if the exception is seasonably and properly taken, the proceeding cannot be sustained.” CuiF- ForD, J. The Commander-in-Chief, 1 Wall. 52, “Common carriers, however, it is con- ceded, are liable for the safe custody, due transport, and right delivery of goods and merchandise intrusted to them to be conveyed from one port or place to another; and where the owners of the ship or vessel dam- aged by a collision sustain that relation to the cargo, it is admitted that they may re- cover for its loss or injury in the suit for the collision, if the libel is properly framed and the proofs sustain the charge.” C.iF- ForD, J. The Commander-in-Chief, 1 Wall. 50. —— Joinder of Parties Interested. “Undoubtedly, all persons interested in a cause of collision may be joined in the libel for the prosecution of their own claims and the protection of their own interests. Own- ers of the vessel and the shippers of cargo, for example, and all other persons affected by the injury, may be made parties to the suit, or it may be prosecuted by the master as the agent of all concerned.” CLiFForD, J. The Commander-in-Chief, 1 Wall. 51. — Intervention by Owners of Cargo. “Where the suit is commenced by the owners of the injured vessel, it is undoubt- edly competent for the owners of the cargo to petition to intervene for the protection of their interests at any time before the fund is actually distributed and paid out of the . registry of the court.” Cuirrorp, J. The Commander-in-Chief, 1 Wall. 53. Measure of Damages — Restitution or Compensation. “ Restitution or compensation is the rule in all cases where repairs are practicable.” Currorp, J. The Baltimore, 8 Wall. 386. “When the injured vessel is not a total loss, and is capable of being repaired and re- stored to her original situation, the cost necessaty to such repair cannot be.said to be an incorrect rule of damages.” GRIER, J. The Granite State, 3 Wall. 314. Total Loss — Market Value. “Tf the vessel of the libelants is totally lost, the rule of damage is the market value of the vessel (if the vessel is of a class which has stich value) at the time of her destruc- tion.” CLIFFORD, J. The Baltimore, 8 Wall. 386. “There cannot be an established market value for barges, boats, and other articles of that description, as in cases of grain, cot- ton, or stock.” Grier, J. The Granite State, 3 Wall. 314. “The value of such a boat depends upon the accidents of its form, age, and materials; and as these differ in each individual there can be no established market value.” Garter, J. The Granite State, 3 Wall. 314. — Surrender of Vessel in Discharge of Liability. “(The English law] makes the owners li- able to the extent of the value of the ship at the time of the injury, even though the ship itself be lost or destroyed at the same time; whereas our law, following the ad- miralty rule, limits the liability to the value of the ship and freight after the injury has occurred; so that if the ship is destroyed the liability is gone; and, whether damaged or not damaged, the owners may surrender her in discharge of their liability.’ Bravery, J. The “ Benefactor,” 103 U. S. 246. Value of Goods at Time and Place of Shipment. “The proper rule of damages where a cargo is lost im transitu by a collision, or other tort, is the value of the goods at the time and place of shipment.” Swayne, J The Vaughan & Telegraph, 14 Wall. 267. Loss of Use of Vessel. “In order to make full compensation and indemnity for what has been lost by the col- lision, restitutio in integrum, the owners of the injured vessel are entitled to recover for the loss of her use, while laid up for re- pairs. When there is a market price for such use, that price is the test of the sum to be recovered. When there is no market price, evidence of the profits that she would have earned if not disabled is competent; but from the gross freight must be so much as would in ordinary cases be disbursed on account of her expenses in earning it; in no event can more than the net profits be re- covered by way of damages; and the burden is upon the libelant to prove the extent of the damages actually sustained by him.” Gray, J. The “ Potomac,” 105 U. S. 632. 864 COLLISION. “That the loss of profits or of the use of a vessel pending repairs or other detention, arising from a collision, or other maritime tort, and commonly spoken of as demurrage, is a proper element of damage, is too well settled both in England and America to be open to question.” Brown, J. The Con- queror, 166 U. S. 125. “Tn cases of a partial loss there is no in- justice in allowing the probable profits of a charter for the short time during which the vessel is laid up for repairs, but in cases of a total loss the recovery of such profits is limited to the voyage which the vessel is then performing, since, if the owner were en- titled to recover the profits of a future voy- age or charter, there would seem to be no limit to such right so far as respects the time of its continuance; and if the vessel were under a charter which had months or years to run, the allowance of the probable profits of such charter might work a great practical injustice to the owner of the vessel causing the injury.” Brown, J. The Um- bria, 166 U. S. 422. Indemnity to Extent of Injury. “The general rule in regulating damages in cases of collision is to allow the injured party an indemnity to the extent of the loss sustained. This general rule is obvious enough; but there is'a good deal of difficulty in stating the grounds upon which to ar- rive, in all cases, at the proper measure of that indemnity.” Netson, J. Williamson v. Barrett, 13 How. 110. Full Compensation Not in Excess of Value of Offending Vessel and Freight. “ Shipowners, if their ship is without fault, are entitled in a cause of collision, except where it occurs from inevitable accident, to full compensation for the damage their ship receives, provided it does not exceed the value of the offending vessel and her freight then pending; and the same rule applies where the injury is caused by the joint ac- tion of a tug and tow, if it be so alleged in the libel, and it appears that both were in charge of their own master and crew, and that each was in fault in not taking due care, or was guilty of negligence or of un- skilful or improper navigation.” C.trForp, J. The Virginia Ehrman, 97 U. S. 310. Full Damages. “The bar, the bench, and those engaged in navigation, have acquiesced in the rule, that full damages for the injury [in case of collision] at the time and place when it oc- curred, with legal interest on the amount, was the proper measure; nor do I think it should be disturbed.” Catron, J., dissent- ing. Williamson v. Barrett, 13 How. 115. Personal Liability of Owner Same as in Other Cases of Negligence. “ By the common law, as administered both in England and America, the personal liabil- ity of the owner of a vessel for damages by collision is the same as in other cases of negligence, and is limited only by the amount of the loss and by his ability to respond.” Brown, J. The Main wv. Williams, 152 U. S. 126. Limitation. “Owners of. ships and vessels are not li- able, under existing laws, for any loss, dam- age, or injury by collision, if occasioned with- out their privity or knowledge, beyond the amount of their interest in such ship or ves- sel and her freight pending at the time the collision occurred.” C.irForp, J. The City of Hartford, 97 U. S. 330. “Parties in a collision case, such as ship- pers and consignees, bear no part of the loss in such a disaster, and are entitled to full compensation for the damage which they suf- fer from the wrongdoers, except in the case where their loss exceeds. the amount of the interest which the owners of the of- fending ship or ships have in them, and in the freight then pending.” Cttrrorp, J. The City of Hartford, 97 U. S. 329. “Tnnocent parties in a case of collision are entitled to full compensation for the in- juries received by their vessel, unless it oc- curred by inevitable accident, provided the amount does not exceed the amount or value of the interest of the other party in the col- liding ship and her freight then pending.” CutrForD, J. The Virginia Ehrman, 97 U. S. 317. “Freedom from fault is a good defense in a cause of collision, even when the suit is promoted to recover compensation for in- juries received by an offending party; but the innocent party, if the collision was oc- casioned by the fault of the other vessel or vessels, is always entitled to full com- pensation for the injuries received, unless the load exceeds the amount of the interests which the owners have in the offending ship or ships and the freight pending at the time of the collision.” CtrrForp, J. The City of Hartford, 97 U. S. 325. “The general rule [is] that in cases of total loss by collision damages are limited to, 365 COMITY. the value of the vessel, with interest thereon, and the net freight pending at the time of the collision. The probable net profits of a charter may be considered in cases of delay, occasioned by a partial loss, where the ques- tion is as to the value of the use of the ves- sel pending her repairs. In such cases the net profits of a charter, which she would have performed except for the delay, may be treated as a basis for estimating the value of her use.” Brown, J. The Umbria, 166 U. S. 421. Damage Accruing After Collision. “Persons injured in their property by col- lision are entitled to full indemnity for their loss, but the respondents are not liable for such damages as might have been reasonably avoided by the exercise of ordinary skill and diligence, after the collision, on the part of those in charge of the injured ship.” CuiF- ForD, J. The Baltimore, 8 Wall. 387. “Damages are awarded in such cases [ves- sel sunk by collision] for the injury done to the vessel and cargo” by a wrongful act, but if the party suffering the injury to his prop- erty will not employ any reasonable measures to stop the progress of the damage, but wil- fully and obstinately, or through gross neg- ligence, suffers the damage to augment, it is his own folly, and the law will not af-. ford him any redress for such part of the damage as proceeded directly from his own culpable default.” Cuxirrorp, J. The Bal- timore, 8 Wall. 387. “ Owners of vessels seeking redress in such cases [vessel sunk by collision] must be prepared to show, not only that those in charge of the other vessel were in fault, but that no negligence on their part has increas- ed or aggravated the injury.” Cur1FForp, J. The Baltimore, 8 Wall. 387. — Where Vessel Might Have Been Raised. “Justice as well as sound policy forbids that the owner of a vessel sunk by collision should be allowed to recover the full value ‘of the vessel and cargo, except in cases where the entire property is lost by the dis- aster, which is not true in a case where, by reasonable exertions the vessel may be raised and the cargo saved by the use of such nau- tical skill as the owners of vessels usually employ in such emergencies.” CLiFFoRD, J. The Baltimore, 8 Wall. 387. “The owner of the injured vessel is not bound to raise the vessel in a case where she was sunk by a collision, but it is clear that the court can not award damages for a total loss, where it appears probable that the vessel and cargo may be raised without much expense, and restored to their owners.” CurFForD, J. The Baltimore, 8 Wall. 388. COLLUSION. “ [Collusion] implies the existence of fraud of some kind, the employment of fraudu- lent means, or lawful means for the accom- plishment of an unlawful purpose.” Brown, J. Dickerman v. Northern Trust Co., 176 U. S. 190. COMITY. As to construction of statutes, see Forricn Laws; effect of decisions of other courts, see APPEAL AND Error; Courts. Definition and Nature. “*Comity,’ in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.” Gray, J. Hilton v. Guyot, 159 U. S. 163. “Comity is not a rule of law, but one of practice, convenience and expediency. It is sometimes more than mere courtesy, which implies only deference ‘to the opinion of others, since it has a substantial value in securing uniformity of decision, and discour- aging repeated litigation of the same ques- tion. But its obligation is not imperative. If it were, the indiscreet action of one court might become a precedent, increasing in weight with successive adjudication, until the whole country was tied down to an un- sound principle. Comity persuades; but it does not command. It declares not how a case shall be decided, but how it may with propriety be decided.” Brown, J. Mast v. Stover Mfg. Co., 177 U. S. 488. Questions Not Before Prior Court. “ Comity has no application to questions not considered by the prior court, or, in patent cases, to alleged anticipating de- vices which were not laid betore that court As to such the action of the court is purely original, ‘though the fact that such antici- pating devices were not called to the atten- 366 COMMON LAW. tion of the prior court is likely to open them to suspicion. It is scarcely necessary to say, however, that when the case reaches this court we should not reverse the action of the court below if we thought it correct upon the merits, though we were of opinion it had not given sufficient weight to the doc- trine of comity.” Brown, J. Mast, etc. Co. v. Stover Mfg. Co., 177 U. S. 489. COMMENCE— COMMENCED. See Actions. COMMERCE. See INTERSTATE COMMERCE. COMMERCIAL LAW. See NEcoTiaBLE INSTRUMENTS. Definition and Nature. “Commercial law is a system of jurispru- dence acknowledged by all maritime nations, and upon no subject is it of more impor- tance that there should be, as far as practi- cable, uniformity of decision throughout the world.” Cuiirrorp, J. Brooklyn City, etc. R. Co. v. National Bank of Republic, 102 U. S. 32. Customs Grown into Law. “The law merchant was not made. It grew. Time and experience, if slower, are wiser law makers than legislative bodies. Customs have sprung from the necessities and the convenience of business and pre- vailed in duration and extent until they ac- quired the force of law. This mass of our jurisprudence has thus grown, and will con- tinue to grow, by successive accretions.” Swayne, J. Merchants’ Nat. Bank v. State Nat. Bank, 10 Wall. 651. Adoption of Law Merchant. “Some of the states have adopted the law merchant, others have not.” McLean, J. Nathan v. Louisiana, 8 How. 82. “In Mississippi the custom of merchants has been adopted as part of the common law.” McKintey, J. Musson v. Lake, 4 How. 279. Uniformity of Decision. “Mercantile law is a system of jurispru- dence acknowledged by all commercial na- tions; and upon no subject is it of more im- portance that there should be, as far as practicable, uniformity of decision through- out the world.” CutrFForp, J. Goodman v. Simonds, 20 How, 364. “Tt is of the utmost importance, that all rules relating to commercial law should be stable and uniform. They are adopted for practical purposes, to regulate the course of business in commercial transactions.” Tuompson, J. Wallace v. M’Connell, 13 Pet. 150. “Mercantile law is a system of jurispru- dence recognized by all commercial nations, and upon no subject is it of more importance that there should be, as far as practicable, uniformity of decision throughout the world.” CurrrorD, J. Ross v. Jones, 22 Wall. 594. “Much progress, has been made within the last thirty years in securing uni- formity of decision in respect to mercan- tile controversies between the federal and state courts, and the courts of this coun- try and those of the parent country, from which most of our commercial rules and usages are derived.” CurrrorD, J. Brook- lyn City, etc, R. Co. v. National Bank of Republic, 102 U. S. 42. COMMISSIONERS. See Unirep States COMMISSIONERS. COMMISSION MERCHANTS. See Factors AND BROKERS. COMMON CARRIERS. See CARRIERS. COMMON-FIELD. Definition. “The term common-field is of American invention, and adopted by Congress to des- ignate small tracts of ground of a peculiar shape, usually from one to three arpents in front by forty in depth, used by the occu- pants of the French villages for the purpose of cultivation, and protected from the in- roads of cattle by a common fence. The pe- culiar shape of the lot, its contiguity to others of similar shape, and the purposes to which it was applied, constituted it a com- mon-field lot.” Grier, J. Glasgow v. Hor- tiz, 1 Black 600. COMMON LAW. See CHRISTIANITY; INTERNATIONAL Law; Law; Macna CuHarta. Nature. “The common law is reason dealing by the light of experience with human affairs. 367 COMMON LAW. One of its merits is that it has the capacity to reach the ends of justice by the shortest paths.” Swayne, J. Dickerson v. Colgrove, 100 U. S. 584. — Founded in Usage. “ Almost all the principles of the common law had their foundation in usage.” Mc- Lean, J., dissenting. Scott v. Sandford, 19 How. 535. — Compared with Other Systems. “While we take just pride in the princi- ples and institutions of the common.law, we are not to forget that in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not unknown.” MatrHews, J. Hurtado wv. Cal- ifornia, 110 U. S. 531. — Civil Law Distinguished. “The principles of the common law are not applied with that mathematical precision, of which the principles of the civil law are susceptible.” Charles River Bridge v. War- ren Bridge, 11 Pet. 563. In the United States— No Common Law of Nation. “There is no unwritten general or common law of the United States on any subject.” Fietp, J., dissenting. Baltimore, etc, R. Co. v. Baugh, 149 U. S. 394, — of Particular States. “The common law, it is said, we brought with us from the mother country, and which we claim as a most valuable heritage. This is admitted, but not to the extent sometimes urged. The common law, in all its diversi- ties, has not been adopted by any one of the states. In some of them it has been modified by statutes, in others by usage. And from this it appears that what may be the common law of one state is not necessarily the common law of another. We must ascertain the common law of each state by its general policy, the usages sanc- tioned by its courts, and its statutes.” Mc- Lean, J. Wheeler v. Smith, 9 How. 78. “When the republic was created each of the thirteen states had its own local usages, customs and common law, while in respect of the national government there necessarily was no general, independent and separate common law of the United States, nor has there ever been.” Futter, C. J., dissenting. U. S. v. Wong Kim Ark, 169 U. S. 709. “The statutes of England that are in force in America differ perhaps in all the states; and therefore, it is probable, the common law in each is in some respects dif- ferent.” Irepett, J. Chisholm v. Georgia, 2 Dall. 435. As to Louisiana, see Civir Law. — Rights Rest upon Principles of Eng- lish Common Law. “There is no common law of the United States, and yet the main body of the rights of the people of this country rest upon and are governed by principles derived from the common law of England, and established as the laws of the different states.” Muzer, J. Bucher v. Cheshire R. Co., 125 U. S. 583. “The common law of England is the basis of the jurisprudence of the United States. Tt was brought to this country by the colo- nists, together with the English statutes, and was established here so far as it was appli- cable to their condition.” FreLp,.J., dissent- ing. Slaughter-House Cases, 16 Wall. 104. “We take it to be a clear principle that the common law in force at the emigration of our ancestors is deemed the birthright of the colonies unless so far as it is inappli- cable to their situation, or repugnant to their other rights and privileges. A fortiori the principle applies to a royal province.” Story, J. Pawlet v. Clark, 9 Cranch 333. “Most of the states have adopted the prin- ciples of English jurisprudence, so far as it concerns private and individual rights.” Taney, C. J. Fleming v. Page, 9 How. 618. — Principles Adopted so Far as Con- sistent with New Government. “The settlers of Oregon, like the colonists of the Atlantic states, coming from a coun- try in which the common law prevailed to one that had no organized government, took with them, as their birthright, the principles of the common law, so far as suited to their condition in their new home. The jurispru- dence of Oregon, therefore, is based on the common law.” Gray, J. Shively v. Bowlby, 152 U. S. 52. “T cheerfully concede it may well be doubt- ed whether any portion of the common law or English statutes, passed before the set- tlement of this country, becatne in force here, unless suited to our conditions, or favorable to the subject and his liberties.” Woopsury, J., dissenting. Waring v. Clarke, 5 How. 490. “When the sovereignty of the crown was thrown off and an independent government established, every rule of the common law and every statute of England obtaining in 368 “COMMON LAW. the colonies, in derogation of the principles on which the new government was founded, was abrogated.” Futter, C. J., dissenting. U.S. v. Wong Kim Ark, 169 U. S. 709. — Common Law Adopted by Statute. “Tn 1816, the common law, by statute, was made a part of the law of Missouri; and that includes the general principles of international law. These principles cannot be abrogated by judicial decisions. It will require the same exercise of power to abol- ish the common law, as to introduce it.” McLean, J., dissenting. Scott v. Sandford, 19 How. 556. “By the statutes of Texas, from the time of its existence as an independent republic, the common law of England, so far as not inconsistent with the Constitution and laws of Texas, has been declared to be, together with such Constitution and laws, the rule of decision, and to continue in force until al- tered or repealed by the legislature.” Gray, J. Hamilton v. Brown, 161 U. S. 264. “The common law was adopted in the Missouri territory in 1816.” McLean, J. Meegan v. Boyle, 19 How. 148. ' “The common law exists in this country only as it is adopted or permitted by the leg- islature, or by constitutions.” Mutter, J., dissenting. Ex p. Garland, 4 Wall. 385. Modifications. “In Georgia, as well as in every other state in the Union, the common law has been modified by local views, and settled practice.” Jounsoan, J., dissenting. Patter- son v. Winn, 5 Pet. 246. “It [the common law] is the basis of all the state laws; but is modified as each sees fit.” BrapLey, J. The Lottawanna, 21 Wall. 572. “The common law . . ought not to be deemed to be repealed, unless the lan- guage of a statute be clear and explicit for this purpose.” Story, J. Fairfax v. Hunt- er, 7 Cranch 623. “Tn the absence of all positive authority, it might be proper to resort to these [com- mon law] principles, and in aid of the man- ifest purpose of the law. But there are express statutable provisions, which directly apply to the present case.’ Story, J. Gel- ston v. Hoyt, 3 Wheat. 310. “Even before the adoption of the Con- stitution, much had been done toward miti- gating the severity of the common faw, particularly in the administration of its criminal branch. The number of capital crimes, in this country at least, had been largely decreased. Trial by ordeal and by battle had never existed here, and had fallen into disuse in England. The earlier practice of the common law, which denied the benefit of witnesses to a person accused of felony, had been abolished by statute, though so far as it deprived him of the assistance of coun- se! and compulsory process for the attend- ance of his witnesses, ft had not been changed in England. But to the credit of her American colonies, let it be said that so oppressive a doctrine had never obtained a foothold there.’ Brown, J. Holden v. Hardy, 169 U. S. 386. “The present century has originated legal forms of no less importance [than the pre+ vious century]. The whole fabric of spe- cial pleading, once thought to be necessary to the elimination of the real issue between the parties, has crumbled to pieces. The ancient tenure of real estate has been largely swept away, and the land is now transferred almost as easily and cheaply as personal prop- erty. Married women have been emancipa- ted from the control of their husbands and placed upon a practical equality with them with respect to the acquisition, possession and transmission of property. Imprisonment for debt has been abolished. Exemptions from execution have been largely added to, and in most of the states homesteads are ren- dered incapable of seizure and sale upon forced process. Witnesses are no longer in- competent by reason of interest, even though they be parties to the litigation. Indict- ments have been simplified, and an indict- ment for the most serious crimes is now the simplest of all. In several of the states grand juries, formerly the only safeguard against a malicious prosecution, have been largely abolished, and in others the rule of unanimity, so far as applied to civil cases, has given way to verdicts rendered by a three-fourths majority.” Brown, J. Hold- en v. Hardy, 169 U. S, 386, ‘ —— Departure Should Be Clearly In- tended. “Whenever a departure from common-law tules and definitions is claimed, the pur- pose to make the departure should be clear- ly shown.” Brewer, J. Northern Securities Co. v. U. S., 193 U. S. 360. No Vested Right in Common-law Rule. “A person has no property, no vested in- terest, in any rule of the common law. 869 1 Os. Dic.—24 COMPROMISE AND SETTLEMENT. That is only one of the forms of municipal law, and is no more sacred than any other.” Warts, C. J. Munn vz. Illinois, 94 U. S. 134. Administration of by U. S. Courts. “The courts of the United States do not enforce the common law in municipal mat- ters in the states because it is federal law, but because it is the law of the state.” Brapiey, J. Transportation Co. v. Parkers- burg, 107 U. S. 700. “Tt is true that the courts of the United States, when sitting in a state, administer the common law, where it has been adopted by the state, under the authority and direc- tion of the Act of Congress, which makes the laws of the state the rule of decision in a court of the United States, when sit- ting in the state, provided such laws are contrary to the Constitution, laws, or treaties, of the United States.” Taney, C. J., dis- senting. Pennsylvania v. Wheeling, etc., Bridge Co., 13 How. 580. Exposition of — Blackstone. “ Blackstone’s Commentaries are accepted as the most satisfactory exposition of the common law of England. At the time of the adoption of the federal Constitution it had been published about twenty years, and it has been said that more copies of the work had been sold in this country than in England, so that undoubtedly the framers of the Constitution were familiar with it.” Brewer, J. Schick v. U. S., 195 U. S. 69. COMMON RIGHT. Nature. “Tt [common right] is so called because it exists in all the subjects by the common law, an universal custom; and is thus dis- tinguished from the same right, claimed by a local custom in favor of the inhabitants of a particular place.” Batpwin, J. -Stroth- er v. Lucas, 12 Pet. 487. COMMUTATION FOR RATIONS. See Pay Proper. COMPACTS. “See Contracts; CoNsTITUTIONAL Law. Meaning in Federal Constitution. “Looking at the clause [in the federal Constitution] in which the terms ‘com- pact’ or ‘agreement’ appear, it is evident that the prohibition is directed to the for- mation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.” Fietp, J. Virginia v. Tennessee, 148 U. S. 519. Compact and Contract Synonymous, “The terms compact and contract are synonymous.” WasHINGTON, J. Green v. Biddle, 8 Wheat. 92. Compact and Agreement Distinguished. “Compacts or agreements—and we do not perceive any difference in the mean- ing, except that the word ‘compact’ is gen- erally used with reference to more formal and serious engagements than is usually im- plied in the term ‘agreement’—cover all stipulations affecting the conduct or claims of the parties.” Fietp, J. Virginia v. Ten- nessee, 148 U. S. 520. COMPENSATION. “In the absence of any contract for prop- erty or services, the law allows only a rea- sonable price or compensation; but what is a reasonable price in any case will depend upon a variety of considerations, and is not a matter for legislative determination.” Fretp, J., dissenting. Munn v. Illinois, 94 U.S. 153. COMPETITION. See Monopolies AND CORPORATE TRUSTS; TENDER. “The law does not visit with its repro- bation a fair competition in trade; its tend- ency is rather to discourage monopolies, except where protected by statute, and to build up new enterprises from which the public is likely to derive a benefit. If one person can by superior energy, by more extensive advertising, by selling a better or more attractive article, outbid another in popular favor, he has a perfect right to do so, nor is this right impaired by an open declaration of his intention to compete with the other in the market.” Brown, J. Brown Chemical Co. v. Meyer, 139 U. S. 544, COMPROMISE AND SETTLE- MENT. Nature and Effect in General — Upheld by Courts. “Parties may, doubtless, adjust their con- troversies; and, where they do so in good 370 COMPROMISE AND SETTLEMENT. faith and understandingly, courts of jus- tice will uphold the adjustment, unless it violates the rules of law applicable to the transaction.” CLiFForD, J. Brown v. Spof- ford, 95 U. S. 483. — Parties Bound. “Parties may adjust their own disputes, and when they do so voluntarily and un- derstandingly, no appeal lies to the courts to review their mutual decision.” CLIFForD, J. Sweeny v. U. S, 17 Wall. 78. “Oftentimes a party may be willing to yield something for the sake of a settle- ment; and if he does so with a full knowl- edge of the circumstances, he cannot affirm the settlement, and afterwards maintain a suit for that which he voluntarily surren- dered.” CziFrorD, J. Hager v. Thomson, 1 Black 93. —— Equity Will Not Overhaul. “Where an agreement for the composi- tion of a cause is fairly made between par- ties with their eyes open, and rightly in- formed, a court of equity will not overhaul it; though there has been a great mistake in the exercise of judgment. In like manner, where the fact is equally unknown to both parties; or where each has equal and adequate means of information; or where the fact is doubtful from its own na- ture; in every such case, if the parties have acted with entire good faith, a court of equity will not interpose. For in such cases, the equity is deemed equal between the parties; and when it is so, a court of equity will not interfere.” M’Lean, J., dis- senting. Rhode Island v. Massachusetts, 14 Pet. 274. Under Louisiana Code. “ A compromise, by the Code of Louisiana, is defined to be an ‘agreement between two or more persons, who, for promoting or put- ting an end to a law-suit, adjust their dif- ferences by mutual consent, in the manner which they agree on, and which any one of them prefers to the hope of gaining balanced by the danger of losing’ (art. 3071); and has, between the interested par- ties) a force equal to the authority of a thing adjudged. It cannot be attacked on account of any error in law or any le- sion.” Fretp, J. Oglesby wv. Attrill, 105 U. S. 610. Claims Against United States. “Claims against the United States which are disputed by the officers authorized to adjust such accounts may be compromised, 371 and if the claimant voluntarily enters into such a compromise and accepts a smaller sum than the claim and executes a discharge in full for the whole claim he is bound by the adjustment and cannot sue for what he voluntarily relinquished.” CtuiFForp, J. Sweeny v. U. S., 17 Wall. 77. “Nothing could be fraught with worse consequences as regards confirmations by Congress, or by commissioners acting by its authority, than to hold, that when a doubt- ful claim was confirmed on certain terms, and the claimant accepted these terms, and took the full benefit of the confirmation, that still he could come into the courts of jus- tice and enforce his entire claim for the de- ductions made by Congress, as if no ad- justment had been made. Such cases must stand on the footing of compromise, and all equities existing when the compromise was made, and not provided for by it, must be deemed to have been abandoned.” Carron, J. U. S. uv. Roselius, 15 How. 34, “Parties having claims against the United States for labor or service, or for personal property or materials furnished, which are disputed by the officers authorized to adjust the accounts, may compromise the claim and may accept a smaller sum than the contract price; and where the claimant voluntarily enters into a compromise and accepts a smaller sum and executes a discharge in full for the whole claim, he cannot sub- sequently recover in the Court of Claims for any part of the claim voluntarily relinquished in the compromise.” CtiFForD, J. Mason v. U. S., 17 Wall. 70. By Attorney. “ Although an attorney at law, merely as such, has, strictly speaking, no right to make a compromise; yet a court would be dis- inclined to disturb one which was not so un- reasonable in itself as to be exclaimed against by all, and to create the impression that the judgment of the attorney had been im- posed on, or not fairly exercised in the case. But where the sacrifice is such as to leave it scarcely possible that, with a full knowledge of every circumstance, such a compromise could be fairly made, there can be no hesitation in saying that the compro- mise, being unauthorized and being therefore in itself void, ought not to bind the in- jured party.” MarsHaaz, C. J. Holker v. Parker, 7 Cranch 452. Evidence — Admissions. “ A compromise proposed or accepted is not evidence of an admission of the amount CONDITIONS PRECEDENT AND SUBSEQUENT. of the debt.” Strone, J. Insurance Cos. v. Weides, 14 Wall. 381. “By all or nearly all the cases the rule as established is not that an admission made during or in consequence of an effort to compromise is admissible, but that an offer to do something by the way of compromise, as to pay sums of money, allow certain prices, deliver certain property, or make certain de- ductions, and the like, shall be excluded. These cannot be called admissions, as they were made to avoid controversy and to save the expenses of vexatious litigation. De- cided cases may be found where it is said that the evidence is admissible unless the offer made was stated to be without preju- dice; but the rule in general, both in Eng- land and the United States, is that the offer will be presumed to have been made with- out prejudice if it was plainly an offer of compromise.” CziirForp, J. West v. Smith, 101 U. S. 273. : “Offers of compromise to pay the sum of money by the way of compromise, as a gen- eral rule, are not admissible against the party making the offer; but if admitted, it is clear that the offer is open to explana- tion, no matter whether it was by letter or by oral communication.” CLrFForD, J. West uv. Smith, 101 U. S. 273. CONCEALED WEAPONS. Right to Bear Arms. “The right of the people [under the fed- erat Constitution] to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons.” Brown, J. Robertson v. Baldwin, 165 U. S. 281. CONDITIONS PRECEDENT AND SUBSEQUENT. As to tender and excuse for failure, see TENDER; performance of contract, TRACTS. See also Covenants; Estates. see Con- Conditions Precedent Distinguished. “There is a wide distinction between a condition precedent, where no title has vest- ed and none is to vest until the condition is performed, and a condition subsequent, oper- ating by way of a defeasance. In the for- mer case equity can give no relief. The failure to perform is an inevitable bar. No and Subsequent right can ever vest. The result is very dif. ferent where the condition is subsequent, There equity will interpose and relieve against the forfeiture upon the same princi- ple of compensation, where the principle can be applied, giving damages, if damages should be given, and the proper amount can be ascertained.” Swayne, J. Davis v. Gray, 16 Wall. 229. “Where a condition is subsequent and it is broken, relief may be given upon equita- ble terms; but where it is precedent, and neither fulfilled nor waived, no right or title vests, and equity can do nothing for the party in default.” Swayne, J. Giddings w. North Western Mut. L. Ins. Co., 102 U. S. 411, — Intention of Parties, “Tt is not, indeed, always easy to deter- mine whether a condition be precedent or subsequent; it must depend wholly upon the intention of the parties as expressed in the instrument, and the facts surrounding its execution. If the condition does not neces- sarily precede the vesting of the estate, or if from the nature of the act to be per- formed and the time required for its per- formance, it is evident that the intention of the parties is that the estate shall vest, and the grantee shall perform the act after tak- ing possession, then the condition is treated as subsequent, and there is no forfeiture without a re-entry by the grantor, or, in the case of the state, without some action on its part manifesting an intention to resume its title.” Brown, J. Bybee v. Oregon, etc. R. Co., 139 U. S. 679. Condition and Covenant in Same Instru- ment. “There are cases in which the instrument to be construed was held to contain both a condition and a covenant.” Harian, J. Hale wv. Finch, 104 U. S. 268, — Provision May Be Either Condition. or Covenant. “A provision may be inserted in an in- strument as to land, which will be construed either a condition of a covenant, as seems most appropriate.” Wooppury, J. Foxcroft v, Mallett, 4 How. 376. Conditions Subsequent. The condition [of a devise] that the trus- tees shall not alienate the land on which the school-room stands is also a condition sub- sequent, and is in accordance with the fifth section of their charter, and with the gen- eral law upon the subject. It will not pre- 372 CONFESSIONS. vent a court of chancery from permitting, in case of necessity arising from unforeseen change of circumstances, the sale of the land and the application of the proceeds to the purposes of the trust.” Gray, J. Jones ~. Habersham, 107 U. S. 183. “The condition as to the care and keep- ing of the tomb or burial-place of the testa~ trix is likewise a condition subsequent.” Gray, J. Jones v. Habersham, 107 U. S, 183. “The condition [of a devise] that no ma- terial alteration or change, but only proper repairs and improvements, shall be made in the pulpit or galleries of the present church (even i illegal, which we see no reason for supposing), is a condition subsequent, re- lating to the care and use of the property after the gift shall have vested in the de- visee.” Gray, J. Jones v. Habersham, 107 U. S. 183. Proviso Not a Condition. “A proviso is not always acondition, much less a condition precedent.” Brewer, Ford v. Delta, etc., Land Co., 164 U. S. 674. Strict Construction. “ A condition, when relied upon to work a forfeiture, is construed with great strictness. The grantor must stand on his legal rights, and any ambiguity in his deed or defect in the evidence offered to show a breach will be taken most strongly against him, and in favor of the grantee. A.condition will not be extended beyond its express terms by construction. The grantor must bring him- self within these terms to entitle him to a forfeiture.” Brown, J. New York Indians v. U. S., 170 UL. S. 25. Conditions Not Favored by Courts. “[There is an] extreme unwillingness of courts to admit the existence of a common law condition, even when the word condi- tion is used’ Hortmes, J. Wright v. Mor- gan, 191 U. S. 58. Impossibility of Performance. “Tf a condition subsequent be possible at the time of making it, and becomes after- wards impossible to be complied with, by the act of God, or the law, or the grantor, the estate having once vested, is mot thereby di- vested, but becomes absolute.” Swayne, J. Davis uv. Gray, 16 Wall. 230. Forfeiture-— Express Words Not Neces- sary. “Tf an estate be granted upon a condition subsequent, no express words of forfeiture or reinvestiture of title are necessary to au- thorize the grantor to re-enter in case of a breach of such conditions.” Brown, J. At- lantic, ete., R. Co. v. Mingus, 165 U. S. 428. = Mere Breach Does Not Revest Title. “There is no doubt that, where an estate ig granted subject to a condition subsequent, the mere fact that there has been a breach of such condition will not revest the title in the grantor without sore act or declaration upon his part.” Brown, J. Atlantic, etc, R. Co. v. Mingus, 165 U. S. 430. —— Re-entry. “Conditions subsequent are not favored in the law, and when they are sought to be en- forced in an action at law, there must have been a re-entry, or something equivalent to it, or the suit must fail, The right to sue at law for the breach is not inalienable. The action must be brought by the grantor or some one in privity of blood with him.” Swayne, J. Davis v. Gray, 16 Wall. 230. — Only Grantor or Privies Can Declare. “The law is well settled that it is only the grantor, or those in privity with him, who can take advantage of the forfeiture.” Brown, J. Bybee v. Oregon, etc, R. Co., 139 U. S. 676. “No one but the grantor can raise the question of a breach of a condition subse- quent.” Harian, J. Southern Pac. R. Co. v. U. S, 168 U.S. 61. —- Public Grant — Inquest or Statute. “Where the grant [of an estate] is a pub- lic one, this court has held in a series of eases that the remedy of the government {for a breach of conditions subsequent] is by an inquest’ but little used in this coun- try, or by a legislative act directing the possession and appropriation of the land.” Brown, J. Atlantic, etc, R. Co. v. Mingus, 165 U. S. 431, CONDUCT UNBECOMING AN Nae AND A GENTLE- “The offense of conduct unbecoming an officer and a gentleman is not the same of- fense as conspiracy to defraud, or the caus- ing of false and fraudulent claims to be made, although to be guilty of the latter in- volves being guilty of the former.” Futzzr, C. J. Carter ov. McClaughry, 183 U. S. 395. CONFESSIONS. Must Be Voluntary. “In this court the general rule that the confession [of an accused] must be free and CONFESSIONS. voluntary, that is, not produced by induce- ments engendering either hope or fear, is settled by the authorities.’ Wuuite, J. Bram v. U. S., 168 U. S. 557. “TConfessions] are inadmissible if made under any threat, promise, or encourage- ment of any hope or favor. Futter, C. J. Wilson v. U. S., 162 U. S. 621. “Statements [made by a defendant before and after a preliminary examination] which are obtained by coercion or threat or prom- ise will be subject to objection.” BREWER, J. Hardy v. U. S., 186 U. S. 229. — Warning. “Tt is laid down that it is not essential to the admissibility of a confession that it should appear that the person was warned that what he said would be used against him, but on the contrary, if the confession was voluntary, it is sufficient though it ap- pear that he was not so warned.” FULLER, C. J. Wilson v. U. S., 162 U. S. 623. —— Confession to Police Officer. “There can be no question that a police officer, actually or constructively in charge of one in custody on a suspicion of having committed crime, is a person in authority within the rule [as to confession the result of inducements].” Wuure, J. Bram v. U. S., 168 U. S. 551. “Where a confession is elicited by the questions of a policeman, the fact of its hav- ing been so obtained, it is conceded, may be an important element in determining whether the answers of the prisoner were voluntary.” Wuute, J. Bram wv. U. S., 168 U.S. 557. “Tn this court it has been settled that the mere fact that the confession is made to a police officer, while the accused was under arrest in or out of prison, or was drawn out by his questions, does not necessarily render the confession involuntary, but, as one of the circumstances, such im- prisonment or interrogation may be taken in- to account in determining whether or not the statements of the prisoner were voluntary.” Wuirt, J. Bram v. U. S., 168 U. S. 558. — Defendant in Custody or in Irons. “The fact that the defendant was in cus- tody and in irons does not destroy the com- petency of a confession.” Brewer, J., dis- senting. Bram v. U. S., 168 U. S. 569. To the same effect ‘see the language of Futter, C. J., in Wilson v. U. S., 162 U. S. 623. No One Compelled to Testify Against Himself. “In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent be- cause not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, com- manding that no person ‘shall be compelled in any criminal case to be a witness against himself.’ ” Wuutse, J. Bram v. U. S, 168 U.S, 542. — Origin of Rule. “The maxim nemo tenetur seipsum accu- sare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the addition of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of in- criminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may as- sume an inquisitorial character, the tempta- tion to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully évident in many of the earlier state trials, notably in those of Sir Nicholas Throckmor- ton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no stat- ute and no judicial opinion, but upon a gen- eral and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English as well as in American jurisprudence. So deeply did the iniquities of the ancient sys- tem impress themselves upon the minds of the American colonists that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the im- pregnability of a constitutional enactment. Stringent as the general rule is, however, certain classes of cases have always been treated as not falling within the reason of the rule, and, therefore, constituting ap- 374 CONFUSION OF GOODS. ‘parent exceptions. When examined, these cases will be found to be based upon the idea that, if the testimony sought cannot possibly be used as a basis for, or in aid of, a criminal prosecution against the wit- ness, the rule ceases to apply, its object be- ing to protect the witness himself and no one else— much less that it shall be made use of as a pretext for securing immunity to others.” Brown, J. Brown v. Walker, 161 U. S. 596. —— Testifying as Witness and Examina- tion as Accused Distinguished. “ The rule that the confession must be voluntary is applied to cases where the accused has been examined before a magistrate, in the course of which exami- nation the confession is made, as allowed and restricted by statute in England and in this country in many of the states. But it is held that there’ is a well- defined distinction between an examination when the person testifies as a witness and when he is examined asia party accused and that where the accused is sworn, any confes- sion he may make is deprived of its volun- tary character, though there is a contrariety of opinion on this point.” Futrer, C. J. Wilson vw. U. S., 162 U. S. 623. — Waiver of Privilege. “Tf the witness himself [in a criminal case] elects to waive his privilege [of not being compelled to be a witness against himself], as he may doubtless be, since the privilege is for his protection and not for that of other parties, and discloses his crim- inal connections, he is not permitted to stop, but must go on and make a full disclo- sure.” Brown, J. Brown v. Walker, 161 U. S. 597. Nature of Evidence Of. “A confession, if freely and voluntarily made, is evidence of the most satisfactory character.” Hartan, J. Hopt v. Utah, 110 Uz. S. 584. “A deliberate voluntary confession of guilt is among the most effectual proofs in the law, and constitutes the strongest evidence against the party making it that can be given of the facts stated in such confession.” Hartan, J. Hopt v. Utah, 110 U. S. 584. “Free, deliberate and voluntary confes- sions of guilt are entitled to great weight.” Futter, C. J. Wilson wv. U. S., 162 U. S. 621. —— Made in Presence of Witness Alone. “Verbal confessions or admissions, made in the presence of the witness alone, consti- tute, it is true, very unsatisfactory evidence, partly because of the facility with which they may be fabricated.” Hartan, J. Beckwith v. Bean, 98 U. S. 280. Should be Received with Caution. “Elementary writers of authority concur in saying that, from the very nature of such evidence it must be subjected to care- ful scrutiny and received with great cau- tion.” Haran, J. Hopt v. Utah, 110 U. S. 584. To the same effect see the language of Futter, C. J., in Wilson v. U. S., 162 U. S. 621. CONFIRMATION. “A confirmation is a conveyance of an estate or right in lands to one who has the possession or some estate therein.” FreExp, J. Morrow v. Whitney, 95 U. S. 554. CONFISCATE. Definition. “The verb confiscate is derived from the latin, con with, and fiscus, a basket, or hamper, in which the emperor’s treasure was formerly kept. The meaning of the word to confiscate is to transfer property from pri- vate to public use; or to forfeit property to the prince or state.” CuHaAsE, J. Ware v. Hylton, 3 Dall. 234. CONFISCATION. See CaprurE, RECAPTURE, CONFISCATION, AND PrIzE; INFORMERS. CONFLICT OF LAWS. See CorporaTIONS; Foreign Laws; In- TERPRETATION AND COoNSTRUCTION; LIMITA- TION OF ACTIONS; MARRIAGE AND MARRIED Women; Mortcaces; PrersoNAL PROPERTY; ProBATE AND ADMINISTRATION. CONFUSION OF GOODS. “Each contributor to a common fund be- comes interested in the fund in proportion to his contribution. Each owner of prop- erty intermingled with other property of the same kind and value, and stored in a com- mon mass, becomes the owner as tenant in common of an interest in the mass propor- tionate to his contribution. If loss occurs 375 CONGRESS. while the common ownership continues, each owner must sustain his proportionate share.” Waits, C. J. Intermingled Cotton Cases, 92 Uz. S. 653. CONGRESS. As to power of taxation, see TAXES; right to declare war, see War; public property, see Pustic BuILpINGs or PROPERTY ; public lands, see Pupric Lanbs; power to refund payments, see Pay- MENT; distinctions between powers of states and general government, see UNITED STATEs ; different departments of government, see GOVERN MENT. : See also Capture, RECAPTURE, CONFISCA~- TION, AND Prize; CoNsTITUTIONAL LAW} Courts; Evections; GoverNMENtT; ImmMI- GRATION; INDIANS; INTERNATIONAL Law; LecaL TEnpER; Licenses; Money; Mownop- OLIES AND CorPorRATE TRuSTS; NATIONAL Banxs; Narurarization; NavicaBLE Wa- TERS; NAVIGATION; OFFICES AND OFFICERS} PRESIDENT; STATES; STATUTES, Creature of the Constitution. “Congress . . . has no existence ex- cept by virtue of the Constitution. It is the creature of the Constitution.” Haran, J., dissenting. Downes v. Bidwell, 182 U. S. 382. Organization. “When the senators and representatives of a state are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other depart- ment of the government, and could not be questioned in a judicial tribunal.” Taney, C. J. Luther v. Borden, 7 How. 42. Apportionment of Representation. “ Although the Constitution has declared that representatives shall be apportioned among the states according to their respec- tive federal numbers; and, for this purpose it has expressly authorized Congress, by law, to provide. for an entimeration of the popu- lation every ten years; yet the power to ap- portion representatives after this enumera- tion is made, is nowhere found among the express powers given to Congress, but it has always beeh acted upon as irresistibly flowing from the duty positively enjoined by the Constitution.” Story, J. Prigg v. Penn- sylvania, 16 Pet, 619. Official Action — Conduct and Rules. “The two houses of Congress are legis- lative bodies representing larger constituen- cies. Power is not vested in any one indi- vidual, but in the aggregate of the members who compose the body, and its action is not the action of any separate member or num- ber of members, but the action of the body as a whole; and the question which has over and over again been raised is, what is neces- sary to constitute the official action of this legislativé and representative body.” Brewer, j. U.S. v. Ballin, 144 U. S. 7. “While the framers of the Constitution did not adopt the lex et consuetudo of the English Parliament as a whole, they did in- corporate such parts of it, and with it stich ptivileges of Parliament, as they thought proper to be applied to the two houses of Congress.” Muitter, J. Kilbourn v. Thomp- son, 103 U. S. 201. ~<—-Each House May Make Its Own Rules. “The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation be- tween the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more ac- curate of even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules ig not one which once exercised is ex- hausted. It is a continuous power, always subject to be exercised by the house, and within the limitations suggested, absolute and beyond the challenge of any body or tribu- nal.” Brewer, J. U. S. v. Ballin, 144 UL. S. 5. —— Quorum. “The general rules of all parliamentary bodies is that, when a quorum is present, the act of a majority of a quorum is the act of the body. This has been the rule for all time, except so far as in any given case the terms of the organic act under which the body is assembled has prescribed specific 376 CONGRESS. limitations, As, for itstance, in those states where the constitution provides that a ma- jority of all the members elected to either house shall be necessary for the passage of any bill.” Brewer, J. U. S. v. Ballin, 144 U.S. 6. “How shall the presence of a majority [in each house of Congress] be determined? The Constitution has prescribed no method of making this determination, and it is there- fore within the competency of the house to prescribe any method which shall be reason- ably certain to ascertain the fact. It may prescribe answer to roll-call as the only method of determination; or require the passage of members between tellers, and their count as the sole test; or the count of the speaker or the clerk, and an announce- ment from the desk of the names of those who are present.” Brewer, J. U. S. v. Bal- lin, 144 U. S. 6. “The Constitution provides that ‘major- ity of each [house] shall-constitute a quo- rum to do business.’ In other words, when a majority are present, the house is in a position to do business, Its capacity to trarisact business is then established, created by the mere presence of a majority, and does not depend upon the disposition or assent or action of any single member or fraction of the majority present. All that the Con- stitution requires is the presence of a ma- jority, and when that majority are present the power of the house arises.” Brewer, J. U.S. v. Ballin, 144 U. S. 5. — Right to Expel. “The right to expel extends to all cases where the offense is such as in the judg- ment of the Senate is inconsistent with the trust and duty of a member.” Futter, C. J. In re Chapman, 166 U. S. 669. —— Punishment for Contempt. “ By the second clause of the fifth section of the first article [of the Constitution], ‘each house may determine the rules of its proceedings, punish its members for dis- orderly behavior, and with the concurrence of two-thirds, expe! a member,’ and by the clause immediately preceding, it ‘may be authorized to compel the attendance of ab- sent members, in such manner and under stich penalties as each house may provide.’ These provisions are equally instructive in what they authorize and in what they do not authotize. There is no expfess power in that instrument conferred on either house of Congress to punish for contempt.” Mu1- LER, J. Kilbourn v. Thompson, 103 U. S. 182, “The power to punish for contempt still remains in each house [of Congress].” Fuuter, C. J. In re Chapman, 166 UV, S. 672. “The refusal to answer pertinent ques- tions in a matter of inquiry within the juris- diction of the Senate, of course, constitutes a contempt of that body, and by the statute this is also made an offense against the United States. Futter, C. J. In re Chap- man, 166 U. S. 671. “That a deliberate assembly [the House of Representatives] clothed with the majesty ‘ of the people, and charged with the care of all that is dear to them; composed of most distinguished citizens, selected and drawn together from every quarter of a great nation; whose deliberations are re- quired by public opinion to be conducted under the eye of the public, and whose de- cisions must be clothed with all that sanctity which unlimited confidence in their wisdom and purity can inspire, that such an assem- bly should not possess the power to suppress rudeness, or repel insult, is a supposition too wild to be suggested.” Jounson, J. Ander- son v. Dunn, 6 Wheat. 228. “It is certainly true, that there is no power given by the Constitution to either house to punish for contempts, except when committed by their own members. Nor does the judicial or criminal power given to the United States, in any part, expressly extend to the infliction of punishment for contempt of either house, or any one co-ordinate branch of the government.” JoHNson, J. Anderson v. Dunn, 6 Wheat. 225. Exemptions of Members. “The senators and representatives in Con- gress are, in all cases, except treason, felony, and breach of the peace, exempted from ar- test during their attendance at the sessions thereof, and in going to and returning from the same. May not Congress enforce this right by authorizing a writ of habeas corpus to free them from an illegal arrest in viola- tion of this clause of the Constitution? If it may not, then the specific remedy to en- force it must exclusively depend upon the local legislation of the states; and may be granted or refused according to their own varying policy, or pleasure.” Story, J. Prigg v. Pennsylvania, 16 Pet. 619. 3tT CONGRESS. é Constitution of Congress at Time of Revo- lution. “When our revolutionary struggle com- menced, Congress was composed of an as- semblage of deputies acting under specific powers granted by the legislatures, or con- ventions of the several colonies. It was a great popular movement, not perfectly organ- ized; nor were the respective powers of those who were intrusted with the management of affairs accurately defined. The necessities of our situation produced a general conviction that those measures which concerned all must be transacted by a body in which the representatives of all were assembled, and which could command the confidence of all; Congress, therefore, was considered as in- vested with all the powers of war and peace, and Congress dissolved our connexion with the mother country, and declared these united colonies to be independent states.” MarsHALt, C. J. Worcester v. Georgia, 6 Pet. 558. “The powers of Congress were revolu- tionary in their nature, arising out of events, adequate to every national emergency, and co-extensive with the object to be attained.” Paterson, J. Penhallow v. Doane’s Adm’rs, 3 Dall. 80. “Congress was the general, supreme, and controlling council of the nation, the centre of union, the centre of force, and the sun of the political system. To determine what their powers were, we must enquire what powers they exercised.” Paterson, J. Penhallow v. Doane’s Adm’rs, 3 Dall. 80. “The powers of Congress originated from necessity, and arose out of, and were only limited by, events, or, in other words, they were revolutionary in their very nature. Their extent depended on the exigencies and necessities of public affairs.” Cuass, J. Ware v. Hylton, 3 Dall. 232. Powers — Only Those Granted Expressly or by Necessary Implication. “In construing the federal Constitution, Congress must be held to have only those powers which are granted expressly or by necessary implication.” Srrone, J. Council Bluffs, etc., R. Co. v. Otoe County, 16 Wall. 672, “Congress can pass no laws but such as the federal Constitution expressly, or by necessary intendment, permits.” Swayne, J. Pine Grove Tp. v. Talcott, 19 Wall. 676. “That Congress has no authority to pass laws and bind men’s rights beyond the powers conferred by the Constitution, is not open to controversy.” Catron,-J. Scott v. Sandford, 19 How. 519. “The power of Congress over the person or property of a citizen can never be a mere discretionary power under our Consti- tution and form of government. The powers of the Government and the rights and privi- leges of the citizen are regulated and plainly defined by the Constitution itself.” Tawney, C. J. Scott v. Sandford, 19 How. 449. “Every valid Act of Congress must find in the Constitution some warrant for its passage.” Woops, J. U. S. v. Harris, 106 Uz. S. 636. “While undoubtedly the United States as a nation has all the powers which inhere in any nation, Congress is not authorized in all things to act for the nation.’ BREWER, J., concurring. Turner v. Williams, 194 U~. S. 295. “Congress has no power except such as has been expressly granted to it, or such as is necessary or proper for carrying into ex- ecution the powers specified, and those vested by the Constitution in the government, or some department or officer thereof.” Srrone, J., dissenting. Sinking-Fund Cases, 99 U. S. 737. “Any legislation by Congress beyond the limits of the power delegated, would be tres- passing upon the rights of the states or the people, and would not be the supreme law of the land, but null and void; and it would be the duty of the courts to declare it so.” Taney, C. J. Gordon v. U. S, 117 U. S. 705. : “The legislative power of Congress is delegated and not inherent, and is therefore limited.” Futter, C. J., dissenting. Mor- mon Church vw. U. S., 136 U. S. 67. “In my opinion Congress is restrained, not merely by the limitations expressed in the Constitution, but also by the absence of any grant of power, express or implied, in that instrument.” Futter, C. J., dissenting. Mormon Church v. U. S., 186 U. S. 67. “Tt is difficult to say that any power can be exercised by Congress, which is not de- rived from the Constitution. Without that instrument, it is as powerless as any other association of men. The laws of the Union protect our commerce wherever the flag of the country may float, and, in some instances, our own citizens may be made responsible 378 CONGRESS. for acts done in foreign seas and countries; but this is the exercise of powers given by the Constitution.” McLean, J., dissenting. U. S. v. Guthrie, 17 How. 309. “Most of the powers granted to Congress are described in the eighth section of the first article [of the Constitution]; the lim- itations intended to be set to its powers, so as to exclude certain things which might otherwise be taken to be included in the gen- eral grant, are defined in the ninth section; the tenth section is addressed to the States only.” Gray, J. Legal Tender Case, 110 U.S. 446. “The authority for the exercise of power by the Congress of the United States must be found in the Constitution. Whatever it does in excess of the powers granted to it, or in violation of the injunctions of the supreme law of the land, is a nullity, and may be so treated by every person.” Har- LAN, dissenting. Robertson v. Baldwin, 165 Uz. S. 296. “{Congress] has no power which {the Constitution] has not granted, expressly or by necessary implication.” Harian, J., dissenting. Downes v. Bidwell, 182 U. S. 382. “The power of Congress to act directly on the rights and interests of the people of the states can only exist if, and as, granted by the Constitution.” Fuuzer, C. J., dissent- ing. Downes v. Bidwell, 182 U. S. 354. “When the Constitution declares that ‘no bill of attainder or ex post facto law shall be passed,’ and that ‘no title of nobility shall be granted by the United States,’ it goes to the competency of Congress to pass a bill of that description.” Brown, J. Downes v. Bidwell, 182 U. S. 277. —— Of the Two Branches of Congress. “The powers of Congress itself, when acting through the concurrence of both branches, are dependent solely on the Con- stitution. Such as are not conferred by that instrument, either expressly or by fair im- plication from what is granted, are ‘re- served to the states respectively, or to the people.’ Of course, neither branch of Con- gress, when acting separately, can lawfully exercise more power than is conferred by the Constitution, or the whole body, except in the few instances where authority is con- ferred on either house separately, as in the case of impeachments.” Mutter, J. Kil- bourn v. Thompson, 103 U. S. 182. “The Senate is [by the Constitution] made a partaker in the functions of appointing of- ficers and making treaties, which are sup- posed to be properly executive, by requiring its consent to the appointment of such offi- cers and the ratification of treaties.” MuL- Ler, J. Kilbourn v. Thompson, 103 U. S. 191, See also IMPEACHMENT; TREATIES. — No Power by Virtue of Sovereignty of General Government. “Congress can exercise no power by vir- tue of any supposed inherent sovereignty in the general government. Indeed, it may be doubted whether the power can be correctly said to appertain to sovereignty in any proper sense as an attribute of an independ- ent political community.” Fretp, J., dis- senting. Legal Tender Case, 110 U. S. 467. — Not Vested with the Powers of Brit- ish Parliament. “The Constitution gives no countenance to the theory that Congress is vested with the full powers of the British Parliament, and that, although subject to constitutional limitations, it is the sole judge of their ex- tent and application; and the decisions of this court from the beginning have been to the contrary.” FuLuer, C. J., dissenting. Lottery Case, 188 U. S. 372. —— Concessions from People of States. “All the legislative powers [of Congress] are concessions of sovereignty from the people of the states.” Wayne, J. Dodge v. Woolsey, 18 How. 349. —— Cannot Do Indirectly What Is Pro- hibited Directly. - Congress cannot do indirectly what the Constitution prohibits directly.” Catron, J. Scott v. Sandford, 19 How. 527. “Tt may be conceded that Congress can- not, under cover of giving a construction to an existing or an expired statute, invade private rights, with which it could not inter- fere with a new or affirmative statute.” Mruerr, J. Stockdale v. Insurance Cos., 20 Wall. 332. —— Granted Powers Subject to Limita- tion. “The power of Congress, even over those subjects upon which it has the right to leg- islate, is not despotic, but is subject,to certain constitutional limitations. One of these is, that no person shall be deprived of life, lib- erty, or property without due process of law; another is, that private property shall 379 CONGRESS. not be taken for public use without just com- pensation; and a third is, that the judicial power of the United States is vested in the supreme and inferior courts, and not ia Congress.” Brapizy, J. dissenting. Sink- ing-Fund Cases, 99 U. S. 744. —— Powers of War and Peace. “In Congress were vested, because by Congress were exercised with the approba- tion of the people, the rights and powers of war and peace.” Parerson, J. Penhallow w Doane’s Adm’rs, 3 Dall. 80. “Congress has power to declare war and to create and equip armies and navies. It has the great power of taxation to be exer- cised for the common defense and general welfare. Having such powers, it has such other and implied ones as are necessary and appropriate for the purpose of carrying the powers expressly given into effect.” Prcx- HAM, J. U.S. v. Gettysburg Electric R. Co., 160 UV. S. 681. See also War. — To Preserve Republican Form of Government in States. “As the United States guarantee to each state a republican government, Congress must necessarily decide what government is established in the state before it can deter- mine whether it is republican or not.” Taney, C. J. Luther wv. Borden, 7 How. 42. “It rests with Congress to decide what government is the established one of a state.” Taney, C. J. Luther v. Borden, 7 How. 42. “Unquestionably a military government, established as the permanent government of the state, would not be a republican gov- ernment, and it would be the duty of Con-” gress to overthrow it.’ Taney, C. J. Lu- ther v. Borden, 7 How. 45. ——- Protection of Right or Immunity. * A right or an immunity, whether created by the Constitution, or only guaranteed by it, even without any express delegation of power, may be protected by Congress.” Strone, J. Strauder v. West Virginia, 100 U.S. 310. “Tt has been the established doctrine of this court during all its history, accepted as essential to the national supremacy, that Congress, in the absence of a positive delega- tion of power to the state legislatures, may, by its own legislation, enforce and protect any right derived from or created by the. national Constitution.” Harzan, J., dissent. ing. Civil Rights Cases, 109 U. S. 60 See also Civ. Ricuts. —— Functions Legislative. “Tt is their [Congress] duty to legislate, so far'as it is necessary to carry the Con- stitution into effect. It is ours only to judge.” reper, J. Chisholm v. Georgia, 2 Dall. 433. “Tt will hardly be contended that Con- gress can interpose, in any case, to restrain the enactment of an unconstitutional law.” CuaAsE, C. J. Mississippi v. Johnson, 4 Wall. 500. “Congress can always adopt such laws and regulations as it may deem expedient for protecting the interests of the government.” Brapiey, J. Merritt v. Welsh, 104 U. S. 701. “The power vested in Congress, as the legislature of the United States, to legislate exclusively within any place ceded by a state, carries with it, as an incident, the right to make that power effectual.” MarsHa, C. J. Cohens v. Virginia, 6 Wheat. 428. —— Making Rules and Regulations for Territory. “The power of Congress to make rules and regulations for territory incorporated in or owned by the United States is settled by an unbroken line of decisions of this court and is no longer open to question.” Day, J. Kepner v. U. S., 195 U. S. 124. See also TERRITORIES, «—— Interference with Judicial Power of U. S. “We think it proper to state that we do not consider Congress can either withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty; nor, on the other hand, can it bring under the judicial power a matter which, from its nature, is not a subject for judicial deter- mination. At the same time there are mat- ters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determina- tion, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper. Equitable claims to Jand by the inhabitants of ceded territories form a striking instance of such a class of cases; and as it depends upon the will of Congress whether a remedy CONGRESS. in the courts shall be allowed at all, in such cases, they may regulate it and prescribe such rules of determination as they may think just and needful. Thus it has been repeatedly decided in this class of cases, that upon their trial the acts of executive officers, done under the authority of Congress, were conclusive, either upon particular facts in- volved in the inquiry or upon the whole title. Gs It is true, also, that even in a suit between private persons to try a question of private right, the action of the executive power, upon a matter committed to its de- termination by the Constitution and laws, is conclusive.” Curtis, J. Murray v. Hoboken Land, etc., Co., 18 How. 284. “The Constitution of the United States delegates no judicial power to Congress. Its powers are confined to legislative duties, and restricted within certain prescribed limits.’ Taney, C. J. Gordon v. U. S., 117 U.S. 705. As to the separate departments of the gov- ernment, see generally GovERNMENT. Enactment of Laws Necessary for Execu- tion of Powers. “Congress may indeed make all laws nec- essary and proper for carrying the powers granted to it into execution.” Futter, C. J., dissenting. Lottery Case, 188 U. S. 365. “That a power to make laws for carrying into execution all the judgments which the judicial department has power to pronounce, is expressly conferred by this clause [em- powering Congress to make all laws neces- sary for carrying out the enumerated powers] seems to be one of those plain propositions which reasoning cannot render plainer. The terms of the clause neither require nor admit of elucidation.” MarsHatt, C. J. Wayman v. Southard, 10 Wheat. 22. “The result of the most careful and at- tentive consideration bestowed upon this clause [authorizing Congress to make nec- essary laws] is, that if it does not enlarge, it cannot be construed to restrain the pawers of Congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures to carry into ex- ecution the constitutional powers of the gov- ernment. 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 in- eidental powers which must be involved in the Constitution, if that instrument be not a splendid bauble.” Marsuatt, C. J. Mc- Culloch v. Maryland, 4 Wheat. 420. “No one has ever supposed that Congress could, constitutionally, exercise powers, or enact laws beyond the powers delegated to it by the Constitution. But it has, on various occasions, exercised powers which were nec- essary and proper as means to carry into effect rights expressly given, duties ex- pressly enjoined thereby.” Srory, J. Prigg v. Pennsylvania, 16 Pet. 618. “That the government of the United States is one of delegated powers only, and that its authority is defined and limited by the Constitution, are no longer open ques- tions; but express authority is given Con- gress by the Constitution to make all laws necessary and proper to carry into effect the powers that are delegated. Within the legitimate scope of this grant Congress is permitted to determine for itself what is necessary and what is proper.” Waite, C. J. Ex p. Curtis, 106 U. S. 372. “Congress may make all laws which shall be necessary and proper for carrying the powers granted by the Constitution into ex- ecution.” Currrorp, J. U. S. uv. Hall, 98 U. S. 351. — Choice of Means to Execute Powers Granted. “Congress must possess the choice of means, and must be empawered to use any means which are in fact conducive to the exercise of a power granted by the Canstitu- tion.” MarsHat, C. J. U. S. v. Fisher, 2 Cranch 396. “The Constitution of the United States, by apt words of designation or general de- scription, marks the outlines of the powers granted to the national legislature; but it does not undertake, with the precision and detail of a code of laws, to enumerate the subdivisions of those powers, or to specify all the means by which they may be carried into execution.” Gray, J. Legal Tender Case, 110 U. S. 439. “The sound construction of the Constitu- tion must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be car- ried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people.” MarsHartt, C. J. McCulloch wv. Maryland, 4 Wheat. 421. “Congress has a large discretion as to the means to be employed in the execution of a power conferred upon it.” Harvan, J. Boske v. Camingore, 177 U. S. 468. 381 CONGRESS. “Tt [Congress] has, all will agree, a large discretion as to the means to be employed in the exercise of any power granted to it.” Harian, J. Northern Securities Co. v. U. S., 193 U. S, 343. “Tf the right is conceded to be in Con- gress, it necessarily follows, that she is the judge of the exercise of the right, as to the extent, mode, and manner.’ (CHASE, J. Ware v. Hylton, 3 Dall. 224. “In accomplishing the objects of a power granted to it, Congress may employ any one or all the modes that are appropriate to the end in view, taking care only that no mode employed is inconsistent with the limitations of the Constitution.” Hartan, J. Inter- state Commerce Com. v. Brimson, 154 U. S. 478. “Congress has power to make all laws which shall be necessary and proper for car- rying into execution all the powers vested by the Constitution in the government of the United States, or in any department or officer thereof. If the end be legitimate and within the scope of the Constitution, then, to accomplish it, Congress may use ‘all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution.” The grave duty of determining whether an Act of Congress does or does not comply with these require- ments is only to be discharged by applying the well settled rules which govern the in- terpretation of fundamental law, unaffected by the theoretical opinions of individuals.” Futter, C. J., dissenting. Downes v. Bid- well, 182 U. S. 375, “Among the powers which the Constitu- tion expressly confers upon Congress is the power to make all laws necessary and proper for carrying into execution the powers spe- cifically granted to it, and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof. In the exercise of this general power of legislation, Congress may use any means, appearing to it most eligible and appropriate, which are adapted to the end to be accomplished, and are consistent with the letter and the spirit of the Constitution.” Gray, J. Logan v. U. S., 144 U. S.. 283. “The power [of Congress] to collect and disburse revenue, and to make all laws which shall be necessary and proper for carrying that power into effect, includes all known and appropriate means of effectually collect- ing and disbursing that revenue, unless some such means should be forbidden in some other part of the Constitution.” Curtis, J. Murray v. Hoboken Land, etc., Co., 18 How. 281. -—— Limitation of Rule. “Tt may be conceded that Congress is not authorized to enact laws in furtherance even of a legitimate end, merely because they are useful, or because they make the government stronger. There must be some relation be- tween the means and the end; some adapted- ness or appropriateness of the laws to carry into execution the powers created by the Constitution.” Srrone, J. Legal Tender Cases, 12 Wall. 543. “Congress may not adopt any means for the execution of an express power that Con- gress may see fit to adopt. It must be a necessary and proper means within the fair meaning of the rule. If not such it can- not be employed consistently with the Con- stitution.” CHass, C. J., dissenting. Legal Tender Cases, 12 Wall. 571. “Tt is insisted that the express powers of Congress are limited in their exercise to the objects for which they were intrusted, and that in order to justify Congress in exercis- ing any incidental or implied powers to carry into effect its express authority, it must appear that there is some relation between the means employed and the legitimate end. This is true.” FuLier, C. J. Iw re Rapier, 143 U. S. 133. Power to Make Contracts and Appropriate Money. “We do not doubt, however, that upon the principles settled, Congress may, in the exercise of powers incidental to the express powers mentioned by counsel, make or authorize contracts with individuals or corporations for services to the govern- ment; may grant aids, by money or land, in preparation for, and in the performance of, such services; may make any stipulation and conditions in relation to such aids not con- trary to the Constitution; and may exempt, in its discretion, the agencies employed in such services from any state taxation which will really prevent or impede the perform- ance of them.” CuaAssr, C. J. Thomson vz. Pacific R. Co., 9 Wall. 589. “Under the provisions of the Constitution (artiele 1, section 8), Congress has power to lay and collect taxes, etc, ‘to pay the debts’ of the United States. Having power to raise money for that purpose, it of course 382 CONGRESS. follows that it has power when the money is raised to appropriate it to the same object. What are the debts of the United States within the meaning of this constitutional pro- vision? It is conceded and indeed it cannot be questioned that the debts are not limited to those which are evidenced by some written obligation or to those which are otherwise of a strictly legal character. The term ‘debts’ includes those debts or claims which rest upon a merely equitable or honorary ob- ligation, and which would not be recoverable in a court of law if existing against an in- dividual. The nation, speaking broadly, owes a ‘debt’ to an individual when his claim grows out of general principles of right and justice; when, in other words, it is based upon considerations of a moral or merely honorary nature, such as are binding on the conscience or the honor of an individual, although the debt could obtain no recognition in a court of law.” Precxuam, J. U.S. w. Realty Co., 163 U. S. 440. —— Payments in Nature of Gratuity. “Payments to individuals, not of right or of a merely legal claim, but payments in the nature of a gratuity, yet having some feature of moral obligation to support them, have been made by the government by virtue of Acts of Congress, appropriating the public money, ever since its foundation.” Prcx- Ham, J. U.S. uv. Realty Co., 163 U. S. 441. ‘The power to provide for claims upon the state founded in equity and justice has also been recognized as existing in the state governments.” PrcxuHam, J. U. S. v. Realty Co., 163 U. S. 443. “Of course, the difference between the powers of the state legislatures and that of the Congress of the United States is not lost sight of, but it is believed chat in relation to the power to recognize and to pay obligations resting only upon moral considerations or upon the general principles of right and jus- tice, the federal Congress stands upon a level with the state legislature.” PzckHam, J. U.S. uv. Realty Co., 163 U. S. 443. Power to Borrow Money. “No one can select which is of more vital interest to the community than this of bor- towing money on the credit of the United States. No power has been conferred by the American people on their government, the free and unburdened exercise of which more deeply affects every member of our republic. In war, when the honor, the safety, the inde- pendence of the nation are to be defended, when all its resources are to be strained to the utmost, credit must be brought in aid of taxation, and the abundant revenue of peace and prosperity must be anticipated to supply the exigencies, the urgent demands of the moment. The people, for objects the most important which can occur in the progress of nations, have empowered their government to make these anticipations, ‘to borrow money on the credit of the United States.’” MarsHa.L, C. J. Weston v. City Council, 2 Pet. 465. “Congress has power ‘to borrow money on the credit of the United States.’ The stock it issues is the evidence of a debt cre- ated by the exercise of this power.” Mar- SHALL, C. J. Weston v. City Council, 2 Pet. 465. “The words ‘to borrow money,’ as used in the Constitution, to designate a power vested in the national government, for the safety and welfare of the whole people, are not to receive that limited and restricted in- terpretation and meaning which they would have in a penal statute, or in an authority conferred, by law or by contract, upon trus- tees or agents for private purposes.” Gray, J. Legal Tender Case, 110 U. S. 444. “The power ‘to borrow money on the credit of the United States’ is the power to raise money for the public use on a pledge of the public credit, and may be exercised to meet either present or anticipated expenses and liabilities of the government. It includes the power to issue, in return for the money borrowed, the obligations of the United States in any appropriate form, of stock, bonds, bills or notes; and in whatever form they are issued, being instruments of the na- tional government, they are exempt from taxation by the governments of the several states.” Gray, J. Legal Tender Case, 110 U.S. 444. “The authority to borrow money on the credit of the United States is, in the enu- meration of the powers expressly granted by the Constitution, second in place, and only second in importance to the authority to lay and collect taxes. Both are given as means to the exercise of the functions of govern- ment under the Constitution; and both, if neither had been expressly conferred, would be necessarily implied from other powers. For no one will assert that without them the great powers— mentioning no others — to raise and support armies, to provide and maintain a navy, and to carry on war, could be exercised at all; or, if at all, with ade- 383 CONQUESTS. quate efficiency.” CuHase, C. J. Banks v. Mayor, 7 Wall. 23. “The power of the general government to borrow money on the credit of the United States, is not only an express power granted to Congress, but one that it must have been foreseen would be brought into practical operation, and that stock would of course be created.” THompson, J., dissenting. Wes- ton v, City Council, 2 Pet. 477. . See also Bits oF CREDIT. Delegation of Power. “Tt will not be contended that Congress can delegate to the courts, or to any other tribunals, powers which are strictly and ex- clusively legislative. But Congress may cer- tainly delegate to others, powers which the legislature may rightfully exercise itself.” MarsHatt, C. J. Wayman v. Southard, 10 Wheat. 43. “The right of Congress to delegate to the courts the power of altering the modes (established by the process of act) of pro- ceedings in suits, has been already stated; but, were it otherwise, we are well satisfied that the state legislatures do not possess that power.” MarsHatt, C. J. Wayman zw. Southard, 10 Wheat. 50. “Tt is not in the power of Congress to transfer any part of the jurisdiction which the Constitution has vested in the federal government. If this can be done by Con- gress, to any extent, it may be done without limitation; and in this way the powers of the federal government might be lessened or ut- terly destroyed.” McLean, J., dissenting. U. S. v. Bailey, 9 Pet. 259. “The Constitution vests all the legislative power of the federal government in Con- gress; and from its nature this power cannot be delegated to others, except as its delega- tion may be involved by the creation of an inferior local government or department. Congress can endow territorial government and municipal corporation with legislative powers as the possession of such powers for certain purposes of local administration is indispensable to their existence. So, also, it can invest the heads of department and of the army and navy with power to prescribe regulations to enforce discipline, order, and efficiency. Its possession is implied in their creation; but legislative power over subjects which come under the immediate control of Congress, such as defining offenses against the United States and prescribing punish- ment for them cannot be delegated to any other government or authority. Congress cannot, for example, leave to the state the enactment of laws and restrict the United States to their enforcement.” FreLp, J., dis- senting. Ex p. Clarke, 100 U. S, 421. “Tt does not admit of argument that Con- gress can neither delegate its own powers nor enlarge those of a state.” Futzer, C. J. In re Rahrer, 140 U. S. 560. “Congress cannot give a right to a state ‘in virtue of its own powers.” MarsHALt, C. J. Gibbons v. Ogden, 9 Wheat. 202. “Tf Congress has power to delegate to a body of miners the making of additional regulations respecting location, it cannot be doubted that it has equal power to delegate similar authority to a state legislature.” Brewer, J. Butte City Water Co. wv. Baker, 196 U. S. 127. CONNECTING CARRIERS. See Carriers, CONQUESTS. See Caprure, RECAPTURE, CONFISCATION, AND Prize; MartiaL Law; War. Conquests and Booty Distinguished. “Generally speaking, forts, cities, lands taken from the enemy are called conquests; movables taken on land, booty.” Futter, C. J. The Manila Prize Cases, 188 U. S. 271. Conquest Results from State of War. “ Conquest is, undoubtedly, the assertion of a right, but it is the right to conquer which results from a state of war.’ Wayne, J., dissenting. U. S. v. Castillero, 2 Black 369. Nation Cannot Make Conquest of Its Own Territory. “Belligerent rights cannot be exercised when there are no belligerents. Conquest of a foreign country, if permanent, gives abso- lute and unlimited right; but no nation can make such a conquest of its own territory.” CuiFForpD, J. Ford v. Surget, 97 U. S. 614. Title Conferred by Conquest. “Complete conquest, by whatever mode it may be effected, carries with it all the rights of the former government, or in other words, the conqueror, by the completion of his con- quest, becomes the absolute owner of the property conquered from the enemy, nation, or state. His rights are no longer limited to mere occupation of what he has taken into 884 CONQUESTS. his actual possession, but they extend to all the ptoperty ard rights of the cotiquered state, including even debts as well as per- sonal and real property.” CLiFForD, J. U.S. v. Huckabee, 16 Wall. 434. “Conquest gives a title which the courts of the conqueror cannot deny, whatever the private atid speculative opinions of individ- ttals may be, respecting the original justice of the claim, which has been successfully as- serted.” MarsHALL, C. J. Johnson v. Mc- Intosh, 8 Wheat. 588. —— Consummation by Treaty. “All captutes in war vest primarily in the sovereign, but in respect to real property, Chancellor Kent says, the acquisition by the conqueror is not fully consummated until confirmed by a treaty of peace, or by the entire submission or destruction of the state to which it belonged.” Ctirrorp, J. U. S. v. Huckabee, 16 Wall. 434. “The absolute title to immovable public property owned by the enemy does not pass until the war is ended and peace restored. Then, uttless provision is made to the con- trary by the treaty of peace or otherwise, the ownetship is changed if the conquest is made complete.” Wartrtr, C. J. Kirk uv. Lynd, 106 U.S. 317. —— Conquered Territory Considered Part of Conqueror’s Domain During His Pos- session. “ Although acquisitions made during war are not considered as permanent until con- firmed by treaty, yet fo every commercial and belligerent purpose, they are considered as part of the domain of the conqueror, so long as he retains the possession and government of them.” Marswatt, C. J. Thirty Hogs- heads Sugar v. Boyle, 9 Cranch 195. “Tn war the public property of an enemy captured on land becomes, for the time being at least, the property of the conqueror. No judicial proceeding is necessary to pass the title. Usually the ultimate ownership of real pfoperty is settled by the treaty of peace, but so long as it is held and not surrendered by a treaty or otherwise it remains the property of the conqueror.” Warrte, C. J. Titus v. U. S., 20 Wall. 481. — Reconquest. “Tf a hostile power, either from without or within a nation, takes possession and holds absolute dominion over any portion of its tetritory, and the nation by force of arms expels or overthrows the enemy and sup- 1 Os, Dic.—25 presses hostilities, it acquires no new title, but merely regains the possession of what it had been temporarily deprived.” Cuir- ForD, J. Ford v. Surget, 97 U. S. 614. Right of Conqueror to Exact Indemnity. “A declaration of war undoubtedly in- volves the assertion of the right to measure and forcibly to exact an indemnity for the wrotig which has occasioned the war. To seize, to cortquer, or to destroy an etierny’s goods, his territory or his artned adhererits are but the means of exacting this indem- nity.’ Wayne, J., dissenting. U. S. v. Cas- tillero, 2 Black 368. Conquered Should Not Be Oppressed. “The title by conqtiest is acquired and maintained by force. The conqueror pte- scribes its limits. Humanity, however, act- ing on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their con- dition shall remain as is compatible with thé objects of the conquest.’ MarsHatt, C. J. Johnson v. M’Intosh, 8 Wheat. 589. Private Property Rights Protected by Law of Nations. “The law of nations, without any treaty, stipulation, or constitutional provision, makes private property inviolable in the cession, re- linquishment, conquest, or military occupa- tion of the territory.” Batpwtn, J., concur- ring. Pollard v. Kibbe, 14 Pet. 421. “When territory is acquired by a cession, or relinquishment of one nation to another, or by conquest, the rights of private property are protected by the law of nations, accord- ing to the law of the territory, though no stipulation is contained in the act of cession or relinquishment; and even in case of con- quest, no other change is effected except as to government: and when a stipu- lation for property is required, it is never refused; and when made, is sacredly ob- served.” Batpwin, J. Pollard v. Kibbe, 14 Pet. 407, “That the rights of war, as deduced by Bynkershoek, from a consideration of its ab- stract nature, are mitigated by the laws of war as established by the general consent of nations, with respect to the effects of conquest, as well as to the mode of warfare is proved by the general recognition of the principle that, on the conquest of an enemy’s territory, private rights of property are to be protected.” Waynz, J., dissenting. U.S. v. Castillero, 2 Black 368. 385 CONSIDERATION. “Tf ‘a nation which has injured another is to be considered as confiscated, with all that belongs to it, to the nation that has received the injury,’ this confiscation must extend to private as well as public property.” WAYNE, J.. dissenting. U. S. uv. Castillero, 2 Black’ 368, “Whatever be the reasonableness or neces- sity of supposing this theoretic confiscation by belligerents, of everything belonging to the enemy, it is manifest that by the laws of nations the confiscation is waived where ter- ritory is conquered, so far as respects private property; and especially where the con- queror, by the terms of the treaty of cession, has bound himself to respect all rights of private property existing at the date of the conquest.” Wayne, J., dissenting. U. S. wv. Castillero, 2 Black 369. “When the United States acquired Cali- fornia the inhabitants were entitled by the law of nations to protection from the new government in all rights of property when possessed by them.” Fietp, J. Knight wv. U. S. Land Assoc., 142 U. S. 200. Contracts of Conqueror —Cessation of Dominion. “We do not intend to impugn the general principle that the contracts of the conqueror touching things in conquered territory lose their efficacy when his dominion ceases.” Swayne; J. New Orleans v. Steamship Co., 20 Wall. 395. Laws of Conquered Nation Remain in Force Until Changed by Conqueror. “By the laws of nations, in all cases of conquest, among civilized countries, having established laws of property, the rule is, that laws, usages, and municipal regulations in force at the time of the conquest remain in force until changed by the new sovereign.” Catron, J. U. S. v. Powers, 11 How. 577. And see JupictaL Notice. Right of Conqueror to Abolish Existing Courts and Establish New Ones. “ Military conquerors, in time of war, may doubtless displace the courts of the con- quered country, and may establish civil tri- bunals in their place for administering jus- tice; and where that is done, it is unquestion- ably true that the jurisdiction of the tribunals established by the conqueror is rightful and conclusive.” CxiFForD, J., dissenting. Cole- man v. Tennessee, 97 U. S, 535. “Military conquerors of foreign states in time of war may doubtless displace the courts of the conquered country; and may establish civil tribunals in their place for administering justice; and in such cases it is unquestionably true that the jurisdiction of suits of every description is transferred to the new tri- bunals.” C.irForp, J., dissenting. Dow »w. Johnson, 100 U. S. 183. Citizens of Conquered Nation Cannot De- part Without Permission of Conqueror. “Another rule of public law, kindred to this one, is, that the conqueror who had ob- tained permanent possession of the enemy's country has the right to forbid the departure of his new subjects or citizens from it, and to exercise his sovereign authority over them. Hence the stipulation in the capitula- tion and treaties of cession providing for the emigration of those inhabitants who desire to adhere to their ancient allegiance, usually fixing a limited period within which to leave the country, and frequently extending to them the privilege, in the meantime, of sell- ing their property, collecting their debts, and carrying with them their effects.” NELSON, J. U.S. v. Repentigny, 5 Wall. 260. Legislative Powers of Military Conqueror — As to Tariff Laws. “The spirit as well as the letter of the tariff laws admit of duties being levied by a military commander only upon importations from foreign countries; and while his power is necessarily despotic, this must be under- stood rather in an administrative than a leg- islative sense. While in legislating for a conquered country he may disregard the laws of that country, he is not wholly above the laws of his own.” Brown, J. Dooley v. U. S., 182 U. S. 234. CONSIDERATION. As to creditor's suspension of an existing demand, see FORBEARANCE. See also Bonps; ConTRACTS; InteGaL Con- TRACTS; MARRIAGE AND MArriep WoMEN; NEGOTIABLE INSTRUMENTS. What Is. “Nothing is consideration that is not re- garded as such by both parties. It is the price voluntarily paid for a promisor’s under- taking.” Strone, J. Philpot v. Gruninger, 14 Wall. 577. Mutual Promises or Performance. “Whether one promise be the considera- tion for another, or whether the performance, and not the mere promise, be the considera- tion, is to be determined by the intention and meaning of the parties, as collected from the 386 | CONSIDERATION. instrument, and the application of good sense and right reason to each particular case.” CutrForD, J. Jones v. U. S., 96 U. S. 27. “Cases often arise where the agreement consists of mutual promises, the one promise being the consideration for the other; and it has never been seriously questioned that such an agreement is valid, and that the par- ties are bound to fulfil their respective stip- ulations.” CLiFFoRD, J. Storm v. U. S., 94 U. S. 83. Parting with Legal Right. “Tt has never been doubted that an agree- ment not to exercise a trade in a particular place was a sufficient consideration to sustain a contract for the payment of money. A for- tiori, the relinquishment of property which a person holds, or controls the use of, as a trust is a sufficient consideration; for it is parting with a legal right.” Story, J. Dart- mouth College v. Woodward, 4 Wheat. 687. Valuable Consideration. “A stipulation in consideration of one dollar is just as effectual and valuable con- sideration as a larger sun stipulated for or paid.” Story, J. Lawrence v. McCalmont, 2 How. 452. —— May Consist of Acts to Be Done. “A valuable consideration may be other than the actual payment of money, and may consist of acts to be done after the convey- ance.” Gray, J. Stanley v. Schwalby, 162 U. S. 276. —— Executory Contracts — Valuable Con- sideration Necessary. “Mere executory contracts cannot be en- forced at law, unless there be a valuable con- sideration to sustain them; and the Constitu- tion certainly did not mean to create any new obligations, or give any new efficacy to nude pacts. But it must, on the other hand, be also admitted, that the Constitution did intend to preserve all the obligatory force of contracts, which they have by the general principles of law.” Story, J. Dartmouth College v. Woodward, 4 Wheat. 683. “There are many rights, franchises, and authorities which are valuable in contempla- tion of law, where no beneficial interest can accrue to the possessor. A grant of the next presentation to a church limited to the grantee alone, has been already mentioned. A power of appointment, reserved in a mar- riage settlement, either to a party or a stran- ger, to appoint uses in favor of third persons, without compensation, is another instance. A grant of lands to a trustee to raise por- tions or pay debts, is, in law, a valuable grant, and conveys a legal estate. Even a power given by will to executors to sell an estate for payment of debts, is, by the better opinions and authority, coupled with a trust, and capable of survivorship. Many dignities ‘and offices, existing at common law, are merely honorary, and without profit, and sometimes are onerous. Yet a grant of them has never been supposed: the less a contract on that account.” Srory, J. Dartmouth College v. Woodward, 4 Wheat. 698. Necessity for Sufficient Consideration. “There is no doubt that assumpsit cannot be sustained upon a contract which has not a sufficient consideration. It must not be illegal, of an immoral tendency, or contrary to sound policy. The common-law maxims are ex turpi causa non oritur actio—ex dolo malo non oritur actio. It prohibits every- thing which is unjust or contra bonos mores.” Wayne, J. Harris v. Runnels, 12 How. 83. See generally ILLEGAL ConTRACTSs. Agreement Without Consideration Void. “An agreement without consideration is utterly void, and does not suspend for a mo- ment the rights of any of the parties.” Story, J. M’Lemore v. Powell, 12 Wheat. 557. Gratuitous Service. “The law does not forbid gratuitous ser- vices, even in fiduciary relations, and if acts purport to be done gratuitously no claim for payment can be founded upon them at a later date.” Hotmes, J. McIntire v, McIn- tire, 192 U. S. 123. Subsequent Consideration Curing Defect in Deed. “When a deed is fatally defective for the want of a sufficient consideration to support it, such a consideration subsequently arising may cure the defect and give the instrument validity.” Swayne, J. Jones v. New York Guaranty, etc., Co., 101 U. S. 627. How Want of Consideration Determined. “To apply the doctrine of a want of con- sideration to any case, we must look to all the circumstances, and decide upon them all,” Story, J. Bank of U. S. v. Bank of Geor- gia, 10 Wheat. 345. Failure of Consideration — Recovery of Payment. “Tt is familiar law that an action may be maintained to recover back money paid as the price of articles sold, or of work done, . 387 CONSOLIDATION AND MERGER OF CORPORATIONS. when the afticles are not delivered or the work not done. The reason is that the con- sideration for the payment has failed.” Frep, J. U.S. v. Barlow, 182 U. 5S. 281. — Speculative Bargain. “The court is not prepared to say, that a mere speculative bargain, where the parties know that they are treating for a thing of uncertain value, which depends on unknown contingencies, and may greatly exceed their estimates, or may be nothing; where the pur- chaser knows that he buys a chance, as a lottery ticket; is a bargain on which the law will raise a promise to refund the purchase money, if the consideration should fail.” MarsHaLL, C. J. Tayloe v. Riggs, 1 Pet. 601. When Presumed and When Open to In- quiry. : “In an action upon a record, or upon a contract under seal, a lawful consideration was conclusively presumed to exist, and could not be denied; but in an action, whether in debt or in assumpsit, upon a simple contract, express or implied, the con- sideration was open to inquiry.” Gray, J. Hilton v. Guyot, 159 U. S. 199. See also NEGOTIABLLE INSTRUMENTS. “The true principle deducible from the au- thorities, and most consistent with the reason of the thing, seems to be this: In the in- stance of a special contract which has been wholly executed: and the time of payment passed, if the plaintiff proceeds in general assumpsit, the express contract is only evi- dence of the consideration, which is open to attack by the defendant in reduction of dam- ages. But, where the action is in special assumpsit, the express promise of the de- tendant fixes the measure of damages to which the plaintiff is entitled.” Fuxzer, C. J. Hume v. U. S., 132 U.S, 413. — Statute May Regulate. “Tt [a state] may declare, by law, that all instruments for the payment of money, signed by the party, shall be held valid, with- out reference to the consideration.” Mc- Lean, J. Craig v. Missouri, 4 Peters 459. Meeting of Minds Essential. “To constitute a valid agreement there must be a meeting of minds upon every fea- ture and element of such agreement, of which the consideration is one.” Brown, J. Fire Ins. Assoc. v. Wickham, 141 U. S. 579. “The mere presence of some incident to a contract which might under certain circum- stances be upheld as a consideration for a promise, does not necessarily make it the consideration for the promise in that con- tract. To give it that effect it must have been offered by one party and accepted by the other as one elenienit of the contract.” Brown, J. Fire Ins. Assoc. v. Wickham, 141 U. S. 579, Consideration in Unilateral Contracts. “Tn suits upon unilateral corittracts, it is only where the defendant has had the ben- efit of the consideration for which he bar- gained that he can be held bound.” Woops, J. Richardson v. Hardwick, 106 U. S. 255. CONSOLIDATION AND MER- GER OF CORPORATIONS. See Corporations; CoNTRACTS IN ReE- STRAINT OF TRADE; DISSOLUTION oF CORPORA+ TIONS; MoNOPOLIES AND CoRPORATE TRUSTS. Consolidation and Merger Distinguished. “That generally the effect of consolidation, as distinguished from a union by merger of one company into another, is to work a dis- solution of the companies consolidating, and to create a new corporation out of the ele- ments of the former, is asserted in many cases, and it seers to be a mecessary re- sult.” Srrone, J. Atlantic, ete, R. Co. w. Georgia, 98 U. S. 363. Consolidation Is Not Sale. “* Consolidation’ (of railroad companies) is not sale.” Braptey, J. Green County v. Conness, 109 U. S. 106. Effect of Consolidation. “Tf nothing at all had been said about the powers and privileges of the new corpora- tion, the presumption would have been that it took all which were possessed by the two original companies at the time of their union. To rebut this presumption it is necessary that a contrary intention should appear. The question is not as to a grant of new powers, but as to the taking away of old ones.” Waite, C. J. Tennessee v. Whitworth, 117 Uz S. 149. “Upon the consolidation, under express authority of statute, of two or more solvent corporations, the business of the old corpora- tions is not wound up nor theit property se- questrated or distributed, but the very ob- ject of the consolidation, and of the statutes which permit it, is to continue the business of the old corporations. Whether the old corporations are dissolved into the new cor- 388 CONSPIRACY. poration, or are continued in existence under a new name and with new powers, and whether, in either case, the consolidated com- pany takes the property of each of the old corporations charged with a lien for the payment of the debts of that corporation, de- pend upon the terms.of the agreement of consolidation, and of the statutes under whose authority that consolidation is ef- fected.” Gray, J. Wabash, etc. R. Co. wv. Ham, 114 U. S. 595. Right of State to Invest with Franchises of Old Corporations. “Laws may be passed at ary time, enacting that all the valuable franchises of designated corporations antedating the Constitution shall, upon their dissolution, voluntary or other- wise, pass to and vest in certain newly created institutions of the like kind.” Shields v. Ohio, 95 U. S. 323. CONSPIRACY. Nature of Offense. “Tt [the crime of conspiracy] is an of- fense of a grave character, affecting the pub- lic at large.” Hartan, J. Callan v. Wilson, 127 U. S. 556. —— Confederacy and Act to Effect Ob- ject. “The confederacy to commit the offense is the gist of the criminality under this sec- tion 5440, although to complete it some act to effect the object of the conspiracy is needed.” Futier, C. J. Pettibone v. U. S., 148 U. S. 202. - —— Innocent Acts May Be Steps in Plot. “When the acts consist of making a com- bination calculated to cause temporal damage, the power to punish such acts, when done maliciously, cannot be denied because they are to be followed and worked out by con- duct which might have been lawful if not preceded by the acts. No conduct has such an absolute privilege as to justify all pos- sible schemes of which it may be a part. The most innocent and constitutionally protected of acts or omissions may be made a step in a criminal plot, and if it is a step in a plot neither its innocencé nor the Constitution is sufficient to prevent the punishment of the plot by law.” Hotmzs, J. Aikens v. Wiscon- sin, 195 U. S. 206. No Injunction Necessary to Attach Re- sponsibility. “No injunction is necessary to attach re- sponsibility on those who conspire to do an illegal act.’ Marsuart, C. J. Osborn v. Bank of U. S., 9 Wheat. 837. Indictment — Allegation of Overt Act. “ At common law it was neither necessary to aver nor prove an overt act in furtherance of the conspiracy, and indictments therefor were of such general description that it was customary to require the prosecutor to fur- nish the defendant with a particular of his charges. But this general form of indictment has not met with the approval of the courts of this country, and in most of the states an overt act must be alleged.” Brown, J. Bannon v. U. S., 156 U. S. 468. With U. S. Officers — Presumption of Of- ficial Integrity. “Conspiracies there undoubtedly may be with officers of the United States io defraud the government, but in the absence of any proof tending to establish such a conspiracy, the court would not be justified in imagining its existence for the purpose of working a forfeiture of goods in the hands of an inno- cent party. It would rather indulge the more rational and just presumption that all the officers of the government did their duty, until at least some evidence to the contrary was produced.” Fietp, J., dissenting. Hen- derson’s Distilled Spirits, 14 Wall. 68. Evidence — Acts of Coconspirators. “Tt has always been and is still the law, that, after prima facie evidence of an unlawful combination has been introduced, the act of any one of the coconspirators in furtherance of such combination may be properly given in evidence against all. To require an overt act to be proven against every member of the conspiracy, or a distinct act connecting him with the combination to be alleged, would not only be an innovation upon established principles, but would render most prosecutions for the offense nugatory.” Brown, J. Bannon v. U. S., 156 U. S. 469. “Tn cases of conspiracy and riot, when once the conspiracy or combination is estab- lished, the act of one conspirator, in the prosecution of the enterprise, is considered the act of all, and is evidence against all. Each is deemed to consent to, or command, what is done by any other in furtherance of the common object.” - Story, J. U. S. v. Gooding, 12 Wheat. 469. “Doubtless, in all cases of conspiracy, the act of one conspirator in the prosecution of the enterprise-is considered the act of: all, and in evidence against all.’ Gray, J. Logan v. U. S., 144 U. S. 308. 389 CONSTITUTIONAL LAW. — Declarations of Conspirators. “ Every act and declaration of each member of the conspiracy, in pursuance of the original conceded plan, and with reference to the common object, is, in contemplation of law, the act and declaration of them all, and is therefore original evidence against each of them.” Brown, J. Connecticut Mut. L. Ins. Co. v. Hillmon, 188 U. S. 218. CONSTABLES. See SHERIFFS AND CONSTABLES. CONSTITUTIONAL LAW. I. DEFINITIONS AND GENERAL PRIN- CIPLES. 1. Constitutions in General. 2. State Constitutions. 3. Constitution of United States. II. ConstRUCTION AND INTERPRETA- TION OF CONSTITUTIONAL PrRoO- VISIONS. III. Duties, Powers, AND OFFICE OF Courts. CROSS-REFERENCES. See Britis or Crepit; Crvi Ricuts; Com- pacts; Concress; Corporations; Dur Proc- Ess oF Law; Ex Post Facto Laws; FEDERALIST (THE) ; IMPAIRMENT OF OBLIGA- TION oF ConTrRAcTS; INSOLVENCY; LEGAL TENDER; Money; PERSONS. I, DEFINITIONS AND GENERAL PRINCIPLES. 1. ConSTITUTIONS IN GENERAL. Instrument which Enumerates Powers. “A constitution must necessarily be an instrument which enumerates rather than de- fines, the powers granted by it.” Grirr, J. Passenger Cases, 7 How. 459, Deals in Generals. “A constitution, from its nature, deals in generals, not in detail. Its framers cannot perceive minute distinctions which arise in the progress of the nation, and therefore con- fine it to the establishment of broad and general principles.” MarsHatt, C. J. U. S. Bank v. Deveaux, 5 Cranch 87. Mandates Are Imperative. mn Constitutional mandates are imperative.” Brewer, J. Fairbank v. U. S., 181 U. S. 291. 390 “A Constitution Is Framed for Ages to Come, and is designed to approach immor- tality as nearly as human institutions can approach it.” MarsHatt, C. J. Cohen v. Virginia, 6 Wheat. 387. Intended to Preserve Practical Rights. “Constitutions are intended to preserve practical and substantial rights, not to main- tain theories.” Hotmes, J. Davis v. Mills, 194 U. S. 457. People’s Power Is Unlimited. “There can be no limitation on the power of the people of the United States. By their authority the state constitutions were made, and by their authority the Constitution of the United States was established; and they had the power to change or abolish the state constitutions, or to make them yield to the general government, and to treaties made by their authority.” Case, J. Ware v. Hyl- ton, 3 Dall. 236. Legislation Cannot Abridge Constitutional Privilege. “Tt is quite clear that legislation cannot abridge a constitutional privilege, and that it cannot replace or supply one, at least un- less it is so broad as to have the same extent in scope and effect.” Briatcurorp, J. Coun- selman v. Hitchcock, 142 U. S. 585. Indirect Unconstitutional Exercise of Power. “T deny that an acknowledged power can be exerted solely for the purpose of effecting indirectly an unconstitutional end which the legislature cannot directly attempt to reach.” Strone, J., dissenting. Sinking Fund Cases, 99 U. S. 739. “An Unconstitutional Reason or Inten- tion is an impracticable suggestion, which cannot be applied to the affairs of life.” Hunt, J. Doyle v. Continental Ins. Co., 94 U. S. 541. “The Security of a People against the misconduct of their rulers, must lie in the fre- quent recurrence to first principles, and the imposition of adequate constitutional restric- tions.” Jounson, J., dissenting. Fletcher v. Peck, 6 Cranch 144. Self-executing Provisions. “Where a constitution asserts a certain | right, or lays down a certain principle of law or procedure, it speaks for the entire people as their supreme law, and is full au- thority for all that is done in pursuance of its provisions. In short, if complete in it- CONSTITUTIONAL LAW. self, it executes itself.” Brown, J. Davis v. Burke, 179 U. S. 403. “Where a constitutional provision is com- plete in itself it needs no further legislation to put it in force. When it lays down cer- tain general principles, as to enact laws upon a certain subject, or for the incorporation of cities of certain population, or for uniform laws upon the subject of taxation, it may need more specific legislation to make it operative. In other words, it is self-execut- ing only so far as it is susceptible of execu- tion.” Brown, J. Davis wv. Burke, 179 U. S. 403. 2. StaTE CONSTITUTIONS. General Nature of State Constitution. “Undoubtedly a state constitution is in a sense a limitation on the powers of the state government. It is the act of the people establishing a fundamental law for their own government as members of a political com- munity known as a state of the United States, and it fixes the powers of that government. But this does not imply that the people can- not in such a fundamental law regulate as they please the’ powers of the political sub- divisions .or municipal corporations of the state. Such a regulation, if made, would operate as a limitation on the legislative power of the state government over the sub- ject, but it would form part of the funda- mental law of the locality to which it ap- plied.” Warre, C. J. East St. Louis v. Amy, 120 U. S. 603. “Every state constitution is a compact made by and between the citizens of a state, to govern themselves in a certain manner; and the Constitution of the United States is likewise a compact made by the people of the United States, to govern themselves, as to general objects, in a certain manner.” Jay, C. J. Chisholm v. Georgia, 2 Dall. 471. Understanding of Inhabitants as to Local Needs. “Tt may be readily supposed that the in- habitants of each state understand perfectly their own local needs and interests, and, with the facilities with which the constitutions of the several states may be amended, it is scarcely possible that any evil which might be occasioned by an improvident amendment would not be readily redressed.” Brown, J. Bolln v. Nebraska, 176 U. S. 89. Power of People. “The people of the state created, the people of the state can only change, its constitution. Upon this power, there is no other limitation but that imposed by the Constitution of the United States; that it must be of the repub- lican form.” IREDELL, J. Chisholm v. Geor- gia, 2 Dall. 448. Constitutional Authority. “Tt would be beyond reason to assume that a judgment which commanded the per- formance of a particular act, because of the existence of a legal duty from a specified provision of a state constitution, should be construed as excluding the right and duty to refer in issuing the bonds of obedience to its command to the authority by which alone the power exercised could be brought into play.” Wuure, J. Board of Liquidation v. Louisiana, 179 U. S. 640. 3. CONSTITUTION OF UNITED STATES. Compact Between States. “[The federal Constitution] is a federal compact among the states, establishing a lim- ited government, with powers delegated by the people of distinct and independent com- munities, who reserved to their states gov- ernments, and to themselves, the powers they did not grant.” CAMPBELL, J. Scott v. Sandford, 19 How. 509. [T e Constitution] “is a compact of gov- ernment between the states, for them- selves, and not for others; it consists, there- fore, of a designation of the power granted; the division of those powers amongst the de- partments which it created; and of such reciprocal stipulations, limitations, and reser- vations, as the states thought proper to make. But it was no part of the purpose of its framers, to define the duties and obligations of the states, thus united, to foreign nations, or to prescribe*the mode of their fulfil- ment.” Bargour, J. Holmes v. Jennison, 14 Pet. 587. Created Government of Individuals. “The national Constitution was, as its preamble recites, ordained and established by the people of the United States. It created not a confederacy of states, but a government of individuals.” Swayne, J. White v. Hart, 13 Wall. 650. “The Constitution was intended to frame a government as distinguished from a league or compact, a government supreme in some particulars over states and people.” Strona, J. Legal Tender Cases, 12 Wall. 545. “The Constitution was for a new govern- ment, organized with new — substantive powers, and not a mere supplementary char- 391 22 CONSTITUTIONAL LAW. ter to a government already existing. The confederation was a compact between states; and its structure and powers were wholly unlike those of a national govern- ment. The Constitution was an act of the people of the United States to supersede the confederation, and not to be ingrafted on it, as a stock through which it was to receive life and nourishment.” Story, J. Martin v. Hunter, 1 Wheat. 332. : Formed to Secure Union and Harmony at Home, “The Constitution was not formed mere- ly to guard the states against danger from foreign nations, but mainly to secure union and harmony at home; for if this object could be attained, there would be but little danger from abroad; and to accomplish this purpose, it was felt by the statesmen who framed the Constitution, and by the people who adopted it, that it was necessary that many of the rights of sovereignty which the states then possessed should be ceded to the general government; and that, in the sphere of action assigned to it, it should be su- preme, and strong enough to execute its own laws by its own tribunals, without interrup- tion from a state or from state authorities.” Taney, C. J. Ableman v. Booth, 21 How. 517. Ordained and Established by People. “The Constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble to the Con- stitution declares, by ‘the people of the United States.’ There can be no doubt that it was competent to the people to invest the general government with all the powers which they might deem proper and neces- sary; to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme au- thority. As little doubt can there be that the people had a right to prohibit to the states the exercise of any powers which were, in their judgment, incompatible with the ob- jects of the general compact; to make the powers of the state governments, in given cases, subordinate to those of the nation, or to reserve to themselves those sovereign au- thorities which they might not choose to delegate to either. The Constitution was not, therefore, necessarily carved out of ex- isting state sovereignties, nor a surrender of powers already existing in state institutions, for the powers of the states depend upon their own Constitution; and the people of every state had a right to modify and re- strain them, according to their own views of policy or principle. On the other hand, it is perfectly clear that the sovereign powers vested in the state governments, by their respective constitutions, remained unaltered and unimpaired, except so far as they were granted to the government of the United States.” Srory, J. Martin v, Hunter, 1 Wheat. 325. “The Constitution of the United States, with all the powers conferred by it on the general government, surrendered by the states, was the voluntary act of the people of the several states, deliberately done, for their own protection and safety against in- justice from one another.. Tangy, C. J. Ableman v. Booth, 21 How. 524. “The Constitution was created by the peo- ple of the United States, as a union of states, to be governed solely by representa- tives of the states.” Brown, J. Downes v. Bidwell, 182-U. S. 251. “The Constitution of the United States was madé by, and for the protection of the people of the United States. The restraints imposed by that instrument upon the legis- lative powers of the several states could af- fect them only after they became states of the Union, under the provisions of the Con- stitution, and had consented to be bound by it.’ Grier, J. League v. De Young, 11 How. 203. “The Constitution of the United States was formed, not, in my opinion, as some have contended, by the people of the United States, nor, as others, by the states; but by a combined power, exercised by the people, through their delegates, limited in their sanc- tions, to the respective states. Had the Constitution emanated from the people, and the states had been referred to, merely as convenient districts, by which the public ex- pression could be ascertained, the popular vote throughout the Union would have been the only rule for the adoption of the Con- stitution. This course was not pursued; and in this fact, it clearly appears that our fun- damental law was not formed, exclusively, by the popular suffrage of the people. The vote of the people was limited to the respec- tive states in which they resided. So that it appears there was an expression of popu- lar suffrage and _ state - sanction, most happily united, in the adoption of the Consti- tution of the Union.” M’Lean, J. Worces- ter v. Georgia, 6 Pet. 569. “ The Constitution Unavoidably Deals in General Language. It did not suit the pur 892 CONSTITUTIONAL LAW. poses of the people, in framing this great charter of our liberties, to provide for mi- nute specifications of its powers, or to declare the means by which those powers should be carried into execution. It was foreseen that this would be a perilous and difficult, if not an impracticable, task. The instrument was not intended to provide merely for the ex- igencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable pur- poses of Providence. It could not be fore- seen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and re- strictions and specifications which, at the present, might seem salutary, might, in the end, prove the overthrow of the system itself. Hence its powers are ex- pressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mold and model the exercise of its powers, as its own wisdom and the public interests should require.” Story, J. Mar- tin v. Hunter, 1 Wheat. 326. . “The Constitution Was Framed for So- ciety, and an advanced state of society, in which I will undertake to say that all the contracts of men receive a relative, and not a positive interpretation; for the rights of all must be held and enjoyed in subserviency to the good of the whole.” Jounson, J. Og- den v. Saunders, 12 Wheat. 282. “The Constitution Is a Practical Instru- ment, made by practical men, and suited to the territory and circumstances on which it was intended to operate. To comprehend its whole scope, the mind must take in the en- tire country and its local governments.” Catron, J. Passenger Cases, 7 How. 449. Defects. “We may declare defects in the Consti- tution, without being justly chargeable with creating them; but if they exist, it is not for us to correct them.” Jounson, J., dis- senting. Houston v. Moore, 5 Wheat. 36. Intended to Affect Individuals. “The present Constitution was particular- ly intended to affect individuals, and not states, except in particular cases specified.” Trepett, J., concurring. Hylton v. U. S., 3 Dall. 181. Work of Compromise. “The Constitution has been considered as an accommodating system; it was the ef- fect of mutual sacrifices and concessions; it ‘ was the work of compromise. The rule of apportionment is of this nature; it is radi- cally wrong; it cannot be supported by any solid reasoning.” Paterson, J., concur- ring. Hylton v. U. S., 3 Dall. 177. Framed in Reference to Existing Facts. “The Constitution was framed in refer- ence to facts then existing and likely to rise; the instrument looked to no theories of gov- ernment.” Catron, J. Scott vw. Sandford, 19 How. 526. Arrangement and Language. “The Constitution has always been re- markable for the felicity of its arrangement of different subjects, and the perspicuity and appropriateness of the language it uses.” Taney, C. J. Scott v. Sandford, 19 How. 439. “ All the notions of society, particularly in their jurisprudence, are more or less artifi- cial; our Constitution nowhere speaks the language of men in a state of nature.” Jounson, J. Ogden v. Saunders, 12 Wheat. 290. Enumeration of Powers. [The Constitution] “contains an enumera- tion of powers expressly granted by the people to their government.” MARSHALL, C. J. Gibbons v. Ogden, 9 Wheat. 187. Acquiescence in Decisions. “The Constitution presumes that the de- cisions of the supreme tribunal will be ac- quiesced in; and after disposing of the few questions which the Constitution refers to it, all the minor questions belong properly to the state jurisdictions, and never were intended to be taken away in mass.” JoHN- son, J. Osborn v. Bank of U. S., 9 Wheat. 887. “The Constitution Has Proceeded upon a Theory of Its Own, and given or with- held powers according to the judgment of the American people, by whom it was adopted.” Story, J. Martin v. Hunter, 1 Wheat. 346. Designed for Common and Equal Benefit. “The Constitution of the United States was designed for the common and equal ben- efit of all the people of the United States. The judicial power was granted for the same benign and salutary purposes. It was not to be exercised exclusively for the bene- fit of parties who might be plaintiffs, and would elect the national forum, but also for the protection of defendants who might be entitled to try their rights, or arrest their 393 CONSTITUTIONAL LAW. privileges, before the same forum.” Srory, J. Martin v. Hunter, 1 Wheat. 348. Powers Not Expressed. “There is not in the whole of that ad- mirable instrument [the Constitution] a grant of powers which does not draw after it others, not expressed, but vital to their ex- ercise; not substantive and independent, in- deed, but auxiliary and subordinate.” JoHN- son, J. Anderson v. Dunn, 6 Wheat. 225. Powers Derived from Constitution. “There is no law for the government of citizens, the armies or the navy of the United States, within American jurisdiction, which is not contained in nor derived from the Constitution.” CuHasgr, C. J. Ex p. Mil- ligan, 4 Wall. 141. Ruling Principle of Constitution. “It may be called the ruling principle of the Constitution, to interfere as little as possible between the citizen and his own state government.” Jounson, J. Ogden v. Saunders, 12 ‘Wheat. 280. Necessity for Limitations. “The limitations imposed by our consti- tutional law upon the action of the govern- ments, both state and national, are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions.” Matruews, J. Hurtado v. California, 110 U. S. 536. Application to All Classes. “The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” Davis, J. Ex p. Milligan, 4 Wall. 120. Constitution Did Not Look to Mere Form. “The Constitution looked to the essence and substance of things, and not to mere form.” Taney, C. J. Holmes v. Jennison, 14 Pet. 573. Effect of Powers on Property or Con- tracts. “Tf, upon a just and fair interpretation of the whole Constitution, a particular power or authority appears to be vested in ‘Con- gress, it is no constitutional objection to its existence, or to its exercise, that the prop- erty or the contracts of individuals may be incidentally affected.” Gray, J. Legal Ten- der Case, 110 U. S. 448. States, People, and Representatives Dealt With. “The Constitution deals with states, their people, and their representatives.” Brown, J. Downes v. Bidwell, 182 U. S. 251. Questions of Power of Great Importance. “All questions of power, arising under ° the Constitution of the United States, whether they relate to the federal or a state government, must be considered of great importance.” M’Lean, J. Craig v. Missouri, 4 Pet. 463. Every Part Binding on Congress and People. “Of course, every part of the Constitution is as binding upon Congress as upon the people. The guarantees prescribed by it for the security of private property must be re- spected by all.” Harian, J. Scranton v. Wheeler, 179 U. S. 162. Operation on States. “Tt is a mistake that the Constitution was not designed to operate upon states, in their corporate capacities. It is crowded with provisions which restrain or annul the sov- ereignty of the states in some of the highest branches of their prerogatives.” Srory, J. Martin v. Hunter, 1 Wheat. 343. Assumption that Powers Will Be Used. “The Constitution everywhere assumes, as a postulate, that wherever power is given it will be used, or, at least, used as far as the interests of the American people require it, if not from the natural proneness of man to the exercise of power, at least from a sense of duty, and the obligation of an oath.” JouNson, J., concurring. Martin v. Hunter, 1 Wheat. 375. Duties of States. “The language of the Constitution is... imperative upon the states as to the per- formance of many duties.” Srory, J. Mar- tin v. Hunter, 1 Wheat. 343, — How General Principles to Be Regarded. “The general principles contained in the Constitution are not to be regarded as rules to fetter and control; but as matter merely declaratory and directory; for, even in the Constitution itself, we may trace repeated departures from the theoretical doctrine, that the legislative, executive, and judicial powers, should be kept separate and dis- tinct.” CHasE, J., concurring. Cooper v. Telfair, 4 Dall. 18. 394 CONSTITUTIONAL LAW. Limitations on States Before Adoption. “Before the adoption of the Constitution, the states, respectively, exercised sovereign power, under no other limitations than those in the Articles of Confederation.” Mc- Lean, J. Passenger Cases, 7 How. 393. Congress Cannot Authorize Violation of State Constitution. “In our system of government I do not conceive that Congress can confer upon a state legislature the right to violate the con- stitution of the state.’ WHITE, J., concur- ring. Stearns v. Minnesota, 179 U. S. 257. What Powers Should Not Be Withheld. “Whilst we hold it a sound maxim that no powers should be conceded to the fed- eral government which cannot be regularly and legitimately found in the charter of its creation, we acknowledge equally the obli- gation to withhold from it no power or attribute which, by the same charter, has been declared necessary to the execution of expressly granted powers, and to the fulfil- ment of clear and well-defined duties.” DaniEL, J. U. S. v. Marigold, 9 How. 568. Powers Not Expressly Given. “Congress has often exercised, without question, powers that are not expressly given nor ancillary to any singly enumer- ated power.’ Stronc, J. Legal Tender Cases, 12 Wall. 535. “ That important powers were understood by the people who adopted the Constitution to have been created by it, powers not enu- merated, and not included incidentally in any one of those enumerated, is shown by the amendments.” Stronc, J. Legal Ten- der Cases, 12 Wall. 534. Power of Self-preservation. “Tt certainly was intended to confer upon the government the power of self-preserva- tion.” Srronc, J. Legal Tender Cases, 12 Wall. 533. Grants Expressed in Broad and General Language. “Tt has often been said that the grants of power in the Constitution to the national government were expressed in such broad and general language that, notwithstanding the many changes in the modes of doing business, in the forms and conditions of so- cial life, the needed control was still found to be vested in Congress.” Brewer, J., dissenting. Austin v. Tennessee, 179 U. S. 385. Cases Depending on Constitution, Laws, or Treaties. “There is scarcely any case, every part of which depends on the Constitution, laws or treaties of the United States.” Mar- SHALL, C. J. Osborn v. Bank of U. S,, 9 Wheat. 820. “The National Government Is a Gov- ernment of Enumerated Powers, the exer- cise of which is restricted to the use of means appropriate and plainly adapted to the consti- tutional ends.” FuLrer, C. J., dissenting. Downes v. Bidwell, 182 U. S. 359. Limitations in Favor of Liberty and Property. “Undoubtedly, there are general prohibi- tions in the Constitution in favor of the liberty and property of the citizen which are not mere regulations as to the form and manner in which a conceded power may be exercised, but which are an absolute denial of all authority under any circumstances or conditions to do particular acts. In the na- ture of things, limitations of this character cannot be under any circumstances tran- scended, because of the complete absence of power.” Wut, J., concurring. Downes v. Bidwell, 182 U. S. 294. Distinction Between Restrictions. “The distinction which exists between the two characters of restrictions, those which regulate a granted power and those which withdraw all authority on a particular sub- ject, has in effect been always conceded.” Wuire, J. concurring. Downes v. Bidwell, 182 U. S. 295. What Is Forbidden or Required by a State. “The Constitution of the United States frequently refers to the state as a political community, and also in terms to the people of the several states and the citizens of each state. What is forbidden or required to be done by a state is forbidden or required of the legislative power under state constitu- tions as they exist.” Fumter, C. J. Mc- Pherson v. Blacker, 146 U. S. 25. Sovereignty of States. “The states are sovereign; with the ex- ception of certain powers, which have been invested in the general government, and inhibited to the states. No state can coin money, emit bills of credit, pass ex post facto laws, or laws impairing the obligation of contracts, etc.” M’Lean, J. Craig v. Missouri, 4 Pet. 463. 395 CONSTITUTIONAL LAW. Part of State Law. “The Constitution of the United States is as much a part of the law of Pennsylvania as its own constitution, and the laws passed by the general government pursuant to the Constitution are as obligatory upon the courts of the states as upon those of the United States; and they are equally bound to respect and uphold the acts and process of the courts of the United States, when acting within the scope of its legitimate authority.” Taney, C. J., dissenting. Taylor v. Carryl, 20 How. 605. Constitutional Restrictions Imperative. “Constitutional restrictions are . . . imperative, and ought not to be disregarded because in a particular case it may be the judgment of a court that the violation is not a very grievous one.” Wuitt, J., dissenting. Snyder v. Bettman, 190 U. S. 260. State Laws Cannot Repeal Constitution. “State laws, by combining large masses of men under a corporate name, cannot re- peal the Constitution.” Catron, J. Rundle v. Delaware, etc., Canal Co., 14 How. 95. Division of Powers Between Federal and State Governments. “The divisions of power between the na- tional, federal, and state governments (all derived from the same source, the authority of the people), must be collected from the Constitution of the United States. Before it was adopted, the several states had absolute and unlimited sovereignty within their re- spective boundaries; all the powers, legisla- tive, executive, and judicial, excepting those granted to Congress under the old Consti- tution. They now enjoy them all, except- ing such as are granted to the government of the United States by the present instru- ment and the adopted amendments, which are for particular purposes only.” M’KeEan, C. J. Respublica v. Cobbet, 3 Dall. 473. “The Restraints Imposed on States by the Constitution are intended for those ob- jects which would, if not restrained, be the subject of state legislation.” MArsHALL, C. J. Ogden v. Saunders, 12 Wheat. 338. State Laws Passed During Revolution. “There is, . . a material difference between the laws passed by the individual states, during the Revolution, and laws pass- ed subsequent to the organization of the fed- eral Constitution. Few of the ‘revolution- ary acts would stand the rigorous test now applied.” Cuasr, J., concurring. Cooper v. Talfair, 4 Dall. 19. Legislative Powers Are Limited. “The powers of legislation granted to the government of the United States, as well as to the several state governments, by their respective constitutions, are all lim- ited.” WasHINcToN, J. Green v. Biddle, 8 Wheat. 88. Prohibited State Action. “Tf the state has attempted to exercise a power which the federal Constitution pro- hibits, no matter under what form the power may be assumed, or what specious pre- texts may be urged in favor of its exer- cise, the act is unconstitutional and void.” M’Lean, J. Charles River Bridge v. War- ren Bridge, 11 Pet. 578. “Constitutional Provisions Do Not Change, but their operation extends to new matters as the modes of business and the habits of life of the people vary with each succeeding generation. The Consti- tution has not changed. The power is the same. But it operates to-day upon modes of interstate commerce unknown to the fathers, and it will operate with equal force upon any new modes of such commerce which the fu- ture may develop.” Brewer, J. In re Debs, 158 U. S. 591. Will of People Must Control. “Tn this country, the will of the people as expressed in the fundamental law must be the will of the courts and legislatures.” Harian, J., dissenting. Robertson uv. Bald- win, 165 U. S. 297. - “Even this court, with its tremendous power, must heed the mandate of the Con- stitution.” HarLan, J., dissenting. Downes v. Bidwell, 182 U. S. 385. “The Constitution is not to be obeyed or disobeyed as the circumstance of a par- ticular crisis in our history may suggest the one or the other course to be pursued.” Haran, J., dissenting. Downes v, Bidwell, 182 U. S. 384. “Whether a particular race will or will not assimilate with our people, and whether they can or cannot with safety to our in- stitutions be brought within the operation of the Constitution, is a matter to be thought of when it is proposed to acquire their ter- ritory by treaty. A mistake in the acquisi- tion of territory, although such acquisition seemed at the time to be necessary, cannot be made the ground for violating the Con- stitution or refusing to give full effect to its provisions.” Harran, J., dissenting. Downes v. Bidwell, 182 U. S. 384. 896 CONSTITUTIONAL LAW. Authority of Nation Must Accord with Constitution. “The fathers never intended that the au- thority and inflttence of this nation should be exerted otherwise than in accordance with the Constittition.” Haran, J., dis- senting. Downes v. Bidwell, 182 U. S. 386. “We cannot violate the Constitution in order to serve particular interests in our own or in foreign lands.” Harwan, J., dis- senting. Downes v. Bidwell, 182 U. S. 385. Duty of Supreme Court. “Tt will be an evil day for American lib- erty if the theory of a government outside of the supreme law of the land finds lodg- ment in our constitutional jurisprudence. No higher duty rests upon this court than to exert its full authority to prevent all vio- lation of the principles of the Constitution.” Harta, J., dissenting. Downes v. Bidwell, 182 U. S. 382. Protects Against Wrongful Use of Power. “The glory of our Ameticati system of government is that it was created by a written Constitution which protects the peo- ple against the exercise of arbitrary, unlim- ited power, and the limits of which instrt- ment may not be passed by the government it created, or by arly branch of it, or even by the people who ordained it, except by amendment or change of its provisions.” Hartay, J., dissenting. Downes v. Bidwell, 182 U. S. 380. Sole Source of Powers. “This nation is under the cotitrol of a written Constitution, the supreme law of the land and the only source of the powers which our government, or any branch or officer of it, may exert at any time or at any place.” Harvan, J., dissenting. Downes v. Bidwell, 182 U. S. 380. Constitution Speaks to All Subjects. “The Constitution speaks not simply to the states in their organized capacities, but to all peoples, whether of states or terri- tories, who are sttbject to the authority of the United States.” Haran, J., dissenting. Downes v. Bidwell, 182 U. S. 378. “People [of a state] are at all times un- der the Constitution of the United States, subject to its restrictions as they are en- titled to its privileges. They cannot law- fully insert in any constitution or organic law provisions contravening that instfu- ment. They cannot authorize their legisla- ture to pass a bill of attainder, or an ex post facto law, or a law impairing the ob- ligation of contracts, nor can they embody in their constitution clauses amounting to or operating as such enactments. Any such au- thority or clauses would be treated as nu- gatory and futile by all tribunals holding that the Constitution of the United States is, what on its face it is declared to be, the supreme law of the land.” Frexp, J., dis- senting. Louisiana v. Jumel, 107 U. S. 733. Made for Whole People. “The Constitution of the United States was made for the whole people of the Unioti, and is equally binditig tport all the coutts and all the citizens.” MarsHatr, C. J. Farmers’, etc., Bank v. Smith, 6. Wheat. 134, “The Cession of Power to the General Government means no more than that they may assume the exercise of it whenever they think it advisable.” Jouwson, J., con- curring. Martin # Hunter, 1 Wheat. 375. Operation. “The Constitution of the United States operates alike on all the states.” M’LEAN, J. Groves v. Slaughter, 15 Pet. 507. Police Power of States. “Undoubtedly the state, when providing, by legislation, for the protection of the pub- lic health, the public morals, or the public safety, is subject to the paramount authority of the Constitution of the United States, and may not violate rights secured or guar- anteed by that instrument, or interfere with execution of the powers confided to the general government.” Hartan, J. Mugler v. Kansas, 123 U. S. 663. “The Articles of Confederation ceased to exist, upon the adoption of the federal Con- stitution; and the ordinance of 1787, like all Acts of Congress for the government of the territories, had no force in any state after its admission into the Union under that Constitution.” Gray, J. Van Brock- lin v. Tennessee, 117 U. S. 159, Keeping and Bearing Arms. “Tt is undoubtedly true that all citizens capable of bearing arms constitute the re- served military force or reserve militia of the United States as well as of the states, atid, in view of this prerogative of the geti- eral government, as well as of its gen- eral powers, the states cannot, even lay- ing the constitutional provision in question out of view, prohibit the people from keep- ing and bearing arms, so'as to deprive the United States of their rightful resource fot 397 CONSTITUTIONAL LAW. maintaining the public security, and disable the people from performing their duty to the general government.” Woops, J. Pres- ser v. Illinois, 116 U. S. 265. Authority of Treaty-making Power. “The treaty-making power cannot incor- porate territory into the United States with- out the express or implied assent of Con- gress.” WuitTE, J., concurring. Downes v. Bidwell, 182 U. S. 339. “It seems to me impossible to conceive that the treaty-making power by a mere ces- sion can incorporate an alien people into the United States without the express or implied approval of Congress.” Wauute, J., concurring. Downes v. Bidwell, 182 U. S. 312, “(The treaty-making power] may insert in a treaty conditions against immediate in- corporation, and . on the other hand when it has expressed in the treaty the con- ditions favorable to incorporation, they will, if the treaty be not repudiated by Congress, have the force of the law of the land, and therefore by the fulfilment of such condi- tions cause incorporation to result.” WHITE, J., concurring. Downes v. Bidwell, 182 UL S. 339, “Tf the treaty-making power can abso- lutely, without the consent of Congress, in- corporate territory, and if that power may not insert conditions against incorporation, it must follow that the treaty-making power is endowed by the Constitution with the most unlimited right, susceptible of destroy- ing every other provision of the Constitu- tion; that is, it may wreck our institutions.” Wuire, J. Downes v. Bidwell, 182 U. S. 312. Power to Enforce by Legislation. “In adopting the Fifteenth Amendment, it was ordained as the section thereof, ‘The Congress shall have power to enforce this article by appropriate legislation.’ This was done to remove doubts, if any existed, as to the former power; to add, at least, the weight of repetition to an existing power.” Hunt, J., dissenting. U. S. v. Reese, 92 U. S. 253. Power of Congress Crimes. “There are doubtless many matters of mere procedure which are of vital conse- quence; but in respect to them the power of Congress, as to crimes against the United States, is restrained by positive and specific in Reference to limitations, carefully inserted in the organic law, prohibiting unreasonable searches and seizures, and general warrants, providing that no one shall be held to answer for a capital or otherwise infamous crime, un- less on a presentment or indictment of a grand jury, except in cases arising in the military service; that no person shall, for the same offense, be twice put in jeop- ardy of life or limb, nor be compelled to testify against himself; that every accused person shall be secured in the right to a public trial by an impartial jury in a previously ascertained district, in which the alleged offense is charged to have been committed; to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining wit- nesses in his favor, and to have the assistance of counsel for his defense. But these are limitations upon the leg- islative power of the United States, whether prospective or retrospective, and not upon that of the states; and although the constitutions of all the states probably have equivalent guarantees of individual rights, the violation of none of them by a state tri- bunal, under state legislation, could present a case for the exercise of supervisory juris- diction by this court. The prohibition against bills of attainder is the only one of this class which applies to both the gov- ernment of the United States and those of the states; and while a bill of attainder may be an ex post facto law, it is not nec- essarily so, as it may be merely a matter of procedure, a trial by a legislative instead of a judicial body.” MartruHews, J., dissent- ing. Kring v. Missouri, 107 U. S. 248. Right to Assemble. “The right to peaceably assemble and pe- tition for redress of grievances, the privi- lege of the writ of habeas corpus, are rights of citizens guaranteed by the Federal Con- stitution.” Mitter, J. Slaughter-House Cases, 16 Wall. 79. “* Pull Faith and Credit shall be given in each state to the public acts, records, and judicial proceedings, of every other state.’ Art. 4, sect. 1 [of the Constitution of the United States]. Full faith shall be given in or throughout the territory of each state. By whom? By the sovereign state, by its agencies and authorities. To what is faith and credit to be given? To the acts of the political organization known as the state. Not only this, but to all its agencies, to the acts of its executive, to the acts of its courts 398 CONSTITUTIONAL LAW. of record. The expression ‘state,’ in this connection, refers to and includes all these agencies; and it is to these agencies that the legislation of Congress under this au- thority has been directed, and it is to the question arising upon the agencies of the courts that the questions have been judi- cially presented.” Hunt, J., dissenting. U. S. uv. Reese, 92 U. S. 250. “The Eleventh Amendment is the limi- tation of a power supposed to be granted in the original instrument.” Marsuat., C. J. Osborn v. Bank of U. S., 9 Wheat. 850. Supreme Law of Land. “Tt must always be borne in mind that the Constitution of the United States, * and the laws which shall be made in pursuance thereof, are ‘the supreme law of the land.’ (Const., art. 6), and that this law is as much a part of the law of each state, and as binding upon its authorities and people, as its own local constitution and laws.” Swayne, J. Farmers’, etc. Nat. Bank v. Dearing, 91 U. S. 35. : “The Constitution is the supreme law of the land upon all subjects upon which it speaks. It is the sovereign will of the whole people. Whatever this sovereign will en- joins, or forbids, must necessarily be su- preme, and must counteract the subordinate legislative will of the United States, and of the states.” TrimBLe, J., dissenting. Ogden v. Saunders, 12 Wheat. 325. “The Constitution of the United States and the laws made in pursuance thereof be- ing the supreme law of the land, all stat- utes of a state must, of course, give way, so far as they are repugnant to the national Constitution and laws. But an intention is not lightly to be imputed to the framers of the Constitution, or to the Congress of the United States, to subordinate the protection of the safety, health and morals of the people to the promotion of trade and com- merce.” Gray, J., dissenting. Leisy v. Har- din, 135 U. S. 158. “That Constitution and the laws made in pursuance thereof are supreme; they con- trol the constitutions and laws of the re- spective states, and cannot be controlled by them.” Gray, J. Van Brocklin v. Tennes- see, 117 U. S. 155. “The supremacy of the Constitution over all officers and authorities, both of the fed- eral and state governments, and the sanc- tity of the rights guaranteed by it, none will question. These are concessa on all sides.” Dantet, J. Cary v. Curtis, 3 How. 245. “No one can deny that the Constitution of the United States is the supreme law of the land; and consequently, no act of any state legislature, or of Congress, which is repugnant to it, can be of any validity.” M’Lean, J. Worcester v. Georgia, 6 Pet. 571. “No powers, which are not expressly given, can be exercised by the federal gov- ernment; but, where given, they are su- preme.” M’Lean, J. Worcester v. Georgia, 6 Pet. 570. “In cases involving federal questions af- fecting a state, the state cannot be regarded as standing alone. It belongs to a union consisting of itself and all its sister states. The Constitution of that union, and ‘the laws made in pursuance thereof, are the supreme law of the land, anything in the Constitution or laws of any state to the contrary notwithstanding ;’ and that law is as much a part of the law of every state as its own local laws and _ constitution.” Swayne, J. Farrington v. Tennessee, 95 UL S. 685. “We live under a Constitution which is the supreme law of the land. It enumerates the powers of government, and prescribes limitations and restrictions upon legislative authority as to the property of citizens. Some of these limitations and restrictions apply equally to the Congress of the United States and to the legislatures of the states.” Haran, J., dissenting. French wv. Barber Asphalt Paving Co., 181 U. S. 367. “The constitution of the state is the limit of the authority of its government, and both government and state are subject to the su- premacy of the Constitution of the United States, and of the laws made in pursuance thereof.” Marrurews, J. Poindexter v. Greenhow, 114 U. S., 290. “As the Constitution of the United States is the supreme law of the land, anything in the constitution or statutes of the states to the contrary notwithstanding, a statute of a state, even when avowedly enacted in the exercise of its police powers, must yield to that law. No right granted or secured by the Constitution of the United States can be impaired or destroyed by a state enact- ment, whatever may be the source from which the power to pass such enactment may have been derived. ‘The nullity of any act 399 CONSTITUTIONAL LAW. inconsistent with the Constitution is pro- duced by the declaration that the Constitution is the supreme law.’ The state has undoubt- edly the power, by approptiate legislation, to protect the public morals, the public health and the public safety, but if, by their hecessary operation, its regulations looking to either of those ends amount to a denial to petsons within its jurisdiction of the equal protection of the laws, they must be deemed unconstitutional and void.” Har- LAN, J. Connolly v. Utiion Sewer Pipe Co., 184 U. S. 558. “The Constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the re- spective states, and cannot be controlled by them. From this, which may be almost termed an axiom, other propositions are de- duced as corollaries, on the truth or error of which and on their application to this case, the cause has been supposed to depend. These are: ist. That a power to create im- plies a power to preserve. 2d. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve. 3d. That where this repugnancy exists, that au- thority which is supreme must control, not yield to that over which it is supreme.” MarsHatit, C. J. M’Culloch v. Maryland, 4 Wheat. 426. “The Constitution of the United States is the supreme law of the land, and binds every forum, whether it derives its authority from a state or from the United States.” GnrrER, J. Cook vw. Moffat, 5 How. 308. “On subjects, in relation to which the sovereign will is not declared, or fairly and necessarily implied, the Constitution cannot, with any semblance of truth, be said to be the supreme law.” Trimstz, J., dissenting. Ogden v. Saunders, 12 Wheat. 325. Operation in Reference to Newly Ac- quired Territory. “When the acquisition of territory be- comes complete, by cession, the Constitution necessarily becomes the supreme law of such new territory.” HArLan, J., dissenting. Downes v. Bidwell, 182 U. S. 384. “The Constitution is supreme over every foot of territory, wherever situated, under the jurisdiction of the United States, and its full operation cannot be stayed by any branch of the government in order to meet what some may suppose to be extraordinary ° 400 einergencies.” Hartan, J., dissenting, Downes v. Bidwell, 182 U. S. 385. “Tf the Constitution is in force in any ter-- ritory, it is in force there for every purpose embraced by the objects for which the gov- ernment was ordained.” Harvan, J., dis- senting. Downes v. Bidwell, 182 U.S. 385. “The Constitutioti [of the United States] is the supreme law in every territory, as soon as it comes under the sovereign do- minion of the United States for the pur- poses of civil administration, and whose in- habitants are under its entire authority and jurisdiction.” HarLAn, J., dissenting. Ha- waii v. Mankichi, 190 U. S. 240. “From the moment when the government of Hawaii accepted the Joint Resolution of 1898, by a formal transfer of its sovereignty to the United States — when the flag of Ha- waii was taken down, by the authority of Hawaii, and in. its place was raised that of the United States—every human being in Hawaii, charged with the commission of crime there, could have rightly insisted that neither his life nor his liberty could be taken, as punishment for crime, by any ptocess, or as the result of any mode of procedure, that was inconsistent with the Constitution of the United States.” Har- LAN, J., dissenting. Hawaii v. Mankichi, 190 U. S. 239. “T regard the whole theory of the exten- sion of the Constitution by the incorpora- tion of territory as a new departure in fedetal jurisprudence, and that the true an- swer to the question whether the Consti- tution applies to a territory is to be found in the fact whether Congress has extended the Constitution to it or not.” Brown, J., concurring. Rassmussen v. U. S., 197 U. S. 534. “Congress in dealing with newly-acquired territory is unfettered by the Constitution, unless it formally or by implication ex- tends the Constitution to it; and ‘ it may accept a cession of territory,. insti- tute a temporary government there, as it has done in a large nuniber of instances, without thereby extending the Constitution over it.” Brown, J., concurring. Rassmus- sen v. U. S., 197 U. S. 532. “The mere annexation [of the Hawaiian Islands] not having effected the incorpora- tion of the islands into the United States, it is not an open question that the provi- sions of the Constitution as to grand and CONSTITUTIONAL LAW. petit juries were not applicable to them.” Waits, J. Hawaii v. Mankichi, 190 U. S. 220. “ Albeit, as a general rule, the status of a particular territory has to be taken in view when the applicability of any provision. of the Constitution is questioned, it does not follow when the Constitution has absolutely withheld from the government all power on a given subject, that such an inquiry is nec- essary.” WHiTteE, J., concurring. Downes v. Bidwell, 182 U. S. 294. “In my opinion, guaranties for the pro- tection of life, liberty and property, as em- bodied in the Constitution, are for the bene- fit of all, of whatever race or nativity, in the states composing the Union, or in any territory, however acquired, over the inhabit- ants of which the government of the United States may exercise the powers conferred up- on it by the Constitution.” Harzan, J., dis- senting. Dorr v. U. S., 195 U. S. 154. “Tn every case where Congress under- takes to legislate in the exercise of the power conferred by the Constitution, the question may arise as to how far the exercise of the power is limited by the ‘ prohibitions’ of that instrument. The limitations which are to be applied in a given case involving territorial government must depend upon the relation of the particular territory to the United States, concerning which Congress is exercising the power conferred by the Con- stitution.” Day, J. Dorr v. U. S., 195 U.S. 142, “When the annexation of Hawaii was completed, the Constitution — without any declaration to that effect by Congress, and without any power of Congress to prevent it— became the supreme law for that coun- try, and, therefore, it forbade the trial and conviction of the accused for murder other- wise than upon a presentment or indictment of a grand jury, and by the unanimous ver- dict of a petit jury. Tf the legality of such trial and conviction is to be tested alone by the Joint Resolution of 1898, then the law is for the accused, because Con- gress, by that resolution, abrogated and for- bade the enforcement of any municipal law in Hawaii so far as it authorized a trial for an infamous crime otherwise than in the mode prescribed by the Constitution of the United States; and that any other con- struction of the resolution is forbidden by its clear, unambiguous words, and is to make, not to interpret, the law.” Haran, 1 Os. Dic.—26 J., dissenting. Hawaii v. Mankichi, 190 U. S. 248. “The Constitution of the United States became the supreme law of Hawaii imme- diately upon the acquisition by the United States to complete sovereignty over the Ha- waiian Islands, and without any Act of Con- gress formally extending the Constitution to those islands.” Hartan, J., dissenting. Hawaii v. Mankichi, 190 U. S. 238, “T reject altogether the theory that Con- gress, in its discretion, can exclude the Con- stitution from a domestic territory of the United States, acquired, and which could only have been acquired, in virtue of the Constitution.” Haran, J., dissenting. Downes v. Bidwell, 182 U. S. 386. “I confess that I cannot grasp the thought that Congress, which lives and moves and has its being in the Constitution and is con- sequently the mere creature of that instru- ment, can, at its pleasure, legislate or ex- clude its creator from territories which were acquired only by authority of the Consti- tution.” Harwan, J., dissenting. Downes v. Bidwell, 182 U. S. 382. “The idea that this country may acquire territories anywhere upon the earth, by con- quest or treaty, and hold them as mere colo- nies or provinces—the people inhabiting them to enjoy only such rights as Congress chooses to accord them—is wholly incon- sistent with the spirit and genius as well as with the words of the Constitution.” Har- LAN, J., dissenting, Downes v. Bidwell, 182 U. S. 380. “The prohibitory clauses of the Constitu- tion are many, and they have been repeatedly given effect by this court in respect of the territories and the District of Columbia.” Futter, C, J., dissenting. Downes v. Bid- well, 182 U. S. 359. “The liberality of Congress in legislat- ing the Constitution into all our contiguous territories has undoubtedly fostered the im- pression that it went there by its own force, but there is nothing in the Constitution itself, and little in the interpretation put upon it, to confirm that impression.” Brown, J. Downes v. Bidwell, 182 U. S. 286. “The practical interpretation put by Con- gress upon the Constitution has been long continued and uniform to the effect that the Constitution is applicable to territories ac- quired by purchase or conquest only when 401 CONSTITUTIONAL LAW. and so far as Congress shall so direct.” Brown, J. Downes v. Bidwell, 182 U. S. 278. “Congress, not only in organizing the ter- ritory of Louisiana by Act of March 26, 1804, but all other territories carved out of this vast inheritance, has assumed that the Constitution did not extend to them of its own force, and has in each case made special provision, either that their legisla- tures shall pass no law inconsistent with the Constitution of the United States, or that the Constitution or laws of the United States shall be the supreme law of such territories.” Brown, J. Downes v. Bidwell, 182 U. S. 257. First Ten Amendments — Operation Of. “The first ten amendments to the federal Constitution contain no restrictions on the powers of the state, but were intended to operate solely on federal government.” Brewer, J. Brown v. New Jersey, 175 U. S. 174. “The first ten articles of amendment were not intended to limit the powers of the states in respect of their own people, but to operate on the federal government only.” Futter, C. J. McElvaine v. Brush, 142 U. S. 158. “When the Constitution was adopted by the convention of 1787 and placed before the people for their acceptance or rejection, many wise statesmen whose patriotism no one then questioned or now questions, earn- estly objected to its acceptance upon the ground that it did not contain a Bill of Rights guarding the fundamental guarantees of life, liberty and property against the un- warranted exercise of power by the na- tional government. But the friends of the Constitution, believing that the failure to accept it would destroy all hope for perma- nent union among the people of the original states, and following the advice of Wash- ington who was the leader of the constitu- tional forces, met this objection by showing that when the Constitution had been ac- cepted by the requisite number of states and thereby become the supreme law of the land, such amendments could be,adopted as would relieve the apprehensions of those who deem- ed it necessary, by express provisions, to guard against the infringement by the agencies of the general government of any of the essential rights of Amer- ican freemen. This view prevailed, and the implied pledge thus given was car- ried out by the first Congress, which promptly adopted and submitted to the peo- ple of the several states the ten amend- ments. These amendments have ever since been regarded as the National Bill of Rights.” Haran, J., dissenting. Maxwell v. Dow, 176 U. S. 606. “In order to form a more perfect union, establish justice, insure domestic tranquility, provide for the. common defense, promote the general welfare and secure the blessings of liberty to themselves and their posterity, the political community known as the Peo- ple of the United States ordained and es- tablished the Constitution of the United States; and every member of that political community was a citizen of the United States. It was that community that adopt- ed, in the mode prescribed by the Consti- tution, the first ten amendments; and what they had in view by so doing was to make it certain that the privileges and immuni- ties therein specified — the payment of which, the fathers believed, were necessary in order to secure the blessings of liberty ~ could never be impaired or destroyed by the na- tional government.” Hartan, J., dissenting. Maxwell v. Dow, 176 U. S. 608. “Tt has been settled that the Fifth Amendment to the Constitution of the United States is a limitation only upon the powers of the general government, that is, that the amendment operates solely on the Constitu- tion itself by qualifying the powers of the national government which the Constitution called into being.” Wauursr, J. Talton v. Mayes, 163 U. S. 382. “Tt is now settled that those amendments do not extend to the states.” JoHwNson, J. Livingston v. Moore, 7 Pet. 551. “This court has . repeatedly held that the first eight amendments to the Con- stitution applied only to the federal courts.” Brown, J. Bolln v. Nebraska, 176 U. S. 88. “We have held that the first eight amend- ments are limitations only upon the powers of Congress and the federal courts, and are not applicable to the several states, except so far as the Fourteenth Amendment may have made them applicable.’ Brown, J. Brown v. Walker, 161 U. S. 606. “The Ordinance of 1787 was superseded by the adoption of the Constitution of the United States, and of the state, and the Fifth and Seventh Amendments were in- tended to operate solely on the federal gov- ernment and contain no restrictions on the powers of the state.” Futter, C. J. Chapin v. Fye, 179 U. S. 130, 402 CONSTITUTIONAL LAW. “As a consequence of the relation which the Hawaiian Islands occupied towards the United States, growing out of the resolution of annexation, the provisions of the Fifth and Sixth Amendments of the Constitution concerning grand and petit juries were not applicable to that territory, because, whilst the effect of the resolution of annexation was to acquire the islands and subject them to the sovereignty of the United States, neither the term of the resolution nor the situation which arose from it served to in- corporate the Hawaiian Islands into the United States and make them an integral part thereof.” Waits, J. Hawaii v. Man- kichi, 190 U. S. 219. “The Fifth and Sixth Amendments to the Constitution of the United States, which pro- vide that no person shall be deprived of life, liberty or property without due process of law, and secure to the accused in criminal prosecutions trial by jury, and compulsory process for obtaining witnesses in his favor, apply to the United States only, and not to laws or proceedings under the authority of a state.” Gray, J. In re Sawyer, 124 U.S. 219. “The Fifth Amendment is prohibitory upon the federal government only, and not upon the state governments.” Brabey, J., dissenting. Chicago, etc., Ry. Co. v. Minne- sota, 134 U. S. 465. “The adoption of the Constitution, as is well known, encountered great hostility from a large class, who dreaded a central govern- ment as one which would embarrass the states in the administration of their local af- fairs. They contended that the powers grant- ed to the proposed government were not sufficiently guarded, and might be used to encroach upon the liberties of the people. In the conventions of some of the states which ratified the Constitution a desire was eapressed for amendments declaratory of the rights of the people and restrictive of the powers of the new government, in order, as stated at the time, to prevent miscon- ception or abuse of its powers. The de- sire thus expressed subsequently led to the adoption of the first ten amendments.” Fretp, J., dissenting. O’Neil v. Vermont, 144 U. S. 361. “The law is perfectly well settled that the first ten amendments to the Constitu- tion, commonly known as the Bill of Rights, were not intended to lay down any novel principles. of government, but simply to em- body certain guaranties and immunities which we had inherited from our English ancestors, and which had from time imme- morial been subject to certain well-recog- nized exceptions, arising from the necessities of the case.” Brown, J. Robertson v. Bald- win, 165 U. S, 281. “The first ten amendments to the Consti- tution, adopted as they were soon after the adoption of the Constitution, are in the na- ture of a bill of rights, and were adopted in order to quiet the apprehension of many, that without some such declaration of rights the government would assume, and might be held to possess, the power to trespass upon those rights of persons and property which by the Declaration of Independence were affirmed to be unalienable rights.” Brewer, J. Monongahela Nav. Co. v. U. S., 148 U. S. 324, “As the object of the first eight amend- ments of the Constitution [of the United States] was to incorporate into the funda- mental law of the land certain principles of natural justice which had become permanently fixed in the jurisprudence of the mother country, the construction given to those prin- ciples by the English courts is cogent evi- dence of what they were designed to secure and of the limitations that should be put upon them.” Brown, J. Brown v. Walker, 161 U. S. 600. “They [constitutional safeguards for secur- ity and liberty] must stand as the Constitu- tion has devised them, They cannot be set aside and replaced by something else on the ground that the substitute will probably answer the same purpose.” Fteip, J., dis- senting. Brown v. Walker, 161 U. S. 636. “Tf some of the guarantees of life, liberty and property which at the time of the adop- tion of the national Constitution were re- garded as fundamental and as absolutely es- sential to the enjoyment of freedom, have in the judgment of some ceased to be of practical value, it is for the people of the United States so to declare by an amend- ment of that instrument.” Harwan, J., dis- senting. Maxwell v. Dow, 176 U. S. 617. Fourteenth Amendment — Privileges and Immunities-—— Due Process of Law— Equal Protection of Laws. “The equality of protection assured by the Fourteenth Amendment to all persons in the state does not imply that they shall be al- lowed to participate in the administration of its laws, or to hold any of its offices, or to discharge any duties of a public trust. The 403 CONSTITUTIONAL LAW. universality of the protection intended ex- cludes any such inference. Were this not so, aliens resident in the country, or tem- porarily here, of whom there are many thou- sands in each state, would be without that equal protection which the amendment ‘de- clares that no state shall deny to any person within its jurisdiction.” Frevp, J. Virginia v. Rives, 100 U. S. 335. “ All the powers possessed by a state must be exercised consistently with the privileges and immunities granted or protected by the Constitution of the United States.” Harran, J. Blake v. McClung, 172 U. S. 255. “Ts any one of the rights secured to the individual by the Fifth or by the Sixth Amendment any more a privilege or im- munity of a citizen of the United States than are those secured by the Seventh? In none are they privileges or immunities granted and belonging to the individual as a citizen of the United States, but they are secured to all persons as against the fed- eral government, entirely irrespective of such citizenship. As the individual does not en- joy them as a privilege of citizenship of the United States, therefore, when the Four- teenth Amendment prohibits the abridgment by the states of those privileges or immuni- ties which he enjoys as such citizen, it is not correct or reasonable to say that it covers and extends to certain rights which he does not enjoy by reason of his citizenship, but simply because those rights exist in favor of all individuals as against federal govern- mental powers. The nature or character of the right of trial by jury is the same in a criminal prosecution as in a civil action, and in neither case does it spring from nor is it founded upon the citizenship of the in- dividual as a citizen of the United States, and if not, then it cannot be said that in either case it is a privilege or immunity which alone belongs to him as such citizen.” PeckHAM, J. Maxwell v. Dow, 176 U. 5S. 595, “The Fourteenth Amendment, which was finally adopted July 28, 1868, largely ex- panded the power of the federal courts and Congress, and for the first time authorized the former to declare invalid all laws and judicial decisions of the states abridging the rights -of citizens or denying them the ben- efit of due process of law.” Brown, J. Holden v. Hardy, 169 U. S. 382. “The Fourteenth Amendment does not pro- fess to secure to all persons in the United States the benefit of the same laws and the same remedies.” Brapitey, J. Missouri v, Lewis, 101 U. S. 31. “The Fourteenth Amendment of the Con- stitution of the United States, . . . in terms, operates only to control actions of the states, and does not purport to extend to au- thority exercised by the government of the United States.” Sutras, J. Wight v. David- son, 181 U. S. 384. “The purpose of the Fourteenth Amend- ment ‘is to extend to the citizens and resi- dents of the states the same protection against arbitrary state legislation affecting life, liberty and property, as is afforded by the Fifth Amendment against similar legisla- tion by Congress.” Harran, J., dissenting. Tonawanda v. Lyon, 181 U. S. 393. “The Fourteenth Amendment, in forbid- ding a state to make or enforce any law abridging the privileges or immunities of citizens of the United States, or to deprive any person of life, liberty or property with- out due process of law, or to deny to any person within its jurisdiction the equal pro- tection of the laws, did not invest, and did not attempt to invest Congress with power to legislate upon subjects which are within the domain of state legislation.” Futter, C. J. In re Rahrer, 140 U. S. 554. “Tt is only equality of privileges and im- munities between citizens of different states that the Constitution guarantees.” Frexp, J. Downham v. Alexandria, 10 Wall. 175. “The Fourteenth Amendment, in declar- ing that no state ‘shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its ju- risdiction the equal protection of the laws,’ undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impedi- ment should be interposed to the pursuits of any one except as applied to the same pur- suits by others under like circumstances: that no greater burdens should be Jaid upon one than are laid upon others in the same 404 CONSTITUTIONAL LAW. calling and condition, and that in the ad- ministration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offenses.” Friern, J. Barbier v. Con- nolly, 113 U. S. 31. “Class legislation, discriminating against some and favoring others, is prohibited [by the Fourteenth Amendment] but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amend- ment.” Fretp, J. Barbier vw. Connolly, 118 U. S. 32. “But in order to bring taxation imposed by a state or under its authority within the scope of the Fourteenth Amendment of the national Constitution the case should be clearly and palpably an illegal encroachment upon private rights as to leave no doubt that such taxation by its necessary operation is really spoliation under the guise of exerting - the power to tax. As an Act of Congress should not be declared unconstitutional unless its repugnancy to the supreme law of the land is too clear to admit of dispute, so a local regulation under which taxes are imposed should not be held by the courts of the Union to be inconsistent with the national Constitution unless that conclusion be un- avoidable. All doubt as to the validity of legislative enactments must be resolved, if possible, in favor of the binding force of such enactments.” Haran, J. Henderson Bridge Co. v. Henderson City, 173 U. S. 615. “A prohibition to him [a person born in the United States] to pursue certain call- ings, open to others of the same age, con- dition and sex, or to reside in places where others are permitted to live, would so far deprive him of the rights of a freeman, and would place him, as respects others, in a condition of servitude. A person allowed to pursue only one trade or calling, and only in one locality of the country, would not be, in the strict sense of the term, in a condi- tion of slavery, but probably none would deny that he would be in a condition of servitude. He certainly would not possess the liberties nor enjoy the privileges of a freeman. The compulsion which would force him to labor even for his own benefit only in one direc- tion, or in one place, would be almost as op- pressive and nearly as great an invasion of his liberty as the compulsion which would force him to labor for the benefit or pleasure of another, and would equally constitute an element of servitude.” Fuexp, J., dissenting. Slaughter-House Cases, 16 Wall. 90. “The state may prescribe such regulations for every pursuit and calling of life as will promote the public health, secure the good order and advance the general prosperity of society, but when once prescribed, the pur- suit or calling must be free to be followed by every citizen who is within the conditions designated, and will conform to the regula- tions. This is the fundamental idea upon which our institutions rest, and unless ad- hered to in the legislation of the country our government will be a republic only in name. The Fourteenth Amendment, in my judgment, makes it essential to the validity of the leg- islation of every state that this equality of right should be respected.” FIELD, J., dis- senting. Slaughter-House Cases, 16 Wall. 110. “A law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment pre- viously adopted, does deprive them of liberty as well as property, without due process of law. Their right of choice is a portion of their liberty; their occupation is their prop- erty. Such a law also deprives those citi- zens of the equal protection of the laws.” Braptey, J., dissenting. Slaughter-House Cases, 16 Wall. 122. “Tt has never been held that it was the purpose or function of that amendment [the Fourteenth Amendment] to change the sys- tems and policies of the states in regard to the devolution of estates, or to the extent of the taxing power over them.” Sutras, J. Orr v. Gilman, 183 U. S. 286. © The object of the Fourteenth Amendment in respect of citizenship was to preserve equality of rights and to prevent discrimi- nation as between citizens, but not only to radically change the whole theory of the rela- tions of the state and federal governments to each other, and of both governments to the people.” Futrrer, C. J. McPherson v. Blacker, 146 U. S. 39. “This court has adjudged that the pro- hibitions of the Fourteenth Amendment refer to all the instrumentalities of the state, to its legislative, executive and judicial authori- ties.” Harran, J. Blake v. McClung, 172 U.S. 260. “The history of the amendments [13th, 14th, and 15th] is fresh in the recollection of all of us. They grew out of the late civil 405 CONSTITUTIONAL LAW. war and the events which followed it. They were primarily designed to give freedom to persons of .the African race, prevent their future enslavement, make them citizens, pre- vent discriminating state legislation against their rights as freemen, and secure to them the ballot. The generality of the language used necessarily extends some of their pro- visions to all persons of every race and color; but in construing the amendments and giv- ing effect to them, the occasion of their adop- tion and the purposes they were designed to attain should be always borne in mind. Nor should it be forgotten that they are addi- tions to the previous amendments, and are to be construed in connection with them and the original Constitution as one instrument. They do not, in terms, contravene or repeal any thing which previously existed in the Constitution and those amendments. Aside from the extinction of slavery, and the decla- ration of citizenship, their provisions are merely prohibitory upon the states; and there is nothing in their language or purpose which indicates that they are to be construed or en- forced iri any way different from that adopted with reference to previous restraints upon the states. The provision authorizing Con- gress to enforce them by appropriate legisla- tion does not enlarge their scope, nor confer any authority which would not have existed independently of it. No legislation would be appropriate which should contravene the ex- press prohibitions upon Congress previously existing, as, for instance, that it should not pass a bill of attainder or an ex post facto law. Nor would legislation be appropriate which should conflict with the implied pro- hibitions upon Congress. They are as ob- ligatory as the express prohibitions. The Constitution, as already stated, contemplates the existence and independence of the states in all their reserved powers. If the states were destroyed there could, of course, be no United States.” Frexp, J., dissenting. Ex p. Virginia, 100 U. S. 361. ‘ “Tt has been more than once said ju- dicially that one of the principles upon which this government was founded is that of equality of right. Tt is emphasized in that clause of the Fourteenth Amendment which prohibits any state to deny to any individual the equal protection of the laws. That con- stitutional provision does not, it is true, in- validate on the mere ground of inequality in actual result. Tax laws, for instance, in their nature are and must be general in scope, and it may often happen that in their practical application they touch one person unequally from another. But that inequality is something which it is impossible to fore- see and guard against, and therefore such resultant inequality in the operation of a law does not defeat its validity.” Brewer, J. Cotting v. Kansas City Stock Yards Co, etc., 183 U. S. 110. “When the legislature, in an effort to pre- vent any inquiry of the validity of a par- ticular statute, so burdens any challenge thereof in the courts, that the party af- fected is necessarily constrained to submit rather than take the chances of the penalties imposed, then it becomes a serious question whether the party is not deprived of the equal protection of the laws.” Brewer, J. Cotting v. Kansas City Stock Yards Co., etc., 183 U. S. 102. “Classification for such purposes [legisla- tion] is not invalid because not depending on scientific or marked differences in things or persons or in their relations. It suffices if it is practical and is not reviewable unless palpably arbitrary.” McKenna, J. Orient Ins. Co. v. Daggs, 172 U. S. 562. “A vested right of action is property in the same sense in which rights to tangible things are, and is equally protected. Whether it springs from contract or from other rules of the common law, it is not competent for the legislature to take it away.” ‘Strone, J., dissenting. Sinking-Fund Cases, 99 U. S. 733. “ Although the Constitution declares only .that private property shall not be taken for public use without just compensation, and does not expressly declare that it shall not be taken for private use without compensation, or, in other words, does not declare that the property of one person shall not be taken from him and given to another without com- pensation, yet no one can reasonably doubt that a law which should do this would be un- constitutional, because the prohibition to do it is within the spirit of the prohibition that is given, it being the greater enormity of the two.” Braptey, J., dissenting. Sinking- Fund Cases, 99 U. S. 744. “ Exercising the undoubted right of classifi- cation it may often happen that some classes are subjected to regulations and some in- dividuals are burdened with obligations which do not rest upon other classes or other in- dividuals not similarly situated. License taxes are imposed on certain classes of busi- ness while others are exempt. It would prac- tically defeat legislation if it was laid down as a rule that a statute was necessarily ad- 406 CONSTITUTIONAL LAW. judged invalid if it did not bring all within its scope or subject all to the same burdens, It would strip the legislature of its inherent power to determine generally what is for the general interests, which interests may often be promoted by certain regulations affecting one class which do not affect another — cer- tain burdens imposed on one which do not rest upon another. But while recognizing to the full extent the impossibility of an im- position of duties and obligations mathemat- ically equal upon all, and also recogniz- ing the right of classification of industries and occupations, we must nevertheless al- ways remember that the equal protection of the laws is guaranteed, and that such equal protection is denied when upon one of two parties engaged in the same kind of business and under the same conditions burdens are cast which are not cast upon the other.” Brewer, J. Cotting v. Kansas City Stock Yards Co., etc., 183 U. S. 111. . “Tf once the door is opened to the af- firmance of the proposition that a state may regulate one who does much business, while not regulating another who does the same but less business, then all significance in the guar- antee of the equal protection of the laws is lost.” Brewer, J. Cotting v. Kansas City Stock Yards Co., etc., 183 U. S. 112. “What may be regarded as a denial of the equal protection of the laws is a ques- ticn not always easily determined, as the de- cisions of this court and of the highest courts of the states will show. It is sometimes difficult to show that a state enactment, having its source in a power not controverted, infringes rights protected by the national Constitution. No rule can be formulated that will cover every case.” Hartan, J. Con- nolly v. Union Sewer Pipe Co., 184 U. S. 558. “Tt seems like a contradiction to say that a law having inequality of operation may yet give equality of protection. Viewed rightly, however, the contradiction disappears ; indeed, need not even be expressed. There are very few exertions of government which can be made applicable to all persons as such. Gov- ernment is not a simple thing. It encounters and must deal with the problems which come from persons in an infinite variety of rela- tions. Classification is the recognition of those relations, and in making it a legisla- ture must be allowed a wide latitude of dis- cretion and judgment.” McKenna, J., dis- senting. Connolly v. Union Sewer Pipe Co., 184 U. S. 566. “Any state legislation which denies the equal protection of the laws is prohibited. The prohibition is independent of form or means. It would be strange, indeed, if the power of a state is limited and confined by the Constitution of the United States, when the state attempts by law to regulate con- duct, and is unbounded in its discretion when it imposes taxes; and in one case it may see a difference between manufacturers and planters, and in the other case may not see a difference between traders in commodities acquired for the purposes of sale and such property when held by farmers by whose labor they were produced.” McKenna, J., dissenting. Connolly v. Union Sewer Pipe Co., 184 U. S. 568. “The principle of classification . . is not different in tax laws than in other laws. That principle necessarily implies discrimination between the persons composing the class and other persons. The equality prescribed by the Constitution is fulfilled if equality be observed between the members of the class. It is violated if such equality be not observed.” McKenna, J., dissenting. Connolly v. Union Sewer Pipe Co., 184 U. S. 570. “The equality of operation which the Con- stitution requires in state legislation cannot be construed as demanding an ab- solute universality of operation, having no regard to the different capabilities, conditions and relations of men. Classification, therefore, is necessary, but what are its limits? They are not easily defined, but the purview of the legislation should be regarded. A line must not be drawn which includes arbitrarily some persons who do and some persons who do not stand in the same relation to the purpose of the legislation. But a wide attitude of selection must be left to the legislature. It is only a palpable abuse of the power of selec- tion which can be judicially reviewed, and the right of review is so delicate that even in its best exercises it may lead to challenge. At times, indeed, it must be exercised, but should always be exercised in view of the function and necessarily large powers of a legisla- ture.” McKenna, J., dissenting. Connolly v. Union Sewer Pipe Co., 184 U. S. 570. “Arbitrary selection can never be jus- tified by calling it classification. The equal protection demanded by the Fourteenth Amendment [of the Constitution] forbids this.” Brewer, J. Gulf, etc, R. Co. v. Ellis, 165 U. S. 159. 407 CONSTITUTIONAL LAW. “No duty rests more imperatively on the courts than the enforcement of those con- stitutional provisions intended to secure that equality of rights which is the foundation of free government.” Brewer, J. Gulf, etc, R. Co. v. Ellis, 165 U. S. 160. “We premise that the clause of the Four- teenth Amendment of the Constitution refer- red to [that ‘No state shall deprive any person of life, liberty or property, without due process of law; nor deny to any per- son within its jurisdiction the equal protec- tion of the laws’] was undoubtedly intended to prohibit an arbitrary deprivation of life, or liberty, or arbitrary spoliation of property.” Wuiter, J. Jones v. Brim, 165 U. S. 182. “The Fourteenth Amendment to the Con- stitution of the United States does not pro- hibit legislation which is limited either in the objects to-which it is directed, or by the ter- ritory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.” Frerp, J. Hayes v. Mo., 120 U. S. 71. “The greater part of all legislation is special, either in the objects sought to be attained by it, or in the extent of its applica- tion. Laws for the improvement of munici- palities, the opening and widening of par- ticular streets, the introduction of water and gas, and other arrangements for the safety and convenience of their inhabitants, and laws for the irrigation and drainage of particular lands, for the construction of levees and the bridging of navigable rivers, are instances of this kind. Such legislation does not infringe upon the clause of the Four- teenth Amendment requiring equal protection of the Jaws, because it is special in its char- acter.” Fretp, J. Missouri R. Co. v. Mackey, 127 U. S. 209. “When legislation applies to particular bodies or associations, imposing upon them additional liabilities, it is not open to the ob- jection that it denies to them the equal pro- tection of the laws, if all persons brought under its influence are treated alike under the same conditions.” Fiep, J. Missouri R. Co. v. Mackey, 127 U. S. 209. “When a state legislature has declared that in its opinion policy requires a certain measure, its action should not be disturbed by the courts under the Fourteenth Amend- ment, unless they can see clearly that there is no fair reason for the law that would not require with equal force its extension to others whom it leaves untouched.” Ho.mzs, J. Missouri, etc., R. Co. v. May, 194 U. S, 269, “The idea that one state is debarred, while the others are granted, the privilege of: amending their organic laws to conform to the wishes of their inhabitants, is so repug- nant to the theory of their equality under the Constitution, that it cannot be entertained even if Congress had power to make such discriminations.” Brown, J. Bolln v. Ne- braska, 176 U. S. 89. “That only is a free government, in the American sense of the word, under which the inalienable right of every citizen to pursue his happiness is unrestrained, except by just, equal, and impartial laws.” Frexp, J., dis- senting. Slaughter-House Cases, 16 Wall. 111. —— Life, Liberty, and Property. “Tf the legislature of a state, under pre- tence of providing for the public good, or for any other reason, can determine against the consent of the owner, the uses to which pri- vate property shall be devoted, or the prices which the owner shall receive for its uses, it can deprive him of the property as com- pletely as by a special act for its confisca- tion or destruction.” Fretp, J., dissenting. Munn v. Illinois, 94 U. S. 142. “Of what avail is the constitutional pro- vision that no state shall deprive any per- son of his property except by due process of law, if the state can, fixing the compensa- tion which he may receive for its use, take from him all that is valuable in the property ? To what purpose can the constitutional pro- hibition upon the state against impairing the obligation of contracts be invoked, if the state can, in the face of a charter au- thorizing a company to charge reasonable rates, prescribe what rates shall be deemed reasonable for services rendered?” FYExp, J., dissenting. Stone v. Wisconsin, 94 U. S. 186. “The power of the state over the property of the citizen under the constitutional guar- anty is well defined. The state may take his property for public uses, upon just com- pensation being made therefor. It may take a portion of his property by way of taxa- tion for the support of the government. It may control the use and possession of his property, so far as may be necessary for the protection of the rights of others, and to 408 CONSTITUTIONAL LAW. secure to them the equal use and enjoyment of their property.” Fistp, J., dissenting. Munn v. Illinois, 94 U. S. 145. “While this provision [deprivation of life, liberty, or property] of the amendment is new in the Constitution of the United States, as a limitation upon the powers of the states, it is old as a principle of civilized govern- ment. It is found in Magna Charta, and, in substance if not in form, in nearly or quite all the constitutions that have been from time to time adopted by the several states of the Union. By the Fifth Amendment, it was introduced into the Constitution of the United States as a limitation upon the powers of the national government, and by the Fourteenth, as a guaranty against any encroachment upon an acknowledged right of citizenship by the legislatures of the states.” Warts, C. J. Munn v. Illinois, 94 U. S. 123. “Neither the life, nor the liberty, nor the property of any person, within any territory or country over which the United States is sovereign, can be taken, under the sanction of any civil tribunal, acting under its au- thority, by any form or procedure inconsistent with the Constitution of the United States.” Haran, J., dissenting. Hawaii v. Mankichi, 190 U. S. 236. “Tf the property of the citizen is ‘taken’ within the meaning of the Constitution, when its value is destroyed or permanently im- paired through the act of the government, or by the acts of others under the sanction or authority of the government, it would seem that the citizen, holding a judgment for money against a municipal corporation — which judgment is capable of enforcement by judicial proceedings at the time of its rendition —is deprived of his property with- out due process of law, if the state, by a subsequent law, so reduces the rate of tax- ation as to make it impossible for the cor- poration to satisfy such judgment. Since the value of the judgment, as property, de- pends necessarily upon the remedies given for its enforcement, the withdrawal of all remedies for its enforcement, and com- pelling the owner to rely exclusively upon the generosity of the judgment debtor, is, I submit, to deprive the owner of his prop- erty.” Harwan, J., dissenting. Louisiana v. New Orleans, 109 U. S. 295. “The words life, liberty, and property are constitutional terms, and are to be taken in their broadest right.” Braptey, J., dissent- ing. Campbell v. Holt, 115 U. S. 630. “The term ‘property,’ in this clause [the Fourteenth Amendment], embraces all val- uable interests which a man may possess out- side of himself, that is to say, outside of his fife and liberty. It is not confined to mere tangible property, but extends to every species of vested right. In my judgment, it would be a very narrow and technical construction to hold otherwise.” BRabLey, J., dissenting. Campbell v. Holt, 115 U. S. 630. Vested Rights, “We understand very well what is meant by a vested right to real estate, to personal property, or to incorporeal hereditaments. But when we get beyond this, although vested rights may exist, they are better described by some more exact term, as the phrase it- self is not found in the language of the Con- stitution.” Mutuer, J. Campbell v. Holt, 115 U. S. 628. “Tt is to be observed that the word vested right is nowhere used in the Constitution, neither in the original instrument nor in any of the amendments to it.” Murer, J. Campbell v. Holt, 115 U. S. 628. “The suggestion that the words * vested rights’ are not to be found in the Constitu- tion does not prove that there are no such rights.” BrapLey, J., dissenting. Campbell v. Holt, 115 U. S. 632. Religion. “Congress cannot pass a law for the gov- ernment of the territories which shall pro- hibit the free exercise of religion. The first amendment to the Constitution expressly for- bids such legislation.” Wattre, C. J. Rey- nolds v. U. S., 98 U. S. 162. . “Religious freedom is guaranteed every- where throughout the United States, so far as congressional interference is concerned.” Waite, C.J. Reynolds v. U.S.,98 U. S. 162. “Tt is impossible to believe that the con- stitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life.” Waite, C. J. Reynolds v. U. S., 98 U. S. 165. . “Laws are made for the government of ac- tions, and while they cannot interfere with mere religious belief and opinions, they may with practices.” Firtp, J. Davis v. Beason, 133 U. S. 344. Authority to Make All Necessary Laws, etc. “Tn the last of the enumerated powers [in the Constitution] that which grants, ex- 409 CONSTITUTIONAL LAW. pressly, the means of carrying all others into execution, Congress is authorized ‘to make all laws which shall be necessary and proper for the purpose. But this limitation on the means which may be used, is not extended to the powers which are conferred; nor is there one sentence in the Constitution which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule. We do not, there- fore, think ourselves justified in adopting it.” Marsuatt, C. J. Gibbons v. Ogden, 9 Wheat. 187. “By the last clause of sec. 8, art. 1, Con- gress is authorized ‘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 construed on the same principles vests in Congress a wide range of discretion as to the means by which the powers granted are to be carried into execution. This mat- ter was at an early day presented to this court, and it was affirmed that there could be no narrow and technical limitation or con- struction; that the instrument should be taken as a constitution.” Brewer, J. Fair- bank v. U. S., 181 U. S. 287. Legal Tender Acts. “ Before we can hold the legal tender acts unconstitutional, we must be convinced they were not appropriate means, or means con- ducive to the execution of any or all of the powers of .Congress, or of the government, not appropriate in any degree (for we are not judges of the degree of appropriateness), or we must hold that they were prohibited.” Stronc, J. Legal Tender Cases, 12 Wall. 539, Amendment. “Tf our government needs more power than is conferred upon it by the Constitution, that instrument provides the mode in which it may be amended and additional power thereby obtained.” Haran, J., dissenting. Downes v. Bidwell, 182 U. S: 386. “The people made the Constitution, and the people can unmake it. It is the creature of their own will, and lies only by their will. But this supreme and _ irresistible power to make or to unmake, resides only in the whole body of the people; not in any subdivision of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it.’ MarsHatt, C. J. Cohen vw. Virginia, 6 Wheat. 389. “A constitutional amendment must be agreed to, not only by the senators and rep- resentatives, but it must be ratified by the legislatures, or by conventions, in three- fourths of the states before such amend- ment can take effect.” PeckHam, J. Max- well v. Dow, 176 U. S. 602. “Tf experierice has shown, or shall show, that one or more of the provisions of the Constitution has become unsyited to af- fairs as they now exist, and unduly fetters the courts in the enforcement of useful laws, the remedy must be found in the right of the nation to amend the fundamental law, and not in appeals to the courts to sub- stitute for a constitutional guaranty the doubt- ful and uncertain provisions of an experimen- tal statute.” Sutras, J., dissenting. Brown v. Walker, 161 U. S. 627. “A mere Act of Congress cannot amend the Constitution.” BriatcHForp, J. Counsel- man v. Hitchcock, 142 U. S. 565. II. CONSTRUCTION AND INTER- PRETATION OF CONSTITUTION- AL PROVISIONS. “The Object of Construction, applied to a constitution, is to give effect to the intent of its framers, and of the people, in adopting it. This intent 1s to be found in the in- strument itself; and when the text of a con- stitutional provision is not ambiguous, the courts, in giving construction thereto, are not at liberty to search for its meaning be- yond the instrument.” Lamar, J. Lake County v. Rollins, 130 U. S. 670. “The True Spirit of Constitutional In- terpretation in both directions is to give full, liberal construction to the language, aim- ing ever to show fidelity to the spirit and purpose.” Brewer, J. Fairbank v. U. S,, 181 U. S. 289. “Limitations of a Power furnish a strong argument in favor of the existence of that power.” MarsHAtt, C. J. Gibbons v. Ogden, 9 Wheat. 200. “The Arguments of Individual Legisla- tors are no proper subject for judicial comment. They are so often influenced by personal or political considerations, or by the assumed necessities of the situation, that they 410 CONSTITUTIONAL LAW. can hardly be considered even as the deliber- ate views of the persons who make them, much less as dictating the construction to be put upon the Constitution by the courts.” Brown, J. Downes v. Bidwell, 182 U. S. 254, ‘ “What individual senators or represent- atives may have urged in debate, in regard to the meaning to be given to a proposed con- stitutional amendment, or bill or resolution, does not furnish a firm ground for its proper construction, nor is it important as explana- tory of the grounds upon which the mem- bers voted in adopting it.” PrecKHam, J. Maxwell v. Dow, 176 U. S. 601. “Doubtless, the intention of the Congress which framed and of the states which adopted this amendment [the Fourteenth Amend- ment] of the Constitution must be sought in the words of the amendment; and the debates in Congress are not admissible as evidence to control the meaning of those words.” Gray, J. U.S. v. Wong Kim Ark, 169 U. S. 699. Contemporaneous Construction. “A practical construction, nearly con- temporaneous with the adoption of the Con- stitution, and continued by repeated in- stances through.a long series of years, may always influence, and in doubtful cases should determine, the judicial mind, on a ques- tion of the interpretation of the Constitu- tion.” Curtis, J. Scott wv. Sandford, 19 How. 616. “A contemporaneous exposition of the Con- stitution, certainly of not less authority than that which has just been cited [The Fed- eralist], is the Judiciary Act itself.” Mar- SHALL, C. J. Cohen v. Virginia, 6 Wheat. 420. “Great weight has always been attached, and very rightly attached, to contemporaneous expositions.” MarsHatt, C. J. Cohen vw. - Virginia, 6 Wheat. 418. Theoretical Opinions. “When a strict interpretation of the Con- stitution, according to the fixed rules which govern the interpretation of laws, is aban- doned, and the theoretical opinions of in- dividuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean. When such a method of interpretation of the Con- stitution obtains, in place of a republican Dooley v. U. S., 183 U. S. 173. 1 government, with limited and defined powers, we have a government which is merely an exponent of the will of Congress; or what, in my opinion, would not be preferable, an exponent of the individual political opinions of the members of this court.” Curtis, J. dissenting. Scott v. Sandford, 19 How. 621, Usual and Fair Import of Words. “No clause in the Constitution ought to be interpreted differently from the usual and fair import of the words used.” TaNeEy, C. J. Holmes v. Jennison, 14 Pet. 571. “The words of the Constitution must al- ways be construed according to their plain import, looking at their connection and the object in view.” M’Lean, J. Craig v. Mis- souri, 4 Pet. 454. “Words in a constitution, as well as words in a statute, are always to be given the mean- ing they have in common use, unless there are very strong reasons to the contrary.” Waite, C. J. Tennessee v. Whitworth, 117 Uz. S. 147, “The members of the Convention unques- tionably used the words they inserted in the Constitution in the same sense in which they used them in their debates. It was their object to be understood, and not to mislead, and they ought not to be supposed to have used familiar words in a new and unusual sense.” Taney, C. J., dissenting. Passenger Cases, 7 How. 477. “The framers of the Constitution em- ployed words in their natural sense; and where they are plain and clear, resort to collateral aids to interpretation is unnecessary and cannot be indulged in to narrow or en- large the text.” Futter, C. J. McPherson v. Blacker, 146 U. S. 27, “As men, whose intentions require no con- cealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened pa- triots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.” MarsHatt, C. J. Gibbons v. Og- den, 9 Wheat. 188. “The plain language of the Constitution should not be made ‘blank paper by con- struction,’ and its specific mandate ought to be obeyed.” Futter, C. J., dissenting. CONSTITUTIONAL LAW. Literal Meaning of Words — Connection — Objects. “In performing the delicate and .impor- tant duty of constructing clauses in the Con- stitution of our country, which involve con- flicting powers of the government of the Union, and of the respective states, it is proper to take a view of the literal meaning of the words to be expounded, of their con- nection with other words, and of the general hibitory clause, or by the grant of power.” MarsHalL, C. J. Brown v. Maryland, 12 Wheat. 437. Attentive Consideration of Words. “A question growing out of the Consti- tution of the United States requires rather an attentive consideration of the words of that instrument, than of the decisions of an- alogous questions by the courts of any other country.” Marsuaut, C. J. Osborn v. Bank of U. S., 9 Wheat. 851. Effect Must Be Given to Each Word. “{An] elementary canon of construction » + . requires that effect be given to each word of the Constitution.’ Wut, J. Knowlton v. Moore, 178 U. S. 87. “Tn construing an instrument of so much solemnity and importance, effect should be given, if possible, to every word. No ex- pression should be regarded as a useless ex- pletive; nor should it be supposed, without the most urgent necessity, that the illustrious framers of that instrument had, from igno- rance or inattention, used different words which are, in effect, merely tautologous.” TrimB_e, J., dissenting. Ogden v. Saunders, 12 Wheat. 316. “In expounding the Constitution of the United States, every word must have its due force, and appropriate meaning; for it is evident from the whole instrument, that no word was uwumnecessarily used, or need- lessly added.” Taney, C. J. Holmes wv. Jennison, 14 Pet. 570. Objects. “Tf, from the imperfection of human lan- guage, there should be serious doubts re- specting the extent of any given power, it is a well-settled rule that the objects for which it was given, especially when: those objects are expressed in the instrument itself, should have great influence in the construction.” MarsHaLt, C. J. Gibbons v. Ogden, 9 Wheat. 188, “When investigating the nature and ex- tent of the powers conferred by the Con- stitution upon Congress, it is indispensable to keep in view the objects for which those powers were granted. This is a universal rule of construction applied alike to statutes, wills, contracts, and constitutions.” STRONG, J. Legal Tender Cases, 12 Wall. 531. Evident Purpose Must Not Be Defeated. “A constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief at which it was aimed.” Fietp, J. Jarrolt v. Moberly, 103 U.S. 586. ““No court of justice can be authorized so to construe any clause of the Constitution as to defeat its obvious ends, when another con- struction, equally accordant with the words and sense thereof, will enforce and protect them.” STORY, J. Prigg v. Pennsylvania, 16 Pet. 612. Not to Be Interpreted as Strict as Private Contract. “A constitution, establishing a frame of government, declaring fundamental principles, and creating a national sovereignty, and in- tended to endure for ages and to be adapted to the various crises of human affairs, is not to be interpreted with the strictness of a pri- vate contract.” Gray, J. Legal Tender Case, 110 U. S. 439. Expediency. “Tt is admitted that the expediency or inexpediency of a measure cannot be consid- ered, in giving a construction to the Con- stitution. . But when, in giving a construc- tion to that instrument, ite becomes necessary, as it does in some instances, to look into the mischiefs provided against, and the appli- cation becomes, to some extent, a matter of inference, the question of expediency must be considered.” M’Lean, J. Craig v. Mis- souri, 4 Pet. 457. “Arguments drawn from convenience or inconvenience can have no _ force in questions of constitutional power; indeed, they cannot be admitted at all, for if once ad+ mitted, they sweep away every barrier erected by the Constitution against implied authority, and may cover every project which the human mind may conceive.” Dantet, J., dissenting. Searight v. Stokes, 3 How. 181. Exceptions from Power Mark Its Extent. “It is a rule of construction, ackrowl- edged by all, that the exceptions from a power mark its extent; for it would be ab- surd, as well as useless, to except from a CONSTITUTIONAL LAW. granted power, that which was not granted : that which the words of the grant could not comprehend.” MarsHat, C. J. Gibbons v. Ogden, 9 Wheat. 191. Astute Verbal Criticism. “The Constitution of the United States, and the powers confided by it to the general government, to be exercised for the benefit of all the states, ought not to be nullified or evaded by astute verbal criticism, without regard to the grand aim and object of the instrument, and the principles on which it is based.” Grier, J. Passenger Cases, 7 How. 459. Reasonable Construction, “The government of the United States, can claim no powers which are not granted to it by the Constitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication. On the other hand, this instru- ment, like every other grant, is to have a reasonable construction, according to the im- port of its terms; and where a power is expressly given in general terms, it is not to be restrained to particular cases, unless that construction grow out of the context expressly, or by necessary implication. The words are to be taken in their natural and obvious sense, and not in a sense unreason- ably restricted or enlarged.” Story, J. Martin vw. Hunter, 1 Wheat. 326. “The Necessities Which Gave Birth to the Constitution, the controversies which precede its formation, and the conflicts of opinion which were settled by its adoption, may properly be taken into view for the pur- pose of tracing to its source any particular provision of the Constitution, in order thereby to be enabled to correctly interpret its meaning.” WuurteE, J. Knowlton v. Moore, 178 U. S. 95. “The Constitution is to be interpreted by what was the condition of the parties to it when it was formed, by their object and purpose in forming it, and by the actual recognition in it of the dissimilar institu- tions of the states.” Wayne, J. Passenger Cases, 7 How. 428. Historical Origin and Decisions Must Be Considered. : “When called upon to construe and apply a provision of the Constitution of the United States, we must look not merely to its lan- guage but to its historical origin, and to those decisions of this court in which its meaning and the scope of its operation have received deliberate consideration.” Sutras, J. Missouri v. Illinois, etc., Dist., 180 U. S. 219. Interpretation in Light of Existing Law. “We are bound to interpret the Consti- tution in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citi- zen, but as securing to every individual such as he always possessed as a British subject —such as his ancestors had inherited and defended since the days of Magna Charta. Many of its provisions in the nature of a bill of rights are subject to exceptions, recognized long before the adoption of the Constitution, and not interfering at all with its spirit. Such exceptions were obviously intended to be respected. A technical ad- herence to the letter of a constitutional pro- vision may occasionally be carried farther than is necessary to the just protection of the accused and farther than the safety of the public will warrant.” Brown, J. Mat- tox v. U. S., 156 U. S. 243. No One Provision to Be Considered Alone. “T take it to be an elementary rule of constitutional construction that no one pro- vision of the Constitution is to be segregated from all the others, and to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to ef- fectuate the great purposes of the instru- ment. If, in following this rule, it be found that an asserted construction of any one pro- vision of the Constitution would, if adopted, neutralize a positive prohibition of another provision of that instrument, then it results that such asserted construction is erroneous, since its enforcement would mean, not to give effect to the Constitution, but to de- stroy a portion thereof.” Wuute, J., dissent-- ing. South Dakota v. North Carolina, 192 U.S. 328. “The true rule of construction is not to consider one provision of the Constitution alone, but to contemplate all, and therefore to limit one conceded attribute by those qualifications which naturally result from the other powers granted by that instru- ment, so that the whole may be interpreted by the spirit which vivifies, and not by the letter which killeth.” Wuutrz, J. Downes v. Bidwell, 182 U. S. 312. Full Efficacy Should Be Given to Grants of Powers. “The grants of powers should be so con- 413 CONSTITUTIONAL LAW. strued as to give full efficacy to those powers and enable Congress to use such means as it deems necessary to carry them into ef- fect, so in like manner a restriction should be enforced in accordance with its letter and spirit, and no legislation can be tolerated which, although it may not conflict with the letter, destroys the spirit and purpose of the restriction imposed.” Brewer, J. Fair- bank v. U. S, 181 U.S. 290. Exceptions from General Words. “Tf it be a rule of interpretation to which all assent, that the exception of a particular thing from general words, proves that, in the opinion of the law-giver, the thing ex- cepted would be within the general clause had the exception not been made, we know no reason why this general rule should not be as applicable to the Constitution as to other instruments.” Marsuatt, C. J. Brown v. Maryland, 12 Wheat. 438. Grants Are Words of General Import. “The words expressing the various grants in the Constitution are words of general import, and they are to be construed as such, and as granting to the full extent the powers named.” Brewer, J. Fairbank vw. U. S., 181 U. S. 287. Effect of Common Law on Construction. “The common law may control the con- struction of terms and language used in the Constitution and statutes of the United States, but creates no separate and independ- ent law for them.” Fretp, J., dissenting. Baltimore, etc., R. Co., v. Baugh, 149 U. S. 394, “T agree . . that the Constitution of the United States is an instrument and plan of government founded in the common law, and that to common-law terms and principles we must refer for a true understanding of it, as a general rule having few exceptions; and so, also, to the common law modes of pro- ceeding in the exercise of the judicial power we must refer as a general rule covering the whole ground of remedial justice to be ad- ministered by the national courts.” Ca- TRON, J., concurring. Waring v. Clarke, 5 How. 466. “The language of the Constitution, as has been well said, could not be understood without reference to the common law.” Gray, J. U. S. v. Wong Kim Ark, 169 U. S. 654, Language Granting Powers— Language Restricting Powers. “Tt would be a strange rule of construc- tion that language granting powers is to be liberally construed and that language of restriction is to be narrowly and _ techni- cally construed.” Brewer, J. Fairbank v, U. S., 181 U. S. 289. Change in System by Judicial Interpreta- tion. “The people of the United States who ordained the Constitution never supposed that a change could be made in our sys- tem of government by mere judicial inter- pretation.” Hartan, J., dissenting. Downes v. Bidwell, 182 U. S. 386. Accidental Circumstances. “The meaning of the Constitution can- not depénd upon accidental circumstances arising out of the products of other coun- tries or this country.” Harran, J., dissent- ing. Downes v. Bidwell, 182 U. S. 385. Nature of Government Must Be Consid- ered. “ All powers conferred by the Constitu- tion must be interpreted with reference to the nature of the government and be con- strued in harmony with related provisions of the Constitution.” Wuutr, J., concur- ting. Downes v. Bidwell, 182 U. S. 312. Spirit of Constitution. “A law which violates the spirit of the Constitution is as much unconstitutional as one that violates its letter.” Brapiey, J., dissenting. Sinking-Fund Cases, 99 U. S. 744, “Although the spirit of an instrument, especially of a constitution, is to be re- spected not less than its letter, yet the spirit is to be collected chiefly from its words.” MarsHa ttt, C. J. Sturges v. Crowninshield, 4 Wheat. 202. Amendment of State Laws. “While the cardinal principles of justice are immutable, the methods by which justice is administered are subject to constant fluc- tuation, and . . the Constitution of the United States, which is necessarily and to a large extent inflexible and exceedingly dificult of amendment, should not be so construed as to deprive the states of the power to so amend their laws as to make them conform to the wishes of the citizens as they may deem best for the public wel- 414 CONSTITUTIONAL LAW. fare without bringing them into conflict with the supreme law of the land.” Brown, J. Holden v. Hardy, 169 U. S. 387. Allowance for Differences of View. “ Considerable latitude must be allowed for differences of view as well as for possible peculiar conditions which this court can know but imperfectly, if at all. Otherwise a constitution, instead of embodying only rel- atively fundamental rules of right, as gen- erally understood by all English-speaking communities, would become the partisan of a particular set of ethical or economical opin- ions, which by no means are held semper ubique et ab omnibus.” Hotmes, J. Otis v. Parker, 187 U. S. 608. Enlightened Forbearance and Justice. “That the Constitution was adopted in a spirit of compromise, is matter of history. And all experience shows that to attain the great objects of this fundamental law, it must be construed and enforced in a spirit of enlightened forbearance and justice.” M’Lzan, J. Prigg v. Pennsylvania, 16 Pet. 660. General and Comprehensive Terms. “Language is at best a very imperfect instrument in the expression of thought, and the fundamental principles of government found in constitutions must necessarily be declared in terms very general, because they must be very comprehensive.” Mutter, J., dissenting. Woodson v. Murdock, 22 Wall. 381. Knowledge of Evils Leading to Adoption. “A law is better understood by a knowl- edge of the evils which led to its adoption. And this applies most strongly to a funda- mental law.” M’Lean, J. Prigg v. Penn- sylvania, 16 Pet. 660. Imperative and Discretionary Provisions. “Tt will be found that whenever a partic- ular object is to be effected, the language of the Constitution is always imperative, and cannot be disregarded without violating the first principles of public duty. On the other hand, the legislative powers are given in language which implies discretion, as from the nature of legislative power such a dis- cretion must ever be exercised.” Srory, J. Martin v. Hunter, 1 Wheat. 333. Conjectured Intent. “This court would not feel itself author- ized to disregard the plain meaning of words, in search of a conjectured intent to which we are not conducted by the language of any part of the instrument.” MArsHALL, C. J. Craig v. Missouri, 4 Pet. 434. Affirmative Words Construed Negatively. “The rule of construction of the Con- stitution being, that affirmative words in the Constitution, declaring in what cases the Supreme Court shall have original jurisdic- tion, must be construed negatively as to all other cases.” Wayne, J. Ex p. Vallandig- ham, 1 Wall. 252. Finality of Construction by Supreme Court. “The construction given by this court to the Constitution and laws of the United States is received by all as the true con- struction.” MarsHaut, C, J. Elmendorf v. Taylor, 10 Wheat. 160. Powers Related. “The powers conferred upon Congress must be regarded as related to each other, and all means for a common end. Each is but part of a system, a constituent of one whole. No single power is the ultimate end for which the Constitution was adopted.” Stronc, J. Legal Tender Cases, 12 Wall. 532. Powers Need Not Be Specified in Words. “Tt is not indispensable to the existence of any power claimed for the federal gov- . ernment that it can be found specified in the words of the Constitution, or clearly and directly traceable to some one of the specified powers. Its existence may be de- duced fairly from more than one of the substantive powers expressly defined, or from them all combined.” Stronc, J. Le- gal Tender Cases, 12 Wall. 534. Powers Not in Terms Granted. “The doctrine that where a power is not expressly forbidden it may be exercised, would change the whole character of our government. . The true doctrine is the exact reverse, that if a power is not in terms granted, and is not necessary and proper for the exercise of a power thus granted, it does not exist.” Frey, J., dis- senting. Legal Tender Cases, 12 Wall. 664. Life and Liberty. “The same liberal construction which is required for the protection of life and liber- ty, in all particulars in which life and liberty are of any value, should be applied to the protection of private property.” Frexp, J., dissenting. Munn z. Illinois, 94 U. S. 142. Navigation. “Tf there are in the Constitution plain 415 CONSTITUTIONAL LAW. exceptions from the power over navigation, plain inhibitions to the exercise of that power in a particular way, it is a proof that those who made these exceptions, and pre- scribed these inhibitions, understood the power to which they applied as being grant- ed.” MarsHatt, C. J. Gibbons v. Ogden, 9 Wheat. 191. - Property and Contracts. “When the construction of a constitution is brought to bear upon the questions of property or no property, contract or no con- tract, I see no sound reason for any differ- ence in the rule for determining the ques- tion.” Mutter, J., dissenting. Gelpcke v. Dubuque, 1 Wall. 214. Essay-Writers, Lecturers, and Commen- tators. “In matters involving the meaning and in- tegrity of the Constitution, I never can con- sent that the text of that instrument’ shall be overlaid and smothered by the glosses of essay-writers, lecturers and commentators. Nor will I abide the decisions of judges, believed by me to be invasions of the great lex legum.”’ Dawntet, J. License Cases, 5 How. 612. Following State Construction. “The rule of construction adopted by the highest court of a state, in construing their own constitution and one of their own stat- utes, in a case not involving any question re-examinable in this court under.the twen- ty-fifth section of the Judiciary Act, must be regarded as conclusive in this court.” Currorp, J., concurring. Hall vw. DeCuir, 95 U. S. 500. “ Authorities are not required to support the general proposition that in the considera- tion of the constitution or laws of a state this court follows the construction given to those instruments by the highest court of the state.” PrckHam, J, Wilson v. North Car- olina, 169 U. S. 592. Enforcement of Limitations and Prohibi- tions. “Tf the Constitution in the grant of its powers is to be so construed that Congress shall be able to carry into full effect the powers granted, it is equally imperative that where prohibition or limitation is placed upon the power of Congress that prohibition or limitation should be enforced in its spirit and to its, entirety.” Brewer, J. Fairbank v. U.S, 181 U. S. 289. ‘ III. DUTIES, POWERS, AND OFFICE OF COURTS. Determining Constitutionality of Statutes — General Principles, “The duty which the court is called upon to perform [the duty of determining the constitutionality of a statute] is always one of great delicacy, and the power which it brings into activity is only to be exercised in cases entirely free from doubt.” Swayne, J. Von Hoffman v. Quincy, 4 Wall. 549. “The question, whether a law be void for its repugnancy to the Constitution, is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case.” MarsHALL, C. J. Fletcher v. Peck, 6 Cranch 128. “Tt is always an exceedingly grave and delicate duty to decide upon the constitution- ality of an Act of the Congress of the United States.” PreckHam, J. Nicol v. Ames, 173 U.S. 514, “While the power of courts to declare an act of legislation to be unconstitutional un- doubtedly exists, it is one of great delicacy, particularly when brought to bear upon the legislative acts of another sovereignty.” Brown, J., dissenting. Scott v. Donald, 165 Uz. S. 106. “The judiciary department is bound not to give effect to statutory enactments that are plainly forbidden by the Constitution. This duty, the court has said, is always one of extreme delicacy; for, apart from the neces- sity of avoiding conflicts between co-ordinate branches of the government, whether state or national, it is often difficult to determine whether such enactments are within the pow- ers granted to or possessed by the legislature. Nevertheless, if the incompatibility of the Constitution and the statute is clear or pal- pable, the courts must give effect to the former.” Hartan, J. Powell v. Pennsyl- vania, 127 U. S. 686. “This court has the power to declare an Act of Congress to be repugnant to the Con- stitution, and therefore invalid. But the duty is one of great delicacy, and only to be per- formed where the repugnancy is clear, and the conflict irreconcilable. Every doubt is to be resolved in favor of the constitutionality of the law.” Swayne, J. Nashville v. Cooper, 6 Wall. 251. “As the court can never be unmindful of a solemn duty imposed on the judicial de- 416 . CONSTITUTIONAL LAW. partment when a claim is supported by an act which conflicts with the Constitution, so the court can never be unmindful of its duty to obey laws which are authorized by that instrument.” MarsHatt, C. J. U. S. v. Fisher, 2 Cranch 396. “This court cannot declare void an Act of Congress which constitutionally embraces some cases, though other cases, within its terms, are beyond the control of Congress, or beyond the reach of that particular law.” Curtis, J., dissenting. Scott v. Sandford, 19 How. 628. ; “Tf a law be in opposition to the Con- stitution; if both the law and the Constitu- tion apply to a particular case, so that the court must either decide that case conform- ably to the law, disregarding the Constitu- tion;, or conformably to the Constitution, disregarding the law; the court must deter- mine which of these conflicting rules governs the case. This is the very essence of judi- cial duty.” Marsuatt, C. J. Marbury v. Madison, 1 Cranch 178. “Tt is a very serious matter when a judi- cial tribunal, by the construction of an act of Congréss, defeats the expressed will of the legislative branch of the government. It is a still more serious matter when the clear reading of a constitutional provision relating to the liberty of man is departed from in deference to what is called usage which has existed, for the most part, under monar- chical and despotic governments.” Haran, J. dissenting. Robertson v. Baldwin, 165 1U. S. 301. Judicial Department Charged with En- forcement of Constitution. “Tt is axiomatic that the judicial depart- ment of the government is charged with the solemn duty of enforcing the Constitution, and therefore in cases properly presented, of determining whether a given manifestation of authority has exceeded the power con- ferred by that instrument.” Wuute, J. Mc- Cray v. U. S., 195 U. S. 53. “That such a power [to declare the act of a state null and void] is vested in this tribunal by the Constitution, which received the sanction of all the states, can only be doubted by those who are incapable of com- prehending the plainest principle in constitu- tional law. It is a question arising under the Constitution, and all such questions of power, whether in the general or state gov- 1 Or, Dic—?27 ernments, belong to this tribunal. The pol- icy of this investiture of powet may be ques- tioned; but the fact of its existence cannot be.” McLean, J. Craig v. Missouri, 4 Pet. 459. “Whatever the people, framing their or- ganic act have declared to be the limits of legislative power, and the modes in which that power shall be exercised, must always be recognized by the courts, state and na- tional, as obligatory.” Brewer, J. Stearns v. Minnesota, 179 U. S. 241. “If the Constitution prescribe one rule, and the law another and different rule, it is the duty of the courts to declare that the Constitution, and not the law, governs the case before them, for judgment.” Curtis, J., dissenting. Scott v. Sandford, 19 How. 628. “Tt is the duty of the state court, as much as it is that of the federal courts, when the question of the validity of a state statute is necessarily involved as being in alleged viola- tion of any provision of the federal Con- stitution, to decide that question, as to hold the law void if it violate that instrument. But the state court is not bound to decide the constitutional question when there are other grounds for reversing a conviction under the law, upon pain of having its omission furnish a ground for federal interference.” PecxHamM, J. Baker v. Grice, 169 U. S. 291. “TThe] judicial duty of upholding the provisions of the Constitution as against any legislation conflicting therewith has become now an accepted fact in the judicial life of this nation. That in the enforcement of this rule the decisions, national and state, are not all in harmony is not strange. Conflicts be- tween constitutions and statutes have been easily found by some courts.” Brewer, J. Fairbank v. U. S., 181 U. S. 286. Courts Reluctant to Declare Law Void. “Necessarily the power to declare a law unconstitutional is always exercised with re- luctance; but the duty to do so, in a proper case, cannot be declined, and must be dis- charged in accordance with the deliberate judgment of the tribunal in which the valid- ity of the enactment is directly drawn in question.” Futter, C. J. Pollock v. Farm- ers’ L. & T. Co., 157 U. S. 554. “Tt is our duty, when required in the reg- ular course of judicial proceedings, to de- clare an act.of Congress void if not within the legislative power of the United States; but this declaration should never be made 417 CONSTITUTIONAL LAW. except in a clear case.” Waire, C. J. Sink- ’ ing-Fund Cases, 99 U. S. 718. “It has been repeatedly said by this court, that to pronounce a law of one of the sov- ereign states of this Union to be a violation of the Constitution is a solemn function, de- manding the gravest and most deliberate consideration; and that a law of one of the states should never be so denominated, if it can upon any other principle be correctly explained. Indeed, it would seem that, if there could be any course of proceedings more than all others calculated to excite dis- satisfaction, to awaken a natural jealousy on the part of the states, and to estrange them from the federal government, it would be the practice, for slight and insufficient causes, of calling on those states to justify, before tribunals in some sense foreign to them- selves, their acts of general legislation. And the extreme of such an abuse would appear to exist in the arraignment of their control over officers and subordinates in the regula- tion of their internal and exclusive polity; and over the modes and extent in which that polity should be varied to meet the exigen- cies of their peculiar condition. Such an abuse would prevent all action in the state governments, or refer the modes and details in their action to the tribunals and author- ities of the federal government. These surely could never have been the legitimate purposes of the federal Constitution.” Dan- 1EL, J. Butler v. Pennsylvania, 10 How. 415. Serious Consideration of Court. “Every question originating in the Con- stitution of the United States claims, and will receive, the most serious consideration of this court.” MarsHatt, C. J. Durous- seau v. U. S., 6 Cranch 313. Necessity for Caution. “Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and wel- fare of the people in quite as great a degree as courts.” Hotmes, J. Missouri, etc. R. Co. v. May, 194 U. S. 270. “On more than one occasion this court has expressed the cautious circumspection with which it approaches the consideration of such questions; and has declared that, in no doubtful case would it pronounce a legis- lative act to be contrary to the Constitution.” MarsHaLt, C. J. Dartmouth College vw. Woodward, 4 Wheat. 625. “There is no portion of the power and jurisdiction committed to this court which demands so much caution in its exercise, as that of declaring the legislation of a state to be null and void, because it comes in con- flict with the Constitution of the United States.” Grier, J., dissenting. Woodruff wv. Trapnall, 10 How. 209. Supreme Court Exercises August Power. “Tn the discharge of its function of inter- preting the Constitution, this court exercises an august power. It sits removed from the contentions of political parties and the ani- mosities of factions. It seems to me that the accomplishment of its lofty mission can only be secured by the stability of its teach- ings and the sanctity which surrounds them. If the permanency of its conclusions is to depend upon the personal opinions of those who, from time to time, may make up its membership, it will inevitably become a the- atre of political strife, and its action will be without coherence or consistency.” WHITE, J., dissenting. Pollock v. Farmers’ L. & T. Co., 157 U. S. 651. Violations of State Constitutions. “Tt is an appropriate duty, which this court is called upon to perform very often, to protect the rights founded on the Con- stitution, laws, and treaties of the United States, when those rights are invaded by state authority. But it is a very different thing for this court to declare that'an act of a state legislature, passed with the usual forms necessary to its validity, is void be- cause that legislature has violated the Con- stitution of the state. It has long been rec- ognized in this court that the highest court of the state is the one to which such a ques- tion properly belongs; and though the courts of the United States, when exercising a con- current jurisdiction, must decide it for them- selves, if it has not previously been consid- ered by the state court, it would be indeli- cate to make such a decision in advance of the state courts, unless the case imperatively demanded it.’ Mutter, J. Pelton v. Com- mercial Nat. Bank, 101 U. S, 144. Laws Made in Pursuance of Constitution. “The legislative power of every nation can only be restrained by its own constitu- tion; it is the duty of its courts of justice not to question the validity of any law made in pursuance of the Constitution.” CHASE, J. Ware v. Hylton, 3 Dall. 223. Unfaithful Administration of Laws. “A law cannot be held unconstitutional 418 CONSTITUTIONAL LAW. because, while its just interpretation is con- sistent with the Constitution, it is unfaith- fully administered by those who are charged with its execution. Their doings may be un- lawful while the statute is valid.” MULLER, J. Cummings v. Merchants’ Nat. Bank, 101 U.S. 161. “Where the State Court Has Given Ef- fect to a Subsequent Law, this court de- cides whether such effect, so given by the state court, violates the Constitution of the United States.” Wuurr, J. Northern Cent. R. Co. v. Maryland, 187 U. S. 267. Courts Must Obey Constitution. “While every possible presumption is to be indulged in favor of the validity of a stat- ute, . . the courts must obey the Con- stitution rather than the law-making depart- ment of the government, and must, upon their own responsibility, determine whether, in any particular case, these limits have been passed.” Haran, J. Mugler v. Kansas, 123 U.S, 661. “This court is committed in language which it neither can nor desires to recall; be- cause that power which we are bound to obey, has spoken to us, and all the courts in the United States, in terms most imperative.” Batpwin, J. Hepburn v. Dubois, 12 Pet. 376. Judicial Department’s Decision Final and Binding. “We think there is no sound distinction between the construction of a law enacted by the legislature of a state, and the con- struction of the organic law, ordained by the people themselves. The exposition of both belongs to the judicial department of the government of the state, and its decision is final, and binding upon all other departments of that government, and upon the people themselves, until they see fit to change their constitution; and this court receives such a settled construction as part of the funda- mental law of the state.” Curtis, J. Webster vw. Cooper, 14 How. 504. “Tt is the province of the Supreme Court of the state to construe its own constitution of laws; and, when it decides that one of its laws is not authorized by its constitution, it is not for us to deny the correctness of the decision, when there is no evasion in this way of federal authority.” Fietp, J. Boyd v. Alabama, 94 U. S. 649. State Courts Bound by Supreme Court of United States. “When this court has declared state legis- lation to be in conflict with the Constitution of the United States, and therefore void, the state tribunals are bound to conform to such decision.” Grier, J. Cook wv. Moffat, 5 How. 308. “To this court belongs the right to ex- pound exclusively, for all other courts, the Constitution and laws of the federal govern- ment.” Murtuer, J. Gelpcke v. Dubuque, 1 Wall. 210. : Harsh and Unjust Provisions. “Tt is not every hardship that is unjust, much less that is unconstitutional; and cer- tainly it would be an anomaly for us to hold an Act of Congress invalid merely because we might think its provisions harsh and un- just.” Srronc, J. Legal Tender Cases, 12 Wall. 552. S1f, the legislature of the Union, or the legislature of any member of the Un- ion, shall pass a law, within the general scope of their constitutional power, the court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice.” IREDELL, J., concurring. Calder v. Bull, 3 Dall. 399. Intention of Legislators. “Tf the act done by the state is legal, is not in violation of the Constitution or laws of the United States, it is quite out of the power of any court to inquire what was the intention of those who enacted the law.” Hunt, J. Doyle v. Continental Ins. Co., 94 U.S. 541. Plain Case of Violation Necessary. “When this court is called on in the course of the administration of the law to consider whether an act of Congress, or of any other department of the government, is within the constitutional authority of that department, a due respect for a co-ordinate branch of the government requires that we shall decide that it has transcended its powers only when that is so plain that we cannot avoid the duty. In such cases it is man- ifestly the dictate of wisdom and judicial pro- priety to decide no more than is necessary to the case in hand. That such has been the uniform course of this court in regard to statutes passed by Congress will readily ap- pear to any one who will consider the vast amount of argument presented to us assail- ing them as unconstitutional, and he will 419 CONSTITUTIONAL LAW. count, as he may do on his fingers, the in- stances in which this court has declared an act of Congress void for want of consti- tutional power.” MrLter, J. Trade-mark Cases, 100 U. S. 96. Doubtful Cases. “Tt is sometimes said that, if the validity of a statute is merely doubtful, if its uncon- stitutionality is not plainly obvious, the courts should not be ready to defeat the action of the legislative branch of the gov- ernment; and it must be conceded that when such questions arise, under the ordinary ex- ercise of legislative power, it is plainly the duty of the courts not to dispense with the operation of laws formally enacted, unless the constitutional objections are clear and in- disputable. On the other hand, when the courts are confronted with an explicit and unambiguous provision of the Constitution, and when it is proposed to avoid, or modify, or alter the same by a legislative act, it is their plain duty to enforce the Constitution provision, unless it is clear that such legis- lative act does not infringe it in letter or spirit.” Surras, J., dissenting. Brown vw. Walker, 161 U. S. 611. Maintaining Unimpaired Personal Secur- ities. ‘There is no more sacred duty of a court than, in a case properly before it, to maintain unimpaired those securities for the personal rights of the individual which have received . for ages the sanction of the jurist and the statesman; and in such cases no narrow or illiberal construction should be given to the words of the fundamental law in which they are embodied.” Mrmter, J. Ex p. Lange, 18 Wall. 178. “In no other way can the obligation of the federal courts under the Constitution be discharged than by rigidly adhering to the right and duty to maintain the ultimate right ot the federal courts to protect the citizens of the United States, and of every state, in the enjoyment of rights and privileges guar- anteed by the federal Constitution.” Day, J. Deposit Bank v. Frankfort, 191 U. S. 518. When Constitutionality Will Be Consid- ered. “The constitutionality of state legislation will not be considered by the court unless by the case presented its consideration is im- peratively required.” Frecp, J. San Ber- nardino County v. Southern Pac. R., 118 U.S. 423, t “Tt [the Supreme Court] has no jurisdic- tion to pronounce any statute, either of a state or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Matruews, J. Liverpool, etc., Steamship Co. v. Emigra- tion Com’rs, 113 U. S. 39. “Tf a state legislature pass an ex post facto law, or a law impairing the obligation of contracts, it remains a harmless enact- ment on the statute book, until it is brought to bear, injuriously, on individual rights. So, if a state coin money or emit bills of credit, the question of right must be raised before this tribunal, in the same manner.” McLean, J. Craig v. Missouri, 4 Pet. 461. “Courts seldom undertake, in any case, to pass upon the validity of legislation, where the question is not made by the parties. Their habit is to meet questions of that kind when they are raised, but not to anticipate them. Until then, they will construe the acts presented for consideration, define their meaning, and enforce their provisions. The fact that acts may in this way have been often before the court is never deemed a reason for not subsequently considering their validity when that question is presented.” Frexp, J. Boyd v. Alabama, 94 U. S. 648. Constitutional Questions Treated Differ- ently than Those of Private Right. “We have been in the habit of treating cases involving a consideration of constitu- tional power differently from those which concern merely private right.” Strona, J. Legal Tender Cases, 12 Wall. 554. “We are not accustomed to hear them in the absence of a full court, if it can be avoided.” Srtronc, J. Legal Tender Cases, 12 Wall. 554. Suspending Operation of Constitution in Territory. “No power exists in the judiciary to sus- pend the operation of the Constitution in any territory governed as to its affairs and peo- ple, by authority of the United States.” Harian, J., dissenting. Dorr v. U. S., 195 U.S. 155. 420 CONSTITUTIONAL LAW. Power of Officer to Question Constitu- tionality of Law. “The power of a public officer to question the constitutionality of a statute as an ex- cuse for refusing to enforce it has often been assumed, and sometimes directly decided, to exist.” Brown, J. Smith v. Indiana, 191 U.S. 148. “There are many authorities to the effect that a ministerial officer, charged by law with the duty of enforcing a certain statute, cannot refuse to perform his plain duty thereunder upon the ground that in his opinion it is repugnant to the Constitution.” Brown, J. Smith v. Indiana, 191 U. S. 148. Presumptions as to Constitutionality. “It is a well settled rule of constitutional exposition, that if a statute may or may not be, according to circumstances, within the limits of legislative authority, the existence of the circumstances necessary to support it must be presumed.” Hartan, J. Sweet v. Rechel, 159 U. S. 393. “Every statute is presumed to be constitu- tional. The courts ought not to declare one to be unconstitutional, unless it is clearly so. If there is doubt, the expressed will of the legislature should be sustained.” Waite, C. J. Munn zw. Illinois, 94 U. S. 123. “Tt is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond all reasonable doubt.” WasHINGTON, J., dissenting. Ogden uv. Saunders, 12 Wheat. 270. “The constitutionality of an Act of Con- gress is a matter always requiring the most careful consideration. The presumptions are in favor ‘of constitutionality, and before a court is justified in holding that the legis- lative power has been exercised beyond the limits granted, or in conflict with restric- tions imposed by the fundamental law, the excess of conflict should be clear. And yet, when clear, if written constitutions are to be regarded as of value, the duty of the court is plain to uphold the Constitution, although in so doing the legislative enactment falls.” Brewer, J. Fairbank v. U. S., 181 U. S. 285. “Tn examining an Act of Congress it has been frequently said that every intendment is in favor of its constitutionality. Such act is presumed to be valid unless its invalidity is plain and apparent; no presumption of in- validity can be indulged in; it must be shown clearly and unmistakably. This rule has been stated and followed by this court from the foundation of the government.” Prck- HaM, J. U.S. v. Gettysburg Electric R. Co, 160 U. S. 680. “Tt is a maxim of constitutional law that a legislature is presumed to have acted within constitutional limits, upon full knowledge of the facts, and with the pur- pose of promoting the interests of the peo- ple as a whole, and courts will not lightly hold that an act, duly passed by the legislature was one in the enactment of which it had transcended its power.” Brewer, J. Atchi- son, etc., R. Co. v. Matthews, 174 U. S. 104. “ Acts of Congress must be regarded as constitutional, unless clearly shown to be otherwise.” Cuase, C. J. Hepburn v. Gris- wold, 8 Wall. 610. “An Act of Congress must be taken to be constitutional unless the contrary plainly and palpably appears.” Hartan, J. The Japanese Immigrant Case, 189 U. S. 101. “In the construction of the constitutional grant of power to establish a standard of value every presumption is (therefore) ‘against that which would authorize the adop- tion of any other materials than those sanc- tioned by universal consent.” Cuase, C. J., dissenting. Legal Tender Cases, 12 Wall. 583. No Implications Against Constitution. “There can be no implication against the Constitution.” CuHase, C. J., dissenting. Legal Tender Cases, 12 Wall. 580. Every Doubt Resolved in Favor of Con- stitutionality. “Tt is an axiom in American jurispru- dence that a statute is not to be pronounced void upon this ground [unconstitutionality], unless the repugnancy to the Constitution be clear, and the conclusion that it exists in- evitable. Every doubt is to be resolved in support of the enactment. The particular clause of the Constitution must be specified and the act admit of no reasonable construc- tion in harmony with its meaning. The judi- cial function involving such a result is one of delicacy, and to be exercised always with caution.” Swayne, J. Pine Grove Tp. v. Talcott, 19 Wall. 673. “Doubts should lead to an acquiescence in the act [of a state]. The power which declares it null and void should be exercised 421 CONSULAR COURTS. only where the right to do so is perfectly clear.” McLean, J. Craig v. Missouri, 4 Pet. 458. Effect of Unconstitutional Statutes. “The constitution and laws of a state, so far as they are repugnant to the Constitution and laws of the United States, are absolutely void. These states are constituent parts of the United States. They are members of one great empire— for some purposes sov- ereign, for some purposes subordinate.” MarsHatr, C. J. Cohen v. Virginia, 6 Wheat. 414. % “An unconstitutional law is void and is as no law. An offense created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment. It is true, if no writ of error lies, the judgment may be final, in the sense that there may be no means of reversing it.’ Brapiey, J. Ex p. Siebold, 100 U. S. 376. “No court is bound to enforce, nor is any one legally bound to obey, an Act of Con- gress inconsistent with the Constitution.” Haran, J., dissenting. Robertson v. Bald- win, 165 U. S. 297. “Tf a state law is incompatible with the” Constitution of the Union, it must be inoper- ative till the Constitution is amended. The legislative and judicial power combined, can- not cure a defect which the supreme law of the land declares to be fatal to a state law.” Barpwin, J., dissenting. Beers v. Haughton, 9 Pet. 376. — Unconstitutional Statutes Not Law. “An unconstitutional act is not a law; it binds no one, and protects no one.” Frezp, J. Huntington v. Worthen, 120 U. S. 101. “Tt is true that in general an unconstitu- tional Act of Congress is the same as if there were no act. That is regarding it in its purely legal aspect. Being in violation of the Constitution, that instrument must gov- ern, and no one can base any legal claim as arising out of such an act.” PECKHAM, J. U.S. uv. Realty Co., 163 U. S. 439. “Acts of Congress not made in pursuance of the Constitution are not laws.” CHASE, C. J., dissenting. Legal Tender Cases, 12 Wall. 571. —- How Nullity Produced. “The nullity of any act inconsistent with the Constitution is produced by the declara- tion that the Constitution is the supreme law. The appropriaté application of that part of the clause which confers the same suprem- acy on laws and treaties, is to such acts of the state legislature as do not transcend their powers, but, though enacted in the ex- ecution of acknowledged state powers, in- terfere with or are contrary to the laws of Congress, made in pursuance of the Con- stitution, or some treaty made under the authority of the United States. In every such case, the Act of Congress or treaty is supreme; and the law of the state, though enacted in the exercise of powers not con- troverted, must yield to it.” NeEtson, J. Sinnot v. Davenport, 22 How. 242. “The nullity of any act, inconsistent with the Constitution, is produced by the declara- tion that the Constitution is the supreme law.” Marsuatt, C. J. Gibbons v. Ogden, 9 Wheat. 210. Authorization or Ratification. “Congress cannot, by authorization or rat- ification, give the slightest effect to a ‘state law or constitution in conflict with the Con- stitution of the United States. That instru- ment is above and beyond the power of Con- gress and the states, and is alike obligatory upon both.” Swayne, J. Gunn v. Barry, 15 Wall. 623. Treaty Inconsistent with Constitution. “A treaty which undertook to take away what the Constitution secured or to enlarge the federal jurisdiction would be simply void.” Futter, C. J., dissenting. Downes v. Bidwell, 182 U. S. 370. CONSULAR COURTS. See AMBASSADORS AND ConsuLs; CoNsTiI- TUTIONAL Law; Jury AND Jury TRIAL. Trial by Jury Unnecessary. “The Constitution does not apply to for- eign countries or to trials therein conducted, and . Congress may lawfully provide for such trials before consular tribunals, without the interference of a grand or petit jury.” Brown, J. Downes v. Bidwell, 182 U.S. 270. “By the Constitution a government is or- dained and established ‘for the United States of America,’ and not for countries outside of their limits. The guarantees it affords against accusation of capital or infamous crimes, except by indictment or presentment by a grand jury, and for an impartial trial 422 CONTEMPT. -by a jury when thus accused, apply only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere, and not to residents or temporary sojourners abroad.” FiELp, J. In re Ross, 140 U. S. 464. “The Constitution can have no operation in another country. When, therefore, the representatives or officers of our government are permitted to exercise authority of any kind in another country, it must be on such conditions as the two countries may agree, the laws of neither one being obligatory upon the other. The deck of a private American vessel, it is true, is considered for many purposes constructively as territory of the United Stdtes, yet persons on board of such vessels, whether officers, sailors, or pas- sengers, cannot invoke the protection of the provisions referred to until brought within the actual territorial boundaries of the United States. And, besides, their enforce- ment abroad in numerous places, where it would be highly important to have consuls invested with judicial authority, would be impracticable from the impossibility of ob- taining a competent grand or petit jury. The requirement of such a body to accuse and to try an offender would, in a majority of cases, cause an abandonment of all prose- cution.” FieLp, J. In re Ross, 140 U. S. 464. CONSULS. See AMBASSADORS AND CONSULS; SULAR CouRTSs. CONTAGIOUS. Contagion and Infection Distinguished. “There is doubtless a technical distinc- tion between the two [terms contagious and infectious] in the fact that a contagious disease, is communicable by contact, or by bodily exhalation, while an infectious disease presupposes a cause acting by hidden influ- ence, like the miasma of prison ships or marshes, etc., or through the pollution of water or the atmosphere, or from the vari- ous ejections from animals. The word ‘ con- tagious,’ however, is often used in a similar sense of pestilential or poisonous and not strictly confined to influences emanating di- tectly from the body. Brown, J. Grayson v. Lynch, 163 U. S. 477. CONTEMPT. As to power of Congress, see CONGRESS. See also OsstTRUCTING JUSTICE. Con- Nature. “A contempt presupposes some act derog- atory to the power and authority of the court.” Brewer, J., dissenting. Interstate Commerce Com. v. Brimson, 155 U. S. 5. —— Specific Criminal Offense. “Contempt of court is a specific criminal offense.” Swayne, J. New Orleans v. Steamship Co., 20 Wall. 392. “ Manifestly if one inside of a court room disturbs the order of proceedings, or is guilty of personal misconduct in the presence of the court, such action may properly be re- garded as a contempt of court, yet it is not misconduct in which any individual suitor is specially interested. It is more like an ordi- nary crime which affects the public at large, and the criminal nature of the act is the dominant feature.” Brewer, J. Bessette wv. W. B. Conkey Co., 194 U. S. 329. —— Acts which Are Also Indictable. “Tndictable statutory offenses may be pun- ished as such, while the offenders may like- wise be subjected to punishment for the same acts as contempt, the two being diverso in- tuitu and capable of standing together.” Futter, C. J. In re Chapman, 166 U. S. 672. Power to Punish Summarily. “What is this power vested in courts of punishment for contempt, and for what pur- pose is it vested? It is a power of summary punishment and existing to enable the courts to discharge their judicial duties.” Brewer, J., dissenting. Interstate Commerce Comm. v. Brimson, 155 U. S. 5. “Hitherto the power to punish for con- tempt has been regarded as a power lodged in judges and courts to compel obedience to their orders, decrees and judgments, and to support their authority.” Brewer, J., dis- senting. Interstate Commerce Comm. v. Brimson, 155 U. S. 8. Adjudication Is a Conviction and Commit- ment Is Execution. “When a court commits a party for a con- tempt, their adjudication is a conviction, and their commitment, in consequence, is execu- tion.” Story, J. Ex p. Kearney, 7 Wheat. 43. Process Not Resorted to in Doubtful Cases. “Process of contempt is a severe remedy, and should not be resorted to where there is fair ground of doubt as to the wrongful- ness of the defendant’s conduct.” BRrabLey, 423 CONTEMPT. J. California Paving Co. v. Molitor, 113 Uz. S. 618. Inherent Power. “The power to punish for contempts is inherent in all courts; its existence is essen- tial to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.” FIELD, J. Ex p. Robinson, 19 Wall. 510. “To fine for contempt — imprison for con- tumacy — enforce the observance of order, etc., are powers which cannot be dispensed with in a court, because they are necessary to the exercise of all others; and so far our courts no doubt possess powers not im- mediately derived from statute; but all ex- ercise of criminal jurisdiction in common law cases we are of opinion is not within their implied powers.” JoHNSON, Hudson, 7 Cranch 34. “That ‘the safety of the people is the supreme law,’ not only comports with, but is indispensable to, the exercise of those pow- ers in their public functionaries, without which that safety cannot be guarded. - On this principle it is, that courts of justice are universally acknowledged to be vested, by their creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates, and, as a corollary to this proposition, to preserve themselves and their officers from the ap- proach and insults of pollution.” JoHNson, J. Anderson v. Dunn, 6 Wheat. 227. “There is inherent in every court a power to supervise the conduct of its offi- cers, and the execution of its judgment and process. Without this power, courts would be wholly impotent and useless.” Dante, J. Griffin v. Thompson, 2 How. 257. “[TTo] a contempt of its authority no court is bound to submit.” Brown, J. Allen v. Georgia, 166 U. S. 141. “The position that a petty officer can take property from the possession of a court with- out permission and without warrant, ‘upon his own motion and without instructions from any other person,’ as petitioner admits he did, because in his view the duty is imposed upon him by a particular statute, and that the court is without power to pass upon the questions involved, or, if it does so, that its ‘ JOU Sw judgment may be treated with contemptuous defiance, is utterly inadmissible in any com- munity assuming to be governed by law.” Futter, C. J. In re Swan, 150 U. S. 652. — Power Limited by Statute. “But the power has been limited and de- fined by the Act of Congress of March 2d, 1831. The act, in terms, applies to all courts; whether it can be held to limit the authority of the Supreme Court, which de- rives its existence and powers from the Con- stitution, may perhaps be a matter of doubt. But that it applies to the Circuit and Dis- trict Courts there can be no question. These courts were created by Act of Congress. Their powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction. The Act of 1831 is, therefore, to them the law specifying the cases in which summary punishment for contempts may be inflicted.” Fietp, J. Ex p. Robinson, 19 Wall. 510. “It is true, that the courts of the United States are vested, by express statute provi- sion, with power to fine and imprison for contempts; but it does not follow, from this circumstance, that they would not have ex- ercised that power without the aid of the statute, or not, in cases, if such should occur, to which such statute provision may not extend; on the contrary, it is a legis- lative assertion of this right, as incidental to a grant of judicial power, and can only be considered either as an instance of abun- dant caution, or a legislative declaration, that the power of punishing for contempt shall not extend beyond its known and acknowl- edged limits of fine and imprisonment.” JoHnson, J. Anderson v. Dunn, 6 Wheat. 227. — To Enforce Obedience of Orders. “The power of a court to make an order carries with it the equal power to punish for a disobedience of that order, and the inquiry as to the question of disobedience has been, from time immemorial, the spe- cial function of the court. And this is no technical rule. In order that a court may compel obedience to its orders it must have the right to inquire whether there has been any disobedience thereof. To submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its effi- ciency.” Brewer, J. In re Debs, 158 U. S. 594. —— Punishment to Secure Right of Ad- verse Party. “Tf in the progress of a suit a party is 424 CONTEMPT. ordered by the court to abstain from some action which is injurious to the rights of the adverse party, and he disobeys that order, he may also be guilty of contempt, but the personal injury to the party in whose favor the court has made the order gives a reme- dial character to the contempt proceedings. The punishment is to secure to the adverse party the right which the court has awarded to him.” Brewer, J. Bessette v. W. B. Conkey Co., 194 U. S. 329. “A court, enforcing obedience to its orders by proceedings for contempt, is not execut- ing the criminal laws of the land, but only securing to suitors the right which it has adjudged them entitled to.” Brewer, J. In re Debs, 158 U. S. 596. —— Failure to Obey Void Order. “When, however, a court of the United States undertakes, by its process of contempt, to punish a man for refusing to comply with an order which that court had no authority to make, the order itself, being without juris- diction, is void, and the order punishing for the contempt is equally void.” Mutzer, J. Ex p. Fisk, 113 U. S. 718. Mode of Proceeding — Not Same in Every Case. “The mode of proceeding for contempt is not the same in every case.” Haran, J. Savin, Petitioner, 131 U. S. 277. — Acts in Presence of Court —Com- mitment Without Trial. “Where the contempt is committed di- rectly under the eye or within the view of the court, it may proceed ‘upon its own knowledge of the facts, and punish the of- fender, without further proof, and without issue or trial in any form.’” Harwan, J. Savin, Petitioner, 131 U. S. 277. “Tt is a settled doctrine in the juris- prudence both of England and this country, never supposed to be in conflict with the lib- erty of the citizen, that for direct contempts committed in the face of the court, at least one of superior jurisdiction, the offender may, in its discretion, be instantly appre- hended and immediately imprisoned, with- out trial or issue, and without other proof than its actual knowledge of what occurred; and that, according to an unbroken chain of authorities, reaching back to the earliest times, such power, although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions. Without it, judicial tribunals would be at the mercy of the disorderly and violent, who respect neither the laws enacted for the vindication of public and private rights, nor the officers charged with the duty of administering them. Harian, J. Ex p. Terry, 148 U. S. 313. — Act Not in Presence of Court — Rule to Show Cause. “In cases of misbehavior of which the judge cannot have such personal knowl- edge, 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 of- fender to appear and show cause why he should not be punished. Haran, J. Savin, Petitioner, 131 U. S. 277. —Right to Jury Trial. “Tf it has ever been understood that pro- ceedings according to the common law for contempt of court have been subject to the right of trial by jury, we have been unable to find any instance of it. It has always been one of the attributes one of the powers necessarily incident to a court of justice that it should have this power of vindicating its dignity, of enforc- ing its orders, of protecting itself from in- sult, without the necessity of calling upon a jury to assist it in the exercise of this power.” Mutier, J. Ejilenbecker v. Plym- outh County, 134 U. S. 36. Proceedings Sui Generis. “ Proceedings in contempt may be said to be sui generis.” Futier, C. J. O’Neal v. U.S., 190 U. S. 38. Punishment of Attorney for Misbehavior in Office. “Tt is true, where a contempt is com- mitted in the presence of the court, no other notice is usually necessary; but a proceed- ing to punish an attorney generally for mis- behavior in his office, or for any particular instance of misbehavior, stands on very dif- ferent ground.” Ne son, J. Ex p. Bradley, 7 Wall. 373. See also ATTORNEY AND CLIENT. —— Punishment for Contempt in Another Court. “The circumstances of : having been stricken off the roll of counsellors of the District Court of the northern district of New York, by the order of the judge of that court for a contempt, is one which the court do not mean to say was not done for sufficient cause, or that it is not one of a serious character; but this court does not 425 CONTINUANCE. consider itself authorized to punish here for contempts which may have been com- mitted in that court.” MarsHaL., C.J. Ex p. Tillinghast, 4 Pet. 109. Proper Punishment. “The English cases . -lend no sup- port whatever to the claim that the English Court of Chancery claimed to exercise the power to strike out an answer and render a decree pro confesso, as a punishment for contempt.” Wuits, J. Hovey v. Elliott, 167 U. S. 435. “ Whether in early chancery times the prac- tice was to stay all proceedings on the part of a disobedient party defendant until his contempt of an ‘injunction was purged, can only be surmised. In 1788 it seems that a defendant, though in contempt for violating an injunction, might file his answer in the cause. . . . It is not unlikely that the restriction was upon the party coming be- fore the court by way of motion seeking affirmative action by the court in his favor. It is certain that neither in the Register nor in the Comyns is there a suggestion that a party, while in contempt for disobedience of an injunction, might, for such cause, be de- faulted upon the merits. Wurtz, J. Hovey v, Elliott, 167 U. S. 423. “Certain it is that in all reported decisions of the chancery courts in England no single case can be found where a court of chancery ever ordered an answer to be stricken from the files and denied to a party defendant all right of hearing because of a supposed con- tempt. And in the American adjudications whilst there are two cases, one in New York and the other in Arkansas, asserting the ex- istence of such power, an analysis of these cases and the authorities upon which they rely will conclusively show the erroneous character of the conclusions reached.” Wuirte, J. Hovey v. Elliott, 167 U. S. 419. Review. “At common law it is undoubted that no court reviewed the proceedings of another court in contempt matters.” Brewer, J. Bessette v. W. B. Conkey Co., 194 U. S. 330. “The uniform ruling of this court has been against the right to review the deci- sions of the lower court in contempt pro- ceedings by writ of error, or by appeal, except in cases of purely remedial and inter- locutory orders. Yet we have issued cer- tioraries in aid of habeas corpus proceedings and applications for prohibition by which the facts in the contempt case have been brought before us, and then we have passed upon the merits of the decision in the lower court.” Brewer, J. Bessette v. W. B. Conkey Co, 194 U. S. 335. “The exercise of the power of punishment for contempt of their orders, by courts of general jurisdiction, is not subject to review by writ of error, or appeal to this court. Nor is there, in the system of federal juris- prudence, any relief against such orders, when the court has authority to make them, except through the court making the order, or possibly by the exercise of the pardoning power. This principle has been uniformly held to be necessary to the protection of the court from insults and oppressions while in the ordinary exercise of its duties, and to enable it to enforce its judgments, and orders necessary to the due administration of law, and the protection of the rights of suitors.” Miter, J. Ex p. Fisk, 113 U. S. 718. CONTINUANCE. Right to in Criminal Cases. “With respect to motions for continuance, the granting or refusal of them is unques- tionably a necessary incident to, and a part of, the hearing and determining of criminal charges; and the exercise of that power in such criminal proceedings is indispensable to the right of the accused to have a fair and full investigation for the summoning of his witnesses as well as for employing and con- sulting with counsel to aid him in his de- fense.” Lamar, J. U.S. uv. Jones, 134 U.S. 487. Matters Deemed to Be Continued to Next Term. “Tn the Supreme Court of the district, as we are advised, if any matter in hand is not disposed of at one term, it is deemed to have been continued to the next. Whatever parties are bound to take notice of at one term they must follow to the next, if they are not, in some appropriate form, dismissed from further attendance.” Warts, C. J. Goddard v. Ordway, 101 U. S. 751. Refusal Not Assignable as Error. “Tt was decided at an early day in this court that the refusal of an inferior court to continue a case cannot be assigned as error. And yet there are doubtless cases to be found which hold that where, under the recognized practice, a party makes a clear case for a continuance, it is an abuse of discretion to refuse it.” Brown, J. Earn- shaw v. U. S., 146 U. S. 68. 426 CONTRACTS. CONTINUED OF COURSE. “The declaration that the process, etc., shall be ‘continued of course’ means simply continued without any special order, and was obviously designed to prevent that failure of right which in many cases might other- wise result from the absence of a judge.” Brewer, J. McDowell uv: U. S., 159 U. S. 600. CONTRACTS. I. DEFINITIONS. II. Parties. III. Assent. TV. Orrer AND ACCEPTANCE, V. Form. VI. DeELIveEry. VII. Time as Ess—ENcE oF CONTRACT. VIII. DiscHarcE. 1. Performance. 2. Impossibility of Performance. 3. Breach. 4. Security under Seal Extinguishes Simple Contract Debt. IX. REMEDIES. X. MISCELLANEOUS. CROSS-REFERENCES. That a contract may be taken for public use, see EMINENT DoMAIN. As to the liberty to contract, see LiBerty. For other matters related to this title, see AGREEMENT; COMPACTS; COMPENSATION; CoNSIDERATION ; CONTRACTS IN RESTRAINT OF Trave; Deeps; Duress; HusBAND AND WIFE; ILLEGAL ConTRACTS; IMPAIRMENT OF OBLI- GATION OF CONTRACTS; IMPLIED or QUASI Contracts; INFANTS; INSANE Persons; IN- TERPRETATION AND CONSTRUCTION; MARRIAGE AND MarrieD WoMEN; MuniIcIpaAL Corpora- TIONS; NEGOTIABLE INSTRUMENTS; OBLIGA- TION — OBLIGATIONS; Pitots; Pustic Pot- Icy; Pusitic Works;- VALUE. I. DEFINITIONS. General Definition. “What is a contract? It may be defined to be a transaction between two or more per- sons, in which each party comes under an obligation to the other, and each reciprocally acquires a right to whatever is promised by the other.” Wasuincton, J. Dartmouth College v. Woodward, 4 Wheat. 656. “A contract is defined to be an agreement between competent persons, to do or not to do a certain thing.” McLean, J. Wood- ruff v. Trapnall, 10 How. 205. “A contract is the agreement of minds, upon a sufficient consideration, that some- thing specified shall be done, or shall not be done.” Swayne, J. Edwards v. Kearzey, 96 U. S. 599. Executory and Executed Contracts. “A contract is a compact between two or more parties, and is either executory or executed. An executory contract is one in which a party binds himself to do, or not to do, a particular thing; such as the law under which the conveyance was made by the governor. A contract executed is one in which the object of contract is performed.” MarsHALt, C. J. Fletcher v. Peck, 6 Cranch 136. “A contract is either executory or exe- cuted; by the former, a party binds himself to do or not to do a particular thing; the latter is one in which the object of the con- tract is performed, and this differs in noth- ing from a grant, but whether executed or executory, they both contain obligations bind- ing on the parties.’ WasHINcToN, J. Dartmouth College v. Woodward, 4 Wheat. 657. “Contracts are executed or executory. A contract is executed where everything that was to be done is done, and nothing re- mains to be done. A grant actually made is within this category. Such a contract re- quires no consideration to support it. A gift consummated is as valid in law as anything else.” Swayne, J. Farrington v. Tennessee, 95 U. S. 683. Executory Contract. *“ An executory contract is one where it is stipulated by the agreement of minds, upon:a sufficient consideration, that something is to be done or not to be done by one or both the parties. Only a slight consideration is neces- sary,’ Swayne, J. Farrington v. Tennessee, 95 U. S. 683. —— Executed Contract. * An executed contract is the evidence of a thing done; and it would seem, does not necessarily impose any duty or obligation on either party to do any act or thing.” Mc- Lean, J. Charles River Bridge v. Warren Bridge, 11 Pet. 573. “A contract executed, as well as one which is executory, contains obligations bind- ing on the parties.” MarsHatt, C. J. Fletch- er v. Peck, 6 Cranch 137. CONTRACTS. Maritime Contracts. “Maritime contracts are such as relate to commerce and navigation, and unless a con- tract to build a ship is to be regarded as a maritime contract, it will hardly be con- tended that a contract to furnish the materi- als to be used in accomplishing that object _can fall within that category, as the latter is more strictly a contract made on land, and to be performed on land, than the for- mer, and is certainly one stage further removed from any immediate and direct rela- tion to commerce and navigation.” CLIF- FORD, J. Edwards v. Elliott, 21 Wall. 553. Distinction Between Contract and the Evi- dence Thereof. “The distinction between a law which for- bids a contract to be made and one which simply requires the contract when made to be embodied in a particular form is as obvious as is the difference between the sum of the obligations of a contract, and the mere instrument by which their existence may be manifested. The contract is the concrete re- sult of the meeting of the minds of the con- tracting parties. The evidence thereof is but the instrument by which the fact that the will of the parties did meet is shown.” Waite, J. Richmond, etc, R. Co. v. R. A. Patterson Tobacco Co., 169 U. S. 314. II. PARTIES. Necessity for Two Parties. “There can be no bargain without two parties. There can be no valid agreement in writing without these parties are named in such manner that some one whom he can reach is known to the other to be bound also.” Mutter, J. Grafton v. Cummings, 99 Uz. S. 107. “In making a contract, parties are as im- portant an element as the terms with refer- ence to the subject-matter. Mutual assent as to both is alike necessary.” Swayne, J. Quincy First Nat. Bank v. Hall, 101 U. S. 50. —- Competent Parties. “To make a valid contract it is necessary to show that both parties are competent to enter into the proposed stipulations.” Brown, J. Louisville, etc., R. Co. v. Ken- tucky, 161 U. S. 692. “Tt is a fundamental principle in the law of contracts that, to make a valid agreement, there must be a meeting of minds, and, ob- viously, if there be a disability on the part of either party to enter into the proposed contract there can be no valid agreement.” Brown, J. Louisville, etc, R. Co. v. Ken- tucky, 161 U. S. 692. “Both minds must meet in such a transac- tion [contract or deed], and if one is so weak, unsound, and diseased that the party is incapable of understanding the nature and quality of the act to be performed, or its consequences, he is incompetent to assent to the terms and conditions of the instrument, whether that state of his mind was produced by mental or physical disease, and whether it resulted from ordinary sickness, or from accident, or from debauchery, or from habit- ual and protracted intemperance.” CLrFForD, J., concurring. Johnson v. Harmon, 94 U. S. 873. . Presumption that Personal Representa- tives Are Bound. “The law presumes, in the absence of ex- press words, that the parties to a contract intend to bind not only themselves, but their personal representatives.” WhuurtE, J. Mat- teson v. Dent, 176 U. S. 528. Contracts Affecting Persons Not in Be- ing. “We must admit that there may be future springing contracts in respect to persons not now in esse.” Story, J.. Dartmouth College v. Woodward, 4 Wheat. 693. United States as a Party. “The nature and legal effect of any con- tract, indeed, are not changed by its transfer to the United States.” Gray, J. U. S. uv. Nashville, etc., R. Co., 118 U. S. 125. “The government, whatever power it may reserve over its own agreements, can not impose new contracts upon those with whom it deals.” Matturws, J. Chicago, etc. R. Co. v. U. S., 104 U. S. 684, State as a Party. “When a state becomes a party to a con- tract the same rules of law are ap- plied to her as to private persons under like circumstances. When she or her representa- tives are properly brought into the forum of litigation, neither she nor they can assert any right or immunity as incident to her political sovereignty.” Swayne, J. Davis v. Gray, 16 Wall. 232. Corporation as a Party. “An individual has an original capacity to contract and bind himself in such manner as he pleases. For the general security of society, however, from frauds and perjuries, this general power is restricted, and he is dis- abled from making certain contracts by parol. This disabling act has received construc- 428 CONTRACTS. tions which take out of its operation several cases not within the mischief, but which might very possibly be deemed within the strict letter of the law. He who acts by another acts for himself. He who author- izes another to make a writing for him, makes it himself; but with these bodies [cor- porations] which have only a legal existence, it is otherwise. The act of incorporation is to them an enabling act; it gives them all the power they possess; it enables them to contract, and when it prescribes a mode of contracting, they must observe that mode, or the instrument no more creates a contract than if the body had never been incorpo- rated.” MarsHALL, C. J. Head v. Providence Ins. Co., 2 Cranch 169. “Even a contract is not avoided by mis- naming the corporation with which it is made.” Woops, J. Moultrie County wv. Fair- field, 105 U. S. 377. III. ASSENT. Necessity of Assent—In Execution of Contract. “The fundamental idea of a contract is that it requires the assent of two minds.” Stronc, J. Dexter v. Hall, 15 Wall. 20. “The mutual assent, the meeting of the minds of both parties, is wanting.. Such assent is vital to the existence of a contract. Without it there is none, and there can be none. In this case it is not established by any direct proof, and there is none from which it can be inferred.” Swayne, J. New York Mut. L. Ins. Co. v. Young, 23 Wall. 107. “Where there is a misunderstanding as to the terms of a contract, neither party is liable in law or equity.” Swayne, J. Quincy First Nat. Bank v. Hall, 101 U. S. 49. “Where a contract is a unit, and left un- certain in one particular, the whole will be regarded as only inchoate, because the parties have not been ad idem. and, therefore, neither is bound.” Swayne, J. Quincy First Nat. Bank v. Hall, 101 U. S. 50. “We know of no principle upon which a contract can be evoked from a distinct re- fusal of one party to recognize the rights of the other, and a formal protest against any such rights being granted to him.” Brown, J. Kirk v. U. S., 163 U. S. 55. “ A contract is made when, and not before, it has been executed or accepted by both parties, so as to become binding upon both.” Gray, J. Holder v, Aultman, 169 U. S. 89. —~%In Changing Terms of Contract After Execution. “Two minds are required to make a con- tract, or to change its terms and conditions after it is executed.” CxirForp, J. White- side v. U. S., 93 U. S. 255, “Prior contracts must be carried out as they were when they were entered into. Neither party, 7 invitum as respects the other, can make any change.” Swayne, J. Brooklyn Life Ins. Co. v. Dutcher, 95 U. S. 273. “Tt seems to us entirely clear that both parties understood and meant that the con- tract was to be, and in fact was, with the corporation, and not with the defendants in- dividually. The agreement thus made could not be afterwards changed by either of the parties without the consent of the other.” Swayne, J. Whitney v. Wyman, 101 U. S. 396. : “We hold it a sound rule of law, that a joint contract can never be defeated by the mere private contract of an individual of the concern, to whom the other parties have confided no authority for this purpose.” Story, J. Young v. Black, 7 Cranch 568. Assent Must Be Given by Act of Parties. “Contracts derive their obligation from the act of the parties, not from the grant of government.” MarsHaty, C. J. Ogden v. Saunders, 12 Wheat. 354. “The obligation in such cases is correla- tive. If there is none on one side there is none on the other. The requisite assent must be the work of the parties themselves. The law cannot supply it for them. That is a function wholly beyond the sphere of judicial authority.” Swayne, J. New York Mut. L. Ins. Co. v. Young, 23 Wall. 107. Need Not Be Given Simultaneously. “Tt may be admitted that two parties are necessary to form a perfect contract, but it is denied that it is necessary that the assent of both parties must be at the same time.” Story, J. Dartmouth College v. Woodward, 4 Wheat. 692. Presumption of Assent from Signature. “Tt will not do for a man to enter into a contract, and, when galled upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained. If this were permitted, con- tracts would not be worth the paper on which they are written. But such is not the law. A contractor must stand by the words of his 429 CONTRACTS. contract; and, if he will not read what he signs, he alone is responsible for his omis- sion.” Hunt, J. Upton v. Tribilcock, 91 Uz. S. 50. IV. OFFER AND ACCEPTANCE. Offer May Be Withdrawn Before Ac- ceptance. “ The rule between individuals is that until a proposal be accepted it may be withdrawn.” McKenna, J. Moffett, etc., Co. v. Roches- ter, 178 U. S. 385. Offer Not Binding Until Accepted. “An offer of a bargain by one person to another, imposes no obligation on the for- mer, unless it is accepted by the latter, ac- cording to the terms in which the offer is made; and . . any qualifications of, or departure from the terms, invalidates the offer, unless the same be agreed to by the person who made it. Until the terms of the agreement have received the assent of both parties, the negotiation is open, and im- poses no obligation on either.” Catron, J. Carr v. Duval, 14 Pet. 82. “Unaccepted offers to enter into a con- . tract bind neither party, and can give rise to no cause of action; as, for example, if one merchant offer to sell goods to another, such an offer is not binding until it has been in some form accepted by the party to whom it was made. Liability cannot arise in such a case, because the party making the offer cannot be held answerable to the other for not selling the goods, unless that other, by accepting the offer, has bound himself to purchase.” Currrorp, J. Blossom v. Mil- waukee, etc., R. Co., 3 Wall. 205. “Tf one does not accede to a promise as made, the other party is not bound by it.” Woops, J. Tilley v. Cook County, 103 U. S. 161. “When A. signs a writing by which he declares he will sell to B. his house at a certain price, this is a mere proposition and not a contract.” Woops, J. Tilley v. Cook County, 103 U. S. 161. — Contract Not Complete Without Mu- tual Assent. “As no contract is complete without the mutual assent of the parties, an offer to sell imposes no obligation until it is accepted according to its terms. So long as the offer has been neither accepted nor rejected, the negotiation remains open, and imposes no obligation upon either party; the one may decline to accept, or the other may withdraw his offer; and either rejection or withdrawal leaves the matter as if no offer had ever been made. A proposal to accept, or an ac- ceptance, upon terms varying from those offered, is a rejection of the offer, and puts an end to the negotiation, unless the party who made the original offer renews it, or assents to the modification suggested. The other party, having once rejected the offer, cannot afterwards revive it by tendering an acceptance of it. If the offer does not limit the time for its acceptance, it must be accepted within a reasonable time. If it does, it may, at any time within the limit and so long as it remains open, be accepted or rejected by the party to whom, cr be with- drawn by the party by whom, it was made.” Gray, J. Minneapolis, etc., R. Co. v. Colum- bus Rolling Mill, 119 U. S. 151. Acceptance Completes Contract. “The agreement to accept is a transaction between the guarantee and the guarantor, and completes that mutual assent necessary to a valid contract between them.” MatTTHEWS, J. Davis v. Wells, 104 U. S. 165. Conditional or Qualified Acceptance. “A proposal to accept, or acceptance upon terms varying from those offered, is a re- jection of the offer.” Swayne, J. Quincy First Nat. Bank v. Hall, 101 U. S. 50. “ An offer of a bargain by one person to another imposes no obligation upon the former, unless it is accepted by the latter upon the terms upon which it was made. Any qualification of or depafture from them invalidates the offer, unless the same be agreed to by the party who made it.” Woops, J. Tilley v. Cook County, 103 U. S. 161. Acceptance of Offer Previously Refused. “Tt cannot for a moment be contended, that, while parties are still in negotiation as to the terms of a contract, one of them learning of a total change in the condition of the subject-matter of the contract of which the other is ignorant, can at that moment accept terms which he has refused before, and by doing so bind the party. who had offered those terms when the condition of affairs was wholly different.” Murtier, J. Piedmont, etc., L. Ins. Co. v. Ewing, 92 U. S. 380. V. FORM. “To constitute a promise binding in law, no form of words is necessary. An implied promise is proved by circumstantial evi- dence; by proof of circumstances that show 430 CONTRACTS. the party intended to assume an obligation. A party may assume an obligation by putting himself into a position which requires the performance of duties.” Srronc, J. Web- ster v. Upton, 91 U. S. 68. “Numerous authorities are cited to show that the written acceptance by one party of a written proposal made to him by another party creates a contract of the same force and effect, as if formal articles of agreement had been written out and signed by said parties. The legal principle asserted is sound.” Lamar, J. Brown v. District of Columbia, 127 U. S. 583. VI. DELIVERY. “ A written contract cannot become a bind- ing obligation until it has been delivered. Its delivery may be absolute or conditional. If the latter, then it does not become a bind- ing obligation until the condition upon which its delivery depends has been fulfilled.” Haran, J. Burke v. Delaney, 153 U. S. 238. “That as to contracts generally there can be a conditional delivery, and that the fail- ure of the condition prevents the contract from taking effect is not doubted.” Brewer, J. Hartford F. Ins. Co. v. Wilson, 187 U. S. 474, “The rule as to conditional delivery and the effect of a failure of the condition has not been limited to promissory notes, but has often been applied to other instruments, . as, for instance, a deed of land, . .. a sight draft, . . a guaranty.” BREWER, J. Hartford F. Ins. Co. v, Wilson, 187 U. S. 474. * Possession cannot be conclusive on the question of delivery. Otherwise, a posses- sion wrongfully, even feloniously, obtained would bind a party to a contract when, per- chance, much remained to be done before the maker was ready to assume’ the obligations of the contract.” Brewer, J. Hartford F. Ins. Co. v. Wilson, 187 U. S. 478. VII. TIME AS ESSENCE OF CON- TRACT. In Contracts of Merchants. “In the contracts of merchants, time is of the essence. The time of shipment is the usual and convenient means of fixing the probable time of arrival, with a view of providing funds to pay for the goods, or of fulfilling contracts with third persons.” Gray, J. Norrington v. Wright, 115 U. S. 203. 431 Because of Nature of Subject-Matter. “Time may become of the essence of a contract for the sale of property not only by the express stipulation of the parties, but from the very nature of the property itself.” Harian, J. Waterman v. Banks, 144 U. S. 403. Where Damages May Compensate for Delay. “Tt is said by some writers that it is im- possible to make time of the essence of the contract where damages may compensate for the delay. But this is not correct as a gen- eral proposition.” McLean, J. Slater vw. Emerson, 19 How. 238. Failure to Perform Precludes Recovery at Law. “Where time is of the essence of the con- tract, there can be no recovery at law in case of failure to perform within the time stipulated.” Cuirrorp, J. Jones wv. U. S.,, 96 U. S. 28, “When a merchant agrees to sell, and to ship to the rolling mill of the buyer, a cer- tain number of tons of pig iron at a certain time, both the amount of iron and the time of shipment are essential terms of the agree- ment; the seller does not perform his agree- ment, by shipping part of that amount at the time appointed and the rest from time to time afterwards; and the buyer is not bound to accept any part of the iron so shipped.” Gray, J. Cleveland Rolling Mill Co. vw. Rhodes, 121 U. S. 261. Rule in Equity. “The rule, that time is not the essence of a contract, has certainly been recognized in courts of equity.” MarsHatt, C. J. Brashier v. Gratz, 6 Wheat. 533. “Tn equity, time is usually not the essence of the contract, and is never regarded as stich when the contract has been fully exe- cuted, without objection.” Snrras, J. Graves v. Saline County, 161 U. S. 374. VIII. DISCHARGE. 1, PERFORMANCE, Of Conditions Precedent — Necessity for Performance. “A party bound to perform a condition precedent cannot sue on the contract without proof that he has performed that condition.” CuirForD, J. Jones v. U. S., 96 U. S. 28. “Where an act is to be performed by the plaintiff before the accruing of-the de-. CONTRACTS. fendant’s liability under his contract, the plaintiff must prove either his performance of such condition precedent, or an offer to perform it, which the defendant rejected, or his readiness to fulfil the condition until the defendant discharge him from so doing, or prevent the execution of the matter which the contract required him to perform.” CuiFForpD, J. Jones v. U. S., 96 U. S. 27. “If parties think proper, they may agree that the right of one to maintain an action against another shall be conditional or de- pendent upon the plaintiff's performance of covenants entered into on his part. On the other hand, they may agree that the per- formance by one shall be a condition prece- dent to the performance by the other.” Jacxson, J. Loud v. Pomona Land, etc., Co., 153 U. S. 577. —-What Amounts to Condition Prece- dent. “Whether or not a particular covenant by one party be a condition precedent, the breach of which will dispense of the performance of the contract by the other, says Lord Ten- terden, is a question to be determined ac- cording to the fair intention of the parties, to be collected from the language employed by them; but an intention to make any par- ticular stipulation a condition precedent should be clearly and unambiguously ex- pressed.” CLIFFORD, J., dissenting. Lowber v. Bangs, 2 Wall. 744. — What Amounts to Performance. “Where the right to demand the perform- ance of a certain act depends on the execu- tion by the promisee of a condition precedent or prior act, it is clear that the ‘readiness and offer of the latter to fulfil the condition, and the hindrance of its perform- ance by the promisor, are in law equivalent to the completion of the condition precedent, and will render the promisor liable upon his contract.” CLiFForD, J. Jones v. U. S., 96 U.S. 27. —Nonperformance Must Go to Entire Substance of Contract. “ Nonperformance on one side, in order to justify the conclusion that the stipulation requiring it is a condition precedent, must go to the entire substance of the contract, and to the whole consideration, so that it may safely be inferred as the intent and just con- struction of the contract, that if the act to be performed on the one side is not done, there is no consideration for the stipulation on the other side. Proof of the breach of an express or implied covenant on one side is not sufficient, not even if it is attended with some loss and damage to the other, be- cause if it does not go to the whole con- sideration, and the loss can be compensated in damages, the construction must be that the stipulation is independent, and the losing party, under such circumstances, is not absolved from performance on his part.” CuirFrorD, J., dissenting. Lowber v. Bangs, 2-Wall. 749. — Waiver of Conditions. “Conditions precedent may doubtless be waived by the party in whose favor they are made.” CtutrForD, J. Jones v. U. S., 96 U. S. 28. “Tf the builder has done a large and valu- able part of the work, but yet has failed to complete the whole or any specific part of the building or structure within the time limited by his covenant, the other party, when the time arrives, has the option of abandon- ing the contract for such failure, or of per- mitting the party in default to go on. If he abandons the contract, and notifies the other party, the failing contractor cannot recover on the covenant, because he cannot make or prove the necessary allegation of perform- ance on his own part. What remedy he may have in assumpsit for work and labor done, materials furnished, etc., we need not inquire here; but if the other party says to him. ‘I prefer you should finish your work,’ or should impliedly say so by standing by and permitting it to be done, then he so far waives absolute performance as to consent to be liable on his covenant for the contract price of the work when completed. For the in- jury done to him by the broken covenant of the other side, he may recover in a suit on the contract to perform within time; or, if he wait to be sued, he may recoup the damages thus sustained in reduction of the sum due by contract price for the completed work.” Miter, J. Phillips, etc., Constr. Co. v. Sey- mour, 91 U. S. 651. Concurrent or Dependent Conditions. “Well-considered authorities everywhere agree that a contract may be so framed that the promises upon one side may be dependent upon the promises of the other; so that no action can be maintained, founded on the written contract, without showing that the plaintiff has performed, or at least has been ready, if allowed by the other party, to per- form his own stipulations, which are a con- dition precedent to his right of action.” CutrrorD, J. Jones v. U. §., 96 U. S. 27, 432 CONTRACTS. “Where a specified thing is to be done by one party as the consideration of the thing to be done by the other, it is undeniably the general rule that the covenants are mutual, and are dependent, if they are to be per- formed at the same time; and if, by the terms or nature of the contract, one is first to be performed as the condition of the obliga- tion of the other, that which is first to be performed must be done, or tendered, before that party can sustain a suit against the other. There is no doubt, that in this class of contracts, if a day is fixed for perform- ance, the party whose duty it is to perform or tender performance first must do it on that day, or show his readiness and willing- ness to do it, or he cannot recover in an action at law for nonperformance by the other party. But, both at common law and in chancery, there are exceptions to this rule, growing out of the nature of the thing to be done and the conduct of the parties. The familiar case of part performance, pos- session, etc., in chancery, where time is not of the essence of the contract, or has been waived by the acquiescence of the party, is an example of the latter; and the case of contracts for building houses, railroads, or other large and expensive constructions, in which the means of the builder and his labor become combined and affixed to the soil, or mixed with material and money of the owner, often afford examples at law.” Mu.- LER, J. Phillips, ete., Constr. Co. v. Sey- mour, 91 U. S. 650. —— Necessity for Performance of Prior Condition. “Cases arise where either party, in case of a breach of the contract, may be com- pensated in damages; and in such cases it is usually held that the conditions are mutual and independent: but where the conditions are dependent and of the essence of the contract, it is everywhere held that the per- formance of one depends on the performance of another, in which case the rule is universal, that, until the prior condition is performed, the other party is not liable to an action on the contract.” C.iFForD, J. Jones v. U. S., 96 U. S. 28. Party Seeking Relief Must Show Per- formance on His Part. “ The failure on the part of the party apply- ing for it to perform his own part of a con- tract wholly executory, or to show any suf- ficient reason for the failure, has always been held to be ground to refuse relief and turn the party over to his action at law.” MILtEr, J. Walsh v. Preston, 109 U. S. 318. 1 Os, Dic. —28 “If the acts to be performed by the land company and the purchaser, respectively, are dependent and concurrent, neither party would be entitled to an action against the other without the averment of performance, or the tender of performance, on his part.” Jackson, J. Loud v. Pomona Land, etc., Co., 153 U. S. 576. “Tt is simple justice between two parties to a contract containing depending stipula- tions that neither should be permitted to exact performance by the other without hav- ing himself first performed. It is true cases arise in which one party is enabled to take advantage of some statutory provision and exact compliance from the other without having himself first complied, and courts may not ignore the scope and efficacy of such statutory provisions, but, nevertheless, a judg- ment for failure to perform against one party in favor of the other, when the latter was the first delinquent, is offensive to the sense of righteousness and fair dealing.” Brewer, J. Mutual L. Ins. Co. v. Hill, 193 U. S. 559. “Ordinarily no one can enforce a contract, unless on his part he performs the stipulated promise.” Brewer, J. Mutual Life Ins. Co. v. Phinney, 178 U. S. 344. Difficulty of Determining Nature of Con- ditions. “Tt is difficult at all times to distinguish whether contracts are dependent or inde- pendent.” Wayne, J. Dermott v. Jones, 23 How. 231. 2. IMPOSSIBILITY OF PERFORMANCE. Impossibility Excusing Performance. “With regard to the performance of con- ditions, it is a well known rule, that obstruc- tions interposed by the act of God, or a public enemy, shall excuse from performance, so far as the effect of such preventing cause necessarily extends.” JoHNSoN, J., con- curring. Huidekoper v. Douglass, 3 Cranch 73. “Impossible conditions cannot be per- formed; and if a person contracts to do what at the time is absolutely impossible, the contract will not bind, because no man can be obliged to perform an impossibility.” CuiFForD, J. Jones v. U. S., 96 U. S. 29. “There is such a defense known to the law as an impossibility of performance.” Suiras, J. Jacksonville, etc, R. Co. v. Hooper, 160 U. S. 527. “Tf a party by his contract charge him- self with an obligation possible to be per- 4383 CONTRACTS. formed, he must make it good, unless his performance is rendered impossible by the act of God, or the other party.” Suiras, J. U. S. v. Gleason, 175 U. S. 602. Impossibility Arising After Execution of Contract. “Tt is a settled rule that if performance of an express engagement becomes impos- sible by reason of anything occurring after the contract was made, though unforeseen by the contracting party, and not within his control, he will not be excused.” Srtrone, J. Boyden v. U. S., 13 Wall. 22. “Where the contract is to do a_ thing which is possible in itself, the performance is not excused by the occurrence of an in- evitable accident or other although it was not foreseen by the party, nor was within his control.” CiiFForD, J. Jones v. U. S., 96 U.S. 29. “There can be no question that a party may by an absolute contract bind himself or itself to perform things which subsequently become impossible, or pay damages for the nonperformance, and such construction is to be put upon an unqualified undertaking, where the event which causes the impossibil- ity might have been anticipated and guarded against in the contract, or where the im-~ possibility arises from the act or default of the promisor. But where the event is of such a character that it cannot be reasonably supposed to have been in the contemplation of the contracting parties when the contract was made, they will not be held bound by general words, which, though large enough to include, were not used with reference to the possibility of the particular contingency which afterwards happens.” Jacxson, J. Chicago, etc., R. Co. v. Hoyt, 149 U. S. 14. Difficulty of Performance. “Tt is a well-settled rule of law, that if a party by his contract charge himself with an obligation possible to be performed, he must make it good, unless his performance is ren- dered impossible by the act of God, the law, or the other party. Unforeseen difficulties, however great, will not excuse him.” Swayne, J. Dermott v. Jones, 2 Wall. 7. “Tf what is agreed to be done is possible and lawful, it must be done. Difficulty or improbability of accomplishing the under- taking will not avail the defendant. It must be shown that the thing cannot by any means be effected. Nothing short of this will ex- cuse nonperformance. The answer to the objection of hardship in all such cases is that it might have been guarded against by a proper stipulation. It is the province of courts to enforce contracts — not to make or modify them. When there is neither fraud, accident, nor mistake, the exercise of dis- pensing power is not a judicial function.” Swayne, J. The Harriman, 9 Wall. 172. “Tf a condition be to do a thing which is impossible, as to go from London to Rome in three hours, it is void; but if it be to do a thing which is only improbable or absurd, or that a thing shall happen which is beyond the reach of human power, as that it will rain to-morrow, the contract will be upheld and enforced. Swayne, J. The Harriman, 9 Wall. 172. “As between individuals, the impossibility which releases a man from the obligation to perform his contract must be a real impos- sibility, and not a mere inconvenience. And while such an impossibility may release the party from liabilities to suit for nonperform- ance, it does not stand for performance so as to enable the party to sue and recover as if he had performed.” Mutter, J. Smoot’s Case, 15 Wall. 46. 3. BREACH. Renunciation of Liability under the Con- tract. “A contract may be broken by the re- nunciation of liability under it in the course of performance and suit may be immediately instituted.” FuLLer, C. J. Roehm wv. Horst, 178 U. S. 7. “Both as to renunciation after com- mencement of performance and renunciation before the time for performance has arrived, money contracts, pure and simple, stand on a different footing from executory contracts for the purchase and sale of goods.” FULLER, C. J. Roehm v. Horst, 178 U. S. 18. Refusal to Perform Engagement. “Tt is not disputed that if one party to a contract has destroyed the subject-matter, or disabled himself so as to make performance impossible, his conduct is equivalent to a breach of the contract, although the time for performance has not arrived; and also that if a contract provides for a series of acts, and actual default is made in the performance of one of them, accompanied by a refusal to perform the rest, the other party need not perform, but may treat the refusal as a breach of the entire contract, and recover accordingly.” Futter, C. J. Roehm vw. Horst. 178 U. S. 8. 434 CONTRACTS. “Tt is an implied condition of every agree- ment that the party failing to comply with its terms shall be liable to the party injured in such sum as the Jaw will give him at the time the default is adjudged.” Hartan, J., dissenting. Morley v. Lake Shore, etc., Ry. Co., 146 U. S. 173. “But the contract was an entire contract, as both parties agree, and therefore what- ever the defendant had in mind, if it was justified by the law, in refusing to perform a material part, it was justified in refusing to form any portion.” Hotmes, J. Diamond Glue Co. v. U.S. Glue Co., 187 U. S. 614. — Anticipatory Breach of Executory Contract. “The doctrine that there may be an an- ticipatory breach of an executory contract by an absolute refusal to perform it, has be- come the settled law of England as applied to contracts for services, marriages, and for the manufacture or sale of goods.” Futter, C. J. Roehm v. Horst, 178 U. S. 8. Rendering Performance Impossible — Constitutes Breach of Contract. “Surely, the wilful and wrongful putting an end to a contract, and preventing the other party from carrying it out, is itself a breach of the contract for which an action will lie for the recovery of all damage which the injured party has sustained. The dis- tinction between those claims under a con- tract which result from a performance of it on the part of the claimant, and those claims under it which result from being prevented by the other party from performing it, has not always been attended to.” Braptey, J. U. S. v. Behan, 110 U. S. 346. “Where a party does all that he is re- quired to do, under the terms of a con- tract into which he has entered, and is only prevented from reaping the benefit of such contract by the fault or wrongful act of the other party to it, the law gives him a remedy against the other party for such breach of contract.” Lamar, J. New York, etc. R. Co. v. Winter, 143 U. S. 73. “A party who engages to do work has a right to proceed free from any let or hin- drance of the other party, and if such other party interferes, hinders, and prevents the doing of the work to such an extent as to render its performance difficult and largely diminish the profits, the first may treat the contract as broken, and is not bound to proceed under the added burdens and in- creased expense. It may stop and sue for the damages which it has sustained by reason of the nonperformance which the other has caused.’ Brewer, J. Anvil Min. Co. wv. Humble, 153 U. S. 552. “Tt has always been the law that where a party deliberately incapacitates himself or renders performance of his contract impos- sible, his act amounts to an injury to the other party, which gives the other party a cause of action for breach of contract.” Futter, C. J. Roehm v. Horst, 178 U. S. 18. —— Terminates Contract. “Where one party to an executory con- tract prevents the performance of it, or puts it out of his own power to perform it, the other party may regard it as terminated and demand whatever damage he has sustained thereby.” Bravrey, J. Lovell v. St. Louis Mut. L. Ins. Co., 111 U. S. 274. Damages — Measure. “The prima facie measure of damages for the breach of a contract is the amount of the loss which the injured party has sustained thereby.” Brapiry, J. U. S. v. Behan, 110 U.S. 344. “When he [a party] elects to go for dam- ages for the breach of the contract, the first and most obvious damage to be shown is, the amount which he has been induced to expend on the faith of the contract, including a fair allowance for his own time and services. If he chooses to go further, and claims for the loss of anticipated profits, he may do so, sub- ject to the rules of law as to the character of profits which may be thus claimed.” Brabiey, J. U.S. v. Behan, 110 U. S. 345. “A lack of certainty as to lack of terms of contract obligations of either party, or measure of damages for breach, is simply the misfortune of him who seeks to recover in case of awbreach thereof.” Brewer, J. Troy Laundry Mach. Co. v. Dolph, 138 U. S. 623. —— Recovery on Quantum Meruit. “When a party injured by the stoppage of a contract elects to rescind it, then, it is true, he cannot recover any damages for a breach of the contract, either for outlay or for loss of profits; he recovers the value of his ser- vices actually performed as upon a quantum meruit. There is then no question of losses or profits.’ Braptey, J. U. S. vw. Behan, 110 U. S. 345. -—— Estoppel of Party at Fault to Deny Damages. “The party who voluntarily and wrong- fully puts an end to a contract and prevents CONTRACTS. the other party from performing it, is estopped from denying that the injured party has not been damaged to the extent of his actual loss and outlay fairly incurred.” Brabiey, J. U. S. v. Behan, 110 U. S. 346. “Tt does not lie in the mouth of the party, who has voluntarily and’ wrong- fully put an end to the contract, to say that the party injured has not been damaged at least to the amount of what he has been in- duced fairly and in good faith to pay out and expend (including his own services), after making allowance for the value of materials on hand.” Braptey, J. U.S. v. Behan, 110 U. S. 345. Who May Complain of Breach. “The parties to a contract are the ones to complain of a breach, and if they are satis- fied with the disposition: which has been made of it and of all claims under it, a third party has no right to insist that it has been broken.” Brewer, J. Williams v. Eggles- ton, 170 U. S. 309. 4. SECURITY UNDER SEAL ExtTIn- GUISHES SIMPLE CONTRACT DEBT. “It is undoubtedly true, that a security under seal, extinguishes a simple contract debt, because it is of a higher nature.” Story, J. Bank of Columbia v. Patterson, 7 Cranch 303. “A security under seal extinguishes a simple contract debt.” Duvatt, J. Walton v. U. S., 9 Wheat. 656. IX. REMEDIES. “Society affords a remedy for breaches of contract.” MarsuHatt, C. J. Ogden v. Saunders, 12 Wheat. 343. “Where a deed is the foundation of the claim, and can still be regarded as subsisting and in full force between the parties, the action to enforce its provisions must be upon the instrument itself.” DanteL, J. Fresh v. Gilson, 16 Pet. 333. “Where a special contract remains execu- tory the plaintiff must sue upon it. When it has been fully executed according to its terms and nothing remains to be done but the payment of the price, he may sue upon the contract or in indebitatus assumpsit and rely upon the common counts. In either case the contract will determine the rights of the parties.” Jackson, J. Bibb v. Allen, 149 U. S. 499, “Tt is undoubtedly true, that a declaration which proposes to 3tate a special contract in its words, must set it out truly.” MarsHatt, C. J. Bell v. Cunningham, 3 Pet. 83. X. MISCELLANEOUS. “Ordinarily the Law Leaves to Parties the Right to Make Such Contracts as They Please, demanding, however, that they shall not require either party to do an illegal thing, and that they shall not be against public policy or in restraint of trade.” Brown, J. Pope Mfg. Co. v. Gormully, 144 U. S. 233. And see Liperty. “Persons May Voluntarily Contract to Do What No Legislature would have the right to compel them to do.” Prckuam, J. Lake Shore, etc., R. Co. v. Smith, 173 U. S. 697. Judicial Construction of Contract Does Not Preclude Parties from Varying Terms. “An adjudication of the rights of two private parties to a contract, with respect to the terms of such contract, does not prevent their agreeing upon other and different terms for the future. The fact that such parties are a private and a public corporation is imma- terial, so long as the right to contract exists.” Brown, J. New Orleans v. New Orleans Water Works Co., 142 U. S. 92. “The Validity of a Contract Which Can Only Be Fulfilled by a Resort to Taxation, depends on the power to levy the tax for that purpose.” Murer, J. Citizens’ Savings, etc., Assoc. v. Topeka, 20 Wall. 860. Agreement for Great Length of Time May Be Tantamount to Everlasting Agreement. “Tt cannot be denied that an agreement, which is to subsist for a very great length of time, as for a thousand years, would be entered into with precisely the same senti- ments as an agreement to subsist for ever.” MarsHaty, C. J. |. Faw wv, Marsteller, 2 Cranch 25. Revocation of Executed Transfer of Property. “When a lawful transfer of property is executed it does not matter whether the terms of the execution were void or valid while executory; the transfer cannot be re- voked or the terms changed.” Hotes, J. St. Louis Hay, etc., Co. v. U. S., 191 U. S. 163. 436 t CONTRACTS IN RESTRAINT OF TRADE. CONTRACTS IN RESTRAINT OF TRADE. See Contracts; ILLEGAL CONTRACTS; MonopoLies AND CORPORATE TRUSTS. Scope of Term. “Contracts in restraint of trade have been known and spoken of for hundreds of years, both in England and in this country, and the term includes all kinds of those contracts which in fact restrain or may restrain trade. Some of such contracts have been held void and unenforceable in the courts by reason of their restraint -being unreasonable, while others have been held valid because they were not of that nature.” PreckHam, J. U. S. v. Trans-Missouri Freight Assoc., 166 U.S. 328. “To define the words ‘ in restraint of trade’ as embracing every contract which in any degree produced that effect would be violative of reason, because it would include all those contracts which are the very essence of trade, and would be equivalent to saying that there should be no trade, and therefore nothing to restrain.” Wuiute, J., dissenting. U. S. v. Trans-Missouri Freight Assoc., 166 U.S. 351. Distinction Between Contracts and Com- binations in Restraint of Trade. “Contracts in restraint of trade are dealt with and defined by the common law. They are contracts with a stranger to the con- tractor’s business (although in some cases carrying on a similar one), which wholly or partially restricts the freedom of the con- tractor in carrying on that business as otherwise he would. The objection of the common law to them was primarily on the contractor’s own account. The notion of monopoly did not come in unless the contract covered the whole of England. Of course this objection did not apply to partnerships or other forms, if there were any, of sub- stituting a community or interest where there had been competition. There was no objec- tion to such combinations merely as in re- straint of trade, or otherwise unless they amounted to a monopoly. Contracts in re- straint of trade, I ‘repeat, were contracts with strangers to the contractor’s business, and the trade restrained was the contractor’s own. Combinations or conspiracies in re- straint of trade, on the other hand, were com- binations to keep strangers to the agreement out of the business. The objection to them was not an objection to their effect upon the parties making the contract, the members of ‘ the combination or firm, but an objection to their intended effect upon strangers to the firm and their supposed consequent effect upon the public at large. In other words, they were regarded as contrary to public policy because they monopolized or attempted to monopolize some portion of the trade or commerce of the realm.” Homes, J., dis- senting. Northern Securities Co. v. U. S., 193 U. S. 404. Grounds on which Contracts Are Held Void. “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 in- dustry; 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.” Brap- LEY, J. Oregon Steam Nav. Co. v. Winsor, 20 Wall. 68. Criterion for Determining Whether 'Con- tract Restrains Trade. “Tt is perhaps true that the principle by which contracts in restraint of the freedom of the subject or of trade were held to be illegal was first understood to embrace all contracts which in any degree accomplished these results. But as trade developed it came to be understood that if contracts which only partially restrained the freedom of the subject or of trade were embraced in the rule forbidding contracts in restraint of trade, both the freedom of contract and trade itself would be destroyed. Hence, from the reason of things, arose the distinction that where contracts operated only a partial restraint of the freedom of contract or of trade. they were not in contemplation of law contracts in restraint of trade. And it was this conception also which, in its final as- pect, led to the knowledge that reason was to be the criterion by which it was to be determined whether a contract which, in some measure, restrained the freedom of con- tract and of trade, was in reality, when considered in all its aspects, a contract of that character, or one which was necessary to the freedom of contract and of trade.” Watrr, J., dissenting. U. S. v. Trans-Mis- souri Freight Assoc., 166 U. S. 351. Contract Must Be Unreasonable. “A contract may be in restraint of trade and still be valid at common law. Although valid, it is nevertheless a contract in re- straint of trade, and would be so described 437 CONTRACTS IN RESTRAINT OF TRADE. either at common law or elsewhere. By the simple use of the term ‘contract in re- straint of trade,’ all contracts of that nature, whether valid or otherwise, would be in- cluded, and not alone that kind of contract which was invalid and unenforceable as be- ing in wmreasonable restraint of trade.” Peckuam, J. U. S. wv. Trans-Missouri Freight Assoc., 166 U. S. 328. “Tt is unnecessary to refer to the authori- ties showing that although a contract may in some measure restrain trade, it is not for that reason void or even voidable unless the restraint which it produces be unreasonable.” Waitt, J., dissenting, U. S. v. Trans- Missouri Freight Assoc., 166 U. S. 343. , “Tt is true that in the adjudged cases lan- guage may be found referring to contracts in restraint of trade which are valid because reasonable. But this mere form of expres- sion, used not as a definition, does not main- tain the contention that such contracts are embraced within the general terms every contract in restraint of trade. The rudi- ments of the doctrine of contracts in re- straint of trade are found in the common law at a very early date.’ Wuurt, J., dis- senting. U. S. vw. Trans-Missouri Freight Assoc., 166 U. S. 346. “The further development of the doc- trine by which it was decided that if a con- tract was reasonable it would not be held to be included within contracts in restraint of trade, although such contract might, in some measure, produce such an effect, was : an exception to the general rule as to the invalidity of contracts in restraint of trade.’ Wuiuts, J., dissenting. U. S. w. Trans-Missouri Freight Assoc., 166 U. S. 350. — Rule as to Contracts by Competing Railroads. “While in the absence of a statute pro- hibiting them, contracts of private individuals er corporations touching upon restraints in trade must be unreasonable in their nature to be held void, different considerations ob- tain in the case of public corporations like those of railroads where it well may be that any restraint upon a business of that char- acter as affecting its rates of transporta- tion must thereby be prejudicial to the public interests.” Pscknam, J. U. 5S. v. Trans-Missouri Freight Assoc, 166 U. S. 334. “he business which the railroads do is of a public nature, closely affecting almost all classes in the community—the farmer, the artisan, the manufacturer and the trader. Tt is of such a public nature that it may well be doubted, to say the least, whether any contract which imposes any restraint upon its business would not be prejudicial to the public interest.” PreckuHam, J. ’U. S. w. Trans-Missouri Freight Assoc, 166 UL S. 333. Railroad Agreements as to Transporta- tion Rates. “The natural, direct and immediate ef- fect of competition is, hawever, to lower rates, and to thereby increase the demand for commodities, the supplying of which increases commerce, and an agreement, whose first and direct effect is to prevent this play of competition, restrains instead of promoting trade and commerce.” PEcK- HAM, J. U. S. vw. Joint Traffic Assoc., 171 U. S. 577%. “The provision of the statute against contracts in restraint of trade has been held to apply to contracts between railroads, otherwise remaining independent, by which they restricted their respective freedom as to rates.” Hotmes, J., dissenting. North- ern Securities Co. v. U. S., 193 U. S. 405. Formation of Corporations and Partner- ships. “The formation of corporations for busi- ness or manufacturing purposes has never, to our knowledge, been regarded in the na- ture of a contract in restraint of trade or commerce. The same may be said of the contract of partnership.” PrckHam, J. U.S. v. Joint Traffic Assoec., 171 U. S. 567. “A partnership is not a contract or com- bination in restraint of trade between the partners unless the well known words are to be given a new meaning invested for the purpose of this act.” Hotes, J., dissent- ing. Northern Securities Co. v. U. S., 193 UL S. 410. Contracts in Partial Restraint of Trade. “Tt is a well settled rule of law that an agreement in general restraint of trade is illegal and void; but an agreement which operates merely in partial restraint of trade is good, provided it be not unreasonable and there be a consideration to support it. Brapiey, J. Oregon Steam Nav. Co. wv. Winsor, 20 Wall. 66. “There is a partial restraint of trade which, in certain circumstances, is tolerated by the law.” Hartan, J., dissenting. U. S. v. E. C. Knight Co., 156 U. S. 24. 438 CONTRIBUTION AND EXONERATION. “This court has not only recognized and applied the distinction between partial and general restraints, but has also decided that the true test whether a contract be in re- straint of trade is not whether in a meas- ure it produces such effect.” Wuute, J., dis- senting. U. S. v. Trans-Missouri Freight Assoc., 166 U. S. 349. “Although it is accurate to say that in the cases expressions may be found speaking of contracts as being in form in restraint of trade and yet valid, it results from an analysis of all the American cases, as it does from the English, that these expressions in no way imply that contracts which were valid because they only partially restrained trade were yet considered as embraced with- in the definition of contracts in restraint of trade. On the contrary, the reason of the cases, where contraets partially restraining trade were excepted and hence held to be valid, was because they were not contracts in restraint of trade in the legal meaning of those words.” Wuurte, J., dissenting. U. S. v. Trans-Missouri Freight Assoc., 166 Uz. S. 347. — Contract Not to Exercise Trade or Business in Particular Territory. “A comtract, even on good consideration, not to use a trade anywhere in England, is held void in that country, as being too general a restraint of trade; but a contract not to use a trade at a particular place, if it be founded on a good consideration, and be made for a proper and useful purpose, is valid.” Braptey, J. Oregon Steam Nav. Co. v. Winsor, 20 Wall. 67. “Tt is well settled that a stipulation by a vendee of any trade, business, or establish- ment, that the vendor shall not exercise the same trade ar business, or erect a similar establishment within a reasonable distance, so as not to interfere with the value of the trade, business, or thing purchased, is rea- sonable and valid. In like manner a stipula- tion by the vendor of an article to be used in a business or trade in which he is him- self engaged, that it shall not be used within a reasonable region or distance, so as not to interfere with his said business or trade, is also valid and binding.* Brapiey, J. Oregon Steam Nav. Co. v. Winsor, 20 Wall. 68. “Tt is clear that a stipulation that an- other shall not pursue his trade or emptoy- ment at sttch a distance from the business of the person to be protected, as that it could not possibly affect or injure him, would be unreasonable and absurd. On the other hand, a stipulation is unobjectionable and binding which imposes the restraint to only such an extent of territory as may be necessary for the protection of the party making the stipulation, provided it does not violate the two indispensable conditions, that the other party be not prevented from pursuing his calling, and that the country be not deprived of the benefit of his ex- ertions.” Braptey, J. Oregon Steam. Nav. .Co. v. Winsor, 20 Wall. 69. CONTRACTS OF AF- FREIGHTMENT. See CARRIERS; CHARTER-PARTIES. CONTRIBUTION AND EXONERATION. See APPORTIONMENT; SURETYSHIP. Contribution Among Cosureties. “Were a surety, by giving his note, ex- tinguishes the liability of his cosurety he can maintain an action against the cosurety for money paid; because the effect is the same that would have been wrought by the actual payment of the money.” Swayne, J. Brooklyn Life Ins. Co. v. Dutcher, 95 U. S. 273. “A surety paying the debt for which he is bound, is not only entitled to all the rights and remedies of the creditor against the principal for the whole amount, but against the other sureties for their propor- tional part. This is clearly the rule where the principal obligation is the payment of money or the performance of a civil duty.” Brapiey, J. U. S. v. Ryder, 110 U. S. 733. Contribution Among Tortfeasors. “As between themselves, there is no con- tribution among several tortfeasors. . . . A verdict might therefore be rendered against all defendants and collected out of one, and he would have no right of con- tribution. And the verdict, enhanced by the evidence of the wealth of one defendant, might be collected from the defendant the least able to respond and the least culpable of all, who would thus be mulcted in puni- tive damages, the amount of which might have been measured by the evidence of the wealth of another defendant.” Prcknam, J. Washington Gas Light Co. v. Lansden, 172 Uz S. 552. 439 CONTRIBUTORY NEGLIGENCE. “The general principle of law is well set- tled that one of several wrongdoers cannot recover against another wrongdoer, although he may have been compelled to pay all the damages for the wrong done. In many in- stances, however, cases have been taken out of this general rule, and it “has been held inoperative in order that the ultimate loss may be visited upon the principal wrong- doer, who is made to respond for all the damages, where one less culpable, although legally liable to third persons, may escape the payment of damages assessed against him by putting the ultimate loss upon the one principally responsible for the injury done.” Day, J. Union Stock Yards Co. v. Chicago, etc., R. Co., 196 U. S. 224, CONTRIBUTORY NEGLI- GENCE. See Cottision; NEGLIGENCE; SELF-PRESER- VATION. Nature of the Defense. “The defense of contributory negligence is one which admits, or at least presupposes, negligence on the part of the defendant, and the party in fault thereby seeks to cast upon the plaintiff the consequence of his own failure to observe the precautions which the circumstances of the case demanded.” Brown, J. Baltimore, etc. R. Co. v. Cum- berland, 176 U. S. 238. Capacity of Persons Chargeable With Contributory Negligence. “The defendant is primarily liable for his negligence, and can only escape liability for a non-observance of such precautions as his observation or the experience of others teaches him to be necessary, by proving that the accident would not have occurred if the plaintiff had taken such precautions as his own observation and experience had taught him to be necessary. Hence the plaintiff is liable only for the proper use of his own faculties, and what may be justly held to be contributory negligence in one is not necessarily such in another. There is no hard and fast rule applicable to every one under like circumstances. To an adult, in full possession of his mental and physical powers, one standard may be ap- plied; to a boy, particularly if he be one of limited intelligence, another standard; and to an infant not sui juris and totally ignorant of danger, still another. 5 Indeed in the last case the only contributory negligence with which he is chargeable is that of his parent or custodian who per- mits him to stroll into a place of danger.” Brown, J. Baltimore, etc, R. Co. v. Cum- berland, 176 U. S. 238. Negligence Must Have Contributed Di- rectly to Injury. “One who by his negligence has brought an injury upon himself cannot recover dam- ages for it. Such is the rule of the civil and of the common law. A plaintiff in such cases is entitled to no relief. But where the defendant has been guilty of negligence also, in the same connection, the result de- pends upon the facts. The question in such cases is: 1. Whether the damage was oc- casioned entirely by the negligence or im- proper conduct of the defendant; or, 2. Whether the plaintiff himself so far con- tributed to the misfortune by his own neg- ligence or want of ordinary care and caution, that but for such negligence or want of care and caution on his part the misfortune would not have happened. In the former care, the plaintiff is entitled to recover.” SwAyNE, J. Baltimore, etc, R. Co. v. Jones, 95 U. S. 442, Effect of Contributory Negligence. “Notwithstanding the incentives to the contrary, men are sometimes inattentive, careless or reckless of danger. These the law does not excuse nor does it distinguish between the degrees of negligence.” Mc- Kenna, J. Baltimore, etc, R. Co. wv. Lan- drigan, 191 U. S. 474. “That one cannot recover damages for an injury to the commission of which he has directly contributed is a rule of es- tablished law and a principle of common justice. And it matters not whether that contribution consists in his participation in the direct cause of the injury, or in his omis- sion of duties which, if performed, would have prevented it. If his fault, whether of omission or commission, has been the prox- imate cause of the injury, he is without remedy against one also in the wrong.” FreLp, J. Little v. Hackett, 116 U. S. 371. “In the common-law court the defendant must pay all the damages or none. If there has been on the part of plaintiffs such care- lessness or want of skill as the common law would esteem to be contributory negligence, they can recover nothing. By the rule of the admiralty court, where there has been such contributory negligence, or in other words, when both have been in fault, the entire damages resulting from the collision 440 COPYRIGHT. must be equally divided between the parties.” Mituer, J. Atlee v. Union Packet Co. 21 Wall. 395. Right to Cross Railroad Track. “We are not prepared to give our ad- herence to the doctrine announced in a very few cases, that a man who steps his foot upon a railroad track, except at a crossing, does so at his peril, though such doctrine when applied to the facts of the particular case may not have been an unjust one. We are-rather disposed to say that, where tracks are laid through the streets of a city, upon or substantially upon the level of the street, a person is not limited in crossing such tracks to the regular street crossings, but may cross them at any point between such streets in the convenient performance of his daily duties.” Brown, J. Baltimore, etc. R. Co. v. Cumberland, 176 U. S., 240. — Duty to Look and Listen. “TIt is] the duty of a person approaching a railroad crossing, whether driving or on foot, to look and listen before crossing the track.” Brown, J. Northern Pac. R. Co. v. Freeman, 184 U. S. 382. Burden of Proof. “By the settled law of this court, not controverted at the bar, contributory neg- ligence on the part of the plaintiff need not be negatived or disproved by him, but the burden of proving it is upon the defendant. The omission of the court to in- struct the jury upon the subject of the plain- tiff’s contributory negligence is not open to exception, because the bill of exceptions does not show that the defendant requested any instruction upon that subject.” Gray, J. Texas, etc, R. v. Volk, 151 U. S. 77. “In some of the states it has been held that the plaintiff was bound to make af- firmative proof of his freedom from negli- gence. In many cases it is so held by virtue of local statutes.”. Hunt, J. Washington, etc., R. Co. v. Gladmon, 15 Wall. 408. “In New York the burden in negligence cases is cast upon the plaintiff to show af- firmatively his observance of due care.” Ware, J. Mosheuvel v. District of Colum- bia, 191 U. S. 260. Presumption of Negligence. “Where human life or personal safety is involved, and the issue is one of negligence, the law will not lightly impute negligence to an effort, made in good faith, to preserve the one or to secure the other, unless the circumstances, under which that effort was made, show recklessness or _ rashness.” Haran, J. Union Pac. R. Co. v. McDon- ald, 152 U. S. 282. CONTROVERSY. See Civm Cause. CONVENIENCE. See NECESSITY. CONVERSION. See TrovER AND CONVERSION. CONVEY. See Estates ; TRANSPORT. CONVEYED. See Estates, “While it may be that the word ‘con- veyed’ generally implies the passing of the legal title, it is not inaptly or incorrectly used to describe a transfer of title, legal or equitable, and whether it is used with a narrow and technical meaning, or in a broad and general sense, is to be determined by the context, and the circumstances under which the entire instrument or document, in which it is found, was framed.” BREWER, J. Winona, etc., Land Co. v. Minnesota, 159 U.S. 531. CONVICTION. “Conviction is a technical term applicable to a judgment on a criminal prosecution, not to a proceeding on this bond.” [Bond to keep prison limits.] Marsuatt, C. J. Am- midon v. Smith, 1 Wheat. 461. COPYRIGHT. As to assignment of copyright, see ASSIGN- MENTS. See also AccoUNTS AND ACCOUNTING; Boox; Jupces; Literary Property. Definition and Nature. “The copyright is an exclusive right to the multiplication of the copies, for the benefit of the author or his assign, discon- nected from the plate or any other physical existence.” NeEtson, J. Stephens v. Cady, 14 How. 530. “The property in the copyright is re- garded as a different and distinct right, 441 COPYRIGHT. wholly detached from the manuscript, or any other physical existence, and will not pass with the manuscript unless included by express words in the transfer.” NeEtson, J. Stephens v. Cady, 14 How. 531. Power of Congress to Regulate. “The Constitution of the United States has declared, that Congress shall have power ‘to promote the progress of science and use- ful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.’ It contemplates, therefore, that this exclu- sive right shall exist but for a limited period, and that the period shall be subject to the direction of Congress.” Story, J. Pennock v. Dialogue, 2 Pet. 16. “ Power to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and dis- coveries is expressly vested in Congress by the Constitution.” Crrrrorp, J. Parks vw. Booth, 102 U. S. 97. Right of Author to Monopoly Dependent on Act of Congress. “There being na common law of copy- right in this country, whatever rights are possessed by the proprietor of the copy- right must be derived from some grant thereof, in some Act of Congress, either nominatim or by a satisfactory implication.” Curtis, J. Stevens v. Gladding, 17 Haw. 454, “No authority exists for obtaining a copy- right, beyond the extent which Congress has authorized it. A copyright cannot be sustained as a right existing at common law; but, as it exists in the United States, it depends wholly on the legislation of Con- gress.” BLatcHForD, J. Banks v. Man- chester, 128 U. S. 252. “Tt seems now to be considered the set- tled law in this country and England that the right of an author to a monopoly of his publications is measured and determined by the copyright act—in other words, that while a right did exist by common law, it has been superseded by statute.” Brown, J. Holmes v. Hurst, 174 U. S. 85. Subjects of Ideas. “The right [of an author to a monopoly of his publications] . . secured by the copyright act is not a right to the use of certain words, because they are the common Copyright — Words and property of the human race, and are as little susceptible of private appropriation as air or sunlight; nor is it the right to ideas alone, since in the absence of means of com- municating them they are of value to no one but the author. But the right is to that ar- rangement of words which the author has selected to express his ideas.” Brown, J. Holmes vw. Hurst, 174 U. S. 86, ——Art, Science, or Thing Described in Book. “Where the truths of a science or the methods of an art are the common property of the whole world, any author has the right to express the one, or explain and use the other, in his own way.” BRraprey, J. Baker v. Selden, 101 U. S. 100. “There is no doubt that a work on the subject of bookkeeping, though only ex- planatory of well-known systems, may be the subject of a copyright; but, then, it is claimed only as a book. Such a book may be explanatory of either of old systems, or of an entirely new system; and, considered as a new book, as the work of an author, conveying information on the subject of bookkeeping and containing detailed expla- nations of the art, it may be a very valuable acquisition to the practical knowledge of the community. But there is a clear distinc- tion between'the book, as such, and the art which it is intended to illustrate.” Brap- “ey, J. Baker v. Selden, 101 U. S. 101. ——Right to the Art or Science De- scribed, “A treatise on the composition and use of medicines, be they old or new; on the con- struction and use of ploughs, or watches, or churns; or on the mixture and applica- tion of colors for painting or dyeing; or on the mode of drawing lines to produce the effect of perspective — would be the subject of copyright; but no one would contend that the copyright of the treatise would give the exclusive right to the art or manu- facture described therein. The copyright of the book, if not pirated from other works, would be valid without regard to the novelty or want of novelty of its subject-matter.” Braviey, J. Baker v. Selden, 101 U. S. 102. “The novelty of the art or thing de- scribed or explained has nothing to do with the validity of the copyright. To give the author of the book an exclusive property in the art described therein, when no examina- tion of its novelty has ever been officially made, would be a surprise and a fraud upon the public. That is the province of letters- 449 COPYRIGHT. patent, not of copyright. The claim to an invention or discovery of an art or manu- facture must be subjected to the examination of the patent office before an exclusive right therein can be obtained; and it can only be secured by a patent from the govern- ment.” Braptey, J. Baker v. Selden, 101 U. S. 102. “The description of the art in a book, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itself. The object of one is ex- planation; the object of the other is use. The former may be secured by copyright. The latter can only be secured, if it can be secured at all, by letters patent. Bran- Ley, J. Baker v. Selden, 101 U. S. 105. — Blank Account Books. “Blank account books are not the sub- ject of copyright.” Braptey, J. Baker v. Selden, 101 U. S. 107. “Tt cannot be pretended, and indeed it is not seriously urged, that the ruled lines of the complainant’s account book can be claimed under any special class of objects, other than books, named in the law of copy- right existing in 1859. The law then in force was that of 1831, and specified only books, maps, charts, musical compositions, prints and engravings. An account book, consisting of ruled lines and blank columns, cannot be called by any of these names un- less by that of a book.” Brapiey, J. Baker v. Selden, 101 U. S. 101. — Paintings and Engravings. “We shall do no more than mention the suggestion that painting and engraving un- less for a mechanical end are not among the useful arts, the progress of which Congress is empowered by the Constitution to pro- mote. The Constitution does not limit the useful to that which satisfies immediate bodily needs.’ Hotmes, J. Bleistein v. Donaldson Lithographing Co., 188 U. S. 249. —— Advertisements. “To be entitled to a copyright the article must have by itself some value as a compo- sition, at least to the extent of serving some purpose other than as a mere advertisement or designation of the subject to which it is attached.” Fretp, J.,Higgins v. Keuffel, 140 UL S. 481. “Certainly works are not the less con- nected with the fine arts because their pie- torial quality attracts the crowd and there- fore gives them a real use—if use means to increase trade and to help to make money. A picture is none the less a picture and none the less the subject of copyright that it is used for am advertisement.” Hotmes, J. Bleistein v. Donaldson Litho- graphing Co., 188 U. S. 251. “Tf a mere lahel simply designating or describing an article to which it is attached, and which has no value separated from the article, does not come within the constitu- tional clause upon the subject of copyright, it must follow that a pictorial iflustration designed and useful only as an advertise- ment, must be equally without the obvious meaning of the Constitution.” Harran, J., dissenting. Bleistem v. Donaldson Litho- graphing Co., 188 U. S. 252. Right of Official Judicial Reporter to Copyright. “Even though a reporter may be a sworn public officer, appointed by the authority of the government which creates the court of which he is made the reporter, and even though he may be paid a fixed salary for his labors, yet in the absence of any inhibition forbidding him to take a copyright for that which is the lawful subject of copyright in him, or reserving a copyright to the gov- ernment as the assignee of his work, he is not deprived of the privilege of taking out a copyright, which would otherwise exist. There is, in such case, a tacit assent by the government of his exercising such privilege. The universal ~ practical construction has been that such right exists, unless it is af- firmatively forbidden or taken away; and the right has been exercised by numerous reporters, officially appointed, made sworn public officers, and paid a salary under the governments both of states and the United States.” BLatcHrorD, J. Callaghan v. My- ers, 128 U.S. 647. Mode of Securing Copyright. “A deposit of two copies of the article or work with the librarian of Congress, with the name of the author and its title page, is all that is necessary to secure a copy- right.” Murter, J. Burrow-Giles Litho- graphic Co. v. Sarony, 111 U. S. 59. Notice of Copyright. “Tt is incorrect to say that any form of notice [of copyright} is good which calls at- tention to the person of whom inquiry can be made and information obtained, since the right being purely statutory, the public may justly demand that the person claiming a monopoly of publication shall pursue, in 443 CORPORATIONS. substance at least, the statutory method of securing it.” Brown, J. Mifflin v. R. H. White Co. 190 U. S. 264. Waiver of Right by Author. “Tf an author permits his intellectual pro- duction to be published either serially or collectively. his right to a copyright is lost as effectually as the right of an inventor to a patent which he deliberately abandons to the public—and this, too, irrespective of his actual intention not to make such abandon- ment.” Brown, J. Holmes v. Hurst, 174 U. S. 89. Seizure of Right under Judicial Process. “The copperplate engraving, like any other tangible personal property, is the sub- ject of seizure and sale, on execution, and the title passes to the purchaser, the same as if made at a private sale. But the in- corporeal right, secured by the statute to the author, to multiply copies of the map, by the use of the plate, being intangible, and resting altogether in grant, is not the sub- ject of seizure or sale by means of this proc- ess — certainly not at common law.” NEL- son, J. Stephens v. Cady, 14 How. 531. “And the provisions of the patent and copyright acts, securing a sole and exclusive right to the patentee, do not exonerate the right and property thereby acquired by him, of which he receives the profits, and has the absolute title and power of disposal, from liability to be subjected by suitable judicial proceedings to the payment of his debts.” Gray, J. Ager v. Murray, 105 U. S. 128. Infringement — Remedies. “The only equitable jurisdiction, as to copyright, conferred upon the courts of the United States, is by the Act of February 15, 1819, which gives original cognizance to the courts of the United States, as well in equity as at law, of cases arising under any law of the United States granting to authors or inventors the exclusive right to their respective writings, inventions, and discov- eries; and, upon any bill in equity filed by any party aggrieved in any such case, shall have authority to grant injunctions accord- ing to the course and principles of courts of equity, to prevent the violation of the rights of any authors or inventors secured to them by any laws of the United States on such terms as the said courts may deem fit and reasonable.” Curtis, J. Stevens w. Gladding, 17 How. 454. Damages. : “We do not think that the value of the time of an infringer, or the expense of the living of himself or his family, while he is engaged in violating the rights of the plaintiff, is to be allowed to him as a credit, and thus the plaintiff be compelled to pay the defendant for his time and expenses while engaged in infringing the copyright.” Biatcurorp, J. Callaghan wv. Myers, 128 U.S. 664. “The rule is well settled, that, although the entire copyrighted work be not copied in an infringement, but only portions thereof, if such portions are so intermingled with the rest of the piratical work that they can- not well be distinguished from it, the entire profits realized by the defendants will be given to the plaintiff.” BLatcurForp, J. Bel- ford v. Scribner, 144 U. S. 508. CORAM VOBIS. See Mortons. CORPORATIONS. I. DEFINITIONS AND NATURE. II. CREATION AND ORGANIZATION. III. Name. IV. Power or States To REGULATE CoRPORATIONS. V. Power oF CoNnGRESS AS TO Cor- PORATIONS. VI. Ricuts, Powers, AND DUTIES OF CorRPORATIONS. 1. Possible Rights of a Corporation. 2. Charter Is Measure of Corpora- tion’s Power. 3. Distinction Between Common-law and Statutory Corporations. 4. Corporation of One Class Cannot Exercise Powers Granted to Another, 5. Implied Powers. 6. Burdens Imposed by State as Conditions of Grant. 7. Construction of Grants to Corpo- rations. 8. Corporation Must Act by Its Agents or Servants. 9. Power to Hold Franchises and Real Property. 10. Miscellaneous Powers. VII. Lrasitity ror Acts or AGENTS. 1. In General. 2. Contracts. 3. Torts. VIII. Surrs By anp Acarnst Cor- PORATIONS. 444 CORPORATIONS. IX. Repeat, ALTERATION, AND AMENDMENT OF CHARTERS. . Charter Is a Contract. . Impairment of Contracts and In- terference with Vested Rights. 3. Reservation of Right to Repeal, Alter, or Amend. 4, Assent of Corporation to Alter- ation or Amendment. 5. Power of Majority Stockholders to Bind Minority by Amend- ment. X. MISCELLANEOUS. CROSS-REFERENCES. ve That corporations are subject to the Bank- rupicy Act, see BANKRUPTCY. That a bank may be a private corporation, see BANKS AND BANKING. As to eleemosynary corporations, etc., see Cuarities; ELEEMosSYNARY Cor- PORATIONS. relations between a corporation and its promoter, see PROMOTER. See also ASSOCIATIONS OF PERSONS; CAPI- TAL; CHARTERED BY Law; CITIZENS AND Cir1zENsHip; Contracts; Contracts IN RE- STRAINT OF TRADE; CONSOLIDATION AND MERGER oF CorPorATIONS; Courts; Dz Facto CorpPorATIONS; DISSOLUTION OF CORPORA- tions; Domici.t; Eminent DoMAIN; Ex- PRESS COMPANIES; FORECLOSURE OF Mort- GAGES; FoREIGN CORPORATIONS; FRANCHISES}; Gas anp Gas CoMpPANIES; INTERSTATE CoM- MERCE; IRRIGATION AND IRRIGATION COMPA- NIES; JoINT-sTocK CoMPANIES; MANDAMUS; Mistake; MuwnicrpAL Corporations; Nui Tie. CorPORATION; OFFICERS OF PRIVATE CoRPORATIONS; PERSONS; MOoNOPOLIES AND CorrPorATE TruSTS; Quast CoRPORATIONS; RarLtroaps; ReEcEIvERS; STocK AND STOCK- HOLDERS; STREET RAILROADS; TAXATION; ULTRA .VIRES. I. DEFINITIONS AND NATURE. General Definitions. “The word ‘corporations,’ in its largest sense, has a more extensive meaning than people generally are aware of. Any body politic (sole or aggregate), whether its power be restricted or transcendent, is in this sense, ‘a corporation.’” IREDELL, J. Chisholm v. Georgia, 2 Dall. 447. “A corporation is composed of many in- dividual members, having a joint interest, and a joint right to sue in their corporate name.” Catron, J. Northern Indiana R. Co. wv. Michigan Cent. R. Co., 15 How. 247. “As our ideas of a corporation, its priv ileges and its disabilities, are derived en- tirely from the English books, we resort to them for aid in ascertaining its character. It is defined as a mere creature of the law, invisible, intangible, and incorporeal.” MarsHALL, C. J. U.S. Bank v. Deveaux, 5 Cranch 88. “To attempt, to define a corpo- ration, or limit its powers by the rules which prevailed when they were rarely created for any other than municipal purposes, and generally by royal charter, is impossible in this country and at this time.” Mu.uzr, J. Liverpool Ins. Co. v. Massachusetts, 10 Wall. 575. Corporation Aggregate. “ An aggregate corporation at common law is a collection of individuals united into one collective body, under a special name, and possessing certain immunities, privileges, and capacities in its collective character which do not belong to the natural persons composing it. Among other things it possesses the ca- pacity of perpetual succession, and of acting by the collective vote or will of its com- ponent members, and of suing and being sued in all things touching its corporate rights and duties. It is, in short, an artificial person, existing in contemplation of law, and endowed with certain powers and franchises which, though they must be exercised through the medium of its natural members, are yet considered as subsisting in the cor- poration itself, as distinctly as if it were a real personage. Hence, such a corporation may sue and be sued by its own members; ‘and may contract with them in the same manner as with any strangers.” Srory, J. Dartmouth College v. Woodward, 4 Wheat. 667. Public and Private Corporations. “ Another division of corporations is into public and private. Public corporations are generally esteemed such as exist for public political purposes only, such as towns, cities, parishes, and counties; and in many ‘respects they are so, although they involve some pri- vate interests; but strictly speaking, public corporations are such only as are founded by the government for public purposes, where the whole interests belong also to the government. If, therefore, the foundation be private, though under the charter of the government, the corporation is private, how- ever extensive the uses may be to which it is devoted, either by the bounty of the founder or the nature and objects of the institution. 445 CORPORATIONS. For instance, a bank created by the govern- ment for its own uses, whose stock is ex- clusively owned by the government, is, in the strictest sense, a public corporation. So a hospital created and endowed by the govern- ment for general charity. But a bank, whose stock is owned by private persons, is a pri- vate corporation, although it is erected by the government, and its objects and opera- tions partake of a public nature. The same doctrine may be affirmed of insurance, canal, bridge, and turnpike companies. In all these cases, the uses may, in a certain sense, be called public, but the corporations are pri- vate; as much so, indeed, as if the fran- chises were vested in a single person.” Story, J. Dartmouth College v. Woodward, 4 Wheat. 668. “A hospital founded by a private bene- factor is, in point of law, a private corpora- tion, although dedicated by its charter to general charity. So, a college, founded and endowed in the same manner, although, be- ing for the promotion of learning and piety, it may extend its charity to scholars from every class in the community, and thus ac- quire the character of a public institution. This is the unequivocal doctrine of the au- thorities, and cannot be shaken but by un- dermining the most solid foundations of the common law.” Story, J. Dartmouth Col- lege v. Woodward, 4 Wheat. 669. “Tt by no means follows that because the action of a corporation may be beneficial to the public, therefore it is a public cor- poration. This may be said of all corpora- tions whose objects are the administration of charities. But these are not public, though incorporated by the legislature, un- less their funds belong to the government. Where the property of a corporation is pri- vate it gives the same character to the in- stitution, and to this there is no exception.” McLezan, J. State Bank of Ohio vw. Knoop, 16 How. 381. Private Corporation Has No Political Powers. “A corporation is an artificial being, in- visible, intangible, and existing only in con- templation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality; termed properties by which a perpetual succession of many persons are considered as the same, and may act as a single individual. They en- able a corporation to manage its own affairs, and to hold property without the perplexing intricacies, the hazardous and endless neces- sity, of perpetual conveyances for the pur- pose of transmitting it from hand to hand. It is chiefly for the purpose of clothing bodies of men, in succession, with these qualities and capacities, that corporations were invented, and are in use. By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object, like one immortal be- ing. But this being does not share in the civil government of the country, unless that be the purpose for which it was created. Its immortality no more confers on it political power, or a political character, than immor- tality would confer such power or character on a natural person. It is no more a state instrument than a natural person exercising the same powers should be.” MarsHAt, C. J. Dartmouth College v. Woodward, 4 Wheat. 636. States and United States. “Not only each state singly, but even the United States may, without impropriety, be “corporations.” IREDELL, J. Chis- holm v. Georgia, 2 Dall. 447. Charter Is Grant of Privileges. “A grant of corporate existence is a grant of special privileges to the corporators, en- abling them to act for certain designated purposes as a single individual, and exempt- ing them (unless otherwise specially pro- vided) from individual liability.” Frevp, J. Paul v. Virginia, 8 Wall. 181. “The right or privilege to be a corpora- tion, or to do business as stich body, is one generally deemed of value to the corporators, or it would not be sought in such numbers as at present. It is a right or privilege by which several individuals may unite them- selves under a common name and act as a single person, with a succession of members, without dissolution or suspension of busi- ness and with a limited individual liability.” Fretp, J. Home Ins. Co. v. New York, 134 U.S. 599. “The corporators are not mere agents, but have vested rights in their character, as corporators. The right to be a freeman of a corporation is a valuable temporal right. Ti is a right of voting and acting in the corporate concerns, which the law recog- 446 CORPORATIONS. nizes and enforces, and for a violation of which it provides a remedy. It is founded on the same basis as the right of voting in public elections; it is as sacred a right.” Story, J. Dartmouth College v. Woodward, 4 Wheat. 701. Corporation an Entity, Distinct from Its Stockholders. “The corporation being one entire imper- sonal entity, distinct from the individuals who compose it, must be endowed with a mode of action peculiar to itself, which will always distinguish its transactions from those of its members.” MarsHaAtt, C. J., dis- senting. Bank of U. S. v. Dandridge, 12 Wheat. 92. “A corporation is a distinct entity. Its affairs are necessarily managed by officers and agents, it is true; but, in law, it is as distinct a being as an individual is, and is entitled to hold property (if not contrary to its charter) as absolutely as. an individual can hold it. Its estate is the same, its in- terest is the same, its possession is the same.” Brapiey, J. Graham v. La Crosse, etc., R. Co., 102 U. S. 160. “The corporation is an entity, distinct from its stockholders as from its creditors.”. Brewer, J. Hollins v. Brierfield Coal, etc., Co., 150 U. S. 383. “A corporation is constituted, it is true, of all its stockholders, but it has a legal existence separate from them—rights and obligations separate from them; and may have obligations to them.” McKenna, J. Doctor v. Harrington, 196 U. S. 586. —- Stockholders do Not Immediately Manage Corporation’s Affairs. “In a sense, the stockholders of a cor- poration own its property, but they are not the managers of its business or in the im- mediate control of its affairs. Ordinarily they elect the governing body of the cor- poration, and that body controls its prop- erty.” Waite, C. J. Pullman’s Palace Car Co. v. Missouri Pac. R. Co. 115 U. S. 597. “The property of a corporation is not subject to the control of individual mem- bers, whether acting separately or jointly. They can neither encumber nor transfer that property, nor authorize others to do so. The corporation — the artificial being created — holds the property, and alone can transfer it; and the corporation acts only through its officers, subject to the conditions. prescribed by law.” Fretp, J. Humphreys v. McKiss- cock, 140 U. S. 312. —— Ownership of Corporation’s Property Is Not in Stockholders. “The distinction between the title of a corporation, and the interest of its members or stockholders, in the property of the cor- poration, is familiar and well settled. The ownership of that property is in the corpora- tion, and not in the holders of shares of its stock. The interest of each stockholder consists in the right to a proportionate part of the profits whenever dividends are de- clared by the corporation during its existence under its charter and to a like proportion of the property remaining, upon the termina- tion or dissolution of the corporation, after payment of its debts.” Gray, J. Gibbons v. Mahon, 136 U. S. 557. — Distinction Between Capital Stock and Stockholder’s Shares. “Tt may be conceded that generally the capital or the capital stock of a corporation is its property. But the shares held by the stockholders are distinct from the capital stock of the corporation, and the tax- ation of both is not necessarily double tax- ation.” Woops, J. Sturges v. Carter, 114 U. S. 521. Changes in Membership Do Not Destroy Identity. “A corporation aggregate retains its iden- tity through all the changes that may take place, in its individual membership.” Brap- LEY, J. Milwaukee, etc., R. Co. v. Soutter, 13 Wall. 525. II. CREATION AND ORGANIZA- TION. Corporation Owes Existence to State. “Tt [a telegraph company] owes its ex- istence, its capacity to contract, its right to sue and be sued, and to exercise the busi- ness of telegraphy, to the laws of the state under which it is organized.” Mutirr, J. Western Union Tel Co. uv. Massachusetts, 125 U. S. 548. “The right to be a state corporation de- pends solely upon the grace of the state, and is not a right inherent in the parties.” Waite, J. Ashley v. Ryan, 153 U. S. 441. Several States May Unite in Creating Same Corporation. “We see no reason why several states cannot, by competent Jegislation, unite in creating the same corporation: or in combin- 447 CORPORATIONS. ing several pre-existing corporations into a single one.” Swayne, J. Baltimore, etc. R. Co. v. Harris, 12 Wall. 82. Mode of Organization. “In states which provide for the organiza- tion of corporations under general statutes different modes of procedure are prescribed. In some states it is sufficient for the parties desiring to incorporate to prepare a charter, acknowledge it before some official, and file it with the secretary of state, or other public officer, and the certificate of such officer is made the evidence of the incorporation. In other states the parties may file a petition in some court, and that court upon presentation thereof examines into the propriety of the incorporation, and if satisfied thereof enters a decree declaring the petitioners duly in- corporated, and the copy of such decree is the evidence of the incorporation.” BREWER, J. Tregea v. Modesto Irrigation Dist., 164 U. S. 188. “A corporation may be formed in any manner that a state sees fit to adopt; and- when the highest court of a state decides that, by certain legislation, a corporation has been created, such decision concludes not only the courts of the state, but also those of the United States. It is a matter over which we have no review, and in re- spect to which the decision of the state court is final.” Brewer, J. Hancock v. Louisville, etc, R. Co., 145 U. S. 415. Corporation Existing by Presumption. “A character may be presumed to have been given to persons who have long acted as a corporation, and assumed the exercise of the powers of a corporate body, whether of an ordinary or extraordinary nature. This is the case in respect to all corporations ex- isting by presumption.” Story, J. Bank of U. S. v. Dandridge, 12 Wheat. 71. Gift of New Powers Not Grant of Cor- porate Existence. “The gift of new powers to a corporation has never been thought to destroy its iden- tity, much less change it into a new being. Such a gift is not a grant of corporate existence. It assumes corporate life al- -ready existing.” Strona,’ J. Central R., etc., Co. v. Georgia, 92 U. 5. 673. III. NAME. “The name of a corporation is the symbol of its personal existence.” JoHNnson, J. Osborn v, Bank of U. S., 9 Wheat. 877. 448 “A corporation aggregate is an artificial body of men, composed of divers constituent members ad instar corporis humani, the liga- ments of which body politic, or artificial body, are the franchises and liberties there- of, which bind and unite all its members to- gether; and in which the whole frame and essence of the corporation consist. . . . It must of necessity have a name, for the name is, as it were, the very being of the constitution, the heart of their combination, without which they could not perform their corporate acts, for it is nobody to plead and be impleaded, to take and give, until it hath gotten a name.” Wayne, J. Louisville, etc., R. Co. v. Letson, 2 How. 552. IV. POWER OF STATE TO REGU- LATE CORPORATIONS. In General. “A material distinction has always been acknowledged to exist as to the degrees of the authority that a people could legitimately exert over persons and corporations. Indi- viduals are not the creatures of the state, but constitute it. They come into society with rights, which cannot be invaded with- out injustice. But corporations derive their existence from the society, are the offspring of transitory conditions of the state; and, with faculties for good in such conditions, combine durable dispositions for evil. They display a love of power, a preference for corporate interests to moral or political prin- ciples or public duties, and an antagonism to individual freedom, which have marked them as objects of jealousy in every epoch of their history. Therefore, the power has been exercised, in all civilized states, to limit their privileges, or to suppress their existence, under the exigencies either of public policy or political necessity.” Camp- BELL, J., dissenting. Dodge v. Woolsey, 18 How. 375. , “Undoubtedly the states possess power over corporations, created by them, to per- mit or forbid consolidation, whether accom- plished by stock ownership or otherwise, to forbid one corporation from holding stock in another, and to impose on this or other subjects such regulations as may be deemed best. Generally speaking, however, the right to do these things springs alone from the fact that the corporation is created by the states, and holds its rights subject to the conditions attached to the grant, or such regulations as the creator, the state, may law- fully impose upon its creature, the corpora- tion. Moreover, irrespective of the relation CORPORATIONS. of creator and creature, it is, of course, true in a general sense that government pos- sesses the authority to regulate, within cer- tain just limits, what an owner may do with his property. But the first power which arises from the authority of a grantor to exact conditions in making a grant or to regulate the conduct of the grantee gives no sanction to the proposition that a gov- ernment, irrespective of its power to grant, has the general authority to limit the char- acter and quantity of property which may be acquired and owned. And the second power, the general governmental one, to reasonably control the use of property, af- fords no foundation for the proposition that there exists in government a power to limit the character and quantity of property which may be acquired and owned. The difference between the two is that which exists be- tween a free and constitutional government restrained by law and an absolute govern- ment unrestrained by any of the principles which are necessary for the perpetuation of society and the protection of life, liberty and property.” WaHutet, J., dissenting. North- ern Securities Co. v. U. S., 193 U. S. 398. Importance that State Should Have Con- trol. “Over no object is it more important for the interests and welfare of a state that it should have control, than over corporations doing business within its limits.” Frexp, J., dissenting. Pensacola Tel. Co. v. West, etc., Tel. Co., 96 U. S. 23. Regulation of Private Corporation’s Charges for Services, “Tt cannot be presumed that a legislature intends any interference with purely private business. It cannot ordinarily prescribe what an individual or corporation, engaged in a purely private business, shall charge for services, and, therefore, although the lan- guage of the statute may be broad enough to include such private business, it will gen- erally be excepted therefrom in order to remove all doubts of the validity of the leg- islation.” Brewer, J. Chesapeake, etc., Tel. Co. v. Manning, 186 U. S. 246. Regulation Conflicting with United States Constitution. “Of course, every state has, in a general sense, plenary power over its corporations. But is it conceivable that a state, when ex- erting power over a corporation af its crea- tion, may prevent or embarrass the exercise by Congress of any power with which it is 1 Os. Dia —29 invested by the Constitution?” Harian, J. Northern Securities Co. v. U. S., 193 U. S. 347. Vv. POWER OF CONGRESS AS TO CORPORATIONS. See INTERSTATE COMMERCE, “Congress has frequently conferred upon railway companies, existing under territorial or state laws, additional corporate fran- chises, rights and privileges, and its right to do so cannot be doubted.” Suzras, J. Oregon Short Line, etc., R. Co. v. Skottowe, 162 U. S. 494, “Tf Congress can authorize the corpora- tions of one state to construct telegraph lines and railways in another state, it must have the right to authorize them to con- demn private property for that purpose. . . . The power to grant implies a power to confer all the authority necessary to make the grant effectual.” Frenp, J., dissenting. Pensacola Tel. Co. v. West, etc., Tel. Co., 96 U. S. 18. “In my judgment, Congress has right- fully no power, at the expense of others, owning property of a like character, to sus- tain private trading corporations, such as building and loan associations, savings banks, and mutual life, fire, marine, and accident insurance companies, formed under the laws of the various states, which advance no na- tional purpose or public interest and exist solely for the pecuniary profit of their mem- bers.” Fretp, J., concurring. Pollock vw. Farmers’ L. & T. Co., 157 U. S. 595. VI. RIGHTS, POWERS, AND DUTIES OF CORPORATIONS. 1. PosstnLE RIGHTS OF A CORPORATION. “The possible rights of a corporation group themselves into three classes: First, the right to the tangible property which it may acquire; second, the right to do the specific things which are named in the char- ter, and, third, the right to exclude others from doing like things.” Brewer, J. Bien- ville Water Supply Co. v. Mobile, 186 U. S, 222. 2. CHARTER Is MEASURE OF CORPORA- TION’s POWER. Powers Limited to Those Conferred by Charter. “A corporation can make such contracts only as are allowed by the acts of incor- 449 CORPORATIONS. poration.” MarsHair, C. J. Goszler v. Corporation of Georgetown, 6 Wheat. 597. “A corporation is strictly limited to the exercise of those powers which are specifi- cally conferred on it.” BALpwIn, J., dissent- ing. U. S. v. Robertson, 5 Pet. 666. “The charter of any corporation is the only source of its powers, and the only authority by which any can be exercised; it is opposed to all sound rules of construction, to considet that which confers, as merely réstraining arid controlling powers, incident to the ificorpotation; and ‘therefore to be construed strictly as a limitation or exception to powers which pre-existed or necessarily restilted from it; as is the power to make by-laws, to sue and be sued, etc. etc.” BALpwin, J., dissenting. U. S. v. Robert- son, 5 Pet. 670. “A corporation is a creature of the law, and none of its powers are otiginal. They are precisely what the incorporating act has made them, and cati only be exerted in the manner which that act authorizes. In other words, the state prescribes the purposes of a corporation and the means of exectiting those purposes. Purposes arid means ate within the state’s coritrol. This is true as to domestic corporations. It has eveti 4 broadeét application to foreign corporations.” Mc- Kenna, J. Waters-Pierce Oil Co. uv. Texas, 177 'U. S. 43. “Whatever may be the implied powers of aggregate corporations by the common law, and the modes by which those powers are to be carried into operation, corporations cre- ated by statute must depend, both for their powers and the mode of exercising them, upon the true construction of the statute it- self.” Story, J. Bank of U. S. vw. Dand- ridge, 12 Wheat, 68. “The clear results of these decisions may be summed up thus: The charter of a cor- poration, read in the light of any general laws which are applicable, is the measure of its powers, and the enumeration of those powers implies the exclusions of all others not fairly incidental.” Gray, J. Central Transp. Co. v. Pullman’s Palace Car Co., 139 U.S. 48. 38. DistINCTION BETWEEN COMMON- LAW AND STATUTORY CORPORA- TIONS, “The doctrine has been long and repéat- ‘edly affirmed by this court, that, in interpret- ing the powers and rights of corporations, an essetitial distinction must bé taken between corporations existing by the cotimon law (often, nay, necessarily, traceable to a reniote and obscure antiquity), and those which are created by statute, whose constitutions and powers are defined as ascertained by acces- sible and visible proofs. Into the composi- tion or practices of the former, tradition, im- plication, or usage may enter, and thts give room for assumptions of power; with re- spect to the latter, no such rule, or rather misrule, has obtained or beett permitted, es- pecially by the settled decisions of this day. The adjudications of this court, . atfe too explicit to admit of doubt on this sub- ject.” Dantet, J., dissenting. Planters’ Bank v. Sharp, 6 How. 337. “Where corporations have no specific mode of acting prescribed, the common-law mode of acting may be properly inferred; but every corpo. tion created by statute may act as the statute prescribes, and the common law cannot control by implication that which the legislature has expressly sanctioned.” Story, J. Fleckner v. Bahk of U. S., 8 Wheat 358. 4. CORPORATION OF ONE Cxass Can- Not Exercise Powers GRANTED To ANOTHER. “An insurance cotpotation differs tadi- cally from a banking corporation, and the powets given to’ one can not be exercised by the other without some atithority granted by the state through its legislature.” Prck- HAM, J. Memphis City Bank v. Tennessee, 161 U. S. 191, “No one could deny that it would not be competent for a railroad company, without the authority of the legislature, to carry of atl insurance business.” Surras, J, Jack- sonville, etc, R. Co. v. Hooper, 160 U. S. 526. 5. Imptiep Powers. General Rule— Powers Not Granted by Implication. “There can be no reason for implying in a charter, given for a valuable consideration, a power which is not only not expressed, but is in direct contradiction to its express stipulations.” MARSHALL, C. J. Dartmouth College v. Woodward, 4 Wheat. 638. “Tt is a well settled rule of construction of grants by the legislature to corporations, whether public ot private, that only such powets and triglits can be exercised under them as ate clearly comptehended within the words of the act or derived therefrom by 450 CORPORATIONS. necessary implication, regard being had to the objects of the grant. Any ambiguity or doubt arising out of the terms used by the legis- lature must be resolved in favor of the pub- lic.” Nexson, J. Minturn v. Larue, 23 How. 436. “As a general rule, corporations can have and exercise only such powers as are ex- pressly conferred on them by the act of in- corporation, and such implied powers as are necessary to enable them to perform their prescribed duties. . . . And it is well set- tled that a corporation has no implied power to change the amount of its capital as pre- scribed in its charter, and that all attempts to do so are void.” Woops, J. Scovill v. Thayer, 105 U. S. 148. “Corporations do not take public grants and privileges by implication, and where ex- press and positive obligations are imposed in making a grant, these obligations cannot without violating an elementary canon of in- terpretation be frittered away in consequence of loose interpretations made by way of ref- erence in subsequent municipal ordinances.” Futrer, C. J. New Orleans v. Texas, etc., Ry. Co., 171 U. S. 343. —— Grant of Corporate Existence Never Implied. “Tt is an unbending rule that a grant of corporate existence is never implied.” Strone, J. Central R., etc.,.Co. v. Georgia 92 U. S. 670. “A grant of corporate life or corporate power is not made by implication.” Brewer, J. Jenkins v. Neff, 186 U. S. 234. — Charters Construed in Favor of Pub- lic. “Repeated decisions of this court have established the rule, that wherever privileges are granted to a corporation, and the gtant comes under revision in the courts, such priv- ileges are to be strictly construed against the corporation and in favor of the public, and that nothing passes but what is granted in clear and explicit terms. Whatever is not unequivocally granted in such acts is takeri to have been withheld, as all acts of incor- poration and acts extending the privileges of corporate bodies are to be taken most strongly against the corporations.” CuiF- ForD, J. Holyoke Water-Power Co. v. Ly- man, 15 Wall. 511. “Whatever is not unequivocally granted in such charters is taken to have been with- held, as all such charters and acts extending the privileges of corporate bodies are to be taken most strongly against the corporators.” CutrForD, J. Union Pass R. Co. v. Phila- delphia, 101 U. S. 540. Powers Essential to Powers Expressly Granted. “An express grant of power must include whatever is indispensably necessary to its enjoyment.” Strone, J., dissenting. North- western Fertilizing Co. v. Hyde Park, 97 U. S. 675. “The general rule is that those powers which are within the intent and purposes of the creation of a corporation, and essential to give effect to the powers expressly granted, may be exercised as necessarily incident thereto, and that a discretion exists in the choice of the means to accomplish the re- quired result, unless restricted by the terms of the grant.” Furzer, C. J. Woodruff v. Mississippi, 162 U. S. 299. —— Powers Incidental to Purpose of Cor- poration. “While the charter of a corporation, read in connection with the general laws appli- cable to it, is the measure of its powers, and a contract manifestly beyond those powers will not sustain an action against the cor- poration, yet whatever, under the charter and other general laws, reasonably construed, may fairly be regarded as incidental to the objects for which the corporation is cre- ated, is not to be taken as prohibited. Ac- cordingly, where the charter of a railroad corporation, or the general laws applicable to it, manifest the intention of the legis- lature, for the purpose of securing a con- tinuous line of transportation of which its road forms part, to confer upon it the power of making contracts with other railroad or steamboat corporations to promote that end, such contracts are not ultra vires.” Gray, J. Railway Cos. v. Keokuk, etc., Bridge Co., 131 U. S. 385. For substantially similar lan- guage see the opinion of Gray, J., in Green Bay, etc, R. Co. v. Union, ete, Co, 107 U. S. 100. # 6. Burpens Imposep py STATE As Con- DITIONS OF GRANT. In General. “In the granting of chartered rights and privileges by government, especially if of great value to the cotporations, certain bur- dens are usually, if not generally, itnposed as conditions of the grant.” Netson, J. Van Allen v. Assessors, 3 Wall. 582, 451 CORPORATIONS. “The state has an undoubted power to exact a bonus for the grant of a franchise, payable in advance or in futuro; and yet that bonus will necessarily affect the charge upon the public which the donee of the franchise will be obliged to impose.” Brap- Ley, J. Baltimore, etc., R. Co. v. Maryland, 21 Wall. 473. “The granting of such right or privi- lege [to be a corporation] rests entirely in the discretion of the State, and, of course, when granted, may be accompanied with such conditions as its legislature may judge most befitting to its interests and policy.” Frecp, J. Home Ins. Co. v. New York, 134 U. S. 600. % Money Consideration. “Tt [a state] may require, as a condition of the grant of the franchise [to be a cor- poration], and also of its continued exercise, that the corporation pay a specific sum to the state each year, or month, or a specific por- tion of its gross receipts, or of the profits of its business, or a sum to be ascertained in any convenient mode which it may pre- scribe. The validity of the tax can in no way be dependent upon the mode which the state may deem fit to adopt in fixing the amount for any year which it will ex- act for the franchise.” Fiecp, J. Home Ins. Co. v. New York, 134 U. S. 600. “The granting of the rights and privi- leges which constitute the franchises of a corporation being a matter resting entirely within the control of the legislature, to be exercised in its good pleasure, it may be accompanied with any such conditions as the legislature may deem most suitable to the public interests and policy. It may impose as a condition of the grant, as well as, also, of its continued exercise, the payment of a specific sum to the state each year, or a portion of the profits or gross receipts of the corporation, and may prescribe such mode in which the sum shall be ascertained as may be deemed corivenient and just. There is no constitutional inhibition against the leg- islature adopting any mode to arrive at the sum which it will exact as a condition of the creation of the corporation or of its con- tinued existence.” Frecp, J. Horn Silver Min. Co. v. New York, 143 U. S. 313. Reservation of Power to Regulate Com- pensation for Services. “There is no doubt of the power of the legislature to prescribe in the charter of any corporation the compensation it may receive for services rendered, or to reserve the power to regulate such compensation subsequently. The power to prescribe the conditions of use and enjoyment necessarily accompanies the power to grant.” Fuiexp, J., dissenting. Stone v. Wisconsin, 94 U. S. 185. %. CONSTRUCTION OF GRANTS TO CorR- PORATIONS. Ambiguous Grants Must Be Construed Against Corporations. “ Any ambiguity in the terms of the grant must operate against the corporation and in favor of the public, and the corporation can claim nothing that is not clearly given by the law. We do not mean to say that the charter is to receive a strained and unrea- sonable interpretation, contrary to the ob- vious intention of the grant. It must be fairly examined and considered, and rea- sonably and justly expounded. But, if upon such an examination, there is doubt or am- biguity in its terms, and the power claimed is not clearly given, it cannot be exercised. The rights of the public are never presumed to be surrendered to a corporation, unless the | intention to surrender clearly appears in ‘the f law.” Taney, C. J. Perrine v. Chesapeake & Del. Canal Co., 9 How. 192. “ Borrowing, as we have done, our sys- tem of jurisprudence from the English law; and having adopted, in every other case, civil and criminal, its rules for the construc- tion of statutes; is there any thing in our local situation, or in the nature of our po- litical institutions, which should lead us to depart from the principle where corporations are concerned? Are we to apply to acts of incorporation a rule of construction differing from that of the English law, and, by im- plication, make the terms of a charter in one of the states, more unfavorable to the pub- lic than upon an Act of Parliament, framed in the same words, would be sanctioned in an English court? Can any good reason be as- signed for excepting this particular class of cases from the operation of the general prin- ciple; and for introducing a new and inverse rule of construction in favor of corpora- tions, while we adopt and adhere to the rules of construction known to the English common law, in every other case, without exception? We think not; and it would present a singular spectacle, if, while the courts in England are restraining, within the strictest limits, the spirit of monopoly, and exclusive privileges in nature of mo- nopolies, and confining corporations to the 452 CORPORATIONS. privileges plainly given to them, in their charter; the courts of this country should be found enlarging these privileges by im- plication; and construing a statute more unfavorably to the public, and to the rights of the community, than would be done in a like case in an English court of justice.” Taney, C. J. Charles River Bridge v. War- ren Bridge, 11 Pet. 545. “We think the general doctrine, requir- ing grants to corporations to be construed favorably to the public, where there is a reasonable doubt as to the extent of tlie privilege conferred, may properly be invoked to declare that such privileges shall not be used to the detriment of the public.” Brown, J. Pearsall v. Great Northern R. Co., 161 U. S. 676. “All doubts. with regard to the authority granted in a corporate charter are to be re- solved against the corporation, and , a surrender of the power of the legislature in any matter of public concern must never be presumed from uncertain or equivocal expressions.” Brown, J. Louisville, etc. R. Co. v. Kentucky, 161 U. S. 685. — Rights Claimed Must Clearly Appear to Have Been Granted. : “A right cannot be claimed by a corpora- tion, under ambiguous terms. It must clearly appear to have been granted, either in ex- press terms, or by inference.” McLean, J. Charles River Bridge v. Warren Bridge, 11 Pet. 559. “By a familiar rule, every public grant of property, or of privileges or franchises, if ambiguous, is to be construed against the grantee and in favor of the public; be- cause an intention, on the part of the gov- ernment, to grant to private persons, or to a particular corporation, property or rights in which the whole public is interested, cannot be presumed, unless unequivocally expressed or necessarily to be implied in the terms of the grant; and because the grant is sup- posed to be made at the solicitation of the grantee, and to be drawn up by him or by his agents, and therefore the words used are to be treated as those of the grantee; and this rule of construction is a wholesome safeguard of the interests of the public against any attempt of the grantee, by the insertion of ambiguous language, to take what could not be obtained in clear and ex- press terms. This rule applies with peculiar force to articles of association, which are framed under general laws, and which are a substitute for a legislative charter, and 453 assume and define the powers of the corpo- ration by the mere act of the associates, without any supervision of the legislature or of any public authority.” Gray, J. Cen- tral Transp. Co. v. Pullman’s Palace Car Co., 139 U. S. 49. “Grants by the state are to be construed strictly against the grantees, and that noth- ing will be presumed to pass except it be expressed in clear and unambiguous lan- guage.” Brown, J. Pearsall v. Great North- ern R. Co. 161 U. S. 664. 7 Courts may well be astute in dealing with efforts of corporations to usurp powers not granted them, or to stretch their lawful franchises against the interests of the pub- lic.” Sutras, J. Jacksonville, etc, R. Co. v. Hooper, 160 U. S. 524. Construction Must Not Be Unreasonable. _ “It is true that legislative contracts are to be construed most favorably to the state if on a fair consideration to be given the charter, any reasonable doubts arise as to their proper interpretation; but, as every contract is to be construed to accomplish the intention of the parties to it, if there is no ambiguity about it, and this intention clearly appears on reading the instrument, it is as much the duty of the court to up- hold and sustain it, as if it were a contract between private persons.” Davis, J. Home of the Friendless v. Rouse, 8 Wall. 436. “T admit to the fullest extent the rule that all charters of private corporations are to be construed most strongly against the cor- porations. Nothing is granted that is not expressly or clearly implied. But this rule is quite consistent with another, equally set- tled, that charters are to receive a reason- able interpretation in view of the purposes for which they were made.” Srronc, J., dissenting. Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 675. Court Cannot Make New Contract by Construction. “Tt is not the province of this court to enlarge the powers of a corporation beyond the limitations of the charter, because cir- cumstances have changed. Our province is to expound the law as it stands, not to de- termine whether larger powers would not have been given if the legislature had an- ticipated events which have since happened.” Taney, C. J. Perrine v. Chesapeake & Del. Canal Co., 9 How. 189. “Tt is not our province to make contracts, but to construe them. But this maxim, uni- CORPORATIONS. versally admitted, could give no security to chartered rights, if, by judicial construction, they may be made to include a service not ex- pressed nor fairly implied.” McLean, J, dissenting. Perrine v. Chesapeake & Del. Canal Co., 9 How. 195. 8. CorpoRATION Must Act sy Its AGENTS OR SERVANTS, General Rule. “A corporation can act only by its agents or servants. This obvious truth does not imply that the acts must be done by inferior or subordinate agents, but, on the contrary, the higher the authority of the agent, the more evident is the responsibility of the Principal. “While a state may be repre- sented in various ways, no one will doubt that its act, when declared through the means of its legislature or its governor within their respective spheres, is more emphat- ically obligatory upon it than when made known through its inferior departments.” Hunt, J. Barnes v. District of Columbia, 91 U. S. 545. “A corporation can act only by its agents.” Swayne, J. Jones v. New York Guaranty, etc., Co., 101 U. S. 628. “Whether a given power is to be exer- cised by the directors or the shareholders depends upon its nature and the terms of the enabling act.’ Day, J. Commercial Nat. Bank v. Weinhard, 192 U. S. 250. “A corporation, though legally consid- ered a person, must perform its corporate duties through natural persons, and is im- personated in and represented by its prin- cipal officers, the president and directors, who are not merely its agents, but are, generally speaking, the representatives of the corporation in its dealings with others. The appropriate form of verifying any written obligation to be the act of the corporation is by affixing the signatures of the president and secretary and the corporate seal.” Gray, J. Louisville, etc, R. Co. v. Louisville Trust Co., 174 U. S. 573. In Foreign Jurisdictions, “All that there is in the legal residence of a corporation in the state of its creation consists in the fact that by its laws the corporators are associated together and al- lowed to exercise as a body certain func- tions, with a right of succession in its mem- bers. Its officers and agents constitute all that is visible of its existence; and they must be authorized to act for it without as well as within the state.” FieLp, J. St. Clair v. Cox, 106 U. S. 355. Agency Must Be Created by Written Instrument. “A corporation will generally act by its agents; but those agents have no self-exist- ing power. It must be created by law, or communicated by the body itself. This can be done only by writing.” MarsHatt, C. J., dissenting. Bank of U. S.' v. Dandridge, 12 Wheat. 92. 9. Power To Hotp FRANCHISES AND REAL PROPERTY. At Common Law. “At the common law, every corporation had, as incident to its existence, the power to acquire, hold, and convey real estate, ex- cept so far as it was restrained by its charter or by the Act of Parliament. This com- prehensive capacity included also personal effects of every kind. The jus disponendi was without limit or qualification. It ex- tended to mortgages given to secure the payment of debts.” Swayne, J. Jones v. New York Guaranty, etc. Co, 101 U. S. 625. Power Restricted. “The policy of permitting corporations to hold real estate has always been a re- stricted one.” Mutter, J., dissenting. Fritts v. Palmer, 182 U. S. 294. “Corporate bodies, whether for public use or for private purposes, have always been subjects of limitation on their right to hold real estate. It may be prohibited altogether. It may be allowed with distinct limitations as to amount either in quantity or in value. In this respect it is wholly within the con- trol of legislative action.” Mutzer, J., dis- senting. Fritts v. Palmer, 132 U. S. 294. “The positive declaration that a corpo- ration shall not purchase or hold real es- tate, which is not a grant of power, but an express denial of its power to hold any real estate under the circumstances mentioned, is in my opinion destructive of the right to hold any real estate at all under those circum- stances.” Mutter, J., dissenting. Fritts wv. Palmer, 132 U. S. 294. “T can conceive of cases where corpora- tions have been authorized to acquire a lim- ited amount of real estate such as the legislature may conceive to be useful and nec- essary to the purpose for which they are 454 CORPORATIONS. organized, or to take property for specific uses, in which the question as to whether they have exceeded that amount or perverted the use may be one for the state alone and not of any private citizen.” Muzer, J., dis- senting. Fritts v. Palmer, 132 U. S. 204. Enumeration of Purposes Exclusive. “This enumeration of the purposes for which the corporation could acquire title to real estate must necessarily be held exclu- sive of all other purposes.” MULLER, J. Case v, Kelly, 183 U. 'S. 26. Power to Hold in Trust. “ Although it was in early times held that a corporation could not take and hold real or personal estate in trust upon the ground that there was a defect of one of the requi- sites to create a good trustee, viz. the want of confidence in the person; yet that doc- trine has been long since exploded as un- sound, and too artificial.” Story, J. Vidal v. Girard, 2 How. 187. “Tt [a corporation] may hold and dis- pose of property even in trust, if not in- consistent and unconnected with its express duties and objects.” Woopnsury, J. Plant- ers’ Bank v. Sharp, 6 How. 322. “The law is that where the corporation has the legal capacity to take real or per- sonal estate, then it may take and hold it upon trust in the same manner and to the same extent as private persons may do. It is true that if the trust be repugnant or inconsistent with the proper purposes for which it was created, that may furnish a good reason why it may not be compelled to execute it. In such a case, the trust itself being good, will be executed under the au- thority of a court of equity. Neither is there any positive objection, in point of law, to a corporation taking property upon trust not strictly within the scope of the direct pur- poses of the institutions, but collateral to them, as for the benefit of a stranger or another corporation.” Wayne, J. Perin v. Carey, 24 How. 505. “A corporation may hold: and execute a trust for charitable objects in accord with or tending to promote the purposes of its creation, although such as it might not, by its charter or by general laws, have au- thority itself to establish or to spend its corporate funds for. A city, for instance, may take a devise in trust to maintain a college, an orphan school, or an asylum.” Gray, J. Jones v. Habersham, 107 U. S. 189. Franchises Not Expiring with Corpora- tion. 5 “The limitation of its [a corporation’s] life did not prevent it from taking franchises or other property, the title to which would not expire with the corporation itself. A corporation whose corporate existence was limited to a term of years could always pur- chase the fee in property which it needed for the operation of its business. If at the end of its term its life were not extended, the property which it owned was an asset payable to the shareholders after the pay- ment of its debts.” Precxuam, J. Detroit v. Detroit Citizens’ St. R. Co., 184 U. S. 394, Conveyance to Corporation Voidable, Not Void. Where a corporation is incompetent by its charter to take a title to real estate, a conveyance to it is not void, but only void- able, and the sovereign alone can object. It is valid until assailed in a direct proceed- ing instituted for that purpose.” Swayne, J. Union Nat. Bank v. Matthews, 98 U. S. 628. For substantially the same language see Reynolds v. Crawfordsville Bank, 112 U.S. 413, per Woops, J. 10. MiIscELLANEOUS PowERs. Power to Contract Debts. “A corporation, if once organized, has the implied power to make contracts con- nected with its business and debts, and through agents and notes as well as under its seal.” Woopsury, J. Planters’ Bank v. Sharp, 6 How. 322. “Private corporations may borrow money, or become parties to negotiable paper in the transaction of their legitimate business, unless expressly prohibited; and until the . contrary is shown, the legal presumption is that their acts in that behalf were done in the regular course of their authorized busi- ness.” CLIFFORD, J. Mississippi, etc., R. Co. v. Howard, 7 Wall. 412. “ Private corporations created for private purposes may contract debts in connection with their business, and issue evidences of them in such form as may best suit their convenience.” Fietp, J. Hill v. Memphis, 134 U. S. 203. And see CoNntTRACTs. -— Property of Solvent Corporation Not Trust Fund for Payment of Debts. “A party may deal with a corporation in respect to its property in the same manner 455 CORPORATIONS. as with an individual owner, and with no greater danger of being held to have re- ceived into his possession property bur- dened with a trust or lien.” Brewer, J. Hollins v. Brierfield Coal, etc., Co., 150 U. S. 385. “As between itself and its creditors the corporation is simply a debtor, and does not hold its property in trust, or subject to a lien in their favor, or in any other sense than does an individual debtor.” Brewer, J. Hollins v. Brierfield Coal, etc., Co., 150 U. S. 385. “When a corporation is solvent, the the- ory that its capital is a trust fund upon which there is any lien for the payment of its debts has in fact very little founda- tion. No general creditor has any lien upon the fund under such circumstances, and the right of ‘the corporation to deal with its property is absolute so long as it does not violate its charter or the law applicable to such corporation.” PeckHam, J. McDonald v. Williams, 174 U. S. 401. “There is no well-defined lien of creditors upon the capital of a corporation while the latter is a solvent and going concern, so as to permit creditors to question, at the time, the disposition of the property.” PrckHAmM, J. McDonald v. Williams, 174 U. S. 403. See further Dissolution oF CoRPoRATIONS. “The properties of a corporation consti- tute a trust fund for the payment of its debts; and, when there is a misappropriation of the funds of a corporation, equity, on be- half of the creditors of such corporation, will follow the funds so diverted.” BREWER, J. Chicago, etc, Ry. Co. v. Chicago Bank, 134 U. S. 287. Power to Deal with and Dispose of Prop- erty. “Tt is well settled that a corporation, without special authority, may dispose of land, goods, and chattels, or of any interest in the same, as it deems expedient, and in the course of their legitimate business may make a bond, mortgage, note, or draft; and also may make compositions with creditors, or an assignment for their benefit, with prefer- ences, except when restrained by law.” CAMPBELL, J. White Water Valley Canal Co. v. Vallette, 21 How. 424. “The corporation is the legal owner of all the property of the bank, real and per- sonal; and within the powers conferred upon it by the charter, and for the purposes for which it was created, can deal with the cor- porate property as absolutely as a private in- dividual can deal with his own. This is familiar law, and will be found in every work that may be opened on the subject of corporations.” Netson, J. Van Allen vw, Assessors, 3 Wall. 584. “The directors of a company, organized under the law, have no power to destroy it, to give away its funds, or to deprive it of any means which it possesses to accomplish the purposes for which it was incorporated.” StronG, J. Burke v. Smith, 16 Wall. 395. “The president of a corporation has no power as such to make a general conveyance of the assets of the corporation without at least the assent of the board of directors.” Brown, J. De La Vergne Co. v. German Sav. Inst. 175 U. S. 53. “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.” Futter, C. J. Gibbs v. Baltimore Consoli- dated Gas Co., 180 U.S. 411. -— Power to Dispose of Franchises. “The essential properties of corporate ex- istence are quite distinct from the fran- chises of the corporation. The franchise of being a corporation belongs to the corpora- tors, while the powers and privileges, vested in and to be exercised by the corporate body as such, are the franchises of the corpora- tion. The latter has no power to dispose of the franchise of its members, which may survive in the mere fact of corporate ex- istence after the corporation has parted with all its property and all its franchises.” MattueEws, J. Memphis, etc., R. Co. v. Rail- road Com’rs, 112 U. S. 619. “It is a mistake, . to suppose that the mortgage and sale of a charter by a corporation, in any proper sense which can be legally imputed to the words, necessarily conveys every power and authority conferred by it, so far, at least, as to vest a title in them, as franchises, irrevocable by reason of the obligation of a contract.” Mattuews, J. Memphis, etc., R. Co. v. Railroad Com’rs, 112 U.S. 621. “A corporation cannot, without the assent of the legislature, transfer its franchise to 456 CORPORATIONS. another corporation, and abnegate the per- formance of the duties to the public, im- posed upon it by its charter as the consid- eration for the grant of its franchise. Nei- ther the grant of a franchise to transport passengers, nor a general authority to sell and dispose of property, empowers the grantee, while it continues to exist as a cor- poration, to sell or to lease its entire prop- erty and franchise to another corporation. These principles apply equally to companies incorporated by special charter from the legislature, and to those formed by articles of association under general laws.” Gray, J. Central Transp. Co. v. Pullman’s Palace Car Co., 139 U. S. 49. “The mere grant of franchises to a cor- poration carries with it no power of alien- ation. On the contrary, the general rule is that, in the absence of express authority, they are incapable of alienation. And many cases have arisen in which an attempted alienation by the corporation has been de- clared by the courts to be void, as divesting it of the power to discharge the duties im- posed by the charter.” Brewer, J. Snell v. Chicago, 152 U. S. 199. “One of the most important powers with which a corporation can be invested is the right to sell out its whole property together with the franchises under which it is oper- ated, or the authority to lease its property for a long term of years.” Mutier, J. Ore- gon R. Co. v. Oregonian R. Co., 130 U. S. 30. Power to Hold Stock in Another Cor- poration. “Tt is an improper application for a rail- way company to invest the profits of the company in the purchase of shares in an- other company.” Wayne, J. Dodge v. Woolsey, 18 How. 342. “Tt is not only illegal for a corporation to apply its capital to objects not contem- plated by its charter, but also to apply its profits.” Wayne, J. Dodge v. Woolsey, 18 How. 342. Power to Pay Debts in Stock. “To say that a public corporation, charged with public duties, may not relieve itself from embarrassment by paying its debt in stock at its real value—there being no statute forbidding such a transaction — with- out subjecting the creditor, surrendering his debt, to the liability attaching to stockhold- ers who have agreed, expressly or impliedly, to pay the face value of stock subscribed by 457 them, is, in effect, to compel them either to suspend operations the moment they become unable to pay their current debts, or to bor- row money secured by mortgage upon’ the corporate property.” Haran, J. Clark v. Bever, 139 U. S. 112. Power to Prefer Creditors. “T can perceive no reason which permits preferences by individuals, which do not, instead of authorizing, forbid the applica- tion of the rule to the trustees of the cor- poration; nor can I perceive the justice of preferring one note holder, or one depositor to another.” Ba.pwin, J., dissenting. U. S. v. Robertson, 5 Pet. 668. “It is one of the vexed questions of the law as to how far the duty of a corporation and its directors interferes with the other- wise conceded power of a debtor to prefer certain of his creditors.” Brewer, J. San- ford Tool Co. v. Howe, etc., Co., 157 U. S. 318. VII. LIABILITY FOR ACTS OF AGENTS. 1. In GENERAL. Corporation Responsible for Agents’ Acts. “To enable impersonal beings— mere le- gal entities, which exist only in contempla- tion of law—to perform corporal acts, or deal with personal agents, the principle of representation has been adopted as a part of their constitution. The powers of the corporation are placed in the hands of a governing body selected by its members, who manage its affairs, and who appoint the agents that exercise its faculties for the ac- complishment of' the object of its being. But these agents may infringe the rights of persons who are unconnected with the corporation, or who are brought into rela- tion of business or intercourse with it. As a necessary correlative to the principle of the exercise of corporate powers and facul- ties by legal representatives, is the recogni- tion of a corporate responsibility for the acts of those representatives.” CAMPBELL, J. Philadelphia, etc, R. Co. vw. Quigley, 21 How. 210. “Railroad companies are responsible in their corporate capacity for acts done by their agents, either ex contractu or ex delicto, in the course of their business and within the scope of the agent’s authority.” Cur- ForD, J. Mississippi, etc., R. Co. v. Howard, 7 Wall. 413. CORPORATIONS. “For acts done by the agent of a corpo- ration, in the course of its business and of their employment, the corporation is re- sponsible, in the same manner and to the same extent, as an individual is responsible under similar circumstances.” Gray, J. Lake Shore, etc., R. Co. v. Prentice, 147 U.S, 109. For substantially the same language see Merchants’ Nat. Bank v. State Nat. Bank, 10 Wall. 645, per Swayne, J. Carlisle First Nat. Bank v. Graham, 100 U. S. 702, per Swayne, J. “The acts of a single duly authorized agent of a corporation, within the scope of his authority, bind the corporation, although he keeps no minutes of such acts.” Story, J. Bank of U. S. v. Dandridge, 12 Wheat. 83. “Certainly a corporation can be charged with no intelligent action, or with entertain- ing any purpose, or committing any fraud, except as this intelligence, this purpose, this fraud, is evidenced by the actions of its of- ficers. And while it may be conceded that for many purposes they are agents, and are to be treated as the agents of the corpora- tion or of the corporators, it is also true that for some purposes they are the corpo- ration, and their acts as such officers are its acts,” Minter, J. Pollard v. Vinton, 105 U. S. 12. Liability of Surety to Corporation. “Tt is well settled that, in the absence of express agreement, the surety on a bond given to a corporation, conditioned for the faithful performance by an employee of his duties, is not relieved from liability for a loss within the condition of the bond by reason of the laches or neglect of the board of directors, not amounting to fraud or bad faith, and that the acts of ordinary agents or employees of the-indemnified corporation, conniving at or co-operating with the wrong- ‘ful act of the bonded employee, will not be imputed to the corporation.” Wauure, J. Fi- delity, etc, Co. v. Courtney, 186 U. 5S. 360. 2. CoNTRACTS. In General. “Tt is true that a railroad company is a corporation operating a public highway, but it does not follow that the discharge of its public [duties] excuses it from amenability for its private obligations.” Futter, C. J. Morgan’s Co. wv, Texas Cen. R., 187 U. S. 196. Must Be Within Scope of Agent’s Au- thority. “By the act of contracting with the agents and trustees of a corporation, the party is presumed and bound to know the nature, and the legitimate objects of their authority; according to the terms of the charter; and necessarily, contract subject to them.” Batpwin, J., dissenting. U.'S. v. Robertson, 5 Pet. 666. “Persons dealing with the managers of a corporation must take notice of .the limita- tions imposed upon their authority by the act of incorporation. Their powers are con- ceded in consideration of the advantage the public is to receive from their discreet and intelligent employment, and the public have an interest that neither, the managers nor stockholders of the corporation shall tran- scend their authority.” CAMPBELL, J. Pearce v. Madison, etc., R. Co., 21 How. 443. “Nor has it ever been contended that an officer of a private corporation can, by ex- ceeding his authority, when that authority is express, is open and notorious, bind the cor- poration which he professes to represent.” Mriter, J., dissenting. Humboldt Tp. wv. Long, 92 U. S. 648. “Persons dealing with the managers of a corporation must take notice of the limi- tations imposed upon their authority by the act of incorporation.” Woops, J. Scovill v. Thayer, 105 U. S. 151. “Tt is well settled that the president or other general officer of a corporation has power prima facie to do any act which the directors or trustees of the corporation could authorize or ratify.” Wauure, J. Sun Printing, etc., Assoc. v. Moore, 183 U. S. 651. Implied or Presumed Authority. “Tf officers of the corporation openly ex- ercise a power which presupposes a delegated authority for the purpose, and other corpo- rate acts show that the corporation must have contemplated the legal existence of such authority, the acts of such officers will be deemed rightful, and the delegated au- thority will be presumed.” Story, J. Bank of U. S. v. Dandridge, 12 Wheat. 70. “The acts of artificial persons afford the same presumptions as the acts of natural persons. Each affords presumptions, from acts done, of what must have preceded them, as matters of right, or matters of duty.” Story, J. Bank of U. S. v. Dandridge, 13 Wheat. 70. “Where the officers of the corporation openly exercise powers affecting the inter- ests of third persons, which presupposes a 458 CORPORATIONS. delegated authority for the purpose, and other corporate acts subsequently performed show that the corporation must have con- templated the legal existence of such au- thority, the acts of such officers will be deemed rightful, and the delegated authority will be presumed.” CuiFForp, J. Marshall County Supervisors v. Schenck, 5 Wall. 782. “Tt has been said that if officers of cor- porations openly exercise a power which presupposes a delegated authority for the purpose, the acts of such officers will be deemed rightful, and the delegated authority will be presumed.” ‘Srronc, J. Keely v. Sanders, 99 U. S. 447. “True it is, that by a course of dealing with a particular person, the power of an officer to perform a particular act may be implied when such power is not inconsistent with law.” Waite, J, Putnam v. U. S., 162 UL S. 713, — Circumstances Not Raising Presump- tion of Authority. “Tt is a general rule that a corporation can only act in the manner prescribed by law. When its agents do not clothe their proceedings with those solemnities which are required by the incorporating act, to enable them to bind the company, the informality of the transaction . . . is itself conducive to the opinion, that such act was rather con- sidered as manifesting the terms on which they were willing to bind the company, as negotiations preparatory to a conclusive agreement, than as a contract obligatory on both parties.” MarsHatt, C. J. Head vw. Providence Ins. Co., 2 Cranch 166. Ratification or Acceptance of Benefits by Corporation. “Judge Story said there was no maxim, where it does not prejudice the rights of strangers, better settled. in reason and law than Omnis ratihabitio retrotrahitur et man- dato priori equiparatur, and it is equally well settled that the maxim is as applicable to cor- porations in matters of simple contract as to other contracting parties.” CLiFForpD, J. Marshall County Supervisors v. Schenck, 5 Wall. 781. “Tt is true that a corporation may become liable upon contracts assumed to have been made in its behalf by an unauthorized agent by appropriating and retaining, with knowl- edge of the facts, the benefits of the con- tracts so made on its behalf.” Sutras, J. Western Nat. Bank vw. Armstrong, 152 U. S. 352. 459 “In respect to grants and deeds beneficial to a corporation, there seems to be no par- ticular reason why their assent to, and ac- ceptance of the same, may not be inferred from their acts, as well as in the case of individuals.” Story, J. Bank of U. S. wv. Dandridge, 12 Wheat. 72. “Tt is no implied condition that the cor- poration shall perpetuate the evidence of its assent in a particular way.” Story, J. Bank of U. S. v. Dandridge, 12 Wheat. 73. Contracts Not under Seal— Ancient Rule. “ Anciently it seems to have been held, that corporations could not do anything without deed. Afterwards the rule seems to have been relaxed, and they were, for con- veniency’s sake, permitted to act in ordinary matters without deed; as to retain a servant, cook, or butler, and gradually this relaxation widened to embrace other objects. : At length it seems to have been es- tablished that though they could not contract directly, except under their corporate seal, yet they might by mere vote or other corpo- rate act, not under their corporate seal, appoint an agent, whose acts and contracts, within the scope of his authority, would be binding on the corporation; and courts of equity, in this respect seeming to follow the law, have decreed a specific per- formance of an agreement made by a major part of the corporation, and entered in the corporation books, although not under the corporate seal. . . . The sole ground upon which such an agreement can be enforced must be the capacity of the corporation to make an unsealed contract.” Story, J. Bank of Columbia v. Patterson, 7 Cranch 305. “The technical doctrine, that a corpora- tion could not contract, except under its seal, or, in other words, could not make a promise, if it ever had been fully settled, must have been productive of great mischiefs. Indeed as soon as the doctrine was established that its regularly appointed agent could contract in their name without seal, it was impossible to support it; for otherwise the party who trusted such contract would be without rem- edy against the corporation.” Story, J. Bank of Columbia v. Patterson, 7 Cranch 306. “Tn ancient times it was held that corpo- rations aggregate could do nothing but by deed under their common seal. But this principle must always have been understood with many qualifications; and seems inap- plicable to acts and votes passed by such corporations at corporate meetings.” Story, J. Bank of U. S. v. Dandridge, 12 Wheat. 67. CORPORATIONS. “Covenant would not lie against a cor- poration, on a contract not under . . . cor- porate seal; but . an action of assump- sit would lie.” Barsour, J. Bank of Me- tropolis v. Guttschlick, 14 Pet. 29. —— Modern Rule. “Whatever may be the original correct- ness of this doctrine [that a corporation can act only through the instrumentality of its common seal], as applied to corporations existing by the common law, in respect even to which it has been certainly broken in upon in modern times, it has no application to corporations created by statute, whose charters contemplate the business of the cor- poration to be transacted exclusively by a special body or board of directors. And the acts of such body or board, evidenced by a written vote, are as completely binding upon the corporation and as complete authority to their agents, as the most solemn acts done under the corporate seal.” Story, J. Fleck- ner v. Bank of U. S., 8 Wheat. 357. “The old rule was, that a corporation can make no contract which shall bind it except under its seal. That doctrine has long since been overruled, and it is now fully estab- lished, that the agents of a corporation may bind it by parol.” McLean, J. Fanning v. Gregoire, 16 How. 533. ‘ “As writing has become more common, and seals are less distinguishable from each other, the good sense of mankind generally receives the writing without the seal, in all the less formal and less important transac- tions of the corporate body.” MarsHALL, C. J., dissenting. Bank of U. S. v. Dan- dridge, 12 Wheat. 97. “A corporation may bind itself by a con- tract not under its corporate seal, when the law does not require the contract to be evi- denced by a sealed instrument.” Woops, J. Gottfried v. Miller, 104 U. S. 527. “This general principle, that the assent of a corporation can appear only by its seal, has been in part overruled, yet it has been over- ruled so far only as respects the seal. The corporate character remains what Blackstone states it to be.” MarsHatt, C. J., dissent- ing. Bank of U. S. v. Dandridge, 12 Wheat. 93. — Power to Take Land. “A corporation aggregate cannot take lands otherwise than by deed.” MarsHALL, C. J. dissenting. Bank of U. S. uv. Dan- dridge, 12 Wheat. 105. “With respect to the necessity of a seal, the difference is certainly great between an- cient and modern times; and between cor- porations, whose principal transactions re- spected land and those which are commercial in their character.” MarsHatt, C. J., dis- senting. Bank of U. S. v. Dandridge, 12 Wheat. 97. —— Contracts Not Sealed with Ordinary Common Seal. “As to private corporations, where au- thority is shown to execute a contract under seal, the fact that a seal is attached with intent to seal on behalf of the corporation, is enough, though some other seal than the or- dinary common seal of the company should be used.” Futter, C. J. District of Columbia v. Camden Iron Works, 181 U. S. 460. —— Parol Contracts. “Even the parol contracts of a corporation made by its duly authorized agent are bind- ing.” Woops, J. Gottfried v. Miller, 104 U. S. 527. “The inability of a corporation aggregate to speak or act otherwise than by writing, is constitutional, and must be immutable, unless it be endowed by the legislature with other qualities than belong to the corporate charac- ter.” MarsHALt, C. J., dissenting. Bank of U. S. v. Dandridge, 12 Wheat. 97. “When a being is created without the organs of speech, and endowed only with the faculty of communicating its will by writing, we need not look in the laws given by its creator for a prohibition to speak, or a man- date to write.” MarsHALt, C. J., dissenting. Bank of U. S. v. Dandridge, 12 Wheat. 108. 3. Torts. In General. “ At a very early period, it was decided in Great Britain, as well as in the United States, that actions might be maintained against corporations for torts; and instances may be found, in the judicial annals of both countries, of suits for torts arising from the acts of their agents, of nearly every variety.” CAMPBELL, J. Philadelphia, etc, R. Co. v. Quigley, 21 How. 210. “An action may be maintained against a corporation for its malicious or negligent torts, however foreign they may be to the object of its creation or beyond its granted powers. It may be sued for assault and bat- tery, for fraud and deceit, for false imprison- ment, for malicious prosecution, for nuisance, and for libel. In certain cases it may be in- 460 CORPORATIONS. dicted for misfeasance or nonfeasance touch- ing duties imposed upon it in which the pub- lic are interested. Its offenses may be such as will forfeit its existence.” Swayne, J. Carlisle First Nat. Bank v. Graham, 100 Uz. S. 702. . “A corporation is doubtless liable, like an individual, to make compensation for any tort committed by agent in the course of his employment, although the act is done wan- tonly and recklessly, or against the express orders of the principal.” Gray, J. Lake Shore, etc., R. Co. v. Prentice, 147 U. S. 109. Libel and Malicious Prosecution. “That a corporation may be held respon- sible in an action for the publication of a libel is no longer open for discussion in this court.” PrEckHAM, J. Washington Gas Light Co. v. Lansden, 172 U. S. 543. “ A corporation may be held liable for a libel, or a malicious prosecution, by its agent within the scope of his employment; and the malice necessary to support either action, if proved in the agent, may be im- puted to the corporation.” Gray, J. Lake Shore, etc., R. Co. v. Prentice, 147 U. S. 109. Criminal Liability for Libel. “Whether a principal can be criminally prosecuted for a libel published by his agent without his participation is a question on which the authorities are not agreed; and where it has been held that he can, it is ad- mitted to be an anomaly in the criminal law.” Gray, J. Lake Shore, etc., R. Co. v. Pren- tice, 147 U. S. 111. Fraud and Deceit. “Corporations as much as individuals are bound to good faith and fair dealing, and the rule is well settled that they cannot, by their acts, representations, or silence, in- volve others in onerous engagements and then turn round and disavow their acts and defeat the just expectations which their own conduct has superinduced.” C.irForp, J. Mississippi, etc., R. Co. v. Howard, 7 Wall. 413. For substantially the same language see Zabriskie v. Cleveland, etc., R. Co., 23 How. 400, per CAMPBELL, J.; Bissell v. Jefferson- ville, 24 How. 300, per Currrorp, J. “Corporations, quite as much as individ- uals, are held to a careful adherence to truth and uprightness in their dealings with other parties; nor can they be permitted, with impunity, to involve others in onerous obli- gations, by their misrepresentations or con- cealments, without being held to just re- sponsibility for the eensequences of their misconduct or bad faith.” CtirForp, J. Cal- houn County, etc. v. American Emigrant Co, 93 U. S. 130. Liability for Full Damages. “In the case of a corporation, as of an in- dividual, if any wantonness or mischief on the part of the agent, acting within the scope of his employment, causes additional injury to the plaintiff in body or mind, the principal is, of course, liable to make com- pensation for the whole injury suffered.” Gray, J. Lake Shore, etc, R. Co. v. Pren- tice, 147 U. S. 111. Liability for Punitive Damages. “No doubt a corporation, like a natural person, may be held liable in exemplary or punitive damages for the act of an agent within the scope of his employment, pro- vided the criminal intent, necessary to war- rant the imposition of such damages, is brought home to the corporation.” Gray, J. Lake Shore, etc, R. Co. uv. Prentice, 147 U.S. 111. Doctrine of Ultra Vires Has No Applica- tion. “Corporations are liable for every wrong of which they are guilty, and in such cases the doctrine of ultra vires has no applica- tion.” Swayne, J. Merchants’ Nat. Bank v. State Nat. Bank, 10 Wall. 645. “A corporation is liable for negligent and malicious torts, including libel, assault and battery, malicious prosecution, and false im- prisonment. In such cases the plea of ultra vires is unavailing. The corporation is estopped from setting up such a defense.” Swayne, J. Daniels v. Tearney, 102 U. S. 420. ‘Tf the agents and servants of a corporation commit a wrong in the course of their em- ployment and while in the performance of an agreement of the corporation which is ultra vires, the company is liable for the wrong thus committed, notwithstanding the ille- gality of the agreement.” PecxuHam, J. Chesapeake, etc., R. Co. v. Howard, 178 U. S. 160. VIII. SUITS BY AND AGAINST CORPORATIONS. General Liability to Suit. “A corporation can do no act but what is subject to the revision either of a court of justice, or of some other authority within the government.” TIrepeLt, J. Chisholm v, Georgia, 2 Dall. 448, 461 CORPORATIONS. General Right to Sue. “The doctrine is well established that rights with respect to property held by citi- zens are not lost because they unite thern- selves into corporate bodies. They are sub- sequently as able to invoke the law for the enforcement of their rights as previously, the court in such case looking through the name in order to protect those whom the name tepresents.” Fretp, J. McKinley vw. Wheeler, 130 U. S. 634. Parties. “My opinion is, and long has been, that the mayor and aldermen of a city corpora- tion, or the president and directors of a bank or the president and directors of a railroad company (and of other similar cor- porations), are the true parties that sue and are sued as trustees and represetitatives of the corstantly changing stockholdets.” Catron, J. Rundle v. Delaware, etc., Canal Co., 14 How. 95. Service of Process. “Process can be served on a corporation only by making service thereof on some one or more of its agents. The law may, and ordinarily does, designate the agent or officer, on whom process is to be served. For the putpose of receiving such service, and being hound by it, the corporation is identified with stich agent or officer. The corporate powet to receive and act on stitch service, so far as to make it known to the corporation, is thus vested in such officer or agent.” Curtis, J. Lafayette Ins. Co. v. French, 18 How. 408. “A corporation, being an artificial being, can act only through agents, and only through them can be reached, and process must, therefote, be served upon them.” Frexp, J. St. Clair v. Cox, 106 U. S. 353. “A corporation can only be served with process through some officer or agent.” Warte, C. J. Eureka Lake, etc. Co. v. Yuba County, 116 U. S. 416. Appearance. ; “A corporation can otly appear by at- torney, and it is also admitted that the attor- ney must receive the authority of the cor- poration to enable him to represent it. It is not admitted that this authority must be under seal.” MarsHALt, C. J. Osborn vw. Bank of U. S., 9 Wheat. 829. Domicil for Purpose of Being Sued. “The reason why the state which charters a corporation is its domiicil in reference to debts which it owes, is because there only can it be sued or found for the service of proc- ess.” BiatcHrorp, J. New England, Mut. L. Ins. Co. v. Woodworth, 111 U.S. 146, Power of State to Prescribe Creditors’ Remedies. “It is certainly within the power of a state to say what remedies creditors of corpora- tions shall have over property situated within the state.” McKenna, J. Williams v. Gay- lord, 186 U. S. 165. Suits by Stockholders in Behalf of Cor- poration. “It is now no longer dotbted, either in England or the United States, that courts of equity, in both, have a jurisdiction over cor- porations, at the instance of one or more of their members; to apply preventive retnedies by injunction, to restrain those who ad- minister them from doing acts which would amount to a violation of charters, or to pre- vent any misapplication of their capitals or profits, which might result in lessening the dividends of stockholders, or the valtie of their shares, as either may be protected by the franchises of a corporation, if the acts intended to be done create what is in the law denominated a breach of trust. And the jurisdiction extends to inquire into, and to etijoin, as the case may tequire that to be done, any proceeding by individuals, in- whatever character they may ptofess to act, if the subject of complaint is ari imputed vio- lation! of a corporate frarichise, or the denial of a right growing out of it, for which thete is not an adeqttate remedy at law.” Wayne, J. Dodge v. Woolsey, 18 How. 341. “Where a cause of action affects the en- tire interests of a corporation as such, the corporation is the proper party to sué. Where it affects specially a stockholder he has the same right to stte pro interesse suo as any one else. In the latter case, it may or may not be necessary to make the corporatioti a party.” Swaynz, J. Dewing v. Perdi- caries, 96 U. S. 196. “There are cases in which, a corporation having refused to do its duty by suing to avert a threatened wrong, a stockholder was permitted to intervene in its stead, making the corporation a party. Cases are more numerous where the directors having made themselves persorially liable for neg- lect or breach of duty, and the corporation refusing to proceed against them, a stock- holder has been permitted to sue in its be- half.” Swayne, J. Dewing v. Petdicaries, 96 U. S. 197. 462 CORPORATIONS. “The tight to maintain a suit against the officers of a corporation for ftadulent mis- appropriation of its property is a right of the corporation; and it is only when the cor- poration will not bring the suit, that it can be brought by one or more stockholders in behalf of all. The suit, when brought by stockholders, is still a suit to enforce a right of the corporation, and to recover a sum of money due to the corporation; and the corporation is a tiecessary party, in order that it may be bound by the judgment. If the corporation becomes irisolvent, and a receiver of all its estate and effects is appointed by a coutt of competent jurisdiction, the right to enforce this and all other rights of prop- erty of the corporation vests in the receiver, and he is the proper patty to bring suit, and, if he does not ‘himself sue, should properly be made a defendant to any suit by stock- holders in the right of the corporation.” Gray, J. Porter uv. Sabin, 149 U. S. 478. Plea of General Issue in Suit by Corpora- tion. “Tt is well settled, that, in a suit by a cor- poration, a plea of the general issue admits the competency of the plaintiff to sue as such.” Srronc, J. Pullman v. Upton, 96 U. S. 329. Evidence to Support Rights of Corpora- tion. “Tn reason and justice there does not seem any solid ground why a corporation may not, in case of the omission of its officers to pre- serve a written record, give such proofs to support its rights as would be admissible in suits against it to support adverse rights.” Story, J. Bank of U. S. v. Dandridge, 12 Wheat. 74, IX. REPEAL, ALTERATION, AND AMENDMENT OF CHARTERS. See ELEEMoSyNARY CoRPORATIONS. 1. CHARTER Is A CoNTRACT. : In General. “There may be priority of operation of things in the same grant; and the law dis- tinguishes and gives such priority wherever it is necessary to effectuate the objects of the grant. From the nature of things, the artificial person called a corporation must be created before it can be capable of taking anything. When, therefore, a charter is granted, and it brings the corporation into existence without any act of the natural per- sons who compose it, and gives stich cor- poration ariy privileges, franchises ot prop- 463 erty, the law deems the corpofation to be first brought into existencé, and then clothes it with the granted liberties and property. When, on the other hand, the corporation is to be brought into existence by some future acts of the corporators, the franchises re- main in abéyatice, until such acts are done, and when the corporation is brought into life the franchises instantaneously attach to it. There may be, in intendment of law, a prior- ity of time, even in an instant, for this pur- pose. And if the corporation Have an existence before the grant of its other frat- chises attaches, what more difficulty is there in deeming the grant of these franchisés a contract with it, than if granted by another ‘instrument at a stibsequetit period. * Story, J. Dartmouth College v. Woodward, 4 Wheat. 691. “That a private act of incorporation can- not affect the rights of individuals who do not assent to it, and that in this respect it is considered in the light of a contract, is a position too clear to admit of controversy.” McLzan, J. Beaty v. Knowlet, 4 Pet. 167. “Corporate franchises granted to private corporations, if duly accepted by the corpo- rators, partake of the nature of legal estates, as the gtant under such circumstances be- comes a contract within the protection of that clause of the Constitution which ordains that no state shall pass any law impairing the obligation of contracts.” CLirForD, J. Pennsylvania College Cases, 13 Wall. 212. “A charter of incorporation grantéd by a state creates a contract between the state and the corporators, which the state cannot violate.” Davis, J. Wilmington, etc. R. Co. uv. Reid, 13 Wall. 266. “Charters granted to private corporations are held to be contracts.” Brapiey, J. East ‘Saginaw Salt Mfg. Co. v. East Saginaw, 13 Wall. 378. “The charter of a private corporation is a contract between the law-making power and the corporators, and the rights and obliga- tions of the latter aré to be measured accord- ingly.” Swayne, J. U. S. v. Knox, 102 U.S. 424. — Doctrine Thoroughly Settled. “We have supposed, if anything was set- tled by att unbroken course of decisions in the federal and state courts, it was, that an act of incorporation was a contract between the state and the stockholders. All courts at this day are estopped from questioning the CORPORATIONS. doctrine. The security of property rests upon it, and every successful enterprise is undertaken, in the unshaken belief that it will never be forsaken.” Davis, J. The Binghamton Bridge, 3 Wall. 73. “The whole doctrine of vested rights as applied to the charterers of corporations is based upon the Dartmouth College case, 4 Wheat. 518, in which the broad proposition was laid down that such charters were con- tracts within the meaning of the Constitution, and hence that an act of the state legislature altering a charter in any material aspect was unconstitutional and void. The doctrine of this case has been subjected to more or less criticism by the courts and the profession, but has been reaffirmed and applied so often as to have become firmly established as a canon of American jurisprudence.” Brown, J. Pearsall v. Great Northern R. Co., 161 U. S. 660. Consideration. “The objects for which a corporation 1s created are universally such as the govern- ment wishes to promote. They are deemed beneficial to the country; and this benefit con- stitutes the consideration, and in most cases, the sole consideration of the grant.” Mar- SHALL, C. J. Dartmouth College v. Wood- ward, 4 Wheat. 637. “A charter may be granted upon an exec- utory, as well as an executed or present con- sideration. When it is granted to persons who have not made application for it, until their acceptance thereof, the grant is yet in fiert. Upon the acceptance there is an im- plied contract on the part of the grantees, in consideration of the charter, that they will perform the duties, and exercise the author- ities conferred by it.” Srory, J. Dartmouth College v. Woodward, 4 Wheat. 687. “Tt will not be pretended, that if a charter be granted for a bank, and the stockholders pay in their own funds, the charter is to be deemed a grant without consideration, and, therefore, revocable at the pleasure of the grantor.” Story, J. Dartmouth College v. Woodward, 4 Wheat. 688. —— Obligations Assumed by Corporators Constitute Consideration. “The rights acquired by the other con- tracting party are those of having perpetual succession, of suing and being sued, of pur- chasing lands for the benefit of themselves and their successors, and of having a com- mon seal, and of making by-laws. The obligation imposed upon them. and which forms the consideration of the grant, is that of acting up to the end or design for which they were created by their founder.” Wasu- IncTON, J. Dartmouth College wv. Wood- ward, 4 Wheat. 658. “Where the grantees are mere trustees to perform services without reward, exclusively for the benefit of others, for public charity, can it be reasonably argued that these ser- vices are less valuable to the government than if performed for the private emolument of the trustees themselves? In respect, then, to the trustees also, there was a valuable con- sideration for the charter, the consideration of services agreed to be rendered by them in execution of a charity, for which they could receive no private remuneration.” Story, J. Dartmouth College v. Woodward, 4 Wheat. 688, “Private charters or such as are granted for the private benefit of the corporators are held to be contracts because they are based for their consideration on the liabilities and duties which the corporators assume by ac- cepting the terms therein specified, and the grant of the franchise on that account can no more be resumed by the legislature or its benefits diminished or impaired without the assent of the corporators than any other grant of property or legal estate, unless the right to do so is reserved in the act of incorpora- tion or in some general law of the state which was in operation at the time the char- ter was granted.” C.iFForp, J. Pennsyl- vania College Cases, 13 Wall. 214. “The charter of a corporation being a con- tract, a sufficient consideration for the privi- leges and franchises conferred being found in the duties and liabilities assumed by the cor- porators, the subsequent power of the legis- lature is restrained by its terms. This has been so often judicially declared, that it has been supposed to be no longer open to dis- cussion.” Fierp, J., dissenting. Stone v. Wisconsin, 94 U. S. 185. — Necessity for Consideration. “To make such a contract [within the case of Dartmouth College v. Woodward, 4 Wheat. 518], however, there is the same necessity for a consideration that there would be if it were a contract between private parties.” Brown, J. Grand Lodge v. New Orleans, 166 U.S. 146. Acceptance. “Both a charter and acceptance are vital to the existence of the corporation.” Srory, J. Bank of U. S. v. Dandridge, 12 Wheat. 71. 464 CORPORATIONS. “Tn relation to the question of acceptance of a particular charter by an existing cor- poration, or by corporators already in the ex- ercise of corporate functions, the acts of the corporate officers are admissible evidence from which the fact of acceptance may be in- ferred. It is not indispensable to show a written instrument or vote of acceptance on the corporation books It may be inferred from other facts which demonstrate that it must have been accepted.” Story, J. Bank of U. S. v. Dandridge, 12 Wheat. 71. Construction. “Charters of private corporations duly ac- cepted, it must be admitted, are executed con- tracts, but the different provisions, unless they are clear, unambiguous, and free of doubt, are subject to construction, and their true intent and meaning must be ascertained by the same rules of interpretation as other legislative grants.” Ciirrorp, J. Holyoke Water-Power Co. uv, Lyman, 15 Wall. 511. “Charters of private corporations duly ac- cepted, it must be admitted, are in general executed contracts, but the different provi- sions, unless they are clear, unambiguous, and free of doubt, are subject to construction, and their true intent and meaning must be ascertained by the same rules of interpreta- tion as apply to other legislative grants, the universal rule being that whenever the privi- leges granted to such a corporation come under revision in the courts, the grant is to be strictly construed against the corporation and in favor of the public, and that nothing passes to the corporation but what is granted in clear and explicit terms.” CtiFForp, J. Union Pass. R. Co. v. Philadelphia, 101 U. S. 539. “Legislative contracts, especially, should be read in the light of the public policy en- tertained, and the purposes sought to be ac- complished at the time they were made, rather than at a later period, when different ideas and theories may prevail.” JacKson, J. Mobile, etc, R. Co. uv. Tennessee, 153 U. S. 502. “Where the legislature, with a view of advancing the public interest by the construc- tion of a bridge, a turnpike road or any other work of public utility, grants a charter, no reason is perceived why such a charter should not be construed by the same rule that gov- erns contracts between individuals. The public, through their agent, enter into the con- tract with the company; and a valuable con- sideration is received in the construction of 1 Os, Dic.—30 the contemplated improvement. This consid- eration is paid by the company, and sound policy requires that its rights should be ascer- tained and protected by the same rules as are applied to private contracts.” McLean, J. Charles River Bridge v. Warren Bridge, 11 Pet. 558. “ Although an act of incorporation may be called a contract, the rules of construction ap- plied to it are admitted to be the reverse of those applied to other contracts.” Gruzr, J., dissenting, The Binghamton Bridge, 3 Wall. 82. Statutory Provision for Becoming a Cor- poration in Futuro. “Tt cannot, we think, be admitted that a statutory provision for becoming a corpora- tion in futuro can become a contract, in the sense of that clause of the Constitution of the United States which prohibits state legislation impairing its obligation, until it has become vested as a right by an actual organization under it; and then it takes effect as of that date, and subject to such Jaws as may then be in force.” Mattuews, J. Memphis, etc., R. Co. v. Railroad Com’rs, 112 U. S. 622. 2. IMPAIRMENT OF CONTRACTS AND IN- TERFERENCE WITH VESTED RIGHTS. In General. “This [corporate] franchise, like other franchises, is an incorporeal hereditament, is- suing out of something real or personal, or concerning or annexed to, and exercisable within a thing corporate. To this grant, or this franchise, the partes are, the king, and the person for whose benefit it is created, or trustees for them. The assent of both is necessary. The subjects of the grant are not only privileges and immunities, but prop- erty, or, which is the same thing, a capacity to acquire and to hold property in perpetuity. Certain obligations are created, binding both on the grantor and the grantees. On the part of the former, it amounts to an extin- guishment of the king’s prerogative to be- stow the same identical franchise on another corporate body, because it would prejudice his prior grant. It implies, therefore, a con- tract not to re-assert the right to grant the franchise to another, or to impair it. WasuH- INGTON, J. Dartmouth College v. Wood- ward, 4 Wheat. 657. “Nothing seems better settled at the com- mon law than the doctrine that the crown cannot force upon a.private corporation a new charter, or compel the old members to 465 CORPORATIONS. give up their own franchises, or to admit new members into the corporation. Neither can the crown compel a man to become a mem- ber of such corporation against his will As little has it been supposed, that under our limited governments, the legislature possessed such transcendent authority.” Srory, J. Dartmouth College v. Woodward, 4 Wheat. 707. “Tf the knowledge that a contract made by a state with individuals is equally pro- tected from invasion as a contract made be- tween natural persons, does not awaken watchfulness and care on the part of law- makers, it is difficult to perceive what would.” Davis, J. The Binghamton Bridge, 3 Wall. 74, “A provision in the charter of an incor- poration constitutes a contract which the state niay not subsequently impair.” Hunt, J. Humphrey v. Pegues, 16 Wall. 249. “Every contract is equally within the pro- tecting reach of the prohibitory clause of the Constitution. The charter of a corporation is a contract, and its obligations cannot be impaired.” Brewer, J. L. I. Water Supply Co. v. Brooklyn, 166 U. S. 690. That Charter Cannot Be Impaired Is the Settled Law of the Supreme Court. “ That the charter of a private corporation is a contract between the state and the cor- porators, and within the provision of the Constitution prohibiting legislation impair- ing the obligation of contracts, has been the settled law of this court since the decision in the Dartmouth College case. Nor does. it make any difference that the uses of the cor- poration are public, if the corporation itself be private The contract is equally protected from legislative interference, whether the public be interested in the exercise of its franchise or the charter be granted for the sole benefit of its corporators.” Fusxp, J. Delaware R. Tax, 18 Wall. 225. “It is now too late to contend that the charter of a corporation is, not a contract within the meaning of that clause in the Constitution of the United States which prohibits a state from passing any law im- pairing the obligation of a contract. What- ever is granted is secured subject only to the limitations and reservations in the charter or in the laws or constitutions which govern it.” Warrs, C. J. Chicago, etc, R. Co. v. Towa, 94 U. S. 161. “It is now too late to contend that any contract which a state actually enters into when granting a charter to a private corpora- tion is not within the protection of the clause in the Constitution of the United States that prohibits states from passing laws impairing the obligation of contracts.” Waitr, C. J. Stone v. Mississippi, 101 U. S. 816. State Cannot Alter or Repeal Charter. “The state cannot modify or repeal a charter for a bridge, a turnpike road, or a bank, or any other private charter, unless the power to do so has been reserved in the original grant.” McLean, J., concurring. West River Bridge Co. wv. Dix, 6 How. 537. “Legislative powers lawfully existing when the contracts are formed, affect the nature and enter into the obligation of those con- tracts. But such powers can be exerted only in the particular cases in reference to which they have been reserved; and they are in- operative in all other cases. And, until such a case arises, the obligation of such a con- tract can no more be impaired than if it were under no circumstances subject to legislative control. The assumption. that, because the legislature may destroy a contract by repeal- ing the charter of the corporation which made it, therefore such a contract may be impaired, or altered, or destroyed, in any manner the legislature may think fit, without repealing the charter, is wholly inadmissible. Currts, J. Curran v, Arkansas, 15 How. 312. “Every available privilege given by the charter, and which conduced to an acceptance of it and an organization under it, is a con- tract which cannot be changed by the legis- lature, where the power to. do so is not re- served in the charter.” McLean, J. Ohio State Bank v. Knoop, 16 How. 380. “Charters of private corporations are re- garded as executed contracts between the government and the corporators, and the rule is well settled that the legislature cannot re- peal, impair, or alter such a charter against the consent or without the default of the corporation judicially ascertained and de- clared.” CuiFForD, J. Pennsylvania College Cases, 13 Wall. 212. “Private charters of the kind importing such an exemption [from alternation, amend- ment or repeal] are held to be contracts, be- cause they are based for their consideration on the liabilities and duties which the cor- porators assume by -accepting the terms therein specified ; and the general rule is that the grant of the franchise on that account 466 CORPORATIONS, can nod more be resumed by the legislature, or if its benefits be diminished or impaired without the assent of the corporators, than any other grant of property or legal estate, unless the right to do so is reversed in the act of incorporation, or by some immemorial usage or general law of the state in opera- tion at the time the charter was granted.” Cuirrorp, J. Union Pass. R. Co. v. Phila- delphia, 101 U. S. 539. “The charter of a corporation is a con- tract between the state and its corporators, and protected under the Constitution of the United States, like any other contract, from legislation impairing its obligation.” Frevp, J. Maine Cent. R. Co. v. Maine, 96 U. S. 507. Charter Granted by the King Prior to the Revolution, “The grant of a state is a contract within the clause of the Constitution now in ques- tion [art. 1, sec. 10] an, . . . it implies a contract not to re-assume the rights granted. A fortiori, the doctrine applies to a charter or grant from the king.” Srory, J. Dart- mouth College v. Woodward, 4 Wheat. 682. Contract, and Not Charter, Protected. “Tt is not the charter which is protected [by Const. U. S, art. 1, sec. 10], but only any contract the charter may contain. If there is no contract, there is nothing in the grant on which the Constitution can act.” Waite, C. J. Stone v. Mississippi, 101 U. S. 817. Rights and Privileges Implied in Con- tract. “The first question, therefore, for con- sideration in all cases where legislation af- fects the constitution of a corporation, or its beneficial operation, is, what is the true con- struction of its charter, arid, consequently, what privileges does it confer and what re- straint does it impose upon legislative in- terference? The rights and privileges im- plied in the contract are equally as inviolable as thdse expressed.” Frenp, J., dissenting. Stone # Wisconsin, 94 U. S. 186. Interference with Vested Rights. “ Any act of a legislature which takes away any powers or franchises vested by its charter in a private corporation of its corporate of- ficers, or which restrains or controls the legit- imate exercise of them, or transfers them to other persons, without its assent, is a viola- tion of the obligations of that charter. If the Jegislature mean to claim stich an ca 6 it must be reserved in the grant.” Story, J. Dartmouth College v. Woodward, 4 Wheat, 712. “That the legislature can repeal statutes creating private corporations, or confirming to them property already acquired under the faith of previous laws, and by such repeal can vest the property of such corporations exclusively in the state, or dispose of the same to such purposes as they may please, without the consent or default of the corpo- tators, we are not prepared to admit; and we think ourselves standing upon the principles of natural justice, upon the fundaimental laws of every free government, upon the spirit and the letter of the Constitution of the United States, and upon the decisions of most respectable judicial tribunals, in resist- ing such a doctrine.” Story, J. Terrett v. Taylor, 9 Cranch 51. “Acts of incorporation, when granted on a valuable consideration, assume the nature of contracts; and vested rights under them are no more subject to the legislative power than any other vested rights.” McLean, J. Charles River Bridge v. Warren Bridge, 11 Pet. 569, “When land is granted, the state can ex- ercise no acts of ownership over it, unless it be taken fot public use; and the same rule applies to a grant for a bridge, a turnpike road, or any other public improvement. It would assume a bold position to say, that a subsequent legislature may resume the owner- ship of a tract of land, which had been granted at a preceding session; and yet the principle is the same in regard to vested rights, under an act of incorporation. By granting a franchise, the state does not divest itself of any portion of its sovereignty; but to advance the public interests, one or more individuals are vested with a capacity to ex- ercise the powers necessary to attain the des sited object.” McLean, J. Charles River Bridge v. Warren Bridge, 11 Pet. 560. “Even before the Dartmouth College case was decided, it was held by this court that grants of land made by the crown to colonial churches were irrevocable, and that property purchased by, or devised to them, prior to the adoption of the Constitution, could not be diverted to other purposes by the states which succeeded to the sovereign power of the colonies.” Brown, J. Pearsall v. Great Northern R. Co, 161 U, S. 661. “Wherever property rights have been ac- quired by virtue of a corporate charter, such CORPORATIONS. ‘rights, so far as they are necessary to the full and complete enjoyment of the main object of the grant, are contracts, and be- yond the reach of destructive legislation.” Brown, J. Pearsall v. Great Northern R. Co., 161 U. S. 661. “The sanctity of charters vesting in grantees the title to lands or other property has been vindicated in a large number of cases.” Brown, J. Pearsall v. Northern R. Co., 161 U. S. 662. “ All provisions in a charter granting rights or powers to a corporation do not partake of the nature of a contract, which can not for that reason be in any respect altered or the power recalled by subsequent legislation. Where no act is done under the provision and no vested right is acquired prior to the time when it was repealed, the provision may be validly recalled, without thereby . impair- ing the obligation of a contract. The power to issue stock in return for deposits is of that kind which we think is subject to legislative power of repeal or of regulation so long as the action of the legislature interferes with no rights which have become vested before the passage of the act.” PeckHam, J. Bank of Commerce v. Tennessee, 163 U. S. 425. What Does Not Amount to Impairment. “The provisions of a special charter or a special authority derived from the legislature are not affected by general legislation on the subject. The two are to be deemed to stand together; one as the general law of the land, the other as the law of the particular case.” Hunt, J. State v. Stoll, 17 Wall. 436, “Private corporations, by the Constitution of California, can be formed only under gen- eral laws; but all that is embraced by a gen- eral law of that character may not necessarily be a part of the contract of incorporation of parties forming themselves into a corporate Dody under it.” Fretp, J., dissenting. Spring Valley Water Works v. Schottler, 110 U.S. 375. “In many, if not in most, acts of incor- poration, however special in their nature, there are various provisions which are mat- ters of general law and not of contract, and are, therefore, subject to modification or re- peal.” MatrHews, J. Memphis, etc., R. Co. v. Railroad Com’rs, 112 U. S. 621. “Statutes which operate only to regulate the manner in which the franchises are to be exercised, and which do not interfere sub- stantially with the enjoyment of the main object of the grant, are not open to the ob- jection of impairing the contract.” Brown, _J. Pearsall v. Great Northern R. Co. 161 Uz S. 665. “The legislature may not destroy vested rights, whether they are expressly prohibited from doing so or not, but otherwise may legislate with respect to corporations, whether expressly permitted to do so or not.” Brown, J. Louisville, etc. R. Co. v. Ken- tucky, 161 U. S. 695. —— Granting Similar Franchise to An- other Corporation. “An exclusive right to enjoy a certain franchise is never presumed, and unless the charter contain words of exclusion, it is no impairment of the grant to permit another to do the same thing, although the value of the franchise to the first grantee may be wholly destroyed.” Brown, J. Pearsall v. Great Northern R. Co., 161 U. S. 664. Reduction of Transportation Rates. “A mere reduction of rates, while still leaving reasonable, fair or just compensation for the use of the property, is not prohibited.” PeckHaM, J. Stanislaus County v. San Joaquin, etc., Canal, etc., Co., 192 U. S. 213. Modification Before User by Corporation. “Until a general power granted to corpora- tions has been exercised, the terms and con- ditions under which it may be exercised are subject to legislative control. It may change or modify them, as it sees fit.” Brewer, J. East Tenn., etc., Ry. Co. v. Frazier, 139 U. S. 293. 3. RESERVATION OF RicHT To REPEAL, ALTER, OR AMEND. Constitutional Reservation of Right— Cannot Be Limited by Legislature. “The case before us differs from those in which, by the constitution of some of the states, this right to alter, amend, and repeal all laws creating corporate privileges becomes an inalienable legislative power. The power thus conferred cannot be limited or bar- gained away by any act of the legislature, because the power itself is beyond legislative control.” Miiter, J. New Jersey v. Yard, 95 U. S. 111. Reservation by Prior General Statute. “The elementary rule is if at the time a corporation is chartered and given either a commutation or exemption from taxation, there exists a general statute reserving the legislative power to repeal, alter or amend, 468 CORPORATIONS. the exemption or commutation from taxation may be revoked without impairing the obliga- tions of the contract, because the reserved power deprives the contract of its irrevocable character and submits it to the legislative control. The foundation of this rule is that a general statute reserving the power to re- peal, alter, or amend is by implication read into a subsequent charter and prevents it from becoming irrevocable.” Wuute, J. Citizens’ Saving Bank v. Owensboro, 173 U. S. 644. Legitimate Exercise of Right Does Not Impair Contracts. “Corporations are the creations of the state, endowed with such faculties as the state bestows and subject to such conditions as the state imposes, and if the power to modify their charters is reserved, that res- ervation is a part of the contract, and no change within the legitimate exercise of the power can be said to impair its obligation.” Futter, C. J. St. Louis, etc., R. Co. v. Paul, 173 U. S. 408. “ Where the constitution of a state reserves the right to repeal, alter or amend [the char- ters of corporations], all charters granted by the legislature are subject to such provision, and therefore are wanting in that attribute of irrevocability which is essential to bring them within the intendment of the clause of the Constitution of the United States protect- ing contracts from impairment.” Wuure, J. Northern Cent. R. Co. v. Maryland, 187 U. S. 267. Extent to Which Reserved Right May Be Exercised. “Charters of the kind may certainly be altered, modified, or amended in all cases where the power to pass such laws is re- ‘served in the charter or in some antecedent general law, nor can it be doubted that the assent of the corporation is sufficient to ren- . der such legislation valid, unless it appears that the new legislation will have the effect to change the control of the institution, or to divert the fund of the donors to some new use inconsistent with the intent and purpose for which the endowment was originally made.” CurFFrorD, J. Pennsylvania College Cases, 13 Wall. 220. “Vested rights, it is conceded, cannot be impaired under such a reversed power [to alter, amend or repeal], but it is clear that the power may be exercised and to almost any extent, to carry into effect the original purposes of the grant and to protect the rights of the public and of the corporators, or to promote the due administration of the affairs of the corporation.” CxiFForD, J. Union Pass. R. Co. v. Philadelphia, 101 U. S. 540. “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.” Gray, J. Close v. Glenwood Cemetery, 107 U. S. 476. “The legislature (which has power in ad- vance to determine what rights, privileges and duties it will give to and impose upon a corporation which it is creating) has, under the general reserved right to alter, amend or repeal the charter, power to impose new duties and new liabilities upon such artificial entities of its creation.” Brewer, J. Atchi- son, etc., R. Co. v. Matthews, 174 U. S. 104. “The effect of such a provision [that char- ters thenceforth granted should be subject to alteration, amendment or repeal at the pleas- ure of the legislature], whether contained in an original act of incorporation, or in a con- stitution or general law subject to which a charter is accepted, is, at the least, to reserve to the legislature the power to make any alteration or amendment of a charter subject to it, which will not defeat or substantially impair the object of the grant, and which the legislature may deem necessary to carry into effect the purpose of the grant, or to protect the rights of the public or of the cor- poration, its stockholders or creditors, or to promote the due administration of its af- fairs.” Gray, J. Looker v. Maynard, 179 Uz S. 52. “As the greater power includes every less power which is a part of it, the right to withdraw a franchise must authorize a with- drawal of every or any right or privilege which is a part of the franchise.” Srrone, J. Atlantic, etc., R. Co. v. Georgia, 98 U. S. 365. Reservation May Be Altered at Pleasure of State. “The general reservation of the power to alter, revoke or repeal a grant of special priv- ileges necessarily implies that the power may be exerted at the pleasure of the legislature.” Haran, J. Hamilton Gas Light Co. wv. Hamilton City, 146 U. S. 271. 469 CORPORATIONS. Limitations on Exercise of Right--In General. “There seems to be an impression im the minds of counsel, and, from the language not infrequently used by some judges, in their minds also, that the reservation in charters of corporations and in laws authorizing the formation of corporations, of a power to alter or repeal such charters or laws, operates as a gift to the state and to the legislature of uncontrolled authority over the business and property of the corporations. And yet no doctrine is more unfounded in principle or less supported by authority.” Ftexp, J., dis- senting. Spring Valley Water Works vw. Schottler, 110 U. S. 369. a “The power of alteration and amendment is not within limit. The alterations must be reasonable; they must be made in good faith, and be consistent with the scope and object of the act of incorporation. Sheer oppression and wrong cannot be inflicted under the guise of amendment or alteration. Beyond the sphere of the reserved powers, the vested rights of property of corporations, in such cases, are surrounded by the same sanctions and are as inviolable as in other cases.” Swayne, J. Shields v. Ohio, 95 U. S. 324. “Some of the cases, although holding that the power to amend or appeal was properly exercised m them, also state that the power is not without Kmit; that the alterations must be reasonably made, in good faith and con- sistent with the scope and object of the act of incorporation, and that sheer oppression and wrong could not be inflicted under the guise of amendment or alteration; that be- yond the sphere of the reserved powers the vested rights of property in corporations in such cases is surrounded by the same sanc- tion and are as inviolable as in other cases.” Peckuam, J. Stanislaus County v. San Joa- quin, etc., Canal, etc., Co., 192 U. S. 213. —— Alterations Must Net Impair Con- tracts. “Whatever power the state may possess over corporations in their creation or in pass- ing or amending the laws under which they are formed and altered, it cannot withdraw them from the guarantees of the federal Con- stitution.” Frexp, J., dissenting. Spring Val- ley Water Works v. Schottler, 110 U. S. 371. “Persons making contracts with a private corporation know that the legislature, even without the assent of the corporation, may amend, alter, or modify their charters in all cases where the power to do so is reserved - in the charter or in any antecedent general Jaw im operation at the time the charter was granted, and they also knew that such amend- ments, alterations, and modifications may, 2s a general rule, be made by the legislature with the assent of the eerporation, even in eases where the charter is unconditional in its terms and there is mo general law of the state containing any such reservation. Such contracts made between individuals and the corporation do not vary or in any manner change or modify the relation between the state and the corporation in respect to the right of the state to alter, modify, or amend such a charter, as the power to pass such laws depends upon the assent of the corpora- tion or upon some reservation made at the time, as evidenced by some pre-existing gen. eral law or by an express provision incerpo- rated into the charter.” Cxurrorp. J. Penn- sylvania, College Cases, 13 Wall. 248. “Whilst the legislature may reserve the right to revoke or change its ewn grant of chartered rights, it cannot reserve a right to invalidate contracts between third parties; as that would enable it to reserve the rignt to impair the validity of all contracts, and thus evade the inhibition of the Constitution ot the United States.” Brap.ey, J., dissenting. Miller v. State, 15 Wall. 499. “Legislatures often reserve the right to terminate a continuous contract at will; but never to violate a contract, or change its terms without the consent of the other party. The reserved power in question is simply that of legislation — to alter, amend, or repeal a charter. This is very different from the power to violate, or to alter the terms of a contract at will, A reservation of power to violate a contract, or alter it, or impair its obligation, would be repugnant to the con- tract itself, and void.” Brantey, J., dissent- ing. Sinking-Fund Cases, 99 U. S. 749, “The reserved power has not generally been supposed to authorize the legislature to revoke the contracts of the corporation with third parties, or to impair any vested rights acquired under them,” Frevp, J., dissenting. Stone vw. Wisconsin, 94 U. S. 186, —— Power Does Not Extend to Taking of Corporation’s Property. “The power to alter or amend does mot extend to taking of the property of the cor- poration either by confiscation or indirectly by other means.” Prcxmam, J.. Lake Shore, ete, R. Co w Smith, 173 U. §. 698. 470 CORPORATIONS. Discretion of Legislature as to Amend- ment. “The power to amend corporate charters is no doubt one that bad men may abuse, but when the amendments are within the scope of the power, the courts cannot inter- fere with the discretion of the legislatures that have been invested with authority to make them.” Waite, C. J. Spring Valley Water Works v. Schottler, 110 U. S. 355. Reservation Not Extended Beyond Ex- pressed Terms. “Tt is not easy to see why such a provision [reserving the right to alter, amend, or re- peal a charter] should be extended beyond the terms in which it is expressed; and all the force which properly belongs to it is given when the exemption from the constitu- tional provision against impairing the obliga- tion of contracts is extended as far as the language of the exemption justifies, and it should be extended no further by implica- tion.” Mutter, J. New Jersey v. Yard, 95 U.S. 118. Presumption from Omission to Reserve Right. “When the legislature intends to restrict the capital stock of a bank, or to require any portion of stock or stockholders to be indis- pensable for its legal existence and opera- tions, it is not uncommon to incorporate such a restriction into the charter. The omission to do so, is quite as significant that the legis- lature did not deem such a restriction sub- servient to any manifest public policy.” Story, J. Minor v. Mechanics Bank, 1 Pet. 64, 4, ASSENT OF CoRPORATION TO ALTERA- TION OR AMENDMENT. Assent Warrants Amendment. “The contract involved in such an act of incorporation is a contract between the state and the carporation, and as such the terms of the contract may, as a general rule, be altered, modified, or amended by the assent of the corporation, even though the charter contains no such reservation and there was none such existing in any general law of the state at the time the charter was granted.” CurrForpD, J. Pennsylvania College Cases, 13 Wall. 218. “Consent of the corporation, it is conceded, is sufficient to warrant alteration, modifica- tion, and amendments in the charters of mon- eyed, business, and commercial corporations.” Currrorp, J. Pennsylvania College Cases, 13 Wall. 220. 471 “If the new provisions altering and mod- ifying the charter were passed with the as- sent of the corporation and they were duly accepted by a corporate vote as amendments to the original charter, they cannot be re- garded as impairing the obligation of the con- tract created by the original charter.” CuxrP- ForD, J. Pennsylvania College Cases, 13 Wall. 213. Prerogative of the King. “It was settled at an early period that it was the prerogative of the king to create cor- porations; but he could not grant the same identical powers to a second corporation while the prior one subsisted, and, unless the power was reserved, he could not alter, amend, or annul a charter without the con- sent of the corporate body to which it be- longed. To the extent of such assent amend- ments were effectual, and no further.” Swayne, J. Farrington v. Tennessee, 95 Uz. S. 683. Power of Corporation to Accept Amend- ment. “Tt was entirely competent for it [a cor- poration] to waive —as, by its acceptance of the amended charter, it did waive — any such exemption [from the operation of general laws], and in consideration of that character, agree to come under the general laws on the subject of the business in which it was en- gaged, which did not materially impair its right to carry on that business, or take from it any substantial privilege conferred by the original charter.” Harzan, J. Chicago L.: Ins, Co. v. Needles, 113 U. S. 584. 5. Power oF Majority STocKHOLD- ERS TO Brinn MINORIFY BY ‘AMENDMENT. General Principles, “There is much discussion in the author- ities as to when a charter amendment is of- that fundamental character that a majority of the members or stockholders cannot bind the minority by agreeing to a change in the nature of the business to be carried on or the purposes or objects for which the cor- poration was. created. Each case depends upon its own circumstances, and how far the right of amendment has been impliedly or expressly reserved in the creation of cor- porate rights. It would be unreasonable-and oppressive to require a member or stockholder to remain in a corporation whose fundamental purposes have been changed against his will. On the other hand, where the right of amend- ment is reserved in the statute or articles of COSTS. association, it is because the right to make changes which the business may require is recognized, and the exercise of the privilege may be vested in the controlling body of the corporation. In such cases, where there is an exercise of the power in good faith, which does not change the essential character of the business, but authorizes its extension upon a modified plan, both reason and authority support the corporation in the exercise of the right.” Day, J. Wright v. Minnesota Mut. L. Ins. Co., 193 U. S. 663. Amendment Affecting Substantial Rights. “Tt is not every change in the charter or articles of association of a corporation that will work such a departure from the purpose of its creation as to forfeit obligations in- curred to it or prevent the carrying on of the modified business. A radical departure af- fecting substantial rights may release those who had come into the corporation on the basis of its original charter.” Day, J. Wright v. Minnesota Mut. L. Ins. Co., 193 U.S. 663. X. MISCELLANEOUS. Corporations Necessary under Modern Conditions. “The conditions of society and the modes of doing business in this country are such that a large part of its transactions is con- ducted through the agency of corporations. This is especially true with regard to the business of banking, insurance, and trans- portation. Individuals cannot safely engage in enterprises of this sort, requiring large capital. They can only be successfully car- ried out by corporations, in which individuals may safely join their small contributions without endangering their entire fortunes.” Brab.ey, J., dissenting. Doyle v. Continental Ins. Co., 94 U. S. 544. Large Commercial Enterprises Usually Conducted by Corporations. “ At the present day, nearly all enterprises of a commercial character, requiring for their successful management large expenditures of money, are conducted by corporations.” Fretp, J. Gloucester Ferry Co. v. Pennsyl- vania, 114 U. S. 205. Evils Arising from Growth of Corpora- tions. “The rapid absorption of the business of the country of every character by corpora- tions, while productive of much good to the public, is beginning also to develop many evils, not the least of which arises from their failure to pay debts and perform the duties which by the terms of their organization they assumed.” Mutter, J., dissenting. Barton v. Barbour, 104 U. S. 137. Right of Corporation to Earn a Given Percentage on Its Investment. “Tt cannot be said that a corporation is entitled, as of right, and without reference to its interests in the public, to realize a given per cent upon its capital stock.” Har- LAN, J. Covington, etc, Turnpike Co. vw. Sandford, 164 U. S. 596. COSTS. See ATTORNEY AND CLIENT; JUDGMENTS AND DECREES. INTEREST 3 Costs at Common Law — In Civil Actions. “ Costs, e0 nomine, were not recoverable at common law, and are usually regulated by statute.” Warre, C. J. Antoni v. Greenhow, 107 U. S. 781. “Ordinarily, by the long established prac- tice and universally recognized rule of the common law, in actions at law, the prevailing party is entitled to recover a judgment for costs, the exception being that where there is not jurisdiction in the court to determine the litigation, the cause must be dismissed for that reason, and, as the court can render no judgment for or against either party, it can- not render a judgment even for costs.” MatrHews, J. Mansfield R. Co. v. Swan, 111 U. S. 387. “By the common law, at first, while no costs, eo nomine, were awarded to either party, yet a plaintiff who failed to recover in a civil action was amerced pro falso clamore.” Gray, J. Lowe v. Kansas, 163 Uz S. 85. “Costs in civil actions at law are the crea- ture of statute. From early times, there have been statutes making different rules as to costs, according to the nature of the issue, and the amount involved; and sometimes al- lowing costs to the prevailing party when plaintiff, and not when defendant. The whole matter of costs, including the party to or against whom they may be given, the items or sums to be allowed, and the right to costs as depending upon the nature of the suit, upon the amount or value of the thing sued for or recovered, or upon other circumstances, is and always has been within the regulation and control of the legislature, exercising its discretionary power, not oppressively to either 472 COSTS. party, but as the best interests of the litigants and of the public may appear to it to de- mand.” Gray, J., dissenting. Gulf, etc., R. Co. v. Ellis, 165 U. S. 166. —- In Criminal Proceedings. “By the common law, the public pays no costs.” Stronc, J Phillips v. Gaines, 131 U. S. clxx. “Costs in criminal proceedings are a crea- ture of statute.” Strone, J. Phillips wv. Gaines, 131 U. S. clxx. In the Supreme Court of the United States. “The court does not give costs where a cause is dismissed for want of jurisdiction.” MarsHalt, C. J. Inglee vu. Coolidge, 2 Wheat. 368. : “The costs claimed are allowed or refused in controversies arising under the patent acts, upon the same principles and by the same laws, which govern the court in the taxation of costs in any other case that may come before it.” Taney, C. J. Sizer v. Many, 16 How. 103. “It has been often decided that if a suit is dismissed for want of jurisdiction in this court no judgment for the costs of the suit can be given. A different rule pre- vails when there has been a reversal here be- cause the Circuit Court did not have juris- diction, as this court has authority to correct the error of the Circuit Court in taking ju- risdiction.” Wartre, C. J. Bradstreet Co. v. Higgins, 114 U. S. 263. “The general rule is that costs will not be allowed in this court. Sometimes an excep- tion to that rule is admitted, as where the defendant in the court below is the defendant in this court.” Cxirrorp, J. Hornthall v. Keary, 9 Wall. 567. In Equity Causes. “In equity cases, where there is no in- junction bond, only the taxable costs are al- lowed to the complainants.” Swayne, J. Oelrichs v. Spain, 15 Wall. 231. “Tn actions at law, it is the general rule, that the losing parties, or the parties against whom judgment is rendered, are to pay the costs; and no apportionment of the costs is made between them. Each is liable for all, - whatever may be their respective interests in the subject-matter of the suit. In equity it is different. There the court has a discre- tion as to the costs, and may impose them all upon one party, or may divide them in such manner as it sees fit,’ BrapLey, J. Kittredge v. Race, 92 U, S. 121. “While contract rights are settled by the law of the state, that law does not determine the procedure of the courts of the United States sitting as courts of equity, or the costs which are taxable there, or control the dis- cretion exercised in matters of allowances.” Brewer, J. Dodge v. Tulleys, 144 U. S. 457. In Probate Cases. “Costs in probate cases generally rest in the discretion of the court, and are often not allowed even to the prevailing party.” Gray, J. McArthur v. Scott, 113 U. S. 400. In Actions and Prosecutions by the United States, “ The sovereignty of a government not only protects it against suits directly, but against judgments even for cost, when it fails in prosecutions.” Woopsury, J. Reeside vw. Walker, 11 How. 290. “We know of no case in this court directly adjudicating the liability of unsuccessful de- fendants for costs in actions brought by the United States.” Brown, J. Pine River Log- ging Co. v. U. S., 186 U. S. 296. “While the rule is well settled that costs cannot be taxed against the United States, the rule is believed to be universal, in civil cases at least, that the United States recover the same costs as if they were a private in- dividual.” Brown, J. Pine River Logging Co. v. U. S., 186 U. S. 296. “The government has many advantages in proceeding which are not possessed by in- dividuals and is not liable to costs; and individuals prosecuting claims against other individuals ought not to have the advan- tage of the name and prestige of the United States.” Brapiey, J. U.S. Ryder, 110 U. S. 740. Taxation of Costs Against Unsuccessful Prosecutor. “From early times the legislature and the courts, in England and America, in order to put a check on unjust litigation, have not only, as a general rule, awarded costs to the party prevailing in a civil action, but have, not infrequently, required actual payment of costs, or security for their payment, from the plaintiff in a civil action, or even from the prosecutor in a criminal proceeding.” Gray, J. Lowe v. Kansas, 163 U. S. 85. 473 COUNTERFEITING. “English statutes, from long before the American Revolution, authorized cests against informers upon a penal statute, or against private prosecutors of an indictment or information, to be awarded by the court, either absolutely, or unless the judge, be- fore whom the trial was had, certified that there was probable cause for the prosecu- tion.” Gray, J. Lowe v. Kansas, 163 U. S. 86. — Taking Property Without Due Proc- ess of Law. “Tf the prosecutor can be subjected to a judgment for costs and to imprisonment, without being able to lay before the jury the testimony which would tend to. his acquittal, he is deprived of his liberty and property without due process, of law, within the mean- ing of the Fourteenth Amendment.” Brown, J., dissenting, Lowe wv. Kansas, 163 U. S. 90, “¥ do think it constitutional to so frame a criminal law as to make it incumbent upon the prosecutor to enter a complaint at the peril of being mulcted in costs in case the prosecution was malicious, without giving him an opportunity of showing that the com- plaint was in good faith and with probable cause to believe that the defendant was guilty.’ Brown, J., dissenting. Lowe v. Kansas, 163 U. S. 92. : Cost Should Not Be Increased Unneces- sarily. “Care should be taken that costs are not unnecessarily increased by incorporating use- less papers, and that the case is presented fairly and intelligently.” Warre, C. J. Union Pac. R. Co. v. Stewart, 95 U. S. 284. Suits in Forma Pauperis. “Costs are the creatures of statute, and it is settled that authority to permit prose- cution in forma pauperis must be given by statute.” Funzer, C. J. Bradford v. South- ern R. Co., 195 U. S. 251. COUNTERCLAIM. See SEt-orr AND CoUNTERCLAIM. COUNTERFEITING. Power of States and United States to Punish. “The existence of state laws punishing the counterfeiting of the coin of the United States has never been held to supersede the Acts of Congress passed for that purpose or to justify the United States in failing to en- force its own laws te protect the cireulation of the coin which it issues.” Mimer, J. Er p. Yarbrough, 110 U. S. 65% “The case of counterfeiting the money of the United States is excepted by statute from the law givimg exclusive jurisdiction to the United States courts of offenses against the laws of the United States.” PrcxHam, J. Sexton v. California, 189 U. S. 322. Counterfeiting Money of Foreign Nation. “The law of nations requires every na- tional government to use ‘due diligence” to prevent a wrong being done within its own dominion to another nation with which it is at peace, or to the people thereof; and be- cause of this the obligation of one nation to punish those who within its own jurisdiction counterfeit the money of another nation has Iong been recognized.” Waite, C. J. U.S. v. Arjona, 120 U. S. 484. Circulation of Spurious Coin. “Whatever functions Congress are, by the Constitution, authorized to perform, they are, when the public good requires it, bound to perform; and on this: principle, having emit- ted a circulating medium, a standard of value indispensable for the purposes of the com- munity, amd for the action of the government itself, they are accordingly authorized and bound in duty to prevent its debasement and expulsion, and the destruction of the gen- eral confidence and convenience, by the in- flux and substitution of a spurious. cain in lieu of the constitutional currency.” Danze, J. U.S. v. Marigold, 9 How. 567. “We admit that the clause of the Constitu- tion authorizing Congress to provide for the punishment of counterfeiting the securities and. current coin of the United States does not embrace within its language the of- fense of uttering or circulating spurious or counterfeited coin (the term counterfeit, bath by its etymology and common intendment, signifying the fabrication of a false image or representation); nor do we think it neces- sary or regular to. seek the foundation of the offense of circulating spurious coin, or for the origin of the right to punish that offense, either im the section of the statute before quoted, or in this clause of the Con- stitution. We trace both the offense and the authority to punish it to the power given by the Constitution to coim money, and to the correspondent and necessary power and obligation to protect and to preserve in its pusity this. constitutional currency for the 474 COUNTIES. benefit of the nation.” Dang, J. U.S. vu. Marigold, 9 How. 568. ~~ Evidence. “A single act of passing counterfeit money is very little, if any, evidence that the party knew it was counterfeit, since the innocent passing of such money is an every-day oc- currence; hut if it be shown that the person accused made other attempts to pass the money at or about the same time, or that he had other counterfeit money in his posses- sion, the proof of scienter is complete.” Brown, J., dissenting. U. S. uv. Budd, 144 U. S. 169. COUNTIES. See Bonps; MunIcrpAL CoRPORATIONS; RatiFry. Distinct Legal Entities, “A county is in many ways a distinct legal : entity from its citizens, but it is. created for their benefit, and its duties and powers are conferred to be exercised for their welfare.” McKenna, J. Stanly County v. Coler, 190 U. S. 446. Political Units of Territory. “In Maryland and most of the Southern states the political unit of territory is the county, though this is sometimes, divided into parishes and election districts for limited purposes.” Brapiey, J. Enfield v. Jordan, t19 U. S. 685. Legislative Control. “Public duties are required of counties as well as of towns, as a part of the machinery of the state; and, in order that they may be able to perform those duties, they are vested with certain corporate powers; but their functions are wholly of a public nature, and they are at all times as much subject to the will of the legislature as incorporated towns.” Cuirrorp, J. Laramie County v. Albany County, 92 U. §. 311, “Opposition is sometimes manifested; but it is everywhere acknowledged that the leg- islature possesses the power to. divide coun- ties and towns at their pleasure, and to ap- portion the common property and the common burdens in such manner as to them may seem reasonable and equitable.” CtLiFForp, J. Laramie County v. Albany County, 92 U. S. 312. _ —— Counties Have No Implied Powers. “Tt has bheem many times decided that County Courts in Missouri, while acting as the governing bodies of their counties, which are nothing more than political subdivisions of the state, have no implied powers. Au- thority must be conferred on them by law to act, or they cammat act at all. This is not peculiar to the county officials of Mis- souri. The same principle applies to all mu- nicipal organizations in all the states, and im this respect it matters but little whether the organization exists as a full corporation or a quasi corporation. The point is that all such organizations for local government, by whatever name they may be called, have anly such powers as the legislatures of their re- spective states see fit to delegate to them. But all powers that are delegated may be exercised in any proper way and at all proper times.” Warts, C. J. Ralls County Court v. U.S, 105 U. S. 737. Powers, Duties, and Liabilities. “It is clear that the levying and collec- tion of a tax to meet a county subscription to the stock of a railroad company, is not a business connected with the laying of the county levy, or with appropriations of money out of such Ievy.” Haran, J. Meriwether v. Muhlenburg Ct., 120 U. S. 357. “The erection of court-houses, jails and bridges is amongst the ordinary political or administrative duties of all counties.” Brap- Ley, J. Claiborne County v. Brooks, 111 U. S. 406. “ Where work is done in a particular county for the benefit of the public, the cost is often- times cast upon the county itself instead of upon the whole state.” Frirtp, J. Charlotte, etc., R. Co. uv. Gibbes, 142 UL §. 398. “The obligation to do justice rests upon all persons, natural and. artificial, and if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation.” Fretp, J. Marsh v. Fulton County, 10: Wall. 684. County Warrants. ; “ All the courts agree that the instruments [county warrants] are mere prima facie and not conclusive evidence of the validity of the allowed claims against the county by which they were issued. The county is not estopped from questioning the legality of the claims; and when this is conceded the instruments conclude nothing as to other demands be- tween the parties.” Fienp, J. Wall v. Mon- roe County, 103 U. S. 78. 475 COURTS. COUPONS. See Bonps; NeEGoTIABLE INSTRUMENTS. COURSE. See CoLLision. “A vessel which voluntarily becomes mo- tionless cannot properly be said to keep her course. The word ‘course,’ both from its etymology and the primary meaning given to it by lexicographers, signifies a running or moving forward—a continuous progression or advance.” Surras, J. The Britannia, 153 UL S, 142. COURTS. I. Powers AND DuTIES OF CouRTS IN GENERAL. . Purpose for Which Courts Are Established. . Courts Form Co-ordinate Branch of Government. . Power of Courts Is Moral, Not Physical. . Powers and Duties of Courts Are Judicial. . Cases to Which Judicial Power of United States Extends. . Power to Construe Constitutions and Laws. . Courts Must Perform Duties Im- posed on Them. II. Power oF ConcreEss To ESTAs- 8. . Power LISH AND REGULATE CourRTS. . Regulation of State Courts. . Requiring Agency of State Offi- cers in Federal Proceedings. . Duty to Create Courts and Invest Them with Judicial Power. to Establish Inferior Courts of the United States. . Discretion as to Distribution of Judicial Power. . Power to Regulate Jurisdiction of United States Courts. . Judicial Authority Derived from United States Constitution and‘ Laws. Power to Exclude Courts from Exercise of Judicial Power. TIT. Strate INTERFERENCE WITH FED- ERAL Courts. IV. ConstituTion AND CoNVENTION. V. SupReEME CourT OF THE UNITED 1. STATES. Jurisdiction Is Special and Lim- ited. oo . Original Jurisdiction. _ . Suits to Which States Are Par- ties. . Suits to Which United States Is a Party. . Appellate Jurisdiction in General. . Review of Decisions of State Courts. . Territorial Extent of Jurisdiction. . Restriction, Enlargement, and Regulation of Jurisdiction. . Power to Prescribe Process and Regulate Procedure. VI. Circurr Courts oF APPEALS. VII. Circuir aANp District Courts OF THE UNITED STATES. VIII. Court or CLaIMs. IX. JuRisDICTION www on 10. 11. 12. 13. 14. . Suits at Common Law and OF INFERIOR UNITED STATES Courts. . Circuit Courts. . District Courts. . Criminal Jurisdiction. . Jurisdiction Dependent on Act of Congress. in Equity. . Cases Arising under Constitution or Laws of United States. . Controversies Between Citizens of Different States. . Amount or Value of Thing in Controversy. . Contracts Arising from Internal Commerce of States. Cases in Which Constitution Ex- cludes Jurisdiction. District in Which Suit May Be Brought. Jurisdiction Must Be Apparent on Face of Record. Objections to Jurisdiction. Jurisdiction Not Defeated by Change in Condition of Parties. X. CoNncuRRENT JURISDICTION OF STATE AND FEDERAL CouRTS. XI. State Laws anp DEcIsIons AS 1. 2. 3. 4, 5. 476 Rutes oF DEcIsIon For FeEp- ERAL Courts. Federal Courts Recognize and En- force State Laws. State Decisions as to State Stat- utes. Local Laws as Disclosed by State Decisions. Decisions Establishing Rules of Property. Decisions as to Questions of Tax- ation. COURTS. 6. State Decisions on Questions of General Law. 7. Decisions Construing United States Constitution or Laws. 8. Following Latest Decisions of State Courts. 9. State Construction of Written In- struments. : XII. Rures GoverNING PROCEDURE OF FEDERAL Courts. CROSS-REFERENCES. As to fictitious actions, see ABUSE OF Proc- ESS; liability for false imprisonment, see Fatse IMPRISONMENT. That the District of Columbia ts not a state for the purpose of giving jurisdiction to the federal courts, see District oF CoLUMBIA. For other maiters related to this title, see ADMIRALTY; ALIENS; APPEAL AND ERRor; CaptuRE, RECAPTURE, CONFISCATION, - AND Prize; Crrizens AND CITIZENSHIP; CoNn- Gress; Conguests; ConstiruTionaL Law; ConsuLar Courts; CoNTEMPT; CORPORA- TIons; Courts Martiat; CrimrnaL Law; Decisions; Discretion; Dvr Process oF Law; Egurry; Foreign Laws; GoveRNn- MENT; INDIANS; INJUNCTIONS; INSOLVENCY ; INTERNATIONAL Law; INTERPRETATION AND ConstTRUCTION ; JUDGES; JUDGMENTS AND DE- CREES; JupicIAL Notice; JupIcIAL QUES- TIONS; JuRispicTION; Manpamus; MartTIAL Law; Oatus; Ogstructinc Justice; PEr- sons; PrecEDENT; Process; Recorps; RE- MOVAL OF Causes; Res JupicaTA; RULES oF Court; Stare Decisis; Statutes; TERM AND VACATION. I. POWERS AND DUTIES OF COURTS IN GENERAL. 1. Purpose ror WuHicH Courts ARE ESTABLISHED. “The object in establishing judicial tri- bunals is that controversies between parties, which may be the subject of litigation, shall be finally determined.” Harzan, J. Johnson Co. v. Wharton, 152 U. S. 257. 2. Courts Form Co-oRDINATE BRANCH oF GOVERNMENT. Courts Not Subordinate to Other Branches. “The position and rank . . assigned to this court in the government of the United States, differ from that of the highest judicial power in England, which is subordinate to the legislative power, and bound to obey any law that Parliament may pass, although it may, in the opinion of the court, be in con- flict with the principles of Magna Charta or the Petition of Rights.” Taney, C. J. Gordon v. U. S., 117 U. §. 700. “Tt was to prevent an appeal to the sword and a dissolution of the compact that this court by the organic law, was made equal in origin and equal in title to the legislative and executive branches of the government; its powers defined, and limited, and made strictly judicial, and place therefore beyond the reach of the powers delegated to the legislative and executive departments.” Taney, C. J. Gordon v. U. S, 117 U. S. 701. “ The decisions of the courts of the United States within their sphere of action, are as conclusive as the laws of Congress made in pursuance of the Constitution. This is es- sential to the peace of the nation, and to the vigor and efficiency of the government. A different principle would lead to the most mischievous consequences.” Swayne, J. Nashville v. Cooper, 6 Wall. 253. “They [the framers of the Constitution] designed to make a government not only independent and self-sustained, but supreme in every function within the scope of its authority. The judgments of this court have uniformly held that it is so.” Swayne, J. Nashville v. Cooper, 6 Wall. 253. —-Supreme Court Owes Its Existence to Constitution. “The Supreme Court does not owe its ex- istence or its powers to the legislative de- partment of the government. It is created by the Constitution, and represents one of the three great divisions of power in the govern- ment of the United States, to each of which the Constitution has assigned its appropriate duties and powers, and made each independ- ent of the other in performing its appropriate functions.” TANeEy, C. J. Gordon v. U. S. 117 U. S. 699. “In the discharge of his constitutional duties, the federal executive acts upon the people of the Union, the same as a governor of a state, in the performance of his duties, acts upon the people of the state. And the judicial power of the United States acts in the same manner on the people. It rests upon the same basis as the other departments of the government. The powers of each are derived from the same source, and are con- 477 COURTS. ferred by the same instrument. They have the same limitations and extent.” M’Lean, J. Worcester v. Georgia, 6 Pet. 571. “The powers of this court are expressly, not constructively, given by the Constitution; and within this delegation of power this court are the Supreme Court of the people of the United States, and they are bound to discharge their duties, under the same re- sponsibilities as the Supreme Court of a state; and are equally, within their powers, the Supreme Court of the people of each state.” M’LEan, J. Worcester v. Georgia, 6 Pet. 572. 3 — Existence of Supreme Court Essential to Government Established by the Con- stitution. “ The existence of this court is . . . as essential to the organization of the govern- ment established by the Constitution as the election of a president or members of Con- gress. It is the tribunal which is ultimately to decide all judicial questions confided to the government of the United States. No appeal is given from its decisions, nor any power given to the legislative or executive de- partments to interfere with its judgments or process of execution.” Taney, C. J. Gor- don vw. U.S, 117 UL S. 700. —— Inferiority Inconsistent with Idea of Judicial Action. “Tt is not consistent with the idea of ju- dicial action that it should be subject to the direction of a superior, in the sense in which that authority is conferred upon the head of an executive department in reference to his subordinates. Such a subjection takes from it the quality of a judicial act.” MatrHeEws, J. Butterworth v. Hoe, 112 U. S. 67. Judiciary Acts as Check on Other Branches. “The high power has been conferred on this court of passing judgments upon the acts of the state sovereignties, and of the leg- islative and executive branches of the federal government, and of determining whether they are beyond the limits of power marked out for them respectively by the Constitution of the United States.” Taney, C. J. Luther ». Borden, 7 How. 47. “Tf the judiciary at times seems to fill the important station of a check in the gov- ernment, it is rather a check on the legisla- ture, who may attempt to pass laws con- trary to the Constitution, or on the executive, ' who may violate both the laws and Constitu- tion, than the people themselves in their primary capacity as makers and amenders of constitutions.” Wooppury, J., dissenting. Luther v. Borden, 7 How. 53. “Instead of controlling the people in po- litical affairs, ‘the judiciary in our system was designed rather to control individuals, on the one hand, when encroaching, or to defend them, on the other, under the Con- stitution and laws, when they are encroached upon.” Woopsury, J., dissenting. Luther v. Borden, 7 How. 68. “TE the people, in the distribution of pow- ers under the Constitution, should ever think of making judges supreme arbiters in polit- ical controversies, when not selected by nor, frequently, amenable to them, nor at liberty to follow such various considerations in their judgments as belong to mere political ques- tions, they will dethrone themselves and lose one of their own invaluable birthrights; building up in this way — slowly, but surely —a new sovereign power in the republic, in most respects irresponsible and unchangeable for life, and one more dangerous, in theory at least, than the worst elective oligarchy in the worst of times.” Woopsury, J., disserit- ing. Luther v. Borden, 7 How. 53. Judiciary Co-ordinate with Legislature, Not with People. “The judiciary power is not regarded by elementary writers on politics and jurispru- dence as a power of co-ordinate or com- mensurate with that of the people themselves, but rather co-ordinate with that of the legis- lature.” Woopsury, J., dissenting. Luther v. Borden, 7 How. 53. “Judges, for constitutions, must go to the people of their own country, and must merely enforce such as the people themselves, whose judicial servants they are, have been pleased to put into operation.” Woopsury, J., diss senting. Luther vw. Borden, 7 How. 51. “Constitutions and laws precede the ju- diciary, and we act only under and after them, and as to disputed rights beneath them, rather than disputed points in mak- ing them. We speak what is the law jus dicere, we speak or construe what is the con- stitution, after both are made, but we make, or revise, or control neither.” Woopsury, J., dissenting, Luther v. Borden, 7 How. 52. “ Judicial power presupposes an established government capable of enacting laws and en- forcing their execution, and of appointing judges to expound and administer them. The 478 COURTS. acceptance of the judicial office is a recog- nitton of the authority of the government from which it is derived. And if the au- thority of that government is annulled and overthrown, the power of its courts and other officers is annulled with it.” Tangy, C. J. Luther v. Borden, 7 How. 40. Courts Not Agencies of Government. “The courts of the United States are in no sense agencies of the federal government, nor is the latter liable for their errors or mistakes; they ‘are independent tribunals, created and supported, it is true, by the United States; but the government stands before them in no other position than that of an ordinary litigant.” Brown, J. U.S. v. Dun- nington, 146 U, S. 351. “The United States have no greater in- terest, in cases to which they are not a party, in a court of the United States, than in a territorial court.” Gray, J. U.S. v. McMil- lan, 165 U. S. 513. Judiciary Is Independent. “God forbid that a judicial power in these states should ever, for a moment, even in its humblest departments, feel a doubt of its own independence.” JoHNsoN, J., concurring. Martin v. Hunter, 1 Wheat. 381. Judicial Power Vested in Courts. “The judicial power is vested in one Su- preme Court, and in such inferior courts as Congress may ordain and establish; the po- litical power of the government in the other two governments.” Neson, J. Georgia v. Stanton, 6 Wall. 71. “The Constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as Congress shall, from time to time, ordain and es- tablish.” Marswatt, C.J. Marbury v. Mad- ison, 1 Cranch 173. 3. Power oF Courts Is Morar, Nor PHYSICAL. “The power of this court is moral, not physical; it operates by its influence, by pub- lic confidence in the soundness and uniformity of the principles on which it acts; not by its mere authority as a tribunal, from which there is no appeal; and if even its solemn decisions should be overlooked by itself, or we should cease to respect those of our pred- ecessors, the people and the states will still adhere to them: and our successors will re- fuse to follow our deviations from the an- cient path.” Batpwin, J. Holmes v. Jenni- son, 14 Pet. 618. ’ “The opinion of this court is of high au- thority in itself; and the judge who delivers it has a support as strong in moral influence over public opinion, as any human tribunal can impart.” Batpwin, J. Cherokee Nation v. Georgia, 5 Pet. 32. 4, PowERS AND DUTIES OF CouRTS ARE JUDICIAL, Powers Are Judicial Only. “The power conferred on this court is ex- clusively judicial, and it cannot be required or authorized to exercise any other.” Taney, C. J. Gordon v. U. S., 117 U. S. 700. “The powers given to the courts of the United States by the Constitution are judi- cial powers; and extend to those subjects, only, which are judicial in their character; and not to those which are political, And whether the suit is between states or be- tween individuals, the matter sued for must be one which is properly the subject of ju- dicial cognizance and control, in order to give jurisdiction te the court to try and de- cide the rights of the parties to the suit.” Taney, C. J., dissenting. Rhode Island v. Massachusetts, 12 Pet. 752, “Tt is the province of the courts to de- cide causes between parties, and, in so do- ing, to construe the Constitution and the statutes of the United States, and of the several states, and to declare the law, and when their judgments are rendered, to en- force them by such remedies as legislation has prescribed, or as are allowed by the estab- lished practice. When they go beyond this, they go outside of their legitimate domain, and encroach upon the other departments of the government.” Fie.tp, J. Meriwether v. Garrett, 102 U. S. 515. Courts Should Not Act Beyond Their Appropriate Sphere. “This tribunal should be the last to overstep the boundaries which limit its own jurisdiction. And while it should al- ways be ‘ready to meet any question confided to it by the Constitution, it is equally its duty not to pass beyond its appropriate sphere of action, and to take care not to involve itself in discussions which properly belong to other forums.” Taney, C. J. Luther ». Borden, 7 How. 47. Distinction Between Judicial and Legis- lative Powers. “The judicial power is exercised in the decision of cases; the legislative, in making general regulations by the enactment of laws. 479 COURTS. The latter acts from considerations of public policy; the former by the pleadings and evi- dence in a case.” McLean, J., dissenting. Pennsylvania v. Wheeling, etc., Bridge Co., 18 How. 440. “The distinction between a judicial and a legislative act is well defined. The one de- termines what the law is, and what the rights of parties are, with reference to transactions already had; the other prescribes what the law shall be in future cases arising under it.” Fretp, J., dissenting. Sinking-Fund Cases, 99 U. S. 761. Courts Have No Legislative Powers, “Tt does not belong to courts to interpolate constitutional restrictions. Our duty is to apply the law, not to make it. All power may be abused where no safeguards are provided. The remedy in such cases lies with the peo- ple, and not with the judiciary.” Swayne, J. Pine Grove Tp. v. Talcott, 19 Wall. 677. “This court can alter the practice by a rule, but, to overturn a judgment, that has already been rendered under such a practice, I must respectfully contend, approaches very near to ex post facto legislation, not adjudi- cation; the province of which is to operate only upon existing laws.” Jonson, J., dis- senting. Doe v. Grymes, 1 Pet. 473. “We cannot create new rights or confer new powers. All we can do is to bring ex- isting powers into operation. Warre, C. J. U. S. v. Macon County, 99 U. S. 591. “Tt is not within the power of the courts to overrule the judgment of Congress.” Brewek, J. Matter of Heff, 197 U. S. 499. —— Courts Cannot Make the Law. “We must always remember that the court cannot make the law, it can only declare it.’ Braptey, J. The Lottawanna, 21 Wall. 576. “Our duty is to execute the law, uot to make it.” Swayne, J. Calhoun County v. Galbraith, 99 U. S. 219. -—— Courts Administer the Law as It Is. “To the legislative power alone it must belong to determine when the violence of other nations is to be met by violence. To the judiciary, to administer law and justice as it is, not as it is made to be by the folly or caprice of other nations.” Jounson, J. The Nereide, 9 Cranch 432. “The Sunday laws, no doubt, would be sustained by a bench of judges, even if every ‘to obey, not to evade or make it.” one of them thought it superstitious to make any day holy. Or, to take cases where opin- ion has moved in the opposite direction, wagers may be declared illegal without the aid of statute, or lotteries forbidden by ex- press enactment, although at an earlier day they were thought pardonable at least. The case would not be decided differently if lot- teries had been lawful when the Fourteenth Amendment became law, as indeed they were in some civilized states.” Hotmes, J. Otis v. Parker, 187 U. S. 609. — Courts Cannot Disregard Existing Laws. “This court has no dispensing power over the provisions of an Act of Congress. It is itself only the servant of the law, bound FrE.p, J., dissenting. Chew Heong v. U. S., 112 U. S. 577, —— Courts Do Not Inquire into Wisdom of Laws. “When the claims of individuals come in conflict under them [constitutions and laws], it is the true province of the judiciary to decide what they rightfully are ‘under such constitutions and laws, rather than to de- cide whether those constitutions and laws themselves have been rightfully or wisely made.” ‘Woopsury, J., dissenting. Luther v. Borden, 7 How. 54. “The corrective to improvident legisla- tion is not in the courts, but it is to be found elsewhere.” Davis, J. The Bingham- ton Bridge, 3 Wall. 74. “The rights of the parties rest upon a statute of the United States. Its words, as well as its reason, spirit, and intention, leave, in our opinion, no room for doubt as to its true meaning. We cannot sit in judgment upon ity wisdom or policy. When we have interpreted its provisions, if Congress has power to enact it, our duty in connection with it is ended.” Davis, J. U.S. v. Union Pa- cific R. Co., 91 U. S. 91 “Tt is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease. That was for the legislative department to determine in the light of all the information it had or could obtain. It could not properly abdicate its function to guard the public health and safety.” Hartan, J. Jacobson v. Massachusetts, 197 U. S. 30, 480 COURTS. we Courts Cannot Detetmine Policy of Legislation. “This court can know nothing of public policy except from the Constitution and the laws, and the course of administration and decision. It has no legislative powers. It cannot amend or modify any legislative acts. It cannot examine questions as expedient or inexpedient, as politic or impolitic. Con- siderations of that sort must, in general, be addressed to the legislature. Questions of policy determined there are concluded here.” Cass, C. J. License Tax Cases, 5 Wall. 469, — Courts Cannot Supply Omissions in Legislation. “ There is no patt of the Constitution that I know of, that authorizes this court to take up any business where they [Congress] left it, and in order that the powers given itt the Constitution may be in full activity, sup- ply their omission by making new laws for new cases; or, which I take to be the same thing, applying old principles to new cases materially different from those to which they were applied before.” IREDELL, J. Chisholm v. Georgia, 2 Dall. 433. “Courts cannot’ supply omissions in leg- islation, nor afford relief because they are supposed to exist.” Davis, J. U.S. v. Union Pacific R. Co., 91 U. S. 85. “If experience shows that Congress acted under a mistaken impression, that does not authorize the treasury department, or the courts, to take the part of legislative guard- ians, and, by construction, to make new laws which they imagine Congtess would have made had it been properly informed, but which Congress itself, on being properly in- formed, has ‘not, as yet, seen fit to make.” Bravitey, J. Merritt v. Welsh, 104 U. S. 704. Power to Determine Whether Compensa- tion for Services Is Reasonable. “Undoubtedly, in mere private contracts, relating to mattets in which the public has no interest, what is reasonable [compensation for services rendeted] mtst be ascertained judicially. But this is because the legislature has no control over such a contract. . .. In matters which do affect the public in- terest, and as to which legislative control may be exercised, if thete are no statutory regulations upon the subject, the courts must determine what is reasonable.” Waite, C. J. Munn v. Illinois, 94 U. S, 1384. And see CoMPENSATION, 1 Os. Dic.—31 Distinction Between Judicial and Political Powers. “The judiciary, by its mode of appoint- ment, long duration in office, and slight ac- countability, is rather fitted to check legis- lative power than political, and enforce what the political authorities have manifestly or- dained. These last authorities are, by their pursuits and interests, better suited to make rules; we, to expound and enforce them, after made.” Woonzury, J., dissenting. Luther v. Borden, 7 How. 53. “The distinction between judicial and po- litical power is so genetally acknowledged in the jurisprudence both of England and of this country, that we need do no more than refer to some of the authorities on the subject. They are all in one direction.” NeELson, J. Georgia v. Stanton, 6 Wall. 71. Courts Cannot Exercise Political Power. “Questions, in their nature political, of which are, by the Constitution and laws, sub- mitted to the executive, can never be made in this court.” Marswatt, C. J. Marbury wv. Madison, 1 Cranch 170. “Fortunately for our freedom from polit- ical excitements in judicial duties, this court can never with propriety be called on officially to be the umpire in questions merely political. The adjustment of these questions belongs to the people and their political representa- tives, either in the state or general govern- ment.” Woopsury, J., dissenting. Luther v. Borden, 7 How. 51. “Our action is judicial. We have no au- thority to exercise political jurisdiction and to grant, as the governors of Spain had and as Congress has.” Carron, J. U.S. v. Bois- dore, 11 How. 93. — Courts do Not Interfere in Politics. “Tt is not for its courts to interfere with the proceedings of the nation and to thwart its views. It is not for us to depart from the beaten track prescribed for us, and to tread the deviotis and intricate path of pol- ities.” Marswatt, C, J. The Nereide, 9 Cranch 422. “The court is decidedly of opinion that reciprocating to the subjects of a nation, or retaliating on them, its unjust proceedings towards our citizens, is a political, not a legal measure. It is fot the consideration of the governtnent, not of its courts. The degree and the kind of fetaliationn depend entirely oti considerations foreign to this tribunal. 481 COURTS. It may be the policy of the nation to avenge its wrongs in a manner having no affinity to the injury sustained, or it may be its policy to recede from its full rights and not to avenge them at all.” MarsHatt, C. J. The Nereide, 9 Cranch 422. — Courts Excluded from Considerations of Policy. “Courts of justice are properly excluded from all considerations of policy, and there- fore are very unfit instruments to control the action of that [the executive] branch of government; which may often be compelled by the highest considerations of public policy to withold even the exercise of a positive duty.” JoHnson, J. Cherokee Nation v. Georgia, 5 Pet. 30. “Tf one is recognized by the executive or legislature of the Union as the de facto gov- ernment, the judiciary can only conform to that political decision.” Woopsury, J., dis- senting. Luther v. Borden, 7 How. 57. “Congress did not intend, when passing the act under which this litigation was inaugu- rated, to invest the Court of Claims or this court with authority to determine whether the United States had, in its treaty with the In- dians, violated the principles of fair deal- ing.” Harran, J. U. S. v. Choctaw, etc., Nations, 179 U. S. 532. , —— Courts Will Not Take Cognizance of Cases Involving Purely Political Ques- tions. “This court has declined to take jurisdic- tion of suits between states to compel the per- formance of obligations which, if the states had been independent nations, could have been enforced judicially, but only through the political departments of their govern- ments.” Gray, J. Wisconsin v. Pelican Ins. Co., 127 U. S. 288. “The only cases in which the courts of the United States have entertained suits by a foreign state have been to enforce demands of a strictly civil nature.” Gray, J. Wis- consin v. Pelican Ins. Co., 127 U. S. 290. “The position that the jurisdiction con- ferred by the Constitution upon this court, in cases to which a state is a party, is limited to controversies of a civil nature, does. not depend upon mere inference from the want of any precedent to the contrary, but has express legislative and judicial sanction.” Gray, J. Wisconsin v. Pelican Ins. Co., 127 U. S. 29%. 482 “T do not think that this court has any jurisdiction to determine a disputed question as to the right of the governorship of a state, however that question may be decided by its authorities.” Fretp, J., dissenting. Boyd vw. Thayer, 143 U. S. 182. 5. CASES TO WHICH JUDICIAL PowER oF Unitep States EXTENDs, In General. “The judicial power of the United States is extended to all cases arising under the Constitution.” MarsHA.t, C. J. Marbury v. Madison, 1 Cranch 178. “The second section of the third article [U. S. Constitution], extends the judicial power of-the United States, to all cases aris- ing under the law of the United States, and to all cases of admiralty and maritime juris- diction; to controversies between two or more states, between a state and citizens of an- other state—and between a state, or the citizens thereof, and foreign states, citizens, or subjects.” JoHNson, J., dissenting. Gov- ernor v. Madrazo, 1 Pet. 128. “Under the Constitution, the judicial power of the United States is vested in one Su- preme Court, and in such inferior courts as the Congress may from time to time ordain and establish. Such judicial power extends to all cases of admiralty and maritime juris- diction, as well as to the cases of law and equity described in the Constitution.” CuF- FoRD, J. Ward v. Chamberlain, 2 Black 443. “The judicial power of the United States extends to all cases in law and equity aris- ing under the Constitution, the laws of the United States, and treaties made under their authority, and to large classes of cases de- termined by the character of the parties, or the nature of the controversy.” Cuass, C. J. Ex p. Yerger, 8 Wall. 97. Issuance of Writs Essential to Exercise of Jurisdiction. “ Authority was given to all the courts of the United States by the 14th section of the Judiciary Act to issue writs of scire facias, habeas corpus, and all other writs not spe- cially provided for by statute which may be necessary for the exercise of their respect- ive jurisdictions, and agreeable to the prin- ciples and usages of law.” Currrorp, J. Ward v. Chamberlain, 2 Black 439. Parties Immaterial. “We think a case arising under the Con- stitution or laws of the United States, is COURTS. cognizable in the courts of the Union, who- ever may be the parties to that case.” Mar- SHALL, C. J. Cohen wv. Virginia, 6 Wheat. 383. 6. Power To CoNSTRUE CONSTITUTIONS AND Laws. “When the laws are plain, and the applica- tion of them is uncontroverted, they are en- forced immediately by the executive authority of the government. When the application of them is doubtful or intricate, the interposi- tion of judicial authority becomes necessary.” Witson, J. Chisholm v. Georgia, 2 Dall. 464. “It is emphatically the province and duty of the judicial department to say what the law is.’ Marswatt, C. J. Marbury w. Madison, 1 Cranch 177. “If two laws conflict with each other, the courts must decide on the operation of each.” Marswatt, C. J. Marbury v. Madi- son, 1 Cranch 177. “It is sometimes objected, if the federal judiciary may declare an act of a state legislature void, because it is repugnant to the Constitution of the United States, it places the legislation of a state within the power of this court. And might not the same argument be urged with equal force against the exercise of a similar power, by the Supreme Court of a state? Such an ar- gument must end in the destruction of all constitutions, and the will of the legislature, like the acts of the Parliament of Great Britain, must be the supreme and only law of the land.” M’LEan, J. Worcester wv Georgia, 6 Pet. 572. “The Constitution looks to the courts as the final interpreters of the laws.” Srory, J., dissenting. Cary v. Curtis, 3 How. 257. “The right to construe the laws in all matters of controversy, is of the very es- sence of judicial power. Executive officers who are required to act under the laws, of necessity, must give a construction to them. But their construction is not: final. When it operates injuriously to the citizen, he may, by any and every possible means through which it may be brought before the courts, have the construction of the law submitted to them, and their decision is final.” Mc- Lean, J. Cary v. Curtis, 3 How. 264. “It is the right and duty of the national government to have its Constitution and laws interpreted and applied by its own ju- 483 dicial tribunals. In cases arising under them, properly brought before it, this court is the final arbiter.” Swayne, J. Nashville v. Cooper, 6 Wall. 253. “Whether an Act of Congress is within the limits of its delegated power or not is a judicial question, to be decided by the courts, the Constitution having, in express terms, declared that the judicial power shall extend to all cases arising under the Con- stitution.” Tanery, C. J. Gordon v. U. S., 117 U. S. 705. “Tt is one of the important functions of this court to so interpret’ the various provi- sions and limitations contained in the or- ganic law of the Union that each and all of them shall be respected and observed.” Surras, J. Prout v. Starr, 188 U. S. 544. “Tt may be doubted how far any court can be bound by legislation after this court declared such legislation beyond the power of the state, any more than it would be if the law had been held unconstitutional.” Hoitmes, J. Greer County v. Texas, 197 U.S. 241. 7. Courts Must Perrorm Dutizs Im- POSED ON THEM. Cannot Evade Decision of Judicial Ques- tions. “The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With what- ever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us.” MARSHALL, C. J. Cohen wv. Virginia, 6 Wheat. 404. “Judges do not sit on cushions of down, while administering the supreme law of the land in this court; their constitutional powers are not like those of the other de- partments of the government, though the case arises which brings them into existence; their exercise is discretionary. But with us, power and duty to bring it into ac- tion are inseparable: whenever a case calls for it, the call is imperative.” Batpwin, J., dissenting. Ex p. Crane, 5 Pet. 222. “Tt does not belong to this court to select the subjects of their deliberations; but they cannot shrink from the performance of any duty imposed by the Constitution and laws.” M’Lean, J. Briscoe v. Commonwealth Bank, 11 Pet. 312. COURTS. Must Proceed According to Constitution and Laws. “Whatever may be the theoretical opin- ions of any as to the expediency of some of those compromises, or of the right of property in persons which they recognize, this court has no alternative, while they exist, but to stand by the Constitution and laws with fidelity to their duties and their oaths. Their path is a strait and narrow one, to go where that Constitution and the laws lead, and not to break both, by travel- ling without or beyond them.” Woopzury, J. Jones v. Van Zandt, 5 How. 231. “This court is sworn to support the Con- stitution, and in every infraction of that in- strument by Congress or state legislatures, where individual injury is inflicted, redress may be obtained by action in court.” Mc- Lean, J., dissenting. Pennsylvania v. Wheeling, etc., Bridge Co., 18 How. 446. “It is our duty to expound and execute the law as we find it.” Tangy, C. J. U.S. v. Rogers, 4 How. 572. Must Administer Justice Fairly. “Tf there is one place under our sys- tem of government where all should be in a position to have equal and exact justice done to them, it is a court of justice—a principle which I had supposed was as old as Magna Charta.” Harzan, J., dissenting. Atchison, etc., R. Co, v. Matthews, 174 U. S. 124, “Tf the other departments of the govern- ment must look to the judicial for light, that light should burn steadily. It should not, like the exhalations of a marsh, shine to mislead.” McKenna, J., dissenting. De Lima v. Bidwell, 182 U. S. 205. Must Decide According to Rights of Parties. “Tt is our duty to decide on the rights, but not on the speculations of parties.” Jounson, J., dissenting. Fletcher v. Peck, 6 Cranch 147. “Tn a court of law legal rights alone can be recognized.” Davis, J. ern Vermont R. Co., 20 Wall. 122. Presumption of Exercise of Powers. “Every court must be presuimed to exetcise those powers belonging to it, which are nec- essary for the promotion of public justice.” Story, J. The Palmyra, 12 Wheat. 10. Knapp v. West-. Liability of Courts to Err. “While it is possible that in any particular case a court may err in determining the ex- istence of a right or interest, the same possibility attaches to all litigation.” Brewer, J. Montara Co. vw St. Louis Min, etc, Co. 152 U. S. 170. II. POWER OF CONGRESS TO ES- TABLISH AND REGULATE COURTS. 1, REGULATION oF STATE CourRTS. Power to Confer or Interfere with Juris- diction. ; “TI hold it to be perfectly clear that Con- gress catinot confer jutisdiction upon any courts but such as exist under the Consti- tution and laws of the United States, al- though the state courts may exercise juris- diction on such cases authorized by the laws of the state, and not prohibited by the ex- clusive jurisdiction of the federal courts.” Wasuincton, J. Houston v. Moore, 5 Wheat. 27. “Congress cannot vest afy pottion of the judicial power of the United States, except in courts ordained and established by it- self.” Story, J. Martin vw. Hunter, 1 Wheat. 330. “Tt has been expressly held, by this court, that no part of the criminal jurisdiction of the United States can consistently with the Constitution be delegated by Cotigress to state tribunals.” Jounson, J., disseriting. Houston v. Moore, 5 Wheat. 69. “The state courts have unlimited juris- diction over all the persons and property, real and personal, within the limits of the state.” McKintey, J., dissenting. Lane v, Vick, 83 How. 482. Power to Regulate Procedure. “As Congress cannot create state courts, nor establish the ordinary rules of property and of contracts, nor denounce penalties for crimes and offenses against the states, so it cannot prescribe rules of proceeding for the state courts.” Sutras, J., dissenting. Brown v. Walker, 161 U. S. 623. 2, Reourrinc AcENCcY oF STATE OFFI- CERS IN FEDERAL PROCEEDINGS. “Tt may very well be doubted, too, whether the Act of Congress which con- forms the modes of proceeding in the courts of the Union to those in the sevetal states, requires the agency of state officers, in afiy 484 COURTS. case whatever, not expressly mentioned. The laws of the Union may permit such agency, but it is by no means clear that they can compel it.’ MarsHaLt, C, J. Wayman v. Southard, 10 Wheat. 39. 3. Duty To CREATE Courts AND IN- vesT THEM WITH JUDICIAL Power. “The language of the article [art. 3, U. S. Const.] throughout is manifestly de- signed to be mandatory upon the legisla- ture. Its obligatory force is so imperative that Congress could not, without a viola- tion of its duty, have refused to carry it into operation.” Story, J. Martin v. Hunt- er, 1 Wheat. 328. “The object of the Constitution was to establish three great departments of gov- ernment, the legislative, the executive and the judicial departments. The first was to pass laws, the second to approve and execute them, and the third to expound and enforce them. Without the latter it would be impossible to carry into effect some of the express provisions of the Constitution. How, otherwise, could crimes against the United States be tried and punished? How could causes between two states be heard and determined? The judi- cial power must, therefore, be vested in some court, by Congress; and to suppose that it was not an obligation binding on them, but might, at their pleasure, be omit- ted or declined, is to suppose that, under the sanction of the Constitution, they might defeat the Constitution itself; a construction which would lead to such a result cannot be sound.” Story, J. Martin wv. Hunter, 1 Wheat. 329. “Tf, then, it is the duty of Congress to vest the judicial power of the United States, it is a duty to vest the whole judicial power. The language, if imperative as to one part, is imperative as to all. If it were otherwise, this anomaly would exist, that Congress might successively refuse to vest the jurisdiction in any one class of cases enumerated in the Constitution, and thereby defeat the jurisdiction as to all; for the Constitution has not singled out any class on which Congress are bound to act in pref- erence to others.” Story, J. Martin v. Hunter, 1 Wheat. 330. “Congress are bound to create some in- ferior courts, in which to vest all that juris- diction which, under the Constitution, is exclusively vested in the United States, and of which the Supreme Court cannot take original cognizance. They might establish one or more inferior courts; they might par- cel out the jurisdiction among such courts, from time to time, at their own pleasure. But the whole judicial power of the United States should be, at all times, vested either in an original or appellate form, in some courts created under its authority.” Srory, J. Martin v. Hunter, 1 Wheat. 331. “Tf Congress may lawfully omit to estab- lish inferior courts, it might follow that in some of the enumerated cases the judi- cial power could nowhere exist.” Story, J. Martin v. Hunter, 1 Wheat. 330. “We must presume that Congress did not mean to exclude from our jurisdiction those controversies, the decision of which the states had confided to the judicial power, and are bound to give the Constitution and laws such a meaning as will make them har- monize, unless there is an apparent or fair- ly to be implied conflict between their re- spective provisions.” Barpwin, J. Rhode Island v. Massachusetts, 12 Pet. 723, “Though the courts of the United States are capable of exercising the whole judi- cial power as conferred by the Constitution; and though Congress are bound to provide by law for its exercise in all cases to which that judicial power extends; yet it has not been done, and much of it remains dormant for the want of legislation to enable the courts to exercise it, it having been repeat- edly and uniformly decided by this court, that legislative provisions are indispensable to give effect to a power, to bring into ac- tion the constitutional jurisdiction of the supreme and inferior courts.” Batpwin, J., dissenting. Ex p. Crane, 5 Pet. 202. 4. Power To EstTasLisH INFERIOR CourTs OF THE UNITED STATES,’ “The provision in the Constitution which gives the power to the general government to establish tribunals of its own in every state, in order that the citizens of other states or sovereignties might therein prose- cute their rights under the jurisdiction of the United States, had for its object an harmonious distribution of justice through- out the Union; to confine the states, in the exercise of their judicial sovereignty, to cases between their own citizens; to prevent, in fact, the exercise of that very power over the rights of citizens of other states, which the origin of the contract might be supposed to give to each state.” Jonnson, J. Ogden v. Saunders, 12 Wheat. 359. 485 COURTS. “The forms of administering justice, and the duties and powers of courts as incident to the exercise of a branch of sovereign power, must ever be subject to legislative will, and the power over them is unalienable, so as to bind subsequent legislatures.” Jounson, J. Columbia Bank v. Okely, 4 Wheat. 245. “The organization of the judicial power, the definition and distribution of the sub- jects of jurisdiction in the federal tribunals, and the modes of their action and authority, have been, and of right must be, the work of the legislature. The existence of the Judicial Act itself, with its several sup- plements, furnishes proof unanswerable on this point.” DanieL, J. Cary v. Curtis, 3 How. 245. “The grant in the Constitution to Con- gress to ordain and establish inferior courts, and to invest them with the judicial power of the Union, is complete in itself.” Nez- son, J. Benner v. Porter, 9 How. 244. “It must be regarded as settled that sec- tion 1 of article 3 [of the Constitution] does not exhaust the power of Congress to establish courts.” FuLiter, C. J. U.S. vw. Coe, 155 U. S. 85. “By the Judiciary Act of 1789 the judi- cial system was organized and the powers of the different courts defined.” FUuLLEr, C. J. Louisiana v. Texas, 176 U. S. 15. 5. DISCRETION AS TO DISTRIBUTION OF JupicraL Power. “Except in cases specially enumerated in the Constitution and of which this court may take, cognizance, without an enabling act of Congress, the distribution of the judi- cial power of the United States is a mat- ter entirely within the control of the legisla- tive branch of the government.” Hartan, J. Johnson Co. v. Wharton, 152 U. S. 260. “The judicial power shall extend to all the cases enumerated in the Constitution. As the mode is not limited, it may extend to all such cases, in any form in which judicial power may be exercised. It may, therefore, extend to them in the shape of original or appellate jurisdiction, or both; for there is nothing in the nature of the cases which binds to the exercise of the one in preference to the other.” Srory, J. Martin v. Hunter, 1 Wheat. 333. a The Constitution has defined the limits of the judicial power of the United States, but has not prescribed how much of it shall be exercised by the Circuit Court; conse- quently, the statute which does prescribe the limits of their jurisdiction, cannot be in conflict with the Constitution, unless it con- fers powers not enumerated therein.” Grier, J. Sheldon v. Sill, 8 How. 449. “The exercise of judicial power over cases arising under the Constitution, laws, and treaties of the United States, may be original as well as appellate, and may be conferred by Congress on other courts than the Supreme Court.” Mutter, J. Murdock v. Memphis, 20 Wall. 620. “Except in the cases of which this court is given, by the Constitution, original juris- diction, the judicial power of the United States is to be exercised in its original or appellate form, or both, as the wisdom of Congress may direct.” Hartan, J. New Orleans, etc, R. Co. v. Mississippi, 102 U. S. 141. 6. Power To REGULATE JURISDICTION oF UNITED STATES Courts. “The power which Congress possesses to create courts of inferior jurisdiction, neces- sarily implies the power to limit the juris- diction of those courts to particular objects; and when a court is’ created, and its opera- tions confined to certain specific objects, with what propriety can it assume to itself a jurisdiction— much more extended —in its nature very indefinite—applicable to a great variety of subjects— varying in every state of the Union—and with regard to which there exists no definite criterion of distribution between the district and Cir- cuit Courts of the same district.” JoHNSON, J. U. S. v. Hudson, 7 Cranch 33. “As the judicial power of the nation ex- tends to all cases arising under the Con- stitution, the laws and treaties of the United States; as the privilege of the writ of ha- beas corpus cannot be suspended unless when in cases of rebellion or invasion the public safety may require it; and as Congress has power to pass all laws necessary and pro- per to carry into execution the powers vested by the Constitution in the government of the United States or in any department or officer thereof; no doubt can exist as to the power of Congress to enlarge the jurisdiction of the courts of the Union and of their justices and judges.” Hartan, J. Ex p. Royall, 117 U. S. 249. “TI do not believe it within the power of Congress to give to ministerial officers a "486 COURTS. final adjudication to the right to liberty or to oust the courts from the duty of in- quiry respecting both law and facts.” BREWER, J., concurring. Truner v. Williams, 194 U. S. 295. “Tt would be inconsistent with the plain and ordinary meaning of words, to call a law defining the jurisdiction of certain courts of the United States a regulation of commerce. Nor can the jurisdiction of the courts of the United States be made- to depend on the regulations of commerce. They are entirely distinct things, having no necessary connection with one another, and are conferred in the Constitution by separate and distinct grants. The extent of the ju- dicial power is carefully defined and lim- ited, and Congress cannot enlarge it to suit even the wants of commerce, nor for the more convenient execution of its commercial regulations. And the limits fixed by the Constitution to the judicial authority of the courts of the United ‘States, would form an insuperable objection to this law, if its validity depended upon the commer- cial power.” Taney, C. J. The Propeller Genesee Chief v. Fitzhugh, 12 How. 452. “The power of Congress to use all rea- sonable and proper means for exercising its control over interstate commerce carries with it no right to break down the barriers between judicial and administrative duties, or to make courts the mere agents to as- sist an administrative body in the prosecu- tion of its inquiries. For, if the power ex- ists it carries with it the power to make courts the mere assistants of every ad- ministrative board or executive officer in the pursuit of any information desired or in the execution of any duties imposed.” Brewer, J., dissenting. Interstate Com- merce Comm. v. Brinson, 155 U. S. 4. “We perceive, then, no ground on which the proposition can be maintained, that Con- gress is incapable of giving the Circuit Courts original jurisdiction, in any case to which the appellate jurisdiction extends.” MarsHat.t, C. J. Osborn v. Bank of U. S., 9 Wheat. 821. “Judicial jurisdiction implies the power to hear and determine a cause, and inas- much as the Constitution does not con- template that there shall be more than one Supreme Court, it is quite clear that Con- gress cannot subject the judgments of the Supreme Court to the re-examination and revision of any other tribunal or any other department of the government.” CLIFForRD, J. U. S. v. O'Grady, 22 Wall. 647. %. JupictaL AuTHorRITY DERIVED FROM Unitep STATES CONSTITUTION AND Laws. “Under the Constitution of the United States the judicial power of the general government is vested in one Supreme Court, and in such inferior courts as Congress shall from time to time ordain and estab- lish. Every court of the United States, therefore, must derive its jurisdiction and judicial authority from the Constitution of the laws of the United States. Taney, C. J. Jecker v. Montgomery, 13 How. 515. “Tt has been settled, since the beginning of this government, that the courts of the United States as such, have no common-law jurisdiction, civil or criminal, unless con- ferred upon them by Act of Congress.” Taney, C. J., dissenting. Pennsylvania v. Wheeling, etc., Bridge Co. 138 How. 580. “The judicial power of the United States, although it has its origin in the Consti- tution, is (except in enumerated instances, applicable exclusively to this court) depend- ent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possesses the sole power of creating the tribunals (inferior to the Supreme Court) for the exercise of the judicial power, and of in- vesting them with jurisdiction either lim- ited, concurrent, or exclusive, and of with- - holding jurisdiction from them in the exact degrees and character which to Congress may seem *proper for the public good.” DantEL, J. Cary v. Curtis, 3 How. 245. 8. Power To ExcLupE Courts FROM EXERCISE OF JUDICIAL Power. “Tt never could be the intention of Con- gress to pass any statute, by which the courts of the United States, as well as the state courts, should be excluded from all judicial power in the interpretation of the revenue laws, and that it should be ex- clusively confided to an executive functionary finally to interpret and execute them—a power which must press severely upon the citizens, however discreetly exercised, and which deeply involves their - constitutional rights, privileges, and liberties.” Srory, J., dissenting. Cary v. Curtis, 3 How. 257. III. STATE INTERFERENCE WITH FEDERAL COURTS. Legislative or Judicial Interference with Federal Courts. “No state law, or proceedings under a state law, can divest a court of the United 487 COURTS, States of jurisdiction.” McLean, J. New York Life, etc, Ins, Co. v. Adams, 9 Pet. 606. “The federal courts are instruments com- petently created by the nation, for national purposes. The states can exercise no power over them or their proceedings, except so far as Congress shall allow.” Swayne, J. U.S. v. Thompson, 98 U. S. 490. “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 proceed- ings subsequently commenced in a state court. This exemption of the authority of the courts of the United States from inter- ference 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.” Fuiexo, J. Rio Grande R. Co. v. Gomila, 132 U. S. 481. “The exemption of the authority of the courts of the United States from inter- ference by legislative or judicial action of the states is essential to their independence and efficiency.” Sutras, J. Central Nat. Bank v. Stevens, 169 U. S. 460. State Statutes Enlarging or .Restricting Jurisdiction. “Whilst it will not be denied, that the laws of the several states are of binding au- thority upon their domestic tribunals, and upon persons and property within their ap- propriate jurisdiction, it is equally clear that those laws cannot affect, either by en- largement or diminution, the jurisdiction of the courts of the United States as vested and prescribed by the Constitution and laws of the United States, nor destroy or control the rights of parties litigant to whom the right of resort to these courts has been se- cured by the laws and Constitution. This is.a position which has been frequently af- firmed by this court, and would seem to com- pel the general assent upon its simple enun- ciation.” DawnieL, J. Watson v. Tarpley, 18 How. 520. “The general commercial law being cir- cumscribed within no-local limits, nor com- mitted for its administration to any pe- culiar jurisdiction, and the Constitution and laws of the United States having conferred upon the citizens of the several states, and upon aliens, the power or privilege of liti- gating and enforcing their rights acquired under and defined by that general com- mercial law, before the judicial tribunals of the United States, it must follow by regu- lar consequence, that any state law or regu- lation, the effect of which would be to impair the rights thus secured, or to devest the federal courts of cognizance thereof, in their fullest acceptation under the com- mercial law, must be nugatory and una- vailing.” Daniet, J. Watson v. Tarpley, 18 How. 521. “State legislation cannot confer jurisdic- tion upon the federal courts, nor can it limit or restrict the authority given by Congress in pursuance of the Constitution.” Hunt, J. Home Ins. Co. v. Morse, 20 Wall. 453. “The jurisdiction of the Circuit Courts of the United States has been defined and limited by the Acts of Congress, and can be neither restricted nor enlarged by the statutes of the state.” Gray, J. Southern Pac, Co. v. Denton, 146 U. S, 209. “The legislature of a state cannot deter- mine the jurisdiction of the courts of the United States, and the action of such courts in according a remedy denied to the courts of a state does not involve. a question of power.” ‘Futter, C. J. In .re Tyler, 149 U.S. 189. “The jurisdiction of the Circuit Court of the United States depends upon the acts passed by Congress pursuant to the power conferred upon it by the Constitution of the United States, and cannot be enlarged or abridged by any statute of a state.” Gray, J. Goldey v. Morning News, 156 U. S. 523. —— Statute Ousting Federal Courts from Jurisdiction. “The power to contract with citizens of other states implies liability to suit by citi- zens of other states, and no statute limita- tion of suability can defeat a jurisdiction given by the Constitution.” CuHase, C. J. Cowles v. Mercer County, 7 Wall. 122. “Tf the United States courts could be ousted of jurisdiction, and citizens of other states and subjects of foreign countries be forced into the state courts, without the power of election, they would often be de- prived, in great cases, of all benefit contem- plated by the Constitution; and, in many cases, be compelled to submit their rights 488 COURTS. to judges and juries who are inhabitants of the cities where the suit must be tried, and to contend with powerful corporations, in local courts, where the chances of impartial justice would be greatly against them; and where no prudent man would engage with such an antagonist, if he could help it.” Ca- TRON, J. Rundle v. Delaware, etc., Canal Ca, 14 How. 95. “The citizens of the United States, whether as individuals or associations, corporate or incorporate, have a constitutional right, in proper cases, to resort to the courts of the United States. Any agreement, stipulation, or state law precluding them from this right is absolutely void — just as void as would be an agreement not to resort to the state courts for redress of wrongs, or defense of unjust actions; or as would be a city ordinance pro- hibiting an appeal to the state courts from municipal prosecutions.” BrapLey, J., dis- senting. Doyle v. Continental Ins. Co. 94 U. S. 543. “The jurisdiction of the courts of the United States, in controversies between cit- izens of different states, cannot be ousted or annulled by statutes of the states, assuming to confer it exclusively on their own courts.” Miter, J. Hess v. Reynolds, 113 U. S. 77. “Neither the principle of convenience, nor the statutes of a state, can deprive them [United States courts] of jurisdiction to hear and determine a controversy between citizens of different states, when such a con- troversy is distinctly presented, because the judgment may affect the administration of distribution in another form of the assets of the decedent’s estate.” Mutter, J. Hess uv. Reynolds, 113 U. S. 77. “The object of the provisions of the Con- stitution and statutes of the United States, in conferring upon the Circuit Courts of the United States jurisdiction of controversies be- tween citizens of different states of the Union, or between citizens of one of the states and aliens, was to secure a tribunal presumed to be more impartial than a court of the state in which one of the litigants resides. The jurisdiction so conferred upon the national courts cannot be abridged or impaired by any statute of a state. It has there- fore been decided that a statute, which re- quires all actions against a county to be brought in the County Court, does not pre- vent the Circuit Court of the United States from taking jurisdiction of such an action; Chief Justice Chase -saying that ‘no statute limitation of suability can defeat a jurisdic- tion given by the Constitution.” . . . So statutes requiring foreign corporations, as a condition of being permitted to do business within the state, to stipulate not to remove into the courts of the United States suits brought against them in the courts of the state, have been adjudged to be unconstitu- tional and void. On the other hand, upon the fundamental principle that no one shall be condemned unheard, it is well settled that in a suit against a corporation of one state, brought in a court of the United States held within another state, in which the cor- poration neither does business nor has author- ized any person to represent it, service upon one of its officers or employees found within the state will not support the jurisdiction, notwithstanding that such service is recog- nized as sufficient by the statutes or the judi- cial decisions of the state.” Gray, J. Bar- row Steamship Co. v, Kane, 170 U. S. 111. “It would seem that, if there were jurisdic- tion in a court of equity to enjoin the in- vasion of property rights through the in- strumentality of an unconstitutional law, that jurisdiction would not be ousted by the fact that the state had chosen to assert its power to enforce such law by indictment or other criminal proceeding.” Brown, J. Davis, etc, Mfg. Co. v. Los Angeles, 189 U.S. 218. “A state cannot by any statutory provisions withdraw from the cognizance of the federal courts a suit or judicial proceeding in which there is such a controversy. Otherwise the purpose of the Constitution in extending the judicial power of the United States to con- troversies between citizens of different states would thereby be defeated.” Hartan, J. Traction Co. v. Mining Co., 196 U, S. 253. Statutes Conferring Jurisdiction. “State laws cannot enlarge the powers of the courts of the United States beyond the limits marked out by the Constitution. It is true that the courts of chancery of the United States, in administering the law of a state, may sometimes be called on to exercise powers which do not belong to courts of equity in England. And, in such cases, if the power is judicial in its character, and capable of being regulated by the established rules and principles of a court of equity, there can be no good objection to its exercise. It falls within the just interpretation of the grant in the Constitution. But, beyond this, the state laws can confer no jurisdiction on the courts of equity of the United States.” Taney, C. J. Fontain v. Rayenel, 17 How. 394, 489 COURTS. “State laws will not authorize the courts of the United States to exercise any power that is not in its nature judicial; nor can they confer on them the prerogative powers over minors, idiots, and lunatics, or charities, which the English chancellor possesses.” Taney, C. J. Fontain v. Ravenel, 17 How. 393. “States cannot by their legislation confer jurisdiction upon the courts of the United States, neither can consent of parties give jurisdiction when the facts do not; but both state legislation and consent of parties may bring about a state of facts which will au- thorize the courts of the United States to take cognizance of a case.” Warre, C. J. Ex p. Schollenberger, 96 U. S. 377. “ Although a state law cannot give juris- diction to any federal court, yet it may give a substantial right of such a character, that when there is no impediment arising from the residence of the parties, the right may be enforced in the proper federal tribunal, whether it be a court of equity, admiralty, or common law.” Woops, J. Reynolds vw. Crawfordsville Bank, 112 U. S. 410. —— Limitation of Jurisdiction by Practice Acts. “Whilst we follow the construction’ of: a state statute, established by the Supreme Court of the state, care must be taken that our jurisdiction and practice shall not be limited or controlled by the statutes or de- cisions of the state, beyond the acts of Con- gress.” McLgan, J. Clements v. Berry, 11 How. 412. “While the courts of the Union are re- quired by the statutes creating them to ac- cept as rules of decision, in trials at common law, the laws of the several states, except where the Constitution, laws, treaties, and statutes of the United States otherwise pro- vide, their jurisdiction in equity cannot be impaired by the local statutes of the different states in which they sit.” Haran, J. Kirby v. Lake Shore, etc., R. Co. 120 U. S. 137. Statute Regulating Supreme Court Pro- ceedings. “The Circuit Courts may adopt the forms of pleading and practice of the state courts, but no state legislation can be applied to the Practice of this court, and the mode in which causes shall be brought into it for review.” Grier, J. Graham v. Bayne, 18 How. 61. Interference with Federal Courts by State Courts. “Tt would hardly be contended that a state court can enjoin a defendant against paying a judgment which has been, or may thereafter be recovered in a Circuit Court of the United States. If it may, federal juris- diction is a myth. It is at the mercy of the state tribunals.” Stronc, J. Washington County Supervisors v. Durant, 9 Wall. 418. “State courts are exempt from all inter- ference by the federal tribunals, but they are destitute of all power to restrain either the process or proceedings in the national courts.” CrirForD, J. Riggs v. Johnson County, 6 Wall. 195. “The Constitution itself becomes a mock- ery, if the state legislatures may at will annul the judgments of the federal courts and the nation is deprived of the means of enforcing its own laws by the in- strumentality of its own tribunals.” CztF- Forp, J. Riggs v. Johnson County, 6 Wall. 195. “ All experience shows that the state courts at all times have readily acquiesced in the judgments of this court in all cases con- fided to its determination under the Constitu- tion and laws of Congress. Guided by the experience of the past, our just expectations of the future are that the same just views will prevail.” C.rrrorp, J. Riggs v. John- son County, 6 Wall. 199. “In many cases, state laws form a rule of decision for the courts of the United States, and the forms of proceeding in these courts have been assimilated to those of the states, either by legislative enactment or by their own rules. But the courts of the United States are bound to proceed to judgment, and to afford redress to suitors before them, in every case to which their jurisdiction ex- tends. They cannot abdicate their authority or duty in any case in favor of another juris- diction.” CAMPBELL, J. Hyde v. Stone, 20 How. 175. ‘ IV. CONSTITUTION AND CONVEN- TION. “The opening of a court is a solemn judi- cial act, and must be performed by the judge in person, unless special authority is given by statute for its performance by a subordi- nate officer.” Brown, J., dissenting. U. S. v. Finnell, 185 U. S. 251. “We had supposed the law to be that no court could be in session without the presence of a judge.” Brown, J., dissenting. U. S. v. Finnell, 185 U. S. 247. 490 COURTS. “ After the term of a court has been regu- larly opened upon the day provided by law, the question how long it shall remain open, to what day it shall be adjourned, and whether and how often it shall be opened for incidental business after the regular business of the term has been concluded, is a matter which rests in the discretion of the presiding judge. It is presumed that he will act in this particular in what he conceives to be the in- terest of the public, and that he will put the government to no unnecessary expense. It is clearly the duty of the officers of the court to be present at the adjourned day, and to obey the written order of the judge with respect to any further adjournment, and there is no reason why they should not re- ceive their per-diems therefor as if the judge were actually present.” Brown, J. U.S. wv. Pitman, 147 U. S. 670. “This court consists of seven judges, any four of whom may act. It has never been supposed that the death of three of the judges would disqualify the remaining four from discharging their official duties until the va- cant seats of their departed brethren should be filled.” Marsnatt, C. J. Pollard & Pickett v. Dwight, 4 Cranch 429. “According to my interpretation of the Constitution of the United States, the Su- preme Court is a distinct, aggregate, collec- tive body—one which can act collectively, and in term or in united session only. It cannot delegate its functions, nor can it im- pose its duties upon any number of the body less than a quorum, constituted of a major- ity of its members. Much less can a single judge be clothed with its joint powers, to be wielded by him at any time or in any place, or to any extent to which his individual dis- cretion may point.” Danzet, J. Pennsyl- vania v. Wheeling, etc., Bridge Co., 18 How. 452. V. SUPREME COURT OF THE UNITED STATES. 1. Jurispiction Is SPECIAL AND LIMITED. “This is a court of special jurisdiction, limited in the exercise of its powers to specified cases: it has no prerogative powers, and can issue no prerogative writs: it pos- sesses no general supervisory powers over inferior tribunals: and can in no case grant a mandamus on its inherent authority. Its implied powers are to fine for a contempt, imprison for contumacy, enforce the observ- ance of order. . It may regulate proc- ess and practice, but under an authority given by law.” Batpwin, J., dissenting. Ex p. Crane, 5 Pet. 210. “The original jurisdiction of this court is limited by the Constitution to cases affecting ambassadors, other public ministers, and con- suls, and where a state is a party. Its appel- late jurisdiction is regulated by Acts of Congress. Under the common law it can exercise no jurisdiction.” McLean, J. Ex p. Dorr, 3 How. 104. “Our jurisdiction is specific and limited. It is defined by the Constitution and laws of the United States. We can exercise none but what is conferred by one or the other.” Swayne, J. Ex p. Graham, 10 Wall. 542. “The jurisdiction of the court is special and must in every case be tested by the Constitution and. the laws of Congress.” Cuirrorp, J. French v. Shoemaker, 12 Wall. 95. : 2. ORIGINAL JURISDICTION. In General. “The Constitution of the United States has not confided any original jurisdiction to this court, except ‘in all cases affecting am- bassadors, other public ministers, and con- suls, and those in which a state shall be a party.’” Story, J. Ex p. Barry, 2 How. 65. Is Exercised by Virtue of Constitution. “Tt has been the established doctrine upon this subject ever since the Act of 1789, that in all cases where original jurisdiction is given by the Constitution, this court has authority to exercise it without any further Act of Congress to regulate its process or confer jurisdiction, and that the court may regulate and mould the processes it uses in such manner as in its judgment will best promote the purposes of justice.” Taney, C. J. Kentucky v. Dennison, 24 Wall. 98. Not Dependent on Amount in Contro- versy. “The original jurisdiction of this court is conferred by the Constitution, without limit of the amount in controversy, and Congress has never imposed (if indeed it could im- pose) any such limit.” Gray, J. Wiscon- sin v. Pelican Ins. Co., 127 U. S. 300. In Causes of which the District Courts Have Original Cognizance. “Tt is very clear, that wherever the Dis- trict Court is vested with ‘exclusive original cognizance,’ the Supreme Court can possess no original jurisdiction; and such is clearly the case, with regard to seizures and suits 491 COURTS. for forfeitures, under the laws of the United States, and suits in the admiralty.” JoHN- son, J., dissenting. Governor v. Madrazo, 1 Pet. 129. In Habeas Corpus Proceedings. “Tt is not to be doubted, that whatever jurisdiction belongs to the Supreme Court, under any writ or habeas corpus ad sub- jiciendum, is appellate.” Curtis, J., dis- senting. In re Kaine, 14 How. 118. In Prize Cases. “Tt is well settled that this court has no original jurisdiction in prize causes.” CxiF- ForD, J. The William Bagaley, 5 Wall. 412. “Under the Constitution, this court can exercise, in prize causes, appellate jurisdic- tion only.” Case, C. J. The Alicia, 7 Wall. 573. Original and Appellate Jurisdiction Not Concurrent. “When an instrument organizing funda- mentally a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdic- tion of the Supreme Court by declaring the cases in which it shall take original jurisdic- tion, and that in others it shall take appellate jurisdiction; the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original.” MarsHa.t, C. J. Marbury v. Madison, 1 Cranch 175. 3. Suits TO Wuicu STATES ARE ParTIES. Jurisdiction of Supreme Court Exclusive. “Where a state has a controversy with an alien about a contract, or other matter of a civil nature, the Supreme Court of the United direction or subterfuge. Ought this rule of States has original jurisdiction of it, and the Circuit or District Courts have nothing to do with such a case.” McKean, C. J. Respubli- ca v. Cobbet, 3 Dall. 476, “The original jurisdiction of this court over ‘controversies between two or more states’ was declared by the Judiciary Act of 1789 to be exclusive, and in its nature it necessarily must be.” Futter, C. J. Kansas v. Colorado, 185 U. S. 139. Circumstance that State Is Party Confers Jurisdiction, “One of the express objects . . for which the judicial department was estab- 492 lished, is the decision of controversies be- tween states, and between a state and in- dividuals, The mere circumstance, that a state is a party, gives jurisdiction to the court.” MarsHatt, C, J. Cohen v. Vir- ginia, 6 Wheat. 383. “The Constitution declares, that in cases where a state is a party, the Supreme Court shall have original jurisdiction; but does not say that its appellate jurisdiction shall not be exercised in cases where, from their nature, appellate jurisdiction is given, whether a state be or be not a party.” Mar- SHALL, C. J. Cohen v. Virginia, 6 Wheat. 395. “We are aware of no case in which this court has announced the conclusion that power is conferred on Congress to authorize suits against citizens of other states joined with citizens of the same state as that. of which plaintiff is a citizen to be originally commenced in, or to be removed to, the Circuit Courts, as arising under the Con- stitution on the ground indicted, where there is no separable controversy or the citizens of plaintiff’s state are indispensable parties, but we are not called on to consider that question, or whether any federal question is involved, since the original jurisdiction of this court in cases between a state and citi- zens of another state rests upon the character of the parties and not at all upon the nature of the case.” Futter, C. J. California wv. Southern Pac. Co., 157 U. S. 261. “The mere fact that a state is the plaintiff is not a conclusive test that the controversy is one in which this court is authorized to grant relief against another state or her citi- zens.” Gray, J. Wisconsin v. Pelican Ins. Co., 127 U. S. 287. —— Suit to Which State Is Not Neces- sary Party. “Tf the state be not necessarily a defend- ant, though its interest may be affected by the decision, the courts of the United States are bound to exercise jurisdiction.” WAYNE, J. Louisville, etc., R. Co. v. Letson, 2 How. 550. — State Must Have Real and Direct In- terest in Controversy. “To constitute a state a party in that sense which brings her within the meaning of the Constitution, and indeed within the import of the term party to a cause by all correct legal intendment, there must be averred and proved on her behalf, a certain and direct interest, or an injury, or a right of property —a perfect right —a right which COURTS. a court of justice can define, adjudge, and en- force.” Danzer, J., dissenting. Pennsyl- vania ¥. Wheeling, etc., R. Co., 13 How. 596. “Tf in all instances in which the citizen of one state have cause of action against a citizen or corporation of a different state, the action can be prosecuted in the name of the state in which the claimant resides, al- though no peculiar or legal right or cause of action can be shown in such state sustaining the character of a private suitor, then the restriction as to cases of original jurisdic- tion is entirely abolished; the defending party, too, must be entitled to the same right of substitution, and all suits between citizens of different states might, by this process, be transformed into suits between states, or suits to which states are patties; cases of original jurisdiction in this court.” DaniEL, J., dissenting. Pennsylvania v. Wheeling, etc., Bridge Co., 13 How. 596. Suit by State Against Citizens of Another State. “While the Eleventh Amendment of the national Constitution excludes the judicial power of the United States from suits, in law or equity, commenced or prosecuted against one of the United States by citizens of another state, such power is extended by the Constitution to suits commenced or prosecuted by a state against an individual, in which the latter demands nothing from the former, but only seeks the protection of the Constitution and laws of the United States against the claim or demand of the state.” Harian, J. New Orleans, etc, R. Co. w. Mississippi, 102 U. S. 140, “The judiciary has jurisdiction to decide controversies between the states, and be- tween their respective citizens, as well as questions of national concern.” Brantey, J. Legal Tender Cases, 12 Wall. 556. “The object of vesting in the courts of the United States jurisdiction of suits by one state against the citizens of another was to enable such controversies to be deter- mined by a natiotial tribunal, and thereby to avoid the pattiality, or stspicioti of pat- tiality, which might exist if the plaintiff state were compelled to resort to the courts of the state of which the defendants were citi- zens.” Gray, J. Wisconsin v. Pelican Ins. Co., 127 U. S. 289. — Suit to Recover Penalties for Breach of State Statutes. “From the organization of the courts of the United States, nearly a century ago, it 493 -breach of her own municipal law.” has always beeti asstimed that the origmal jurisdiction of this court over corittoversies between a state and citizens of another state, or of a foreign country, does not extend to a suit by a state to recover penalties for a Gray, J. Wisconsin v. Pelican Ins. Co., 127 U. S. 293. —— Against Corporation. “By the Constitution this court has original jurisdiction of suits brought by a state against citizens of another state, as well as of controversies between two states; and it is well settled that a corporation created by a state is a citizen of the state, within the meaning of those provisions of the Constitution and statutes of the United States which define the jurisdiction of the federal courts.” Gray, J. Wisconsin vw Pelican Ins. Co., 127 U. S. 287. Suits Involving Questions of Boundary. “The Constitution confers on this court otiginal jurisdiction in all cases affecting ambassadors, other public ministers, and con- suls, and those itt which a state shall be a patty. Atd it is settled, by repeated de- cisions, that a question of boundary be- tween states is within the jutisdiction thus confetred.” TAnry, C. J. Florida v. Geor- gia, 17 How. 491. “The cases of this court show that the framers of the Constitution did provide, by that instrument, for the judicial determina- tion of all cases in law and equity between two or more states, including those involving questions of boundary.” Harran, J. v. Texas, 143 U. S. 642. : “Tt would be difficult to suggest any reason why this cotirt should have jurisdic- tion to detetmine questions of boundary between two or mote states, but not juris- diction of controversies of like character between the United States and a state.” Haran, J. U. S. vw. Texas, 143 U. S. 645. Suit by State to Establish Obligation of United States. “JT doubt very much whether this court has jurisdiction in a suit by.a state to es- tablish an obligation of the United States to pay to the state a sum of money, by com- pelling one of the auditing officers of the United States to state an account under the direction of the court according to a rule which the court may prescribe to him.” Miter, J., dissenting. Five Per Cent. Cases, 110 U. S. 485. COURTS. Actions Between Two States — Enforce- ment of Claims Assigned to State by Private Persons. “Tt would seem strangely inconsistent to take jurisdiction of an action by South Dakota against North Carolina on a promise to pay made by the latter directly to the for- mer, and refuse jurisdiction of an action on a like promise made by the latter to an in- dividual and by him sold or donated to the former.” Brewer, J. South Dakota v. North Carolina, 192 U. S. 312. “A claim for money due being a contro- versy of a justiciable nature, and one of the most common controversies, would seem to naturally fall within the scope of the jurisdic- tion thus intended to be conferred upon the Supreme Court.” Brewer, J. South Dakota v. North Carolina, 192 U. S. 314. “Equity is satisfied by a decree for a foreclosure and sale of the mortgaged prop- erty, leaving the question of a judgment over for any deficiency, to be determined when, if ever, it arises. And surely if, as we have often held, this court has jurisdiction of an action by one state against another to recover a tract of land, there would seem to be no doubt of the jurisdiction of one to enforce the delivery of personal property.” BREWER, J. South Dakota v. North Carolina, 192 U. S. 321. “My mind cannot escape the conclusion that if, wherever an individual has a claim, whether in contract or tort, against a state, he may, by transferring it to another state, bring into play the judicial power of the United States to enforce such claim, then the prohibition contained in the Eleventh Amend- ment is a mere letter, without spirit and without force. This is said because no es- cape is seen from the conclusion if the ap- plication of the prohibition is to depend solely upon the willingness of the creditor of a state, whether citizen or alien, to transfer, and the docility or cupidity of another state in accepting such transfer, that the provision will have no efficacy whatever.” Wuutte, J., ‘dissenting. South Dakota v. North Carolina, 192 U. S. 328. “ As the purpose of the [Eleventh] Amend- ment was to prohibit the enforcement of in- dividual claims against the several states by means of the judicial power of the United States, and as the amendment was subse- quent to the grant of judicial power made by the Constitution, the amendment qualified the whole grant of the judicial power to the extent necessary to render it impossible by indirection to escape the operation of the avowed purpose which the people of the United ‘States expressed in adopting the amendment.” Wuiute, J., dissenting. South Dakota v. North Carolina, 192 U. S. 329. “Under the rule of construction, now an- nounced, not only claims held by citizens of other states and aliens, but those held by citizens of the state, become capable of en- forcement, if only the holders of such claims, after the state has refused to pay them, choose to sell or make gift thereof to an- other state found willing to become a party to a plan to evade a constitutional provision inserted for the protection of all the states.” Waitt, J., dissenting. South Dakota vw. North Carolina, 192 U. S. 330. “The decisions of this court, rendered since the Eleventh Amendment, have con- sistently held that that amendment embodied a principle of national public policy, whose enforcement may not be avoided by in- direction or subterfuge. Ought this rule of public policy to be disregarded, by endowing every state with the power of speculating upon stale and unenforceable claims of in- dividuals against other states, thus not only doing injustice, but also overthrowing the fiscal independence of every state, and de- stroying that harmony between them which it was the declared purpose of the Constitu- tion to establish and cement? Such a de- parture from the provisions of the Eleventh Amendment, and the rule of national public policy which it embodies, may not be sus- tained by the assumption that it would be unduly curtailing the independence of the several states to deny them the right of en- forcing, by aid of the federal judicial power, claims against other states acquired from private individuals. For this assumption would amount to this, that any and all of the states only enjoy the essential privilege of being free from coercion as to the claims of individuals, and have the power to manage their financial affairs at the mere pleasure of any of the other states. This is to say, that for the purpose of preserving the rights of the states, those rights must be destroyed.” Waitt, J., dissenting. South Dakota v. North Carolina, 192 U. S. 330. “As under the decisions referred to a suit between the United States and a state is within the grant of judicial power over con- troversies between states, it must follow that a suit by a state against the United States is also of that character. Now, as the ruling is that such a controversy may include the claim of a private individual, if only such a 494 COURTS. claim be transferred to a state, it follows that a suit by a state against the United States on a claim of that character is within the grant of judicial power. Thus it has come to pass that any and every claim against the United States, whatever be its character, is enforceable against the United States if only a state chooses to acquire and prosecute its enforcement.” Wuute, J., dis- senting. South Dakota v. North Carolina, 192 U. S. 339. — Assertion of Rights of Private Citi- zens. “When the Constitution gave this court jurisdiction of controversies between states, it did not thereby authorize a state to bring another state to the bar of this court for the purpose of testing the constitutionality of local statutes or regulations that do not af- fect the property or the powers of the com- plaining state in its sovereign or corporate capacity, but which at most affect only the rights of individual citizens or corporations engaged in interstate commerce.” HarLan, J. Louisiana v. Texas, 176 U. S. 24. “The word ‘controversies’ in the clauses extending the judicial powers of the United States to controversies ‘between two or more states,’ and to controversies ‘between a state and citizens of another state,’ and the word ‘party’ in the clause declaring that this court shall have original jurisdiction of all cases ‘in which a state shall be party’ refer to controversies or cases that are justi- ciable as between the parties thereto, and not to controversies or cases that do not involve either the property or powers of the state which complain in its sovereign or corporate capacity that its people are injuriously af- fected in their rights by the legislation of another state.” Haran, J. Louisiana v. Texas, 176 U. S. 24. “The citizens of the complaining state may, in proper cases, invoke judicial protec- tion of their property or rights when assailed by the laws and authorities of another state, but their state cannot, even with their con- sent, make their case its case and compel the offending state and its authorities to appear as defendants in an action brought in this court.” Harvan, J. Louisiana v. Texas, 176 U.S. 25. “While I fully agree that resort cannot be had to this court to vindicate the rights of individual citizens, or any particular num- ber of individuals, where a state has assumed to prohibit all kinds of commerce with the chief city of another state, I think her motive for doing so is the proper subject of judicial inquiry.” Brown, J., concurring in result. Louisiana v. Texas, 176 U. S. 27. Necessity of Law Providing Procedure. “Undoubtedly this court has original juris- diction when a state is a party. But it can- not exercise that jurisdiction without some law prescribing the mode of proceeding, the rule of decision, and the evidence by which the right in dispute is to be tried.” Taney, C. J., dissenting. Pennsylvania v. Wheeling, etc., Bridge Co., 13 How. 582. 4, Suits To WuicH UNITED States Is A Party, “T am not aware that any doubt has ever been entertained by any one, that contro- versies to which the United States are a party, come under the appellate jurisdiction of this court in this distribution of jurisdic- tion by the Constitution. Such is the clear meaning of the words of the Constitution. So it was construed by the Congress, in the Judiciary Act of 1789, which, by the 11th section, conferred on the Circuit Courts juris- diction of cases in which the United States are plaintiffs, and so it has been admin- istered to this day.” Curtis, J., dissenting. Florida v. Georgia, 17 How. 504. “The judicial power of the United States extends, among other things, to controversies to which the United States shall be a party —to controversies between two or more states — between a state and citizens of other states or of foreign states, where the state commences the suit, and between a state and foreign states. In distributing this jurisdic- tion, the Constitution has provided that, in all cases in which a state shall be a party, the Supreme Court shall have appellate juris- diction. One of the other cases before men- tioned, is a controversy to which the United States is a party.” Curtis, J., dissenting. Florida v. Georgia, 17 How. 504. “We have two rules given by the Constitution. The one, that if a state be a party, this court shall have original jurisdic- tion; the other, that if the United States bea party, this court shall have only appellate jurisdiction. And we are as clearly pro- hibited from taking original jurisdiction of a controversy to which the United States is a party, as we are commanded to take it if a state be a party.” Curmts, J., dissenting. Florida v. Georgia, 17 How. 505, 495 COURTS. 5. APPELLATE JURISDICTION IN GENERAL. Nature and Objects of Appellate Jurisdic- tion. “Tt is declared [by the Constitution] that its [the general government’s] judicial power shall (among other subjects enttnerated) extend to all cases in law and equity arisitig under the Constitution and laws of the United States, and that in such cases, as well as the others there efumerated, this court shall have appellate jurisdiction both as to law atid fact, with stich exceptions atid tinder such regula- tions as Congress shall make. The appellate power, it will be observed, is conferred on this court in all cases or suits in which such a question shall arise. It is not confined to suits in the inferior courts of the United States, but extends to all cases where such a question arises, whether it be in a judicial tribunal of a state ot of the United States. And it is manifest that this ultimate appellate power in a tribunal created by the Con- stitution itself was deemed essential to secute the independence atd suptemacy of the general governmerit in the sphere of action assigned to it; to make the Constitu- tion and laws of the United States uniform, and the same in every state; atid to guard against evils which would inevitably arise from conflicting opinions between the courts of a state and of the United States, if there was no common arbiter authorized to decide between them.” Taney, C. J. Abletnan v. Booth, 21 How. 518. ‘ Principal Jurisdiction Is Appellate. “We are always and only an appellate court, except in the limited class of cases where the court has original jurisdiction.” Miter, J. U.S. vw. Perrin, 131 U. S. 58. Appellate Jurisdiction Dependent on Stat- ute. “This court has appellate power only in the cases provided for by Congress.” Curtis, J., dissenting, In re Kaine, 14 How. 120. “ As regards all courts of the United States inferior to this tribunal, two things are neces- sary tO cteate jurisdiction, whether original or appellate. The Constitution must have given to the court the capacity to take it, and an Act of Congress must have supplied it. Their concurrence is necessary to vest it.” Swayne, J. Nashville wv. Cooper, 6 Wall. 252. “The appellate powers of the Supreme Court, as granted by the Constitution, are limited and regulated by the Acts of Con- gress, and must. be exercised subject to the exceptions and regulations made by Con- gress.” Wayne, J. Ewx p. Vallandigham, 1 Wall. 251. “This court has no appellate jurisdiction, except such as is defined by Congress.” Cuase, C. J. Walker v. U. S., 4 Wall. 165. “The appellate jurisdiction conferred by the Constitution can only be exercised by this court in pursuance of an Act of Con- gtess cotiferring the authority and prescrib- ing the mode in which it shall be performed.” CurFForD, J., dissenting. Ex p. Lange, 18 Wall. 205. “Tt must, . . be taken as a rule of constitutional law, binding on this court, that if it takes cognizance of a cause on ap- peal under the twenty-second section [of the Judiciary Act] it must be by re-examin- ing the decree, reversing or affirming it; and by the twenty-fourth, on reversal, to give such decree as the Circuit Court ought to have rendered, or remanding it for final decision, as the case may be. There can be no other course pursued; for, as the appel- late power is confined to those cases to which it has been extended by Congress, and must be exercised within the limits and by the regulations prescribed; it can have no inherent powers in virtue of which it can feview of tevise the decrees of the inferior courts, by any general superintending at- thority, such as appellate courts, may have, whose jurisdiction has neither been .confer- red not regulated by a constitution or stat- ute’ BAtpwin, J., dissenting. Harrison v. Nixon, 9 Pet. 510. Cannot Be Exercised by Single Judge. “Tt is clear that no part of the appellate jurisdiction of this court can be exercised by a single judge, at his chambers.” a J., dissenting. In re Kaine, 14 How. 19. “When jurisdiction is given ovet proceed- ings in error in critninal cases, that jutisdic- tion catries with it, by implication, the powet to make all orders necessary and proper not merely for bringing up the record, but also for the custody of the defendatit petiding the hearing of his allegations of ertor. But that jurisdiction is vested in this court as a court, and not in any single justice.” Brewer, J., dissetiting. Hudson v. Parker. 156 U. S. 290. In Admiralty and Maritime Causes. “When the judicial systern of the United 496 COURTS. States was organized, exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction was conferred upon . the District Courts. Appeals in certain cases were allowed to the Circuit Court, but neither an admiralty nor an equity cause could be brought here from the Circuit Court in any other mode than by writ of error. Later regulations allow appeals, but they place causes in equity and admiralty and maritime jurisdiction upon the same footing.” CLrFForp, J. Ward v. Chamber- lain, 2 Black 443, “Admiralty and maritime causes, where the matter in dispute, exclusive of costs, exceeded the sum or value of three hundred dollars, might under the Judiciary Act be removed by appeal from the District Courts to the Circuit Courts, but such causes could only be transferred from the Circuit Courts to the Supreme Court by writ of error.” CuirForD, J. The Admiral, 3 Wall. 612. Writ of Error to Circuit Court or Circuit Court of Appeals, “The jurisdiction of this court to hear and determine a question certified from the Circuit Court is derived altogether from the Act of 1802, ch. 31, sec. 6 (2 Stat. at Large, 159) ; and that act evidently gives the juris- diction only in cases where the judges of the Circuit Court differ in opinion on a point of law. The language of the whole provision upon this subject so clearly requires this construction, that it is unnecessary to com- ment on it. And it would be utterly in- consistent with the well known and estab- lished proceedings of courts of equity, as well as courts of common law, to take out of a case during its progress a single ques- tion of fact, and send it here with evidence ‘upon that point only, for the final decision of this court.” Tangy, C. J. Wilson v. Bar- num, 8 How. 262. “Tf plaintiff, by proper pleading, places the jurisdiction of the Circuit Court on diverse citizenship, and also on grounds in- dependent of that, . and the case is taken to the Court of Appeals, propositions as to the latter grounds may be certified, or, if that course is not pursued and the case goes to judgment (and the power to certify assumes the power to decide), an appeal or writ of error will lie under the last clause of section six, because the juris- diction would not depend solely on diverse citizenship.” Futter, C.J. American Sugar Refining Co. v. New Orleans, 181 U. S. 281. ‘ 1 Os. Dic.—32 497 — In Criminal Cases, “Congress has never empowered this court to exercise any appellate power over the judgments of the Circuit Courts in criminal cases, except where the Circuit Court is held by two judges and they differ in opin- ion and certify the question in difference here for the decision of this court.” Cxrr- FoRD, J., dissenting. Ex p. Lange, 18 Wall. 184, Appeals from Territorial Courts. “Tt cannot be disputed that Congress has the exclusive power of legislation in and over the territories, and, consequently, that the Supreme Court has appellate jurisdiction over the courts established therein, ‘ under such regulations as Congress may make.’” Grier, J. Freeborn v. Smith, 2 Wall. 173. Appeal Must Be from Final Judgment. “The Supreme Court certainly has only appellate jurisdiction, where the judgment or decree of the inferior court is final.” WaAyNE, J. Washington Bridge Co. v. Stewart, 3 How. 424. — Judgment Must Have Been Rendered by Competent Court. “The inferior court from which the appeal is taken, must be a judicial tri- bunal authorized to render a judgment which will bind the rights of the parties litigating before it, unless appealed from, and upon which the appropriate process of execution may be issued by the court to carry it into effect.” Taney, C. J. Gordon v. U. S., 117 U. S. 702. Jurisdiction Dependent on Right to Ren-- der Judgment. “No principle of constitutional law has been more firmly established or constantly adhered to, than that this court has no jurisdiction in any case where it can- not render judgment in the legal sense of the term; and when it depends upon the legis- lature to carry its opinion into effect or not, at the pleasure of Congress.” Taney, C. J. Gordon wv. U. S., 117 U. S. 704, “The award of execution 1s a part, and an essential part of every judgment passed by a court exercising judicial power. It is no judgment, in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the aggrieved party without a rem- edy. It would be merely an opinion, which would remain a dead letter, and without any operation upon the rights of the parties, un- less Congress should at some future time COURTS. sanction it, and pass a law authorizing the court to carry its opinion into effect. Such is not the judicial power confined in this court, in the exercise of its appellate juris- diction; yet it is the whole power that the court is allowed to exercise under this Act of Congress.” Taney, C. J. Gordon vw. U. S., 117 U. S. 702. 6. Review oF DECISIONS OF STATE Courts. Power to Review. “The American people may certainly give to a national tribunal a supervising power over those judgments of the state courts, laws, or treaties of the United States, with- out converting them into federal courts, or converting the national into a state tribunal. The one court still derives its authority from the state, the other still derives its authority from the nation.” MarsHA.i, C. J. Cohen v. Virginia, 6 Wheat. 421. “No doctrine of this court rests upon more solid foundations, or is more fully valued and cherished, than that which sustains its appellate power over state courts where the Constitution, laws, and treaties of the United States are drawn in question, and their au- thority is denied or evaded, or where any right is asserted under a state law or au- thority in conflict with them.” Frexp, J. Williams v. Bruffy, 102 U. S. 253. “The courts of the United States can, without question, revise the proceedings of the executive and legislative authorities of the states, and if they are found to be con- trary to the Constitution, may declare them to be of no legal validity. Surely the ex- ercise of the same right over judicial tri- bunals is not a higher or more dangerous act of sovereign power.” Story, J. Martin v. Hunter, 1 Wheat. 344. / “In this court [U. S. Supreme] every state in the Union is represented; we are constituted by the voice of the Union, and when decisions take place, which nothing but a spirit to give ground and harmonize ean reconcile, ours is the superior claim upon the comity of the state tribunals.” Jounsow, J., concurring. Martin v. Hunter, 1 Wheat. 364, . Cases in which Power May Be Exercised. “Tf any state violate a provision of the Constitution, or be charged with such viola- tion to the injury of private rights, the question is made before this tribunal; to whom all such questions, under the Constitu- tion, of right belong. In such a case, this court is to the state, what its own Supreme Court would be, where the constitutionality of a law was questioned, under the constitu- tion of the state. And within the delega- tion of power, the decision of this court is as final and conclusive on the state, as would be the decision of its own court in the case stated.” M’LEan, J. Craig v. Missouri, 4 Pet. 463. “The judiciary of a state, in all cases brought before them, have a right to decide whether or not an act of the federal govern- ment be constitutional, the same as they have a right to determine on the constitutionality of an act under the state constitution; but in all such cases, this tribunal may supervise the decisions.’ M’Lran, J. Craig v. Mis- souri, 4 Pet. 464. “The powers of the Supreme Court are limited in cases coming up from the state courts, under the twenty-fifth section of the Judiciary Act, to questions of law, where the final judgment or decree draws in question the validity of a treaty or statute of the United States, etc., or where their construc- tion is drawn in question, or an authority exercised under them.” Catron, J. Mackay v. Dillon, 4 How. 447. Decision Must Have Been Adverse to United States Constitution or Law. “Tt is only where a state court decides against the claim set up under the laws of the United States, that appellate juris- diction is given from the state decisions.” Jounson, J. M’Clung wv. Silliman, 6 Wheat. 602, “This court is not the harbor, in which the people of a city or county can find a refuge from ill-advised, unequal, and oppressive state legislation. The judicial power of the federal government can only be invoked when some right under the Constitution, laws, or treaties of the United States is invaded.” Fietp, J. Mobile County v. Kim- ball, 102 U. S. 704. “This court has jurisdiction only when the state court has given effect to a legisla- tive enactment which impairs the obligation of a prior contract.” BrLatcHForp, J. Wi- nona, etc. R. Co. v. Plainview, 143 U. S. 393, Mode of Showing Existence of Federal Question. “There has been perfect uniformity in the construction given by this court to the 498 COURTS. twenty-fifth section of the judicial act. That construction is, that it is not necessary to state, in terms, on the record, that the Con- stitution, or a treaty or law of the United States has been drawn in question, or the validity of a state law, on the ground of its repugnancy to the Constitution. It is suf- ficient if the record shows that the Constitu- tion, or a treaty or law of the United States must have been construed, or that the con- stitutionality of a state law must have been questioned; and the decision has been in favor of the party claiming under such law.” MarsHatt, C. J. Craig wv. Missouri, 4 Pet. 429. “Tt has repeatedly been decided by this court, that if a special verdict or the in- struction of a court involve such facts as that the judgment must necessarily affirm the validity of the state law, or invalidity of a right set up under the laws or Constitution of the United States, the case is sufficiently brought within the provisions of the twenty- fifth section [of the Judiciary Act of 1789].” MarsHalt, C. J. Craig v. Missouri, 4 Pet. 440. “That the Constitution or a law of the United States, is involved in a case, and makes a part of it, may appear in the progress of a cause in which the courts of the Union, but for that circumstance, would have no jurisdiction, and which of consequence could not originate in the Supreme Court.” Mar- SHALL, C. J. Cohen v. Virginia, 6 Wheat. 394, Only Questions Actually Decided Will Be Reviewed. “Questions not determined in the state court, because not raised and presented for decision by the complaining party in the court below, will not in general be examined in this court.” CxirrorD, J. Williamson v. Suydam, 6 Wall. 737. Necessity of Supreme Tribunal. “Without the Supreme Court, as it has been constitutionally and legislatively con- stituted, neither the Constitution nor the laws of Congress passed in pursuance of it, nor treaties, would be in practice or in fact the supreme law of the land, and the injunction that the judges in every state should be bound thereby, any thing in the constitution or laws of any state to the contrary notwith- standing, would be useless, if the judges of state courts, in any one of the states, could finally determine what was the meaning and operation of the constitution and laws of Congress, or the extent of the obligation of treaties. But let it be remembered, that the appellate jurisdiction of the Supreme Court, as it is, is one of perfect equality between the states and the United States. It acts upon the Constitution and laws of both, in the same way, to the same extent, for the same purposes, and with the same final re- sult. Neither the dignity nor the inde- pendence of either are lessened by its or- ganization or action.” Wayne, J. Dodge v. Woolsey, 18 How. 355. “If the courts of the states, or their leg- islatures, could finally determine against the constitutionality of a tax by Congress, there would be no certainty or uniformity of tax- ation upon the citizens of the United States, or of the apportionment of representation and direct taxation according to the Constitution.” WayneE, J. Dodge v. Woolsey, 18 How. 353. Extent to which State Courts Are In- ferior. “The state courts are not, in any sense of the word, inferior courts, except in the par- ticular cases in which an appeal lies from their judgment to this court; and in these cases the mode of proceeding is particularly prescribed, and is not by habeas corpus. They are not inferior courts because they emanate from a different authority, and are the creatures of a distinct government.” MarsHa.l, C. J. Ex p. Bollman, 4 Cranch 97. % TERRITORIAL EXTENT OF JURISDIC- TION. “The jurisdiction of the Supreme Court and the Court of Claims is not confined by geographical boundaries. Each of them, hav- ing by the law of its organization jurisdic- tion of the subject-matter of a suit, and of the parties thereto, can, sitting at Washing- ton, exercise its power by appropriate proc- ess, served anywhere within the limits of the territory over which the federal govern- ment exercises dominion.” Mutter, J. U. S. v. Union Pacific R. Co., 98 U. S. 603. 8. RESTRICTION, ENLARGEMENT, AND REGULATION OF JURISDICTION. By Congress—In General. _ “No principle has been better settled, or more steadily adhered to, than that this is a court of special jurisdiction, whether orig- inal or appellate, which the Constitution has defined and separated by a line, which Con- gress cannot pass, by extending that which is original, to cases which are appellate, or e converso.” Batpwin, J., dissenting. Harrison v. Nixon, 9 Pet. 511, 499 COURTS. “When questions of jurisdiction arise, they must be settled by a reference to the Constitu- tion and Acts of Congress. All cases em- braced within the judicial power of the gov- ernment are capable of being acted upon by the courts of the Union. Those on which the original jurisdiction of this court can be exercised are defined and cannot be en- larged. . . . It has no inherent authority to assume it over any others, and Congress are incapable of conferring it by law. . . . Where the Constitution has declared the jurisdiction shall be original, Congress can- not give it in its appellate form, and vice versa.” BALDWIN, J., dissenting. Er p. Crane, 5 Pet. 202. “The Supreme Court of the United States is the creature of the Constitution. By this instrument its powers and jurisdiction, orig- inal and appellate, are conferred and defined ; these are peculiar and exclusive, and by no legislation can they be enlarged or dimin- ished, must less can they either in whole or in part, be delegated to other tribunals or officers of any grade or description.” Dantet, J. Pennsylvania v. Wheeling, etc., Bridge Co., 18 How. 454. “The original jurisdiction of this court cannot be extended by Congress to any other cases than those expressly defined by the Constitution.” Case, C. J. Ex p. Yerger, 8 Wall. 98. “The original jurisdiction of the Supreme Court is defined and limited by the Constitu- tion, and can neither be extended nor restricted by an Act of Congress.” CurrForD, J. dissenting. Tennessee v. Da- vis, 100 U. S. 290. “Its [this court’s] jurisdiction and powers and duties being defined in the organic law of the government, and being all strictly ju- dicial, Congress cannot require or authorize the court to exercise any other jurisdiction or power, or perform any other duty.” Taney, C. J. Gordon v. U. S, 117 U. S. 700. — Appellate Jurisdiction. “Tf the purposes of justice require a further expansion of our appellate power, it is the duty of Congress to prescribe it.” BaLp- win, J. Decatur v. Paulding, 14 Pet. 613. “The original jurisdiction of this court, and its power to receive appellate jurisdiction, are created and defined by the Constitution; and the legislative department of the govern- ment can enlarge neither one nor the other. But it is for Congress to determine -how far, within the limits of the capacity of this court to take, appellate jurisdiction shall be given, and when conferred, it can be ex- ercised only to the extent and in the manner prescribed by law. In these respects it is wholly the creature of legislation.” Swayne, J. Daniels v. Rock Island R. Co. 3 Wall. 254, “The appellate power and jurisdiction are subject to such exceptions and regulations as the Congress shall make. But the appeal is given only from such inferior courts as Congress may ordain and establish to carry into effect the judicial power specifically granted to the United States.” Taney, C. J. Gordon v. U. S., 117 U. S. 702, “Congress cannot extend the appellate power of this court beyond the limits pre- scribed by the Constitution, and can neither confer nor impose on it the authority or duty of hearing and determining an appeal from a commissioner or auditor, or any other tri- bunal exercising only special powers under an Act of Congress; nor can Congress au- thorize or require this court to express an opinion on a case where its judicial power could not be exercised, and where its judg- ment would not be final and conclusive upon the rights of the parties, and process of ex- ecution awarded to carry it into effect.” Taney, C. J. Gordon v. U. S., 117 U. S. 702. By the Supreme Court. “This court cannot by , rule en- large or restrict its own inherent jurisdic- tion and powers, or those of the other courts of the United States, or of a justice or judge of either, under the Constitution and laws of the United States.” Gray, J. Hud- son v. Parker, 156 U. S. 284, “Fully satisfied that on the discreet ex- ercise of the powers of this court, much of the strength and public usefulness of the gov- ernment depends, I have no fear that its judgments will ever cease to command the support and confidence of the country, while they are applied only to subjects clearly within the judicial power, according to the laws which regulate their exercise. But I do most seriously apprehend consequences of the most alarming kind by the extension of its powers by any analogy to the supreme pre- rogative jurisdiction of the Court of King’s Bench or a state court, and its jurisdiction to process hitherto unknown in the history of the jurisprudence of England or this court. Via trita, via tuta.’ Ba tpwin, J., dissenting. Ex p. Crane, 5 Pet. 223. 500 COURTS. “It is dangerous, at least, if not unwise or rash, to exercise a power which may be given by the Constitutions but which Con- gress has given no authority to execute, or given in terms so obscure, that to so con- strue them, is in substance the exercise of legislative power, by the judicial department. However desirable it may be thought to en- large jurisdiction, and expand its exercise so as to embrace cases not yet known to the law, or by so construing the Constitution and law, as to make it by reasoning what it ought to have been in the text; and giving infer- ence and incident the effect of ordinance and enactment, increase the ostensible power of the court; yet assuredly it will continue to lose, in public confidence, that moral strength, which can alone insure its ef- ficient and quiet action, in the same propor- tion as it extends ungranted jurisdiction.” BaLpwin, J. Holmes v. Jennison, 14 Pet. 631, By State Courts. “Tt is not the province of a state court to determine our jurisdiction.” Brewer, J. Wabash R. Co. v. Pearce, 192 U. S. 184. By Circuit Courts. “Tt is not in the power of the Circuit Court to determine the extent and limits of our jurisdiction, for that is a matter which this court must finally decide for itself’ Brewer, J. Rector v. Lipscomb, 141 U. S. 558, 9. PowER To PrescrisE Process AND REGULATE PROCEDURE. Of District and Circuit Courts. “Full power and authority were .. . given to this court by the 6th section of the Act of the 23d of August, 1842, to prescribe, regulate, and alter the forms of writs and other process to be used and issued in the District and Circuit Courts, and the forms and modes of framing and filing libels, bills, answers, and other pleadings and proceedings in suits at common law, or in admiralty and in equity, pending in those courts, and also the forms and modes of taking and obtaining evidence, and of obtaining discovery, and of proceeding to obtain relief, and of proceed- ing before trustees appointed by the court, and generally to regulate the whole practice of the said courts so as to prevent delays and promote the other objects specified in the section.” CtiFForp, J. Ward v. Cham- berlain, 2 Black 436, In Cases of Original Jurisdiction. “Tt is upon the principle of the perfect independence of this court, that in cases 501 where the Constitution gives it original juris- diction, the action of Congress has not been deemed necessary to regulate its exercise, or to prescribe the process to be used to bring the parties before the court, or to carry its judgment into execution. The jurisdiction and judicial power being vested in the court, it proceeded to prescribe its process and regulate its proceedings according to its own jadgment, and Congress has never at- tempted to control or interfere with the ac- tion of the court in this respect.” TANEy, C. J. Gordon v. U.S. 117 U. S. 701. Congressional Regulation. STB a a this court is to be (as I con- sider it) the organ of the Constitution and the law, not of the Constitution only, in re- spect to the manner of its proceeding, we must receive our directions from the legis- lature in this particular, and have no right to constitute ourselves an officina brevium, or take any other short method of doing what .the Constitution has chosen (and, in my opinion, with the most perfect propriety) should be done, in another manner.” IrE- DELL, J. Chisholm v. Georgia, 2 Dall. 433. “The legislature did not choose to leave to our own discretion the path to justice, but has prescribed one of its own.” IREDELL, J. Chisholm v. Georgia, 2 Dall. 434. VI. CIRCUIT COURTS OF APPEALS. Purpose for Which Created. “The Circuit Courts of Appeals were created for the purpose of relieving this court of the oppressive burden of general litigation, which impeded the examination of disposition of cases of public concern, and delayed suitors in the pursuit of justice.” FuLier, C. J. In re Woods, 143 U. S. 205. “The primary object of this act [the act establishing Circuit Courts of Appeals] well known as a matter of public history, manifest on the face of the act, and judicially declared in the leading cases under it, was to relieve this court of the over-burden of cases and controversies, arising from the rapid growth of the country, and the steady increase of lit- igation; and, for the accomplishment of this object, to transfer a large part of its appel- late jurisdiction to the Circuit Courts of Appeals thereby established in each judicial circuit, and to distribute between this court and those, according to the scheme of the act, the entire appellate jurisdiction from the Circuit and District Courts of the United States.” Gray, J. American Constr. Co. v. Jacksonville, etc, Ry. Co., 148 U. S. 382. COURTS. “Tt may be proper to observe that the pur- pose of the Act of 1891, creating the Courts of Appeal, was to vest final jurisdiction as to certain classes of cases in the courts then created, and this in order that the docket of this court might be relieved, and it be en- abled with more promptness to dispose of the cases directly coming to it. In order to guard against any injurious results which might flow from having nine appellate courts, acting independently of each other, power was given to this court to bring before it for decision by certiorari any case pending in either of those courts. In that way it was believed that uniformity of ruling might be secured, as well as the disposition of cases whose gravity and importance rendered the action of tribunal of last resort peculiarly desirable, but the power of determining what cases should be brought up was vested in this court, and it was not intended to give to any one of the Courts of Appeal the right to avoid the responsibility cast upon it by the statute by transmitting any case it saw fit to this court for decision. If such prac- tice were tolerated it is easy to perceive that the purpose of the act might be defeated, and the Courts of Appeal, by transferring cases here, not only relieve themselves of burden, but also crowd upon this court the very cases which it was the intent of Con- gress they should finally determine. It is true power was given to the Courts of Ap- peal to certify questions, but it is only ‘ ques- tions or propositions of law’ which they are authorized to certify. And such questions must be, as held in the case just cited, ‘dis- tinct questions or propositions of law, un- mixed with questions of fact or of mixed law and fact.’ It is not always easy to draw the line, for, in order to present a distinct question of law, it may sometimes be neces- sary to present many facts upon which that question is based. But care must always be taken that under the guise of certifying questions the Courts of Appeal do not transmit the whole case to us for considera- tion.” Brewer, J. Warner v. New Orleans, 167 U. S. 474, “The primary object of the Judiciary Act of March 31, 1891, was to relieve this court of the overburden of cases which impeded the prompt administration of justice.’ Fut- ter, C. J. Louisville, etc, R. Co. v. Behlmer, 169 U. S. 646. Constitution of the Courts. “The intention of Congress, in enacting that no judge before whom ‘a cause or ques- tion may have been tried or heard,’ in a District or Circuit Court, ‘shall sit on the trial or hearing of such cause or question,’ in the Circuit Court of Appeals, manifestly was to require that court to be constituted of judges uncommitted and uninfluenced by hav- ing expressed or formed an opinion in the court of the first instance. Whatever may be thought of the policy of this enactment, it is not for the judiciary to disregard or to fritter away the positive prohibition of the legislature.” Gray, J. Moran v. Dilling- ham, 174 U. S. 156. Jurisdiction of Appeals from Circuit Courts. “By the Judiciary Act of March 3, 1891, it was provided that this court should not have appellate jurisdiction by appeal, by writ of error, or otherwise, over the Circuit Courts, except according to the provisions of the act; and jurisdiction was _ specifically given in ‘cases of conviction for capital or other infamous crimes.’” Futter, C. J. U. S. v. Hewecker, 164 U. S. 47. “From final judgments of the Circuit Court in civil suits an appeal or writ of error lies to this court, or to the Circuit Court of Ap- peals. It lies directly to this court in any case in which the jurisdiction of the Circuit Court is in issue; and in such case the ques- tion of jurisdiction only is certified to and decided by this court. It also lies directly from the Circuit Court to this court in cases involving the construction or application of the Constitution, or the constitutionality of a law, or the validity or construction of a treaty, of the United States, or in which the constitution or a law of a state is claimed to be in contravention of the Constitution of the United States; and in any of these cases the appellate jurisdiction of this court is not limited to the constitutional question, but extends to the determination of the whole case. . . From final judgments of the Circuit Court in all other civil suits an ap- peal or writ of error lies to the Circuit Court of Appeals; and the judgments rendered thereon by the Circuit Court of Appeals are final (unless this court, by writ of certiorari or otherwise, orders the whole case to be brought up for its decision) in all cases in which the jurisdiction of the Circuit Court ‘is dependent entirely upon the parties be- ing aliens and citizens of the United States, or citizens of different states’; as well as in cases arising under the patent laws, or under the revenue laws. In all other civil actions (including those arising under the copy- right laws of the United States), if the mat- ter in controversy exceeds $1,000, besides 502 COURTS. costs, there is, as of right, an appeal or writ of error to bring the case to this court.” Gray, J. Press Pub. Co. v. Monroe, 164 U.S. 110, “Tf the jurisdiction of the Circuit Court was invoked solely on the ground of diverse citizenship, the case should have been taken to the Circuit Court of Appeals for the Fifth Circuit, to which court previous similar cases have been carried.” Futter, C. J. Mexi- can Cent. R. Co. v, Eckman, 187 U. S. 433. — Jurisdiction Exclusive of Supreme Court of the United States. “An ordinary appeal from the final judg- ment of the Circuit Court lies, since the Act of March 3, 1891, to the Court of Appeals, and not to this court.” Jackson, J. Pass- avant v. U. S., 148 U. S. 217. “The plaintiff, having elected to go to the Circuit Court of Appeals for a review of the judgment, could not thereafter, if unsuccess- ful in that court upon the merits, prosecute a writ of error directly from the Circuit Court to this court.” Haran, J. Spreck- els Sugar Refin. Co. v. McClain, 192 U. S. 408. Appellate Jurisdiction in Admiralty Causes. “By the highest judicial authority of the nation it has been long since decided, that the court of appeals erected by Congress had full authority to revise and correct the sen- tences of the courts of admiralty of the sev- eral states, in prize causes. That question, therefore, is at rest.’ Marsuau, C. J. U. S. v. Peters, 5 Cranch 140. VII. CIRCUIT AND DISTRICT COURTS OF THE UNITED STATES. “ Circuit Courts, as well as District Courts, were created by the Act of Congress es- tablishing the judicial system of the United States, and the latter as well as the former are courts of record.” CiiFForD, J. Wardzv. Chamberlain, 2 Black 444. “A Circuit Court may be holden by a judge of this court, or, in his absence by the district judge alone; and either has the same power to make rules of court, as both together.” Batpwin, J., dissenting. Beers v. Haughton, 9 Pet. 375. “The Circuit Court had originally been invested with all the powers of a district court of the United States; but these were taken from it in 1802, and a district court established within the district, to be held by the chief justice of the Circuit Court. These courts, the district and the criminal, are preserved by the Act of 1863 reorganiz- ing the courts, and are to be held in the same manner, and with the same powers and juris- diction —the one as possessed by the dis- trict courts of the United States, and the other as possessed by the old criminal court of the district. The only change made is, that instead of each court having a judge or judges appointed to hold it, any justice of the Supreme Court may hold the same. Un- der the old law, 20th of February, 1839, in case of the inability of the judge of the criminal court to hold the same, one of the judges of the circuit was authorized to hold it.” Netson, J. Ex p. Bradley, % Wall. 371. VIII. COURT OF CLAIMS. Power of Congress to Establish. “Congress may undoubtedly establish tri- bunals with special powers to examine testi- mony and decide, in the first instance, upon the validity and justice of any claim for money against the United States, subject to the supervision and control of Congress, or a head of any of the executive departments. In this respect the authority of the Court of Claims is like to that of an auditor or comptroller — with this difference only; that in the latter case the appropriation is made . in advance, upon estimates, furnished by the different executive departments, of their probable expenses during the ensuing year; and the validity of the claim is decided by the officer appointed by law for that pur- pose, and the money paid out of the ap- propriation afterwards made.” Taney, C. J. Gordon v. U. S., 117 U. S. 699. Effect of Establishment. “By establishing this court [Court of Claims] the United States created a tribunal to determine the right to receive moneys due by the government. Such legislation did not leave the treasury or its officers free to arbitrarily select, between conflicting claim- ants, the one to whom payment should be made.” Swiras, J. U. S. v. Borcherling, 185 U. S. 234. Jurisdiction —In General. “The Court of Claims has power to hear and determine all claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any con- tract, express or implied, with the govern- ment of the United States.” Davis, J. Nichols v. U. S., 7 Wall. 128. 503 , COURTS. “The jurisdiction of that court [Court of Claims] is limited to claims founded upon a law of Congress, or upon a regulation of an executive department, or upon a contract, ex- press or implied, with the government.” Fre.p, J. Knote v. U. S., 95 UL S. 156. “Jurisdiction is not conferred upon the Court of Claims to allow mere extra allow- ances in a case where there is no promise to that effect, either express or implied. Power to hear and determine claims founded upon law of Congress, or upon any regulation of an executive department, or upon any con- tract, express or implied, with the gov- ernment of the United States, and all claims which may be referred to it by either house of Congress, is vested in the Court of Claims.” CurrForp, J. Hawkins v. U. S. 96 U. S. 698. “Under the existing statutes, the prin- ciple classes of demands submitted to the determination of the Court of Claims are claims founded on laws of Con- gress, on regulations of the executive depart- ments, and on the contracts, expressed or implied, and claims referred to the court of Congress.” Gray, J., dissenting. U. S. wv. Lee, 106 U.S. 240. “No Act of Congress has conferred upon that court [the Court of Claims] or upon any other tribunal, general jurisdiction of suits against the United States to recover possession of real property, or to redress a tort.” Gray, J., dissenting. U. S. v. Lee, 106 U. S. 240. “The Court of Claims has the right to en- tertain jurisdiction of cases against the United States and proceed to judgment only by vir- tue of Acts of Congress granting such juris- diction, and is limited precisely to such cases both in regard to parties and the cause of action as Congress has prescribed.” FULLER, C. J. Austin v. U. S., 155 U. S. 430. “TThe Court of Claims] has no general jurisdiction over claims against the United States. It can take cognizance of only those matters which by the terms of some act of Congress are committed to it.” Brewer, J. Johnson v. U. S., 160 U. S. 549. —— Claims Based on Contract. “The Court of Claims is thus constituted one of those inferior courts which Congress authorizes, and has jurisdiction of contracts between the government and the citizen, from which appeal regularly lies to this court.” Cuasz, C. J. U. S. vw Klein, 13 Wall. 145. “ After the suppression of the Rebellion the military authorities had no such relations to property appropriated by them during the war as enabled them, by contract or other- wise, to turn a claim growing out of such ap- propriation into a claim based upon con- tract, and thereby give to the Court of Claims a jurisdiction denied to it by Congress.” Haran, J. U. S. v. Winchester, etc., R. Co., 163 U. S. 257. “In my opinion, claims founded upon the Constitution may be prosecuted in the Court of Claims, whether sounding in contract or in tort.” Brown, J., concurring. U. S. v. Lynah, 188 U. S. 475 ——FInfringement of Patent. “For the redress of an infringement [of a patent] the Court of Claims has no jurisdic- tion.” McKenna, J. Russell v. U. S., 182 U.S. 535. —— Matters Referred to Court by Con- gress. “The Court of Claims, by the terms of the act under which it is organized, has jurisdiction, among other things, to hear and determine all things which may be re- ferred to it by either house of Congress.” Waite, C. J. Vigo’s Case, 21 Wall. 649. “The Court of Claims has jurisdiction to hear and determine a claim referred to it by either house of Congress, because, and only because, the law-making power has so declared; but unless Congress otherwise pre- scribes, that reference will not itself en- title the claimant to a judgment, if his claim is not well founded in law, or, when so re- ferred, was barred by limitation.” HaArLan, J. Ford v. U. S., 116 U. S. 218. —— Claim Barred by Limitation. “Tt [Congress] has, in special cases, in- vested the Court of Claims with jurisdiction to determine a claim, relieved of the bar of limitation.” Haran, J. Ford vw. U. S., 116 U. S. 217. — Extends Throughout United States. “The jurisdiction of that court [Court of Claims] extends throughout the United States. It issues writs to every part of the United States, and is specially authorized to enforce them.” Sutras, J. U. S. vw. Borcherling, 185 U. S. 234, —— Not Enlarged by Implication. “The jurisdiction of the Court of Claims cannot be enlarged by implication.” BREWER, J. Price v. U. S., 174 U. S. 375. 504 COURTS. —— Equitable Jurisdiction. “The holder of a mere equitable right can have no standing as a plaintiff in the Court of Claims. Apart from the fact that there is no privity between the United States and an equitable holder of a claim against the government, obtained by him through an as- signment, the Court of Claims is without power to adjudicate upon merely equitable rights.” Strone, J. U. S. v. Gillis, 95 U. S. 412. “ Although unable to grant a decree for specific performance or exercise the peculiar powers of a court of equity, the Court of Claims may determine the money relief to which the claimant is entitled, whether aris- ing out of an equitable or legal demand.” Day, J. District of Columbia, 197 U. S. 152. Power of Congress to Limit Jurisdiction. “Tt is true that ordinarily, when we seek for the foundation of this jurisdiction [ju- risdiction of the Court of Claims of cases in which the United States is defendant] we look to the general laws creating the court; and defining causes of which it may have cognizance. But it is equally true that when- ever Congress chooses to withdraw from that jurisdiction any class of cases which had before been committed to its control, as it has done more than once, it has the power to do so, or to prescribe the rule by which such cases may be determined. Its right to do this in regard to any particular case, as well as to a class of cases, must rest on the same foundation; and no reason can be perceived why Congress may not at any time with- draw a particular case from the cognizance of that court, or prescribe in such case the circumstances under which alone the court may render a judgment against the govern- ment.” Mrtter, J. De Groot vw. U. S, 5 Wall. 432. “For more than sixty years after the adoption of the Constitution, no general provision was made by law for determining claims against the United States; and in every act concerning the Court of Claims Congress has defined the class of claims which might be made, the conditions on which they might be presented, the forms of proceedings, and the effect to be given to the awards.” Gray, J., dissenting. U. S. wv. Lee, 106 U. S. 239. Standing of Alien Claimant. “Evidently Congress meant to confer on the British subject the right to sue in the Court of Claims under the act. relating to 505 captured and abandoned property, if, in the ordinary course of the administration of jus- tice in England, the law secures to the American citizen the right to prosecute his claim against the government in its courts. That the Petition of Right accomplishes this object, cannot admit of question. If the mode of proceeding to enforce it be formal and ceremonious, it is nevertheless a practical and efficient remedy for the invasion by the sovereign power of individual rights. In- deed, it is not less practical and efficient than a suit in the Court of Claims. And in one important particular the two proceed- ings are alike, for both end with the re- covery of the judgments. After they are obtained it depends in England on the Parlia- ment, and in this country on Congress, whether or not they shall be paid.” Davis, J. U.S. uv. O’Keefe, 11 Wall. 184. “It would be a severe rule of interpre- tation that would exclude all British subjects from the Court of Claims, because in a few sporadic cases, from motives of state policy, the Petition of Right was denied. And we cannot impute to the legislature an intention that would produce such a result, in the absence of an express declaration to that effect.” Davis, J. U. S. uv. O’Keefe, 11 Wall. 184. Court of Private Land Claims. “The United States, at their election, may have the validity of any Mexican grant, whether complete or incomplete, determined by the Court of Private Land Claims, so far as concerns the interest of the United States; and proceedings to establish against the United States private titles claimed under incomplete Mexican grants are within the exclusive jurisdiction of that court; but the private holder of any incomplete and perfect Mexican grant may, but is not obliged to, have its validity as against the United States determined by that court.” Gray, J. Ainsa v. New Mexico, etc., R. Co., 175 U. S. 89. “Tt [the Court of Private Land Claims] is a mere creature of statute with prescribed and limited powers. It has no general equity jurisdiction.” Brewer, J. Cessna v. U. S., 169 U. S. 188. IX. JURISDICTION OF INFERIOR UNITED STATES COURTS. As to equitable jurisdiction, see Equity. 1. Crrcurr Courts. In General. “Of suits of a civil nature, at law or in equity, the Circuit Courts of the United COURTS. States have original jurisdiction, by reason of the citizenship of the parties, in cases between citizens of different states or be- tween citizens of a state and aliens; and by reason of the cause of action, ‘in cases arising under the Constitution or laws of the United States, or treaties made or which shall be made under their authority,’ includ- ing, of course, suits arising under the patent or copyright laws of the United States.” Gray, J. Press Pub. Co. v. Monroe, 164 U. S. 110. “By the Judiciary Act, exclusive cog- nizance was given to the Circuit and District Courts of the United States of all crimes and offenses cognizable under the authority of the United States; and the same to the district courts, of all civil causes of admiralty and maritime jurisdiction, of all seizures on water under the laws of impost, navigation, or trade of the United States, and of all seizures on land for penalties and forfeitures incurred under said laws.” Braptey, J. Claflin v. Houseman, 93 U. S. 139. “The Circuit Courts of the United States have original jurisdiction of suits of civil nature, at law or in equity, by reason of the citizenship of the parties, in cases between citizens of different states, or between cit- izens of a state and aliens; and, by reason of the cause of action, ‘in cases arising under the Constitution or laws of the United States, or treaties made or which shall be under their authority, as for instance suits arising under the patent as copyright laws of the United States.” Futrer, C. J. Pope v. Louisville, etc., R. Co., 173 U. S. 576. “The Judiciary Act of March 3, 1875, for the first time, invested the Circuit Courts of the United States, without reference to the citizenship of the parties, with original juris- diction of all suits of a civil nature at com- mon law or in equity, where the matter in dispute exceeded a prescribed sum, and the suit was one ‘arising under the Constitu- tion or laws of the United States.” Har- LAN, J. Memphis Continental Nat. Bank v. Buford, 191 U. S. 122. “When, in the eleventh section of the Ju- diciary Act of 1789, jurisdiction of suits of a civil nature at common law or in equity was given to the Circuit Courts, it was in- tended to embrace not merely suits which the common law recognized as among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined as distinguished from rights in equity, as well as suits in admiralty.” Stronc, J. Kohl v. U.S, 91 U. S. 375. Courts of Superior General Jurisdiction. “The Circuit Courts of the United States have cognizances of suits as provided by the Acts of Congress, and when their juris- diction as federal courts has attached, they possess and exercise all the powers of courts of superior general jurisdiction. Accord- ingly they entertain and dispose of interven- tions and the like on familiar and recognized Principles of general law and practice, but the ground on which their jurisdiction as courts of the United States rests is to be found in the statutes, and to that source must always be attributed.” Furrer, C. J. Gregory v. Van Ee, 160 U. S. 646. Jurisdiction Coextensive with District. “The Circuit Courts of the United States exercise jurisdiction coextensive with their respective districts.” McLean, J. Massingill v. Downs, 7 How. 766. Jurisdiction Depends on Citizenship and Amount in Dispute. “The jurisdiction of the Circuit Court, it must be observed, depends equally on the citizenship of the parties and the value of the matter in dispute.’ Haran, J. Waite v. Santa Cruz, 184 U. S. 325. Action by Corporation Chartered by Con- gress. “Tt may not be doubted that if an action be brought in a Circuit Court of the United States by such a corporation [chartered by Acts of Congress], there would be jurisdic- tion to entertain it, although the averments set out to establish the wrong complained of or the defense interposed were unsubstantial in character.” Wuute, J. Swafford v. Tem- pleton, 185 U. S. 494. “A corporation created by Congress has a right to invoke the jurisdiction of the federal courts in respect to any litigation it may have except as specially restricted.” Futter, C. J. Bankers Mut. Casualty Co. v. Minneapolis, etc., R. Co., 192 U. S. 383. “Notwithstanding the Acts of 1882 and 1888, there remained to a national bank, inde- pendently of its federal origin, and as a citi- zen of the state in which it was located, the right to invoke the original jurisdiction of the Circuit Courts in any suit involving the required amount, and which, by reason of its subject-matter, and not by reason simply of the federal origin of the bank, was a suit arising under the Constitution or laws of 506 “ COURTS. the United States.” Hartan, J. Memphis Continental Nat. Bank v. Buford, 191 U. S. 124. Suits to Recover Duties Paid. “Suits to recover back moneys illegally exacted as internal revenue duties cannot, under existing laws, be commenced in the Circuit Courts, except in cases where the taxpayer and the defendant, whether the as- sessor or collector, are citizens of different states.” CxirrorD, J. Collector v. Hubbard, 12 Wall. 8. Matters Pending Before District Court. “As a substantive matter, standing alone, the Circuit Court has no jurisdiction to in- terfere with or relieve against a survey which, by the allegation of the bill itself, is pending before the District Court.” MULLER, J. U.S. vz. Throckmorton, 98 U. S. 71. Appellate Jurisdiction. “ Power, it is true, is vested in the Circuit Courts in certain cases to revise the doings of the District Courts, and in certain other cases an appeal is allowed from the Dis- trict Court to the Circuit Court.” CLiFForD, J. Michaels v. Post, 21 Wall. 424. “The revisory jurisdiction of the Circuit Court may be exercised by bill as well as by petition.” Brapiey, J. Marshall v. Knox, 16 Wall. 555. 2. District Courts. Common Law and Admiralty. “TAlthough the District Courts are courts of both common law and admiralty jurisdic- tion] the two jurisdictions are as distinct from each other as if they were vested in different tribunals, and can no more be blended than a court of chancery with. a court of common law.” MarsHALL, C. J. The Sarah, 8 Wheat. 394. Bankruptcy. “Of this [jurisdiction of District Court] there are two distinct classes; first, juris- diction as a court of bankruptcy over the pro- ceedings in bankruptcy initiated by the peti- tion, and ending in the distribution of assets amongst the creditors, and the discharge or refusal of a discharge of the bankrupt; sec- ondly, jurisdiction, as an ordinary court, of suits at law or in equity brought by or against the assignee in reference to alleged property of the bankrupt, or to claims alleged to be due from or to him.” Braptey, J. Lathrop v. Drake, 91 U. S. 517. “Prior to the passage of the Bankrupt Act the District Courts possessed no equity juris- diction whatever.” Cl iFForD, J. Stickney v. Wilt, 23 Wall. 161, Suits Brought by Postmaster-General. “The jurisdiction of the District Courts : over suits brought by the Postmaster- General for debts and balances due the gen- eral post-office, is unquestionable.” Mar- SHALL, C. J. Postmaster Gen. of U. S. v. Early, 12 Wheat. 147. Suits Against Consuls and Vice-Consuls. “With regard to suits against consuls, and vice-consuls, it is perfectly clear, that the suit of a state must, if the defendant insists upon his right, be prosecuted in the District Courts of the United States.” JoHN- son, J., dissenting. Governor v. Madrazo, 1 Pet. 129. Concurrent Jurisdiction with Circuit Court. “By the judicial act the District Courts have cognizance concurrent with the Circuit Court of all cases where the United States sue.” MarsHatt, C. J. Southwick v. Post- master General, 2 Pet. 447. “By the Act of 3d March, 1815, vol. III, p. 245, it is enacted that the District Courts of the United States shall have cognizance, concurrent, etc., of all suits at common law where the United States or any officer thereof under the authority of an Act of Congress, shall sue, etc. This act gave the District Court jurisdiction of all suits brought by the Postmaster General. It has been construed by this court to give the Circuit Courts cog- nizance of the same causes.” MARSHALL, C. J. Southwick v. Postmaster General, 2 Pet. 447. “The District Courts which exercise Cir- cuit Court jurisdiction, do not distinguish in their proceedings whether they sit as a Cir- cuit or a District Court. That is determined by the subject-matter of their judgments. Their records are all kept as the records of a District Court.” MarsHatt, C. J. South- wick v. Postmaster General, 2 Pet. 447. 3. CRIMINAL JURISDICTION. “Neither the District nor Circuit Courts have jurisdiction of any crimes or offenses by the act [Judiciary], unless the same are cognizable under the authority of the United States. Criminal jurisdiction is not by the Constitution conferred upon any court, and it is settled law that Congress must in all cases make an act criminal and define the offense 507 COURTS. before either the District or Circuit Courts can take cognizance of an indictment charging the act as an offense against the authority of the United States. Obvious and undoubt- ed as the proposition is, it admits of but little illustration, and needs nothing more.” CuirForD, J., dissenting. Tennessee v. Davis, 100 U. S. 274. “Circuit Courts [of the United States] have no common-law jurisdiction of offenses of any grade or description.” Warte, C. J. U. S. v. Cruikshank, 92 U. S. 564. “In the absence of legislation by Con- gress [the courts of the United States] have no criminal jurisdiction whatever.” BLATCH- ForD, J. Manchester v. Massachusetts, 139 UL S. 262. “The courts of the United States, in the absence of legislation by Congress, have no criminal jurisdiction whatever.” BiatcHrorp, J. Manchester v. Massachu- setts, 139 U. S. 269. “Jurisdiction of crimes and offenses com- mitted within their respective districts, and cognizable under the authority of the United States to a limited extent, was by that act [Judiciary] conferred upon the District Courts; but the eleventh section of the act provided that the Circuit Courts should have exclusive cognizance of all ‘crimes and of- fenses cognizable under the authority of the United States, except where the act other- wise provides, and concurrent jurisdiction with the District Courts of the crimes and offenses cognizable in those courts.” CLIF- ForD, J., dissenting. Tennessee v. Davis, 100 U. S. 274. “Offenses against the authority of the United Etates, defined by an Act of Congress passed in pursuance of the Constitution, are cognizable in the Circuit Courts by virtue of the eleventh section of the Judiciary Act, whether committed upon the high seas or in any river, haven, basin, or bay out of the jurisdiction of any particular state, or in any fort, dockyard, arsenal, armory, or magazine, or any other place the exclusive jurisdiction of which is ceded to the United States. Cog- nizance in criminal cases may also be given to those courts, of offenses against the na- tional authority, if properly defined by an act of Congress, when they are committed in violation of such an act passed pursuant to the second section of the third article of the Constitution, which extends the judicial power to all cases in law and equity arising under the Constitution, the laws of Congress, and the treaties therein specified.” CziFroro, J., dissenting. Tennessee v. Davis, 100 U. S. 277, “The law has been considered as settled that the Circuit Courts have no jurisdiction to try and sentence an offender, unless it ap- pears that the offense charged is defined by an act of Congress, and that the act defining the offense, or some other act, prescribes the punishment to be imposed, and specifies the court that shall have jurisdiction of the of- fense.” CuirForD, J., dissenting. Tennessee v. Davis, 100 U. S. 279. And see Criminat Law. 4, JURISDICTION DEPENDENT ON ACT oF CONGRESS. Courts of Limited Jurisdiction. “The jurisdiction of the courts of the Uni- ted States is limited by law, and can only be exercised in special cases.” M’KINLEy, J. Levy v. Fitzpatrick, 15 Pet. 171. “The courts of the United States are lim- ited in their nature and constitution, and have not the power inherent in courts exist- ing by prescription or by the common law.” DanizL, J. Cary v. Curtis, 3 How. 245. “The courts [federal] are courts of limited jurisdiction, and acting under express grants, and can presume nothing beyond the grant.” Woopsury, J., dissenting. Waring v. Clarke, 5 How. 500. Jurisdiction Dependent on United States Constitution and Laws, “A federal court can neither take nor sur- render jurisdiction except pursuant to the Constitution and laws of the United States.” Harian, J. Smith v. Reeves, 178 U. S. 441. “Tt would seem to follow conclusively from the peculiar character of the courts of the United States, as organized under the Con- stitution and the statutes, and as defined by numerous and unvarying adjudications from this bench, that there is not one of those courts whose jurisdiction and powers can be deduced from mere custom or tradition; not one, whose jurisdiction and powers must not be traced palpably to and invested exclusively by, the Constitution and statutes of the Uni- ted States; not one that is not bound, there- fore, at all times, and at all stages of its proceedings, to look to and regard the special and declared extent and bounds of its com- mission and authority.” Dantet, J. Scott v. Sandford, 19 How. 472. 508 COURTS. Jurisdiction Not Derived Immediately from Constitution. “Of all the courts which the United States may, under their general powers, constitute, one only, the Supreme Court, possesses juris- diction derived immediately from the Consti- tution and of which the legislative power cannot deprive it. All other courts created by the general government possess no juris- diction but what is given them by the power that creates them, and can be vested with none but what the power ceded to the gen- eral government will authorize them to con- fer.” JoHnson, J. U. S. v. Hudson, 7 Cranch 33. “The Constitution defines the jurisdiction of the Supreme Court, but does not define that of the inferior courts.” MarsHALL, C. J. Cohen v. Virginia, 6 Wheat. 395. “ Circuit Courts do not derive their judicial power, immediately, from the Constitution, as appears with sufficient explicitness from the Constitution itself.” CLiFForp, J. ‘Sew- ing Mach. Co.’s Case, 18 Wall. 577. “ Federal judicial power, beyond all doubt, has its origin in the Constitution, but the organization of the system and the distribu- tion of the subjects of jurisdiction among such inferior courts as Congress may from time to time ordain and establish, within the scope of the judicial power, always have been, and of right must be the work of the Congress.” CtrFForp, J. Sewing Mach. Co.’s Case, 18 Wall. 577. “Of all the courts which the United States may, under their general powers, constitute, one only —the Supreme Court — possesses jurisdiction derived immediately from the Constitution, and of which the legislative power cannot deprive it. All other courts organized by the general government possess no jurisdiction but what is given by the power that created them, and they can be vested with none except what the power ceded to the United States will authorize the Congress to confer. Certain implied powers, it’ is admitted, must necessarily re- sult to courts of justice—such as to fine for contempt or imprison for contumacy — but the jurisdiction of crimes against the authority of the United States is not among such implied powers, the universal rule in the federal courts being that the legislative authority of the Union must first make an act a crime, affix a punishment to it, and prescribe what courts have jurisdiction of such an indictment, before any federal tri- 509 bunal can determine the guilt, or innocence of the supposed offender.” Ciirrorp, J., dis- senting. Tennessee v. Davis, 106 U. S. 275. Jurisdiction Measured by Statute. “Jurisdiction, in common-law cases, can never be exercised in the federal courts, unless conferred by an Act of Congress, be- cause such courts are courts of special juris- diction, and derive all their powers. from the Constitution, and the laws of Congress passed in pursuance thereof.” Cxirrorp, J. Rice v. Minnesota, etc., R. Co., 1 Black 374. “Tt is certainly error in a Circuit Court to assume a jurisdiction which has not been conferred on it by law.” Taney, C. J., dis- senting. Kendall v. U. S., 12 Pet. 641. “In regulating the judicial department, the cases in which the courts of the United States shall have jurisdiction are particularly and specifically enumerated and defined [by the Constitution]; and they are not authorized to take cognizance of any case which does not come within the description therein specified.” Tawney, C. J. Scott v. Sandford, 19 How. 401. “Courts created by statute can have no jurisdiction in controversies between party and party but such as the statute confers. Congress, it may be conceded, may confer such jurisdiction upon the Circuit Courts as it may see fit, within the scope of the judicial power of the Constitution, not vested in the Supreme Court, but as such tribunals are neither created by the Constitution nor is their jurisdiction defined by that instrument, it follows that inasmuch as they are created by an Act of Congress it is necessary, in every attempt to define their power, to look to that source as the means of accomplish- ing that end.” Cuirrorp, J. Sewing Mach. Co.’s Case, 18 Wall. 577. “The jurisdiction of the Circuit Court in every case must depend upon some Act of Congress, as it is'clear that Congress, inas- much as it possesses the power to ordain and establish all courts inferior to the Supreme Court, may also define their jurisdiction.” CuirrorD, J. Sewing Mach. Co.’s Case, 18 Wall. 577. “Courts created by statute must look to the statute as the warrant of their authority.” DaniEL, J. Cary v. Curtis, 3 How. 245. —— Matter Excluded by Statute. “The courts of the United States can take cognizance only of subjects assigned to COURTS. them expressly or by necessary implication; a fortiori, they can take no cognizance of matters that by law are either denied to them or expressly referred ad aliud examen.” DanigL, J. Cary v. Curtis, 3 How. 246. 5. Suirs at Common Law AND IN Eguirty. “The terms ‘suits at common law and in equity,’ or ‘ suits at law and in equity’ (which is the same thing), are in themselves, of the most general character and of the broad- est signification; and this court ought not, by its decisions, to restrict their application.” BRADLEY, J., dissenting. Rosenbaum v. Bauer, 120 U. S. 460. “Tt is not meant by the expression ‘ suits at common law,’ to confine the jurisdiction of the Circuit Courts to the old technical actions of trespass, trover, trespass on the case, debt, detinue, assumpsit, etc., but it extends to and includes any form of proceeding of a civil nature in which a legal right cogniza- ble by the courts of common law is sought to be judicially enforced, by whatever name, under the new-fangled nomenclature adopted by the different states, the proceeding may be called.” Bran tey, J., dissenting. Rosen- baum v. Bauer, 120 U. S. 460. “Suits at law and equity include every form of proceeding except those peculiar to admiralty, ecclesiastical or probate and mili- tary jurisdictions.” Brapey, J., dissenting. Rosenbaum v. Bauer, 120 U. S. 461. “A case in law or equity consists of the right of one party, as well as of the other, and may, properly, be said to arise under the Constitution or a law of the United States, whenever its correct decision depends on the construction of either.” Hartan, J. New Orleans, etc., R. Co. v. Mississippi, 102 U. S. 141. 6. Cases ARISING UNDER CONSTITU- ., TION OR Laws oF UNITED STATES. Definitions. “Cases arising under the laws of the Uni- ted States are such as grow out of the legis- lation 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.” Harran, J. New Orleans, etc., R. Co. v. Mississippi, 102 U.S. 141. * What is meant by the suit arising under a law of Congress? The obvious answer seems to be that the cause of action is found- ed on the Act of Congress; that the remedy sought is one given by an Act of Congress; that the relief which is prayed is a relief dependent on an Act of Congress; that the right to be enforced in the suit is a right which rests upon an Act of Congress. In all this I see no place for holding that a defense to a suit not so founded on an Act of Congress, or a plea which the defendant may interpose to any ordinary action, though that plea be founded on an Act of Congress, is a suit arising under an Act of Congress.” Miter, J., dissenting. New Orleans, etc. R. Co. v. Mississippi, 102 U. S. 144. “Cases arising under the Constitution, as contradistinguished from those arising under the laws of the United States, are such as arise from the powers conferred, or privi- leges granted, or rights claimed, or protec- tion secured, or prohibitions contained in the Constitution itself, independent of any par- ticular statutory enactment.” CLirForp, J. The “ City of Panama,” 101 U. S. 460. “Cases arising under the laws of the Uni- ted States, are such as grow out of the legis- lation of Congress within the scope of their constitutional authority, whether they con- stitute the right, privilege, claim, protection, or defense of the party, in whole or in part, by whom they are asserted or invoked.” Cuirrorp, J. The “City of Panama,” 101 U. S. 460. Circuit Court Has Jurisdiction. “The judicial power of the United States extends to all cases arising under the Con- stitution and laws, and the Act of 1875 com- mits the exercise of that power to the Circuit Courts.” Warts, C. J. Ames wv. Kansas, 111 U.S. 471. “That power [judicial power] is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case, and the Constitution declares that the judicial power shall extend to all cases aris- ing under the Constitution, laws, and treaties of the United States.” Marsuati, C. J. Osborn v. Bank of U. S., 9 Wheat. 819. “ Judicial power, like other powers granted to the United States by the Constitution, is defined by the instrument making the grant. Governed by that rule, we find that the sec- ond section of the third article ordains that the judicial power shall extend to all cases in law and equity arising under the Constitu- tion, the laws of the United States, and treaties made or which shall be made under 510 COURTS. their authority.” Cuirrorp, J., dissenting. Tennessee v. Davis, 100 U. S. 273. “ Among the cases to which the national Constitution extends the judicial power of the United States are those arising under the Constitution or laws of the Union.” Haran, J. New Orleans, etc. R. Co, v. Mississippi, 102 U. S. 136. “The Constitution declares that the judicial power of the United States shall extend to all cases in law and equity arising under it, the laws of the United States, and treaties made under their authority.” Frep, J. Kansas Pac. R. Co. v. Atchison, etc., R. Co., 112 U. S. 415. “ Although the judicial power of the Uni- ted States extends to cases arising under the laws of the United States, the legislature have not thought proper to delegate the exercise of that power to its Circuit Courts, except in certain specified cases. When questions arise under those laws in the state courts, and the party who claims a right or privilege under them is, unsuccessful, an ap- peal is given to the Supreme Court, and this provision the legislature has thought suffi- cient at present for all the political purposes intended to be answered by the clause of the Constitution which relates to the subject.” Jounson, J. M’Intire v. Wood, 7 Cranch 506. Question Must Be One as to which Com- plainant Seeks Relief. “The Circuit Court cannot be given juris- diction by the suggestion of the impairment of a contract in respect of which the com- plainant seeks no relief.” Futter, C. J. New Orleans v. Benjamin, 153 U. S. 432. Cases Also Involving Other Questions. “T do not believe in the doctrine that the presence of a question of municipal law in a case which necessarily involves federal question can deprive the federal courts of their jurisdiction. It is too narrow a con- struction of the judicial powers and func- tions of the federal government and _ its courts.” Bravery, J., dissenting. Hartell v. Tilghman, 99 U. S. 560. “When a question to which the judicial power of the Union is extended by the Con- stitution, forms an ingredient of the original cause, it is in the power of Congress to give the circuit courts jurisdiction of that cause, although other questions of fact or of law may be involved in it.” MarsHatt, C. J. Osborn wv. Bank of U, S., 9 Wheat. 823. 511 “The constitutionality of the act authoriz- ing the Postmaster General to sue in the courts of the United States, has never been drawn into question. It is sustained singly by an act of Congress, standing on that con- struction of the Constitution which asserts the right of the legislature to give original jurisdiction to the circuit courts, in cases arising under a law of the United States.” Marsa, C. J. Osborn v. Bank of U. S., 9 Wheat. 826. “It is not sufficient to exclude the judicial power of the United States from a particular case, that it involves questions which do not at all depend on the Constitution or laws of the United States; but when a question to which the judicial power of the Union is extended by the Constitution forms an in- gredient of the original cause, it is within the power of Congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or of law may be involved in it.” Hartan, J. New Orleans, etc., R. Co. v. Mississippi, 102 U. S. 141. %. ConTROVERSIES BETWEEN CITIZENS OF DIFFERENT STATES. Diversity of Citizenship Gives Circuit Courts Jurisdiction. “The Constitution extends the judicial power to controversies between citizens of different states; the 11th section of the Ju- diciary Act gives jurisdiction to the Circuit Courts, of suits between a citizen of a state where the suit is brought, and a citizen of another state.” Batpwin, J. McNutt vw. Bland, 2 How. 14. “The courts of the United States and the courts of the states have concurrent jurisdic- tion in all cases between citizens of different states, whatever may be the matter in con- troversy, if it be one for judicial cognizance. Such is the Constitution of the United States, and the legislation to Congress ‘in pursuance thereof”” Wayne, J. Dodge v. Woolsey, 18 How. 346. “Controversies between citizens of differ- ent states are plainly within the judicial power of the United States, as conferred by the Constitution.” Cuirrorp, J. Hornthall v. Keary, 9 Wall. 564. a “Tt has never been supposed that the fed- eral courts did not have jurisdiction of local actions in which citizens of different districts were defendants.” Brown, J. Greeley vw. Lowe, 155 U. S. 69, COURTS. “The judicial power of the United States extends, by the terms of the Constitution, ‘to controversies between citizens of dif- ferent states.’ MatrHews, J. Ellis v, Da- vis, 109 U. S. 496. “Diversity of citizenship confers jurisdic- tion, irrespective of the cause of action. But if the cause of action arises under the Con- stitution, or laws, or treaties, of the United States, then the jurisdiction of the Circuit Court may be maintained irrespective of citi- zenship.” FuLier, C. J. Pope v. Louisville, etc, R. Co. 173 U. S. 576. — Suits by Citizens of Territories and District of Columbia. “A citizen of a territory, or of the District of Columbia, can neither bring nor sustain a suit on the ground of citizenship, in one of the Circuit Courts.’ Mrier, J. Cam- eron v. Hodges, 127 U. S. 325. And see the title District or CoLUMBIA, “Tt is true that apart from jurisdiction over the subject matters, a citizen of a ter- ritory cannot sue a citizen of a state in the courts of the United States, nor an Indian tribe or nation sue a state or its citizens.” Fuier, C. J. Southern Kansas R. Co. v. Briscoe, 144 U. S. 136. Diversity of Citizenship Essential to Juris- diction. “In the matter of the jurisdiction of the federal courts, the discrimination between suits between citizens of the same state and suits between citizens of different states is established by the Constitution and laws of the United States. And it has been the con- stant effort of Congress and of this court to prevent this discrimination from being evaded by bringing into the federal courts controver- sies between citizens of the same state.” Gray, J. Bernards Tp. v. Stebbins, 109 U. S. 353. “Except in certain specified cases they [the courts of the United States] have no jurisdiction of controversies between citizens of the same state.’ Warts, C. J. Farming- ton v. Pillsbury, 114 U. S..145. “The litigants in the federal courts, where the right to sustain such litigation depends upon the citizenship of the parties, shall be citizens of different states.” MILLER, J. Quincy v. Steel, 120 U. S. 244. “ Diverse Citizenship Is Not Material in Ancillary and Dependent Proceedings, where jurisdiction exists over the subject of the litigation.” Futrer, C. J. In re Tyler, 149 U. S. 181. 512 “When an action or suit is commenced by the receiver, appointed by a Circuit Court, to accomplish the ends sought and directed by the suit in which the appointment was made, such action or suit is regarded as ancillary so far as the jurisdiction of the Circuit Court as a court of the United States is concerned; and we have repeatedly held that jurisdiction of these subordinate actions or suits is to be attributed to the jurisdiction on which the main suit rested; and hence that where jurisdiction of the main suit is predi- cated on diversity of citizenship, and the decree therein is, therefore, made final in the Circuit Court of Appeals, the judgments and decrees in the ancillary litigation are also final.” Furter, C. J. Pope v. Louisville, 173 U. S. 577. : Residence Not Equivalent to Citizenship. “The language of the Constitution restricts the jurisdiction of the courts to cases in which the parties shall be citizens, and is entirely silent in respect to residence.” Daniet, J. Scott v. Sandford, 19 How. 481. “An averment of residence is not the equivalent of an averment of citizenship for the purposes of jurisdiction in the courts of the United States.” Warts, C. J. Everhart v. Huntsville College, 120 U. S. 224. “That an averment of residence is not the equivalent of an averment of citizenship, and is insufficient to give the Circuit Court juris- diction, has been settled in a multitude of cases in this court: . . . and in case of a defective averment in this particular the judgment will be reversed by this court upon its own motion, and the case remanded.” Brown, J. Denny v. Pironi, 141 U. S. 123. “Tt has long been settled that an allega- tion that a party is a ‘resident’ does not show that he is a ‘citizen’ within the meaning of the Judiciary Acts.” Gray, J. Southern Pac. Co. v. Denton, 146 U. S. 205. Suits to Which Corporations Are Parties. “That the Circuit Court of the United States has jurisdiction of a dispute about the title to land between a corporation of another state and citizens of the state where the land is situated is, of course, now settled beyond controversy.” Suuiras, J., dissenting. Lehigh Min., etc., Co. v. Kelly, 160 U. S. 345, “The jurisdiction of the Circuit Courts over suits between a citizen of one state and a corporation of another state was at first maintained upon the theory that the persons COURTS. composing the cotpofation were sting or be- ing sued in its name, and upon the presump- tion of the fact that all these persons were citizens of the state by which the corporation had been created; but that this presumption might be rebutted, by plea and proof, and the jurisdiction thereby defeated, . But the earlier cases were afterwards ovetruled; and it has become the settled law of this court that, for the purposes of suing and being sued in the courts of the Utiited States, a corporation created by and doing business in a State 4s, although an artificial person, to be consideted as a citizen of the state, as much as a natural pétson; and there is a conclisive presumption of law that the per- sohs compositg the corporation are citizens of the saime state with the corporation.” Gray, J. Barrow Steamship Co. v. Kané, 170 U. S. 106. “ By the Constitution of the United States, the judicial power, so far as depending upon citizenship of parties, was declared to ex- tend controversies ‘between citizens of dif- ferent states,’ and to those between ‘ citizens ’ of a state and foreign ‘citizens of subjects.’ And Congress, by the Judiciary Act of 1789, in defining the original jurisdiction of the Circuit Courts of the United States, de- scribed each party to such a controversy either as ‘a citizen’ of a state, or as ‘an alien.’ Yet the words ‘citizens’ and ‘aliens, in these provisions of the Constitu- tion and of the Judiciary Act, have always been held by this court t8 include corpora- tions.” Gray, J. Barrow Steamship Co. v. Kane, 170 U. S. 106. “ The constant tendency of judicial de- cisions in modern times has been in the direc- tion of putting corporations upon the same footing as natural persons in,regard to the jurisdiction of suits by or against thein.” Gray, J. Barrow Steamship Co. v. “Kane, i170 U. S. 106. “When distributing the judicial power, that article [article 3 of the Constitution] extends it to controversies between citizens of different states. This must mean the nat- ural physical beings composing those sepa- rate communities, and can, by no violerice of interpretation, be made to signify artificial, in- corporeal, theoretical, and invisible creations. A corporation; therefore, being not a natural person, but a mere creature of the mind, in- visible and intangible, cannot be a citizen of a state, or of the United Statés, and cannot fall within the terms or the power of the above-mentioned afticle, and can therefore 1 Os. Dic.—33 513 néither plead riot be inipleaded in the courts of the United States.” Danim, J., dissent- ing. Rundle v. Delaware, etc, Canal Co., 14 How. 98. “Jurisdiction, in one sense, in cases of corporations, exists in virtue of the character of members, and must be maintained in the courts of the United States, unless citizens can exempt themselves froin their cOnstitu- tional liability to be sued in those courts, by a citizen of another state, by the fact, that the subject of controvefsy betweeti thet has arisen upon a contfact to which the for- mér are parties, in their corporate afid not in their personal character. Constitutional rights and liabilities canriot be so taken away, or be so avoided.” Wayne, J. Louisville, ete, R. Co. wv. Letson, 2 How. 552. “The question . . is, can 4 Cofpofa- tion belonging to a state, and whose officers are citizens, upon some hope or aésut‘ancé that the opinions of the courts of the United States are more favorable to their preten- sions, by any combination, contrivance, of agreement with a fon-resident shareholder, devolve upon hitn the right to seek for the redress of corporate grievances, which are the subjects of equitable cognizance in the courts of the United States, by a suit in his own name. In my opinion, there should be but orie answer to the question.” Wayne, J. Dodge v. Woolsey, 18 How. 369. —— Citizen of State Where Created. “A corporation may for the purposes of suit be said to be born where by law it is created and organized, and to reside where, by or under the authority of its charter, its principal office is. A corporation, shepetare, created by and organized under the laws of a particular state, ahd having its principal office there, is, under the Constitution and laws, fot the purpose of suing and being sued, a citizen of that state, possessing all the rights and having all the powers its charter con- fers.” Warts, C. J. Baltimore, etc, R. Co, v. Koontz, 104 U, S. 12. “ Although a corporation. is not a citizen ‘of a state within the meaning of many pro- visions of the national Constitution, It is set- tled that where rights of property or of action are sought to be enforced, it will be treated as a citizen of the state where created, within the clause extetiding the judicial power of the United States to cotitfoversies between citizens of different states.” Frexp, - J. Nashua, etc., R. Co. %. Boston, etc. R. Co, 136 U. S. 370. COURTS. “A corporation created by a state to per- form its functions under the authority of that state and only suable there, though it may have members out of the state, seems to us to be a person, though an artificial one, inhabiting and belonging to that state, and therefore entitled, for the purpose of suing and being sued, to be deemed a citizen of that state.’ Wayne, J. Louisville, etc. R. Co. v. Letson, 2 How. 555. “We confess our inability to reconcile these qualities of a corporation — residence, habitancy, and individuality —with the doc- trine that a corporation aggregate cannot be a citizen for the purposes of a suit in the courts of the United States, unless in con- sequence of a residence of all the corporators being of the state in which the. suit is brought. When the corporation exercises its powers in the state which chartered it, that is its resi- dence.” Wayne, J. Louisville, etc, R. Co. v. Letson, 2 How. 559. “This court has repeatedly held that a corporation was a citizen of the state creating it, within the clause of the Constitution ex- tending the jurisdiction of the federal courts to citizens of different states.’ Hunt, J. Home Ins. Co. v. Morse, 20 Wall. 453. “ A corporation is a citizen of the state by which it is created, and in which its princi- pal place of business is situated, so far as that it can sue and be sued in the federal courts.” Hunt, J. Home Ins. Co. v. Morse, 20 Wall. 453. “Tf the individual members of a corpora- tion, created by the laws of one of the Uni- ted States, are, for the purposes of suit by or against it in the courts of the Union, con- clusively presumed to be citizens of the state by whose laws that corporation is created and exists, it would seem to follow, logically, that the members of a corporation created by the laws of a foreign state, should, for like pur- poses, be conclusively presumed to be citizens or subjects of such foreign state. Conse- quently a corporation of a foreign state is, for purposes of jurisdiction, in the courts of the United States, to be deemed constructively a citizen or subject of such state.” Harian, J. National Steamship Co. v. Tugman, 106 U. S. 121. — Partnership Associations. “The rule that for purposes of jurisdiction and within the meaning of the clause of the Constitution extending the judicial pow- ers of the United States to controversies be- tween citizens of different states, a corpora- tion was to be deemed a citizen of the state creating it, has been so long recognized and applied that it is not now to be questioned. No such rule however has been applied to partnership associations although such asso- ciations may have some of the characteris- tics of a corporation.” Harian, J. Great Southern, etc., Hotel Co. v. Jones, 177 U. S. 456. Jurisdiction Determined by Citizenship of Real Parties. “*t has been repeatedly decided by this court, that formal parties, or nominal parties, or parties without interest, united with the real parties to the litigation, cannot oust the federal courts of jurisdiction, if the citizen- ship, or character of the real parties, be such as to confer it within the 11th section of the Judiciary Act.” NeEtson, J. Wood v. Davis, 18 How. 469. “Tt has frequently been decided in the Circuit Courts, where the jurisdiction de- pended on the citizenship of the parties, that such jurisdiction is not ousted, where there has been occasion to make a formal party as a sheriff or other public officer by reason of his having a writ of execution, or being named as obligee in an official bond sued for the benefit of private parties, provided that the real parties to the litigation have the requisite citizenship.” Brapiey, J. Florida v. Anderson, 91 U. S. 676. “Where the real and only controversy is between citizens of different states, or an alien and a citizen, and the plaintiff by some posi- tive rule of law compelled to use the name of another to perform merely a ministerial act, who has not nor never had any interest in or control over it; the courts of the United States will not consider any others as parties to the suit than the persons be- tween whom the litigation before them ex- ists.” CuiFForD, J. Walden v. Skinner, 101 U.S. 589. “ Cases arise in the federal courts in which nominal or even immaterial parties are joined, on the one side or the other, with those who have the requisite citizenship to give the court jurisdiction in the case; and where that is so, the rule is settled that the mere fact that one or more of such parties reside in the same state with one of the actual parties to the controversy will not defeat the juris- diction in court.” CuxiFForp, J. Walden v. Skinner, 101 U. S. 589. “For purposes of jurisdiction in the federal courts regard is had to the real rather than 514 COURTS. the nominal party.” Brewer, J. Stewart v. Baltimore, etc., R. Co., 168 U. S. 449. “Where a state or one of its officials is a mere figurehead, a nominal party, to a suit on a sheriff’s or administrator’s bond, or an action is instituted in the name of the United States marshal on an attachment bond, the real party in interest is taken into account on the question of citizenship, not- withstanding the general rule that juris- diction of the federal courts depends, not on the relative situation of the parties con- cerned in interest, but on the relative situa- tion of the parties named in the record.” Futuer, C. J. Mexican Cent. R. Co. v. Eck- man, 187 U. S. 433. —— Inquiry as to Whether Party Is Real or Nominal. “Tn determining the point of jurisdiction, we will not make inquiry outside of the case in order to ascertain whether some other person may not have an equitable interest in the cause of action.” Davis, J. Knapp v. Western Vermont R. Co., 20 Wall. 122. — Persons Acting in Representative Ca- pacity. “The eleventh section of the Judiciary Act of 1789 vests in the Circuit Court original jurisdiction of suits of a civil nature, at law and in equity, when the matter involved ex- ceeds, exclusive of costs, the sum or value of five hundred dollars, in three classes of cases; ist, when the United States are plaintiffs or petitioners; 2d, when an alien is a party; and, 3d, when the suit is be- tween a citizen of the state where the suit is brought and a citizen of another state. In the last two classes the designation of the party, plaintiff or defendant, is in the singular number, but the designation is in- tended to embrace all the persons who are on one side, however numerous, so that each distinct interest must be represented by persons, all of whom are entitled to sue, or are liable to be sued, in the federal courts. In other words, if there are several co-plain- tiffs, the intention of the act is that each plaintiff must be competent to sue, and, if there are several co-defendants, each defend- ant must be liable to be sued, or the juris- diction cannot be entertained. Executors and trustees suing for others’ benefit form no ex- ception to this rule. If they are personally qualified by their citizenship to bring suit in the federal courts, the jurisdiction is not de- feated by the fact that the parties whom they represent may be disqualified. This has been repeatedly adjudged.” Fretp, J. Coal Co. v. Blatchford, 11 Wall. 175. “We have repeatedly held that represent- atives may stand upon their own citizenship in the federal courts irrespective of the citi- zenship of the persons whom they represent, —such as executors, administrators, guard- jans, trustees, receivers, etc. The evil which the law was intended to obviate was the voluntary creation of federal jurisdiction by simulated assignments. But assignments by operation of law creating legal represent- atives, are not within the mischief or reason of the law. Persons subrogated to the rights of others by the rules of equity are within this principle. When, however, the state or the governor of a state is a mere figurehead, or nominal party, in a suit on a sheriff’s or administrator’s bond, the rule does not ap- ply. There the real party in interest is taken into account on the question of citizenship.” Braviey, J. New Orleans v. Gaines, 138 U. S. 606. — Status of Present Parties. “The question of jurisdiction is deter- mined by the status of the present parties, and not by that of prior holders of the thing in controversy.” Brewer, J. South Dakota v. North Carolina, 192 U. S. 312. “Tf anything can be considered as justi- ciable it is a claim for money due on a written promise to pay—and if it be justiciable does it matter how the plaintiff acquires title, providing it be honestly ac- quired?” Brewer, J. South Dakota v. ‘North Carolina, 192 U. S. 312. “The payee of a foreign bill of exchange may not sue the drawer in the federal court of a state of which both are citizens, but that does not oust the court of jurisdiction of an action by a subsequent holder if the latter be a citizen of another state.” BREWER, J. South Dakota v. North Carolina, 192 U. S. 312. Some of the Parties on Each Side Citizens of Same State. “Tt is true, if there are other parties on opposite sides of the controversy who are citizens of a common state, it may also be a controversy between citizens of the same state. In other words, a controversy may be, at the same time, both a controversy between citizens of the same state and between citi- zens of different states. But the fact that it is both, does not take away the federal juris- diction ; neither the Constitution, nor the law, 515 COURTS. declares that there shall not be such jurisdic- tion if any of the contestants on opposite sides of the controversy are citizens of the same states. But they do declare that there shall be such jurisdiction if the controversy is between citizens of different states. The gift of judicial power by the Constitution, and the gift of jurisdiction by the law, are in af- firmative terms; and those terms include as well the case when only part of the contest- ants opposed to each other are citizens of different states, as that in which they are all of different states.” Braptey, J. Removal Cases, 100 U. S. 479. “Tt seems to me clear that, in construing the present law, we are not bound by the construction given to the old Judiciary Act. The words of that act conferring jurisdic- tion upon the Circuit Courts in respect of citizenship, were not the same as those used by the present law or by the Constitution, It only conferred jurisdiction when ‘the suit is between a citizen of the state where the suit is brought and a citizen of another state.’ The singular number only was used; and the courts, in applying the laws to cases in which there was a plurality of plaintiffs or defend- ants, construed it (perhaps justly) as re- quiring that each plaintiff and each defend- ant should have the citizenship required by the law. But, now, it is not so. The present law follows the words of the Constitution and gives jurisdiction to the Circuit Courts in the broadest terms, namely, whenever, in any suit, there is ‘a controversy between citizens of different states’; and this broad and general expression, as I think I have shown, gives jurisdiction where any of the contestants on opposite sides of the controversy are citizens of different states.” BrapLEy, J. Removal Cases, 100 U. S. 481. Suit by Assignee — Under Bona Fide As- signment. “The owner of a tract of land may con- vey it in order that the title may be tried in the federal courts, but the conveyance must be made bona fide, so that the prosecution of the suit shall not be for his benefit.” Mc- Lean, J. Jones v. League, 18 How. 81. “If . . . anything can be regarded as settled, it is that the motive or purpose of securing a right of action in a federal court by a conveyance or assignment will not de- feat the jurisdiction, if the conveyance or assignment be real and not fictitious. SHrras, J., dissenting. Lehigh Min. & etc. Co. v. Kelly, 160 U. S. 350. 516 —— Under Colorable Assignment to Give Jurisdiction. “To come within the meaning of the Con- stitution, the cause of action must have ex- isted ab origine ‘between citizens of dif- ferent states, and that the article in question cannot be evaded by a transfer of rights which, by their primitive and instrinsic char- acter, were not cognizable in the courts of the United States as between citizens of dif- ferent states.” DANIEL, J., dissenting. Mar- shall v. Baltimore, etc., R. Co., 16 How. 340, “And this view of restriction seems to be warranted by the consideration of the mis- chief which it was intended to prevent. Not a little apprehension was excited at the time of the adoption of the Constitution in re- spect to the extent of the jurisdiction vested in the national courts; and that apprehension was respected in the Judiciary Act, which soon afterwards received the sanction of Con- gress. It was obvious that numerous suits, by assignees, under assignments made - for the purpose of giving jurisdiction, would be brought in those courts if the right of as- signees to sue was left unrestricted. It was to prevent that evil and to keep the juris- diction of the national courts within just limits that the restriction was put into act.” Cuass, C. J. Bushnell vw. Kennedy, 9 Wall. 392. “Prior to the passage of the [Judiciary] Act of 1875 it had been often adjudged that if the title to real or personal property was put in the name of a person for the purpose only of enabling him, upon the basis of the diverse citizenship of himself and the de- fendant, to invoke the jurisdiction of a Cir- cuit Court of the United States for the benefit of the real owner of the property who could not have been sued in that court, the trans- action would be regarded in its true light, namely, as one designed to give the Circuit Court cognizance of a case in violation of the Acts of Congress defining its jurisdiction; and the case would be dismissed for want of jurisdiction.” Hartan, J. Lake County Com’rs v. Dudley, 173 U. S. 251. “Tt is well settled that a mere colorable conveyance of property, for the purpose of vesting title in a non-resident and enabling him to bring suit in a federal court, will not confer jurisdiction; but if the conveyance ap- pear to be a real transaction, the court will not, in deciding upon the question of juris- diction, inquire into the motives which acttiated the parties in making the convey- ance.” Brown, J. Dickerman v, Northern Trust Co. 176 U. S. 191. COURTS. Change of Citizenship for Purpose of Giv- ing Jurisdiction — Bona Fide Change. “Tt is competent for a party to make a change of domicil for the purpose of giving jurisdiction to the federal courts where it could not otherwise exist.” Swayne, J. Robertson v. Carson, 19 Wall. 106. “Tf the parties to a suit, both plaintiff and defendant, are in fact citizens of the same state, an agreement upon the record that they are citizens of different states will not give jurisdiction. But if the two agree that one shall move into and become a citizen of an- other state, in order that jurisdiction may be given, and he actually does so in good faith, the court cannot refuse to entertain the suit.” Warrz, C. J. Ex p. Schollenberger, 96 U. S. 377. “The law is . . well settled that, if a person take up a bona fide residence in another state, he may sue in the federal court, notwithstanding his purpose was to resort to a forum of which he could not have availed himself if he were a resident of the state in which the court was held.” Brown, J. Dickerman wv. Northern Trust Co., 174 U. S. 192. -— Colorable Change. “We have held that if, fo. the purpose of placing himself in a position to sue in a Circuit Court of the United States, a citizen of one state acquires a domicil in another state without a present intention to remain in the latter state permanently or for a definite time, but with the present intention to return to the former state as soon as he can do so without defeating the jurisdiction of the federal court to determine his suit, the duty of the Circuit Court is on its own motion to dismiss such suit as a collusive one under the Act of 1875.” Harzan, J. Lake County Com'rs v. Dudley, 173 U. S. 254. Purpose of Giving Jurisdiction to Federal Courts, “The Constitution {in extending the judi- cial power of the United States to contro- versies ‘between citizens of the same state claiming lands under grants of different states ’], intended to secure an impartial tri- bunal for the decision of causes arising from the grants of different states; and it sup- posed that a state tribunal might not stand indifferent in a controversy where the claims of its own sovereign were in conflict with those of another sovereign. It had no refer- ence whatsoever to the antecedent situation of the territory, whether included in one sovereignty or another. It simply regarded the fact whether grants arose under the same or under different states.” Story, J. Pawlet v. Clark, 9 Cranch 322, “The sole object for which jurisdiction of cases, between citizens of different states, is vested in the courts of the United States, is to secure all the administration of justice upon the same principles on which it is ad- ministered between citizens of the same state.” Jounson, J. Polk v. Wendell, 5 Wheat. 302. “The foundation of the right of citizens of different states to sue each other in the courts of the United States, is not an un- worthy jealousy of the impartiality of the state tribunals. It has a higher aim and pur- pose. It is to make the people think and feel, though residing in different states of the Union, that their relations to each other were protected by the strictest justice, admin- istered in courts independent of all local centrol of connection with the subject-matter of the controversy between the parties to a suit.” Wayne, J. Dodge v. Woolsey, 18 How. 354. “The theory upon which jurisdiction is conferred on the courts of the United States, in controversies between citizens of different states, has its foundation in the supposi- tion that, possibly, the state tribunal might not be impartial between their own citizens and foreigners.” Grizr, J. Pease v. Peck, 18 How. 599, “As we have had occasion to observe in previous cases, the provision of the Consti- tution, extending the judicial power of the United States to controversies between citi- zens of different states, had its existence in the impression that state attachments and state prejudices might affect injuriously the regular administration of justice in the state courts. It was originally supposed that ade- quate protection against such influences was secured by allowing to the plaintiff an election of courts before suit; and, when suit was brought in a state court, a like election to the defendant afterwards.” Frexp, J. Gaines v. Fuentes, 92 U. S. 19. “The framers of the Constitution, in estab- lishing the federal judiciary, assumed that it would be governed in the administration of justice by those settled principles then in force in the several states, and prevailing in the jurisprudence of the country from which our institutions were principally de- rived. Among them none were more impor- 517 COURTS. 2 tant than those determining the manner in which the jurisprudence of the courts could be acquired. This necessarily depended upon the nature of the subject upon which the judicial power was called upon to act. If it was invoked against the person to enforce a liability, the personal citation of the de- fendant or his voluntary appearance was re- quired. If it was called into exercise with reference to real property by proceedings in rem, or of that nature, a different mode of proceedings was usually necessary, such as seizure of property, with notice, by publica- tion or otherwise, to parties having interests which might be affected. The rules govern- ing this matter in these and other cases were a part of the general law of the land, estab- lished in our jurisprudence for the protec- tion or rights of persons and property against oppression and spoliation. And when the courts of the United States were invested with jurisprudence over controversies be- tween citizens of different states, it was ex- pected that these rules would be applied for the security and protection of the non-resident citizen. The constitutional provision owed its existence to the impression that state preju- dices and attachments might sometimes affect injuriously the regular administration of jus- tice in the state courts. And the law of Congress which was passed to give effect to the provision, made it optional with the non-resident citizen to require a suit against him, when commenced in a state court, to be transferred to a federal court. This power of removal would be of little value, and the constitutional provision would be practically _ defeated, if the ordinary rules established by the general of acquiring jurisdiction in such cases could be thwarted by state legislation or the decision of the local courts.” Fiexp, J. Mohr vw, Manierre, 101 U. S. 421. “The object of the Constitution in ex- tending the judicial power of the United States to controversies between citizens of different states, was to avoid, what was at the time of its adoption apprehended, the ex- istence of state attachments and state preju- dices, which might injuriously affect the administration of justice in the state courts against non-residents.” Fiexp, J., dissenting. Mitchell v. Clark, 110 U. S. 651. 8. AMOUNT OR VALUE OF THING IN CONTROVERSY. In General. . “When our judicial system was organized, jurisdiction was given to the Circuit Courts, concurrent with the courts of the several states, of all suits of a civil nature at com- mon law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and the United States are plaintiffs or petitioners, or an alien is a party, or the suit is between a citizen of the state where the suit is brought and a citizen of an- other state. More than ninety years have elapsed since that provision was enacted, and yet no alteration has been made in it as to the amount required to give the Circuit Courts jurisdiction in suits of a civil nature at common law or in equity.” CLiFForD, J., dissenting. Dow v. Johnson, 100 U. S. 175. Right Incapable of Money Valuation. “A jurisdiction, conferred by Congress upon any court of the United States, of suits at law or in equity in which the matter in dispute exceeds the sum or value of a certain number of dollars, includes no case in which the right of neither party is capable of be- ing valued in money.” Gray, J. Kurtz v.- Moffitt, 115 U. S. 498. Interference with Commerce of Foreign Nations — Indian Tribes. “Where diverse citizenship exists, and the statutory amount is in controversy, the courts of the United States have jurisdiction, but where those conditions do not exist, jurisdic- tion can only be maintained where there is interference with commerce with foreign na- tions or Indian tribes, and it is in such cases that the amount is declared by section 7 [21 U. S. Stat. at L., 502, c. 138] to be imma- terial.’ Furter, C. J. Warner wv. Searle, etc., Co. 191 U. S. 205. Patent or Copyright Suit. “Cases may be brought under the patent and copyright laws quite irrespective of the amounts involved.” Brown, J. The Robert W. Parsons, 191 U. S. 33. Action for Denial of Right to Vote. “What amount of damages the plaintiff shall recover in such an action [against elec- tion officers for refusing to receive his vote] is peculiarly appropriate for the determination of a jury, and no opinion of the court upon that subject can justify it in holding that the amount in controversy was insufficient to sup- port the jurisdiction of the Circuit Court.” Gray, J. Wiley v. Sinkler, 179 U. S. 65. Verdict for Less than Jurisdictional Amount. ' “While it has sometimes been said that it is the amount claimed by the plaintiff in his declaration that brings his case within the 518 COURTS. jurisdiction of the Circuit Court, that was in suits for unliquidated damages, in which the amount which the plaintiff was entitled to recover was a question for the jury; an in- spection of the declaration did not disclose and could not disclose but that the plaintiff was entitled to recover the amount claimed, and hence, even if the jury found a verdict in a sum less than the jurisdictional amount, the jurisdiction of the court would not be defeated.” Sutras, J. North American Transp., etc., Co. v. Morrison, 178 U. S. 266. 9. ContRActs ARISING FROM INTERNAL COMMERCE OF STATES. “Contracts growing out of the purely in- ternal commerce of the state, as well as com- merce beyond tidewaters, are generally domestic in their origin and operation, and could scarcely have been intended to be drawn within the cognizance of the federal courts.” Netson, J. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6. How. 392. 10. Cases In WHICH CONSTITUTION EXCLUDES JURISDICTION. “In those cases in which original juris- diction is given to the Supreme Court, the judicial power of the United States cannot be exercised in its appellate form. In every other case the power is to be exercised in its original or appellate form, or both, as the wisdom of Congress may direct. With the exception of these cases, in which original jurisdiction is given to this court there is none to which the judicial power ‘extends, from which the original jurisdiction of the inferior courts is excluded by the Consti- tution.” MarsHALit, C. J. Osborn v. Bank of U. S., 9 Wheat. 820. “ Original jurisdiction, so far as the Con- stitution gives a rule, is co-extensive with the judicial power. We find, in the Con- stitution, no prohibition to its exercise, in every case in which the judicial power can be exercised. It would be a very bold con- struction to say that this power could be applied in its appellate form only, to the most important class of cases to which it is applicable.” Marsuatt, C. J. Osborn v. Bank of U. S., 9 Wheat. 821. “The Constitution establishes the Supreme Court, and defines its jurisdiction. It enu- merates cases in which its jurisdiction is ori- ginal and exclusive; and then defines that which is appellate, and does not insinuate that in any such case, the power cannot be exercised in its original form by courts 519 of original jurisdiction. It is not insinuated that the judicial power, in cases depending upon the character of the cause, cannot be exercised in the first instance, in the courts of the Union, but must first be exercised in the tribunals of the state; tribunals over which the government of the Union has no adequate control, and which may be closed to any claim asserted under a law of the United States.” Marsuatt, C. J. Osborn v. Bank of U. S., 9 Wheat. 821. 11. District In WuHicu Suit May BE BrouGHt. Power of Congress to Regulate. “Whether parties shall be compelled to answer in a court of the United States wherever they may be served, or shall only be bound to appear when found within the district where the suit has been brought, is merely a matter of legislative discretion, which ought to be governed by considera- tions of convenience, expense, etc., but which, when exercised by Congress, is controlling on the courts.” Murer, J. U. S. v. Union Pacific R. Co., 98 U. S. 604. In Suits Against Natural Persons. “In all cases of contract, suit may be brought in the Circuit Court where the de- fendant may be found. If sued out of the district in which he lives, under the deci- sions he may object, but this is a privilege which he may waive. Wherever the juris- diction of the person will enable the Circuit Court to give effect to its judgment or de- cree, jurisdiction may be exercised. But wherever the subject-matter in controversy is local, and lies beyond the limit of the district, no jurisdiction attaches to the Cir- cuit Court, sitting within it. M’Lean, J. Northern Indiana R. Co. v. Michigan Cent. R. Co., 15 How. 242. “The judicial power extends to all cases in law and equity arising under the Consti- tvtion and laws of the United States, and it is pursuant to this clause of the Constitu- tion that the United States courts are vested with power to execute the law respecting inventors and patented inventions; but where suits are to be brought is left to the gen- eral law; to wit, to the eleventh section of the Judiciary Act, which requires personal service of process, within the district where the suit is brought, if the defendant be an inhabitant of another state.” Catron, J. Day v. Hayward, 20 How. 216. “Original cognizance of all suits of a civil nature, at common law or in equity, COURTS. is given to the Circuit Courts by the eleventh section of the Judiciary Act, concurrent with the courts of the several states, where the matter in dispute exceeds, exclusive of casts, the sum or value of $500, and an alien is a party, or the suit is between a citizen of the state where the suit is brought and a citizen of another state, subject, how- eyer, to the restriction that no ciyil suit shall be brought before any Circuit Court against any inhabitant of the United States by any original process in any other dis- trict than that whereof he is an inhabit- ant or in which he shall be found at the time of serving the writ.” Ctirrorp, J. Sewing Mach. Co.’s Case, 18 Wall. 573. “Tt is true that Congress has declared that no person shall be sued in a Circuit Court of the United States who does not re- side within the district for which the court was established, or who is not found there. But a citizen residing in Oregon may be sued in Maine, if found there, so that proc- ess can be served on him,” Muir, J. U. S. v. Union Pacific R. Co., 98 U. S. 604. “The Sixth Amendment relates to a prose- cution of an accused person which is tech- nically criminal in its nature. In such a proceeding, the person accused is entitled to a speedy and public trial by an impartial jury of the state, as well as of a district previously ascertained by law in which the crime charged against him shall have been committed; whereas an action, in which a judgment for money is sought, even if, in some aspects, it is one of a penal nature, may be brought wherever the defendant is found and is served with process, unless some statute requires it to be brought in a particular jurisdiction.” HarLan, J. U. S. v. Zucker, 161 U. S. 481. -——-“Inhabitant” Not Broader Term than “ Citizen.” “The word ‘inhabitant,’ in that act [the Judiciary Act of September 24, 1789, c. 20, § 11] was apparently used, not in any larger meaning than ‘citizen,’ but to avoid the incongruity of speaking of a citizen of any- thing less than a state; when the intention was to cover not only a district which in- cluded a whole state, but also two districts in one state, like the districts of Maine and Massachusetts in the state of Massachusetts, and the districts of Virginia and Kentucky in the state of Virginia, established by § 2 of the same act.” Gray, J. Shaw v, Quincy Min. Co., 145 U. S. 447. —— Waiver of Exemption from Suit in Particular Jurisdiction, “The Act of Congress prescribing the place where a person may be sued is nat one affecting the general jurisdiction of the courts, It is rather in the nature of a per- sonal exemption in fayor of a defendant, and it is one which he may waive. If the citizenship of the parties is sufficient, a de- fendant may consent to be sued anywhere he pleases, and certainly jurisdiction will not be ousted because he has consented.” ae C. J. Ex p. Schollenberger, 96 U. S. 378. In Suits Against Corporations. “Tt is not necessary that a corporation should be an inhabitant of a state, or should be found therein, or should be personally served with process through its officers, in order that the Circuit Court of the United States sitting in that state may have juris- dietion of a personal suit against it.” Brap- LEY, J. Provident Sav. Soc. v. Ford, 114 U. S. 639. “As to natural persons, therefore, it can- not be doubted that the effect of this act [Act of March 3, 1887] read in the light of earlier acts upon the same subject, and of the judicial construction thereof, is te the phrase ‘district of the residence of’ person is equivalent to ‘district whereof ie is an inhabitant, and cannot be construed as giving jurisdiction, by reason of citizen- ship, to a Circuit Court held in a state of which neither party is a citizen, but, on the contrary, restricts the jurisdiction to the dis- trict in which one of the parties resides within the state of which he is a citizen; and that this act, therefore, having taken away the alternative, permitted in the earlier acts, of suing a person in the district ‘in which he shall be found,’ requires any suit, the jurisdiction of which is founded only on its being between citizens of different states, to be brought in the state of which one is a citizen, and in the district therein of which he is an inhabitant and resident. In the case of a corporation, the reasons are, to say the least, quite as strong for holding that it can swe and be sued only in the state and district in which it has been incorporated, or in the state of which the other party is a eitizen.” Gray, J. Shaw v. Quincy Min. Co., 145 U. S. 449. “By the existing Act of Congress de- fining the general jurisdiction of the Circuit Courts of the United States, those courts ‘shall have original cognizance, eoncurrent 520 COURTS. with the courts of the states, of all suits of a civil nature, at common law or in equity, when the matter in dispute exceeds, exclu- sive of interest and costs, the sum or value of two thousand dollars,’ ‘in which there shall be a controversy between citizens of different states,’ ‘or a controversy between citizens of a state and foreign states, citi- zens or subjects’; and, has been adjudged by this court, the subsequent provisions of the act, as to the district in which suits must be brought, have no application to a suit against an alien or a foreign corpora- tion; but such a person or corporation may be sted by a citizen of a state of the Union in any district in which valid service can be made upon the defendant.” Gray, J. Barrow Steamship Co. v. Kane, 170 U. S. 111. 12. Jurispiction Must Be APPARENT oN Face oF REcorD. Must Be Affirmatively and Distinctly Al- leged, “Whoever affirms jurisdiction to be in the courts of the United States must make it out, and remove all reasonable doubts, or the courts should not exercise it.” Woopsury, J., dissenting. Waring v. Clarke, 5 How. 500. “The doctrine is ruled and reiterated, that in order to maintain an action in the courts of the United States, under the clause in question, not only must the parties be citizens of different states, but that this character must be averred explicitly, and must appear upon the record, and cannot be inferred from residence or locality, how- ever expressly stated, and that the failure to make the required averment will be fatal to the jurisdiction of a federal court, either original or appellate; and is not cured by the want of a plea or of a formal exception in any other form.” Danztgt, J., dissenting. Marshall v. Baltimore, etc. R. Ca., 16 How. 340. “When the jurisdiction of the Circuit Court depends upon the citizenship of the parties it is not enough that it does not appear that they are not citizens of the same state, but the faets necessary ta give the Circuit Court jurisdiction must be distinctly alleged.” Ct irForpD, J. Assessor v. Osbornes, 9 Wall. 574. “It is essential in cases where the juris- diction depends upon the citizenship of the parties that such citizenship, or the facts which in legal intendment constitute it, should be distinctly and positively averred in the pleadings, or should appear with equal distinctness in other parts of the record. It is not sufficient that jurisdiction may be inferred argumentatively from the aver- ments.” FuLter, C. J. Wolfe v. Hartford Life, etc, Ins. Co, 148 U. S. 389. “Tt is settled that the jurisdiction of a court of the United States must appear from distinct allegations or from facts clearly proven, and is not to be established argu- mentatively or by mere inference.” Har.an, J. Thomas v. Trustees, 195 U. S. 218. Must Appear from Plaintiff’s Statement of Claim. “Tt has been held by this court for more than forty years, that an express aver- ment of citizenship is necessary to enable a citizen of one state to sue in the federal court of another; that it is a special privi- lege, conferred by the Constitution and the Judiciary Act, to which the plaintiff must show his right by the record; that the aver- ment must be positive, and not in the alter- native ; . that it must be in the body of the bill, and does not suffice that it is in the title or caption; that it is not only a fatal defect after a final decree; but is deemed so important that the judges feel bound to notice it, though counsel do not,” Batpwin, J., dissenting. Livingston v. Story, 11 Pet. 414. : “Where the claim is founded on dollars and cents, whether it be a libel, a bill in chancery, or an action at law, the damages must appear, to give jurisdiction, on the face of the pleading in which the claim is made. No computation of interest will be made to give jurisdiction unless it be specially claimed in the libel. If not intended to be included in the claim of damages, it should be specially stated. This would certainly be the case in an action at law, and no reason is perceived why the rule should be relaxed in a case of libel.” McLean, J. Udall v. Steamship Ohio, 17 How. 18. “This court has always been very par- ticular in requiring a distinct statement of the citizenship of the parties, and of the particular state in which it is claimed, in order to sustain the jurisdiction of those courts.” Muirrsr, J. Cameron v. Hodges, 127 U. S. 325. - “Tn order to give the Circuit Court juris- diction of a case as one arising under the Constitution, laws or treaties of the United States, that it does so arise must appear COURTS. from the plaintiff's own statement of his claim.” Gray, J. Press Pub. Co. v. Mon- roe, 164 U. S. 110. “The jurisdiction of the Circuit Court was invoked on the ground of diverse citizenship and not on the ground that the case arose ‘under the Constitution or laws of the United States, or treaties made, or which shall be made under their authority.’ And that it is settled that in order to give the Circuit Court jurisdiction of a case as so arising, that it does so arise must appear from the plaintiff's own statement of his claim.” Futter, C. J. Muse v. Arlington Hotel Co., 168 U. S. 436. “As the party plaintiff and the party de- fendant were both corporations and citizens of the same state, the Circuit Court of the United States could not take jurisdiction of the controversy between them, unless the complainant laid grounds for that jurisdic- tion by asserting rights arising under the Constitution or laws of the United States, and such assertion must appear in the com- plainant’s statement of its own claim.” Surras, J. Vicksburg Waterworks Co. v. Vicksburg, 185 U. S. 68. “The jurisdiction of the Circuit Court was not invoked in this case on the ground of diverse citizenship, but on the ground that the case arose ‘under the Constitution or law of the United States, or treaties made, or which shall be made, under their author- ity” And it is settled that in order to give the Circuit Court jurisdiction of a case as so arising, that it does so arise must appear from the plaintiff’s own statement of his claim.” Futter, C. J. Filhiol v. Mau- rice, 185 U. S. 110. —— Reversal for Want of Jurisdiction. “Whenever the jurisdiction of the Cir- cuit Court of the United States depends upon the citizenship of the parties, it has been held from the beginning that the requisite citizenship should be alleged by the plaintiff, and must appear of record; and that when it does not so appear this court, on writ of error, must reverse the judgment for want of jurisdiction in the Circuit Court.” Gray, J. Roberts v. Lewis, 144 U. S. 656. —— Jurisdiction Must Clearly Appear. “The duty of protecting imperfect rights of property under treaties such as those by which territory was ceded by Mexico to the United States in 1848 and 1853, in ex- istence at the time of such cessions, rests upon the political and not the judicial de- 522 partment of the government. To the extent only that Congress has vested them with authority to determine and pro- | tect such rights, can courts exercise juris- diction. Where, therefore, a tribunal of limited jurisdiction is created by Congress to determine such rights of property, a party seeking relief must present for adjudication a case clearly within the act, or relief can- not be given.” Wuute, J. U. S. v. Santa Fe, 165 U. S. 714. — Other Pleading Cannot Be Resorted to. “The averments of the complaint cannot be helped -out by resort to other pleadings or to judicial knowledge.” Futter, C. J. Bankers Mut. Casualty Co. v. Minneapolis, etc., R. Co., 192 U. S. 383. —— Determined by Legal Construction of the Bill. “The questions whether a party claims a right under the Constitution or laws of the United States is to be ascertained by the legal construction of its [the bills] own alle- gations, and not by the effect attributed to those allegations by the adverse party.” Gray, J. New Jersey Cent. R. Co. v. Mills, 113 U. S. 257, Must Appear from Some Part of Record. “Tt is essential to the jurisdiction of the courts of the United States, that the facts upon which it is founded should appear upon the record.” Danzer, J. Scott v. Sandford, 19 How. 473. “All courts from which an appeal lies are inferior courts in relation to the ap- pellate court before which their judgment may be carried; but they are not therefore inferior courts in the technical sense of those words. They apply to courts of a special and limited jurisdiction, which are erected on such principles that their judgments, taken alone, are entirely disregarded, and the proceedings must show their jurisdic- tion.” Marsuatt, C. J. Kempe wv. Ken- nedy, 5 Cranch 185. “Undoubtedly, although not an inferior court, the District Court is one of limited jurisdiction, and that it has jurisdiction of the particular case which it attempts to ad- judicate, must always appear.” Strone, J. Confiscation Cases, 20 Wall. 107. “In cases where the jurisdiction of the courts of the United States depends upon the character of the parties, the facts upon which it rests must, of course, COURTS. somewhere appear in the record. They need not necessarily, however, be averred in the pleadings. It is sufficient if they are in some form affirmatively shown by the record.” Warts, C. J. Pittsburgh, etc, R. Co. v. Ramsey, 22 Wall. 326. “Tt is well settled that in the courts of the United States the special facts neces- sary for jurisdiction must in some form ap- pear in the record of every suit, and that the right of removal from the state courts of the United States courts is statutory.” Waite, C. J. Little York Gold-Washing, etc., Co. v. Keyes, 96 U. S. 201. “While in the absence of anything to the contrary the prayer for judgment by the plaintiff, in his declaration or complaint, upon a demand for money only, or by the defendant in his counterclaim or set-off, will be taken as indicating the amount in dispute, yet if the actual amount in dispute does otherwise appear in the record, refer- ence may be had to that for the purpose of determining our jurisdiction.” Warts, C. J. Gray v. Blanchard, 97 U. S. 565. “Tt was settled at a very early day that the facts on which the jurisdiction of the Circuit Courts rest must, in some form, ap- pear on the face of the record of all suits prosecuted before them. And it is error for a court to proceed without its juris- diction is shown.” Warre, C. J. Conti- nental Ins. Co. v. Rhoads, 119 U. S. 239. Presumption that Court Is Without Juris- diction. : “The presumption in every stage of a cause in a Circuit Court of the United States is that the court is without jurisdiction unless the contrary affirmatively appears from the record.” Hartan, J. Dowell v. Applegate, 152 U. S. 340. “ A Circuit Court, though an inferior court, in the language of the Constitution, is. not so in the language of the common law; nor are its proceedings subject to the scrutiny of those narrow rules, which the caution, or jealousy, of the courts at Westminster, long applied to courts of that denomina- tion; but are entitled to as liberal intend- ments, or presumptions, in favor of their regularity, as those of any Supreme Court. A Circuit Court, however is of limited juris- diction; and shas cognizance, not of cases generally, but only of a few specially cir- cumstanced, amounting to ‘a small propor- tion of the cases, which an unlimited juris- diction would embrace. And the fair presumption is (not as with regard to a court of general jurisdiction, that a cause is within its jurisdiction unless the contrary appears, but rather) that a cause is without ite jurisdiction till the contrary appears.” Ettswortu, C. J. Turner v. Bank of North America, 4 Dall. 11. “The presumption is that a cause is with- out the jurisdiction of a federal court, un- less the contrary affirmatively appears.” Haran, J., dissenting. Giles v. Harris, 189 U. S. 501. “The general rule, . . . is, that in courts of record all things are presumed to have been rightly done. In courts of lim- ited jurisdiction, indeed, there is a presump- tion against jurisdiction, but when that ap- pears they are entitled to the same presumptions in favor of their action as other courts are. The District and Circuit Courts are of limited jurisdiction, but they are not inferior courts, and they are there- fore entitled to the same presumptions in their favor. Those presumptions are that the court, having jurisdiction, and having en- tered a judgment, did everything that was necessary to warrant its entry of the judg- ment. Undoubtedly the contrary may be shown in a court of error, but the burden of showing it is upon him who alleges error. The legal intendment is against him.” Strone, J. Miller v. U. S., 11 Wall. 299. Dismissal of Suit for Want of Jurisdiction. “Tt. is ruled by all the cases, that where want of jurisdiction in the federal courts is apparent on: the face of the pleadings, the courts, original and appellate, are bound to take notice of this defect, and that there can be no requisition on parties to show it either by averment or proof.” Danii, J. Phila- delphia, etc., R. Co. v. Quigley, 21 How. 217. “The question of jurisdiction has not been made the subject of plea or exception, nor is it necessary, where it is patent on the face of the record.” Grier, J. Piquig- not v. Pennsylvania R. Co., 16 How. 105. “While it seems reasonable to say that a jurisdiction once acquired by the filing of a proper bill ought not to be taken away by any subsequent pleading, the statute is per- emptory in this particular, and requires the [circuit] court to dismiss the case when- ever at any time it shall appear that its jurisdiction has been improperly invoked.” Brown, J. Excelsior Wooden Pipe Co. v. Pacific Bridge Co., 185 U. S. 287. 523 COURTS. “Even if it could be held that, by antici- pating a supposed defense, a federal question might be made to appear to be involved in the controversy, jurisdiction in the Circuit Court would fail if, on the coming in of the plea or answer, the defense would turn out to be based on matter wholly independent of the Constitution or any law of the United States, and it would be the clear duty of the court to dismiss the suit for the reason that it did not ‘really and substantially involve a dispute or controversy within the jurisdic- tion of that court.” Sutras, J. Florida Cent., etc, R. Co. vw. Bell, 176 U. S. 330. “Tt has been several times decided by this court that a suit cannot properly be dis- missed by a Circuit Court as not involving a controversy of an amount sufficient to come within its jurisdiction unless the facts, when made to appear on the record, create a legal certainty of that conclusion.” Sutras, J. Put-in-Bay Waterworks, etc., Co. v. Ryan, 181 U. S. 430. “The power to dismiss because of the want of substantiality in the claim upon which the assertion of jurisdic- tion is predicated, does not apply to cases where the subject-matter of the controversy is per se and inherently federal.” Wouute, J. Equitable L. Assur. Soc. v. Brown, 187 U. S. 312. Judgment Not Void, but Voidable, for Want of Jurisdiction. “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.” MarsHatL, C. J. Kempe v. Kennedy, 5 Cranch 185. “Tt was settled by this court at a very early day, that although the judgments and decrees of the Circuit Courts might be er- roneous, if the records failed to show the facts on which the jurisdiction of the court rested, such as that the plaintiffs were cit- izens of different states from the defendants, yet that they were not nullities, and would bind the parties until reversed or otherwise set aside.” Waite, C. J. Des Moines Nav- igation, etc., Co. v. Iowa Homestead Co., 123 U. S. 55%. 13. OBJECTIONS TO JURISDICTION. Necessity. “Clearly, where the jurisdictional allega- tion is not traversed, no question involving the capacity of the parties in the cause to litigate in the Circuit Court can he raised before the jury, or treated as within the is- sues they might be impaneled to determine.” * Futter, C. J. Deputron v. Young, 134 U. S, 251. Mode of Making. “The doctrine of this court is settled, that when the jurisdiction of the Circuit Court ap- pears, by proper averments, on the record, the defendant can only impugn it in a special plea.” CAMPBELL, J. Wickliffe w. Owings, 17 How, 51. “The part of the judicial power of the United States, conferred by Congress on the Circuit Courts, being limited to certain de- scribed cases and controversies, the question whether a particular case is within the cog- nizance of the Circuit Court, may be raised by a plea to the jurisdiction of such court.” Curtis, J., dissenting. Scott v. Sandford, 19 How, 564, “It is true, where the jurisdiction of the Circuit Court depends on the citizenship of the parties, it is incumbent on the plain- tiff, to allege on the record the necessary citizenship; but when he has done go, the defendant must interpose a plea in abate- ment, the allegations whereof show that the court has not jurisdiction; and it is in- cumbent on him to prove the truth of his plea.” Curtis, J., dissenting, Scott wv. Sandford, 19 How. 567. “So long as the rules of pleading in the courts of the United States remained as at common law, the requisite citizenship of the parties, if duly alleged or apparent in the declaration, could not be denied by the de- fendant, except by plea in abatement,” Gray, J. Roberts v, Lewis, 144 U, S. 656. “An apparent defect of jurisdiction for lack of a matter. in controversy of sufficient pecuniary value can be availed of only by appeal or writ of error.” Fuiier, C. J, Ia ve Tyler, 149 U. S. 181. Sufficiency. “Tf a plea to the jurisdiction, instead of alleging that the plaintiff was a citizen of the same state as the defendant, were to al- lege that the plaintiff’s ancestors were cit- izens of that state, I think the plea could not be supported.” Curtis, J., dissenting. Scott v. Sandford, 19 How. 571, Time of Making. “In an action in a Circuit Court of the United States, where the jurisdiction de- COURTS. pends upon the citizenship of the parties, it has always been held, that where the plain- tiff avers in his declaration that he and the defendant means to deny the fact and the jurisdiction, he must plead it in abate- ment; and if he omits to plead it in abate- ment, and pleads in bar to the action, he cannot avail himself of the objection at the trial. Still less could he be permitted to do so upon a motion in arrest of judg- ment.” Taney, C, J. Carter v. Bennett, 15 How. 357. “The objection to jurisdiction upon the ground of citizenship, in actions at law, can only be made by a plea in abatement. After the general issue it is too late. It cannot be raised at the trial upon the merits.” Swayne, J. De Sobry v. Nicholson, 3 Wall. 423. 14. Jurispiction Not DEFEATED BY CHANGE IN CONDITION oF ParTIEs. “Tt has long been established, that when the jurisdiction of a court of the United States has once attached, no subsequent change in the condition of the parties would oust it.’ Curtis, J. Kanouse v. Martin, 15 How. 208, “Where jurisdiction attaches from the citizenship of the parties, a change of resi- dence does not affect the jurisdiction.” Ne- son, J. U. S. v. Dawson, 15 How. 492. + “Tt is to be remembered that, generally speaking, the jurisdiction of the Circuit Court of the United States neither fails nor at- taches by reason of a change in the citizen- ship of a party pending the suit, and that, when that court takes jurisdiction of a suit already pending, the requisite citizenship must have existed at the time of its com- mencement.” Gray, J. Koenigsberger v. Richmond Silver Min. Co., 158 U. S. 49. “Jurisdiction of a suit, once acquired by a court of the United States by reason of the requisite citizenship, is not lost by a change in the citizenship of either party pend- ing the suit.” Gray, J. Louisville, etc, R. Co. v. Louisville Trust Co., 174 U. S. 566. X. CONCURRENT JURISDICTION OF STATE AND FEDERAL COURTS. What Is Concurrent Jurisdiction. “The Judiciary Act, in declaring that Cir- cuit Courts of the United States shall have amt original cognizance, conctrrent with the courts of the several states, of all suits of a civil nature, at common law or if equity, be- tween citizens of a state and foreign states, citizens, or subjects, when the matter in dispute exceeds, exclusive of interest and costs, the sum of $2,000, means, as I under- stand its language, that the Circuit Courts of the United States shall have the same jurisdiction as the state courts, otherwise it could not be concurrent.” Jackson, J., dis- senting. Galveston, etc, R. v. Gonzales, 151 Uz S. 516. State and Federal Courts Form One Sys- tem of Jurisprudence. “The two [federal and state jurisdictions] together form one system of jurisprudence, which constitutes the law of the land for the state; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent.” Braptey, J. Claflin v. Houseman, 93 U. S, 137, “As to a distinction between a state court and this court, in this respect, I do, for my part, disclaim, according to my present senti- ments, any authority to give a different de- cision in arty case whatsoever from such as a state court would be competent to give under the same circumstances. I have no concep- tion that this court is in the nature of a for- eign jurisdiction. The thing itself would be as improper as it would be odious, in cases where acts of the state have a concurrent jurisdiction with it.’ Irepett, J. Ware v. Hylton, 3 Dall. 266. Circuit Court and State Supreme Court Are Co-ordinate. “ The latter [the Circuit Court of the United States] is a court co-ordinate to the Supreme Court of Louisiana in authority and equal in dignity, being the highest federal court sitting in that state, whose judgments and decrees are final and conclusive, subject only to review and reversal in the Supreme Court of the United States.” Matruews, J. Crescent Live Stock Co. v. Butchers’ Union Slaughter-House Co., 120 U. S. 157. “The Circuit Court possesses no revisory power over the decisions of the Supreme Court of the state.” Fretp, J. Galpin v. Page, 18 Wall. 365. “Under existing laws the Circuit Courts have no jurisdiction whatever to re-examirie the judgments of the state courts in any case, civil or criminal, the power to ex« ercise such a revision even in civil cases 525 COURTS. involving federal questions, being vested ex- clusively in the Supreme Court. Neither the Supreme Court nor the Circuit Courts can re-examine the conviction, sentence, or judg- ment of the District Court in a criminal case in any form, either by writ of error or appeal. Final judgments or decrees of a state court falling within the condition speci- fied in the twenty-fifth section of the Judi- ciary Act, or the second section of the act passed to amend the prior act upon the sub- ject, may be re-examined and reversed or affirmed in the Supreme Court upon a writ of error.” CLiFForD, J., dissenting. Ten- nessee v. Davis, 100 U. S. 282. Cases in Which Concurrent Jurisdiction Exists. “Where the United States are plaintiffs, or an alien is a party or the suit is between a citizen of the state where the suit is brought and a citizen of another state, the Circuit Courts of the United States have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, ex- clusive of costs, the sum or value of five hundred dollars.” CuxiFForp, J. Heckers v. Fowler, 2 Wall. 128. “A legal or equitable right acquired under state laws, may be prosecuted in the state courts, and also, if the parties reside in dif- ferent states, in the federal courts.” Brap- LEY, J. Claflin v. Houseman, 93 U. S. 136. “Concurrent furisdiction with the state courts was given to the District and Circuit Courts of all causes where an alien sues for a tort only in violation of the law of na- tions or a treaty of the United States, and of all writs at common law where the United States, are plaintiffs; the same to the Cir- cuit Courts, where the suit is between a citizen of the state where the suit is brought and a citizen of another state, where an alien is a party, etc.” Braptry, J. Claflin v. Houseman, 93 U. S. 139. Party Forfeits No Right or Remedy by Resorting to Federal Court. “A party forfeits nothing by going into a federal tribunal. Jurisdiction having at- tached, his case is tried there upon the same principles, and its determination is governed by the same considerations, as if it had been brought in the proper state tribunal of the locality.” Swayne, J. Ex p. McNiel, 13 Wall. 243. “A party by going into a national court does not, this court has said, lose any right or appropriate remedy of which he might have availed himself in the state courts of the same locality.” Hartan, J. Smyth v. Ames, 169 U. S. 516. “In those states where the judgment on the execution of a state court creates a lien only within the county in which the judg- ment is entered, it has not been doubted that a similar proceeding in the Circuit Court of the United States would create a lien to the extent of its jurisdiction. This has been the practical construction of the power of the courts of the United States, whether the lien was held to be created by the issuing of process or by express statute. Any other construction would materially af- fect, and in some degree subvert, the ju- dicial power of the Union. It would place suitors in the state courts in a much better condition than in the federal courts.” Mc- Lean, J. Massingill v. Downs, 7 How. 766. “Though we have repeatedly decided in this court that the statute of a state cannot control the mode of procedure in equity cases in federal courts, nor deprive them of their separate equity jurisdiction, we have also held that, where a statute of a state created a new right or provided a new remedy, the federal courts will enforce that right either on the common law or equity side of its docket, as the nature of the new right or remedy requires.” Miter, J. Cummings v. Merchants Nat. Bank, 101 U. S. 157. “Tt has often been decided by this court that the terms ‘law’ and ‘equity’ as used in the Constitution, although intended to mark and fix the distinction between the two systems of jurisprudence as known and practised at the time of its adoption, do not restrict the jurisdiction conferred by it to ‘the very rights and remedies then recognized and employed, but embrace as well not only rights newly created by statutes of the states, as in cases of actions for the loss occasioned to survivors by the death of a person caused by the wrongful act, neglect, or default of another, but new forms of remedies to be administered in the courts of the United States, according to the nature of the case, so as to save to suitors the right of trial by jury in cases in which they are en- titled to it, according to the course and analogy of the common law.” MatrHews, J. Ellis v. Davis, 109 U. S. 497. “The courts of the United States, in cases over which they have jurisdiction, have just 526 COURTS. as much power to effectuate justice between the parties as the state courts have.” Brap- LEY, J. Calhoun v. Lanaux, 127 U. S. 639. “While the rule is thoroughly settled that remedies in the courts of the United States are at common law or in equity, according to the essential character of the case, uncon- trolled in that particular by the practice of the state’s courts, yet an enlarge- ment of equitable rights by state statute may be administered by the Circuit Courts of the United States as well as by the courts of the state; and when the case is one of a remedial proceeding, essentially of an equi- table character, there can be no objection, to the exercise of the jurisdiction.” FULLER, C. J. Gormley v. Clark, 134 U. S. 348. “Tt is true that an enlargement of equi- table rights arising from the statutes of a state may be administered by the Circuit Court of the United States.” Haran, J. Smyth v. Ames, 169 U. S. 516. “Since 1872, when Congress assimilated the rules of pleading, practice and forms and modes of procedure in actions at law in the courts of the United States to those pre- vailing in the courts of the several states, all defenses are open to a defendant in the Cir- cuit Court of the United States, under any form of plea, answer or demurrer, which would have been open to him under like pleadings in the courts of the state within which the Circuit Court is held.” Gray, J. Roberts v. Lewis, 144 U. S. 656. —— State Cannot Oust Federal Courts of Jurisdiction. “It may well be affirmed that a state, by prescribing an action at law to enforce even statutory rights, cannot oust a federal court, sitting in equity, of its jurisdiction to en- force such rights, provided they are of an equitable nature.” Brewer, J. Sheffield Furnace Co. v. Witherow, 149 U. S. 579. Exclusion of State Jurisdiction. “Tt has been generally held, that the state courts have a concurrent jurisdiction with the federal courts, in cases to which the judicial power is extended, unless the juris- diction of the federal courts be rendered ex- clusive by the words of the third article [of the Constitution].” MArsHatL, C. J. Cohen v. Virginia, 6 Wheat. 396. “The judicial power of the United States is unavoidably, in some cases, exclusive of all state authority, and in all others, may be t made so at the election of Congress. No part of the criminal jurisdiction of the United States can, consistently with the Constitution, be delegated to state tribunals. The ad- miralty and maritime jurisdiction is of the same exclusive cognizance; and it can only be in those cases where, previous to the Con- stitution, state tribunals possessed jurisdic- tion independent of national authority, that they can now constitutionally exercise a con- current jurisdiction. Congress, throughout the judicial act, and particularly in the 9th, 11th, and 13th sections, have legislated upon the supposition that in all the cases to which the judicial powers of the United States ex- tended, they might rightfully vest exclusive jurisdiction in their own courts.” Story, J. Martin v. Hunter, 1 Wheat. 336. “Speaking upon the subject of the federal judiciary The Federalist distinctly asserts the doctrine that the United States, in the course of legislation upon the objects entrusted to their direction, may commit the decision of causes arising under a particular regulation to the federal courts solely, if it should be deemed expedient; yet that in every case in which the state tribunals should not be ex- pressly concluded by the acts of the national legislature, they would, of course, take cog- nizance of the causes to which those acts might give birth. I can discover, I confess, nothing unreasonable in this doctrine; nor can I perceive any inconvenience which can grow out of it, so long as the power of Con- gress to withdraw the whole, or any part of these cases, from the jurisdiction of the state courts, is, as I think it must be, admitted.” WasHincton, J. Houston wv. Moore, 5 Wheat. 25. “The Constitution declares that the ju- dicial power of the United States shall ex- tend to ‘controversies between citizens of different states,’ as well as to cases arising under the Constitution, treaties, and laws of the United States; but the condition upon which the power shall be exercised, except so far as the original or appellate. character of the jurisdiction is designated in the Con- stitution, are matters of legislative direction. Some cases there are, it is true, in which, from their nature, the judicial power of the United States, when invoked, is exclusive of all state authority. Such are cases in which the United States are parties — cases of admiralty and maritime jurisdiction and cases for the enforcement of rights of in- ventors and authors under the laws of Con- gress.” FieLp, J. Gaines v. Fuentes, 92 U.S. 17. 527 COURTS. “Rights, whether legal or equitable, ac- quired under the laws of the United States, may be prosecuted in the United States courts, or in the state courts, competent to decide rights of the like character and class; stibject, however, to this qualification, that where a right arises under a law of the United States, Congress may, if it see fit, give to the federal courts exclusive juris- diction. This jurisdiction is sote- times exclusive by expréss enactrnent and sometimes by implication.” Braptey, J. Claflin v. Houseman, 93 U. S. 136. “The general question, whether state courts can exercise concurrent jurisdiction with the federal courts in cases arising under the Constitution, laws, and treaties of the United States, has been elaborately discussed, both on the berich and in published treatises — sometimes with a leaning in one direction and sometimes in the other--but the re- sult of these discussions has, in our judg- ment, been to affirm the jurisdic+ tion, whete it is riot excluded by express provision, or by incompatibility in its ex- etcise arising from the nature of the partic- ular case.” Braptey, J. Claflin v. House- tan, 93 U. S. 136. “But when the national government was formed, some of the attributes of state sov- ereignty were paftially, and others wholly, surrerideted and vested in the United States. Over the subjects thus sutrendered the sov- ereignty of the states ceased to éxtend. Be- fofe the adoption of the Constitution, each state had completé afid exclusive authority to administer by its courts all the law, civil and criminal, which existed within its bor- ders. Its judicial power extended over every legal question that could arise. But when the Constitution was adopted, a portion of that judicial power became vested in the riew govetnment cfeated, atid so far as thus vested it was withdrawn from the sover- eigrity of the state. Now the execution and enforcement of the laws of the United States, and the judicial determination of questions arising under them, are cofifided to another sovereign, and to that extent the sovereigrity of the state is restricted.” Srronc, J. Ten- nessee v. Davis, 100 U. S. 266. “By the Constitution (att 3, sec. 2) the judicial power of the United States extends ‘to all cases, in law and equity, arising under this Constitution, the laws of the United States’ and to coritroversies ‘be- tween citizens of different states.” By ar- ticle 4, s. 3, cl. 2, Congress is given ‘power 528 to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.’ Under these clauses Congress might doubt- less provide that any controversy of a ju- dicial nature arising in or growing out of the disposal of the public lands should be liti- gated only in the courts of the United States.” “Brewer, J. Shoshone Min, Co. v. Rutter, 177 U. S. 506. —— Power of Congress to Exclude State Jurisdiction. “Tt has not been denied that Congress may constitutionally delegate to its own courts exclusive jurisdiction over cases arising under its own laws.” Jounson, J., dissent- ing. Houston v. Moore, 5 Wheat. 71. “At the first session of Congress which commenced after the adoption of the Con- stitution, the judicial system was formed; and the exclusive and concurrent jurisdic- tion conferred upon the courts created by that law were clearly distinguished and marked; showing that, in the opinion of that body, it was not sufficient to vest an ex- clusive jurisdiction, where it was deemed proper, merely by a grant of jurisdiction generally.” WasHincton, J. Houston v. Moore, 6 Wheat. 26, “By the judicial system of the United States, established by Cotigress under the power conferred upon it by the Constitution, the jurisdiction of the courts of the several states has not been controlled or interfered with, except so far as necessary to sectite the supremacy of the Constitution, laws and treaties of the United States.” Gray, J. Whitten v. Tomlinson, 160 U. S. 238. Power of State Courts to Decide Cases Involving Federal Questions. “Tt is plain that the framers of the Con- stitution did contemplate that cases within the judicial cognizance of the United States not only might but would arise in the state courts, in the exercise of their ordinary juris- diction.” Story, J.. Martin vw Hunter, 1 Wheat. 340, “A state cotirt of otiginal jurisdiction, having the patties before it, may, consistently with existing federal legislation, determine cases at‘law of itt equity, arising under the Constitution or laws of the United States, ot involving rights dependent upon stich Con- stitution or laws.” Haran, J. Robb w. Connolly, 111 U. S. 637. “Tt [Congress] has so constructed the ju- dicial system of the United States that the COURTS. great bulk of litigation respecting rights of property, although those rights may in their inception go back to some law of the United States, is in fact carried on in the courts of the several states.” Brewer, J. Shoshone Min. Co. v. Rutter, 177 U. S. 506. — Power Not Withdrawn by Constitu- tion. “Tf it was intended to withdraw from the states authority to determine, by its courts, all cases and controversies to which the ju- dicial power of the United States was ex- tended, and of which jurisdiction was not given to the national courts exclusively, such a purpose would have been manifested by clear language. Nothing more was done by the Constitution than to extend the judicial power of the United States to specified cases and controversies; leaving to Congress to determine whether the courts to be es- tablished by it from time to time should be given exclusive cognizance of such cases or controversies, or should only exercise ju- risdiction concurrent with the courts of the several states.” Hartan, J. Plaquemines Tropical Fruit Co. v. Henderson, 170 U. S. 517. — What Constitutes Federal Question. “A state may prescribe the procedure in the federal courts as the rule of practice in its own tribunals; it may authorize the dis- posal of its own lands in accordance with the provisions for the sale of the public lands of the United States; and in such cases an examination may be necessary of the Acts of Congress, the rules of the fed- eral courts, and the practices of the land de- partment, and yet the questions for decision would not be of a federal character. The inquiry along federal lines is only incidental to a determination of the local question of what the state has required and prescribed. The matter decided is one of state rule and practice. The facts by which that state rule and practice are determined may be of a federal origin.” Brewer, J. Miller’s Execu- tors v. Swann, 150 U. S. 13” Duty of State Courts to Enforce Rights Arising Under United States Constitu- tion or Laws. “Upon the state courts, equally with the courts of the Union, tests the obligation to guard, enforce, and protect every right granted or secured by the Constitution of the United States and the laws made in pursuance thereof, whenever those rights are involved in any suit or proceeding be- fore them.” Haran, J. Robb v. Connolly, 111 U. S. 637. 1 Os, Dic.—34 “Tt must be remembered that when federal questions arise in causes pending in the state courts, these courts are perfectly com- petent to decide them, and it is their duty to do so.” FuLer, C. J. Missouri Pac. R. Co. v. Fitzgerald, 160 U. S. 583. “When federal questions arise in cases pending in the state courts, those courts are competent, and it is their duty, to decide them. If errors supervene, the remedy by writ of error is open to the party aggrieved.” Fur , C. J. Arkansas v. Kansas, etc., Coal Co., etc., 183 U. S. 190. Suits and Prosecutions in State Courts under Federal Statutes. “Tf an Act of Congress gives a penalty to a party aggrieved, without specifying a rem- edy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some Act of Congress, by a proper action in a state court.” Brap.ey, J. Claflin v. Houseman, 93 U. S. 187. “The state courts have no power to re- vise the action of the federal courts, nor the federal the state, except where the federal Constitution or laws are involved. But this is no reason why the state courts should not be open for the prosecution of rights grow- ing out of the laws of the United States, to which their jurisdiction is competent, and not denied.” Braptey, J. Claflin v. Houseman, 93 U. S. 187. —— Right to Resort to State Courts Does Not Preclude Federal Jurisdiction. “ Although for convenience, and to save expense to the debtors, recourse may be had to the state courts for the recovery of small sums, yet a right to resort to the courts of the Union in suits for money due to the United States, was never intended to be re- linquished. If the effect of any provision in a statute be to abolish this jurisdiction, it must be an effect which was neither in- tended nor foreseen.” MarsHatt, C. J. Postmaster Gen. of U. S. v. Early, 12 Wheat. 146. Duty of Federal Courts Not to Interfere with State Courts. “T agree with the majority of my brethren in regarding it as almost the first duties of every court of the United States carefully to avoid trespassing upon the rights reserved to the states, or interfering with the process of their courts when they are exercising either their exclusive or concurrent jurisdic- tion in the matter in controversy.” Taney, C. J., dissenting. Taylor v. Carryl, 20 How. 610. 529 \ COURTS. Jurisdiction Retained by Court First Ac- quiring It. “Where a state court and a federal court have concurrent jurisdiction over the same subject-matter, that court which first ob- tains 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 exceptions, is recognized both in federal and_ state courts.” FreLp, J. Rio Grande R. Co. wv. Gomila, 132 U. S. 485. And see REMOVAL OF CAUSES. Disposition of Causes Pending in Courts of Territory at Time of Admission into Union. “Whenever a territory is admitted into the Union as a state the cases pending in the territorial courts of a federal character or jurisdiction are transferred to the proper federal court, but all such as are not cog- nizable in the federal courts are transferred to the tribunals of the new state.” CLIFFoRD, J. Baker v. Morton, 12 Wall. 153. XI. STATE LAWS AND DECISIONS AS RULES OF DECISION FOR FEDERAL COURTS. 1. FepERAL CourTs RECOGNIZE AND ENForcE STATE LAws. In General. “The statute law of the states must furnish the rule of decision to this court, as far as they comport with the Constitution of the United States in all cases arising within the respective states.” Jounson, J. Shelby v. Guy, 11 Wheat. 367. “This court has uniformly manifested its respect for the adjudications of the state tribunals, and will be very moderate in those claims which may be preferred on the ground of comity.” JoHnson, J. Shelby v. Guy, 11 Wheat. 368. “This court has always felt itself bound to respect local laws, however peculiar, in all cases where they do not come in collision with laws of higher authority and more im- posing obligation.” Bartpwin, J. U.S. Bank v. Tyler, 4 Pet. 382. “Tt should be recollected, that, in the trial of titles to real property held or claimed under the laws of the state, the federal courts sitting in the state are administering those laws, the same as the state courts, and can administer no other. They are obliged to 53 adopt the local law, not only because the titles are founded in it, but because these courts have no system of jurisprudence of their own to be administered, except where the title is affected by the Constitution of the United States, or by Acts of Congress,” NEtson, J., dissenting. Williamson v. Berry, 8 How. 558. “ All the questions arising in this case are questions of law. It is our duty to con- sider the controversy as if we were a court of the state, and sitting there to apply her jurisprudence.” Swayne, J. Bowditch v. Boston, 101 U. S. 19. “Conceding that a federal court, sitting within a state where the law relating to the subject under consideration is unsettled and doubtful, must exercise an independent judg- ment and declare the law upon the light it can obtain, this rule has no application where the law of the state is neither unsettled nor doubtful, but is established and certain, and recognized as such by its judicial authori- ties.” Fretp, J., dissenting. Baltimore, etc., R. Co. v. Baugh, 149 U. S. 395. “The theory upon which inferior courts of the United States take jurisdiction within the several states is, when a right is not claimed under the Constitution, laws, or treaties of the United States, that they are bound to enforce, as between the parties, the law of the state.” Frep, J., dissenting. Baltimore, etc., R. Co. v. Baugh, 149 U. S. 403. \ “So far as the courts of the Union are concerned, they must recognize and, when necessary to do so in cases within their jurisdiction, enforce the statutes of the sev- eral states, unless those statutes encroach upon legitimate national authority, or violate some right granted or secured by the Con- stitution of the United States. Haran, J. Erie R. Co. v. Pennsylvania, 153 U. S. 641. State Laws Furnishing Rules of Property. “State laws abolishing such fictions [in ejectment] sometimes provide what the ef- fect of the new provision shall be, and it is settled law that the state regulation in that regard is a rule of property which the federal courts must follow.” Cxrrrorp, J. Hogan wv, Kurtz, 94 U. S. 775. State Laws Regarded as Rules of De- cision. “When Congress defined the powers of a courts of the United States, they di- rected, that the laws of the several states should be regarded as the rules of decision in suits at common law, in cases where they apply.” McKintey, J., dissenting. Lane v. Vick, 3 How. 481. “From the beginning this court has rec- ognized statutes of limitations of actions, real and personal, as enacted by the legis- lature of a state, and as construed by its highest court, as rules of decision in the courts of the United States.” Futter, C. J. Metcalf v. Watertown, 153 U. S. 673. °2. STATE DECISIONS as TO STATE STATUTES, In General. “To the highest courts of the state be- longs the right to construe its statutes and its Constitution, except where they may con- flict with the Constitution of the United States, or some statute or treaty made un- der it.” Mutter, J., dissenting. Gelpcke v. Dubuque, 1 Wall. 210. ; “Tt is the peculiar province and priv- ilege of the state courts to construe their own statutes; and it is no part of the func- tions of this court to review their decisions, or assume jurisdiction over, them on the . pretense that their judgments have impaired the obligation of contracts.” Grier, J. Commercial Bank v. Buckingham, 5 How. 343. ; “We adopt the construction of a state statute settled in the courts of the state, though it may not accord with our opin- ion.” Stronc, J. Supervisors v. U. S., 18 Wall. 82. “Tt is an elementary principle that this court in interpreting a state statute will con- strue and apply it as settled by court of last resort of the state, and will hence only form an independent judgment, as to the mean- ing of the state law, when there was no bind- ing construction of such state statute by the court of last resort of the state.” WHiITtE, J. Sioux City Terminal R., etc, Co. v. North America Trust Co., 173 U. S. 107. “In determining what the laws of the sev- eral states are, which will be regarded as rules of decision, we are bound to look, not only at their constitutions and statutes, but at the decisions of their highest courts giv- ing construction to them.” Brown, J. Wade v. Travis County, 174 U. S. 508. “The courts of the state are the tribunals appointed to administer the statutes and im- COURTS. pose their penalties, and to do so they must necessarily interpret them. In other words, they are the tribunals to declare the mean- ing of the statutes, and if in declaring it they made the statutes discriminatory then may the statutes become unconstitutional.” McKenna, J. National Cotton Oil Co. v. Texas, 197 U. S. 181. “While we respect the learning and high intelligence of the state courts, and con- sider their decisions, with others, as au- thority, we follow them only where they give a construction to the state statutes.” McLean, J., dissenting. Scott v. Sandford, 19 How. 563. “The rule of law being once established by the highest tribunal of a state, courts which propose to administer the law as they find it, are ordinarily bound, in limine, to pre- sume that, whether it appears from the re- ports or not, all the reasons which might have been urged, pro or con, upon the point under consideration, had been examined and disposed of judicially.” Jounson, J. Liv- ingston v. Moore, 7 Pet. 543. State Construction Furnishes Rule of De- cision, “Tt belongs to the state courts to expound their own statutes; and when thus ex- pounded the decision is the rule of this court in all cases depending upon the local laws of the state.” Netson, J. Smith wv. Ker- nochen, 7 How. 219. “Tt is the established doctrine of this court, that it adopt and follow the decisions of the state courts in the construction of their own Constitution and statutes, when that con- struction has been settled by the decisions of its highest judicial tribunal.” Taney, C. J. Nesmith v. Sheldon, 7 How. 818. “It is the practice of this court to adopt the interpretation given by the highest tri- bunals of the several states to their respec- tive acts of legislation where such interpre- tation does not conflict with the paramount authority of the Constitution or laws of the United States, binding upon their own courts, or with the fundamental principles of justice and common right.” DanteL, J. Murray v. Gibson, 15 How. 425. “State courts certainly have a right to ex- pound the statutes of the state, and having done so, those statutes, with the interpreta- tion given to them by the highest court of the state, become the rules of decision in the federal courts.” CLrFForD, J. Richmond v. Smith, 15 Wall. 438. 531 COURTS. “In the construction of the statutes of a state, and especially those affecting titles to real property, where no federal question arises, this court follows the adjudications of the highest court of the state. Its interpre- tation is accepted as the true interpretation, whatever may be our opinion of its original soundness. It becomes a part of the statute, as much so as if incorporated into: the body of it, and in following the statute as thus interpreted we only apply to a local ques- tion the law of the place. As has often been remarked, infinite mischiefs would re- sult if, in construing state statutes affecting titles to real property, where no federal ques- tion is involved, a different rule were adopted by the federal tribunals from that of the state courts.” Fretp, J. Walker v. State Harbor Com’rs, 17 Wall. 651. “State courts certainly have a right to ex- pound the statutes of the state; and, having done so, those statutes, with the interpreta- tion given to them by the highest court of the state, become the rule of decision in the federal courts.” CLIFForD, J., concurring. Hall v. DeCuir, 95 U. S. 500. “When the highest court of the state af- firms that a conveyance, made by a debtor to a trustee for the benefit of creditors, is valid under the statutes of that state, we should ordinarily, in any case involving the validity of such conveyance, follow that ruling, even though that statute was com- mon to many states, and in others a differ- ent ruling had obtained.” Brewer, J. Randolph v. Quidnick Co., 185 U. S. 463. “No laws of the several states have been more steadfastly or more often recognized by this court, from the beginning, as rules of decision in the courts of the United States, than statutes of limitations of actions, real and personal, as enacted by the legislature of a state, and as construed by its highest court.” Gray, J. Bauserman v. Blunt, 147 U. S. 652. “As a getieral rule this court follows the decision of the highest court of a state in the construction of the statutes of the state, un- less they conflict with or impair the ef- ficiency of some provision of the Constitu- tion of the United States or of an Act of Congress.” Futter, C. J. Metcalf »v. Watertown, 153 U. S. 678, “The elementary rule is that this court ac- cepts the interpretation of the statute of a state affixed to it by the court of last resort thereof.” Futter, C. J. Missouri, etc., R. Co. v. McCann, 174 U. S. 586, 532 State Decisions Usually Followed. “This court uniformly acts under the in- fluence of a desire to conform its decisions to those of the state courts on their local laws.” Jounson, J. Mutual Assur. Soc. v. Watts’ Ex’r, 1 Wheat. 290. “This court has. uniformly professed its disposition, in cases depending on the laws of a particular state, to adopt the construc- tion which the courts of the state have given those laws.” MarsHatit, C. J. Elmendorf v. Taylor, 10 Wheat. 159. “(In construing] a state law, this court will be governed very much by the decisions of the state tribunals in relation to it.” Tuompson, J. Inglis wv. Sailor’s Snug Harbour, 3 Pet. 130. “When, in the exercise of our duties here, we shall be called upon to construe other state constitutions, we shall not be unmind- ful of the weight due to the decisions of the courts of those states.” Mutter, J. Pum- pelly v. Green Bay Co., 18 Wall. 181. “As a rule we treat the construction which the highest court of a state has given a statute of the state as part of the statute itself. It is only when, by giving such con- struction a retroactive effect, it will invali- date contracts which in our opinion were lawfully made, that we disregard them.” Warts, C. J. Weightman v. Clark, 103 U. S. 260. : “As a general rule, this court follows the decision of the highest tribunals of a state, upon the construction of its Constitution and laws, if they do not conflict with or impair the efficacy of some provision of the federal Constitution, or of a federal statute.” Fut- ter, C. J. Osborne v. Missouri Pac. R. Co, 147 U. S. 258. “The decisions of state courts relating to laws of a local character, which may have be- come established by those courts, or had al- ways been a part of the law of the state, are usually conclusive and always entitled to the highest respect of the federal courts.” Fut- teR, C. J. Gardner v. Michigan Cent. R. Co., 150 U. S. 357. “The construction by the state courts of last resort of state constitutions and statutes will ordinarily be accepted by this court as controlling.” Futter, C. J. Adams Express Co. v. Ohio, 165 U. S. 219. Federal Courts Bound by State Decisions. “The relation in which our Circuit Courts COURTS. stand to the states in which they respec- tively sit and act, is precisely that of their own courts; especially when adjudicating on cases where state lands or state statutes come under adjudication. When we find principles distinctly settled by adjudications, and known and acted upon as the law of the land, we have no more right to question them, or deviate from them, than could be correctly exercised by their own tribunals.” Jounson, J. Livingston v. Moore, 7 Pet. 542, “A judicial interpretation by the highest court in the state, of one of its own statutes, has always been held by this court as conclusive; especially if such interpreta- tion has not been called in question in its own tribunals and no case has been referred te, tending in any measure to shake this decision.” THsompson, J. M’Cutchen v. Marshall, 8 Pet. 240. “The construction given by the courts of the several states to the legislative acts of those states, is received as true, unless they come in conflict with the Constitution, laws, or treaties of the United States.” Mar- SHALL, C, J. Elmendorf v. Taylor, 10 . Wheat. 160. “Tn numerous instances, this court has considered itself bound to follow the deci- sions of the state tribunals on their own constitutions and laws. This, of course, relates to the validity when not over- ruling any defense set up under the authority of the United States.” Woopsury, J., dis- senting. Luther v. Borden, 7 How. 58. “Wherever a law of a state is held to be a public one, to be judicially taken notice oi by the state courts, it must be regarded in like manner by a court of the United States, when it is required to administer the laws of the state.’ Taney, C. J. Covington Drawbridge Co. v. Shepherd, 20 How. 232. “That the construction of the statutes of a state by its highest courts, is to be re- garded as determining their meaning and generally as binding upon United States courts, cannot be questioned. It has been asserted by us too often to admit of further debate.” Srronc, J. Supervisors v. U. S, 18 Wall. 81. “As the practice in the courts of the United States must conform as near as may be to that in the courts of the state, Rev. ° Stat., sect. 914, these decisions construing the practice acts of the state are binding upon the courts of the United States.” Wate, C. J. Atlantic & Pac. R. Co. v, Hopkins, 94 UL. S. 13. “This court has always held that the laws of the states are to receive their authorita- tive construction from the state courts, ex- cept where the federal Constitution and laws are concerned; and the state constitu- tions, in like manner, are to be construed as the state courts construe them.” Brap- LEY, J. South Ottawa v. Perkins, 94 U. S. 267.. “It would be a very unseemly state of things, after the courts of Illinois have de- termined that a pretended statute of that state is not such, having never been con- stitutionally passed, for the courts of the United States, with the same evidence be- fore them, to hold otherwise.” BRabLey, J. South Ottawa v. Perkins, 94 U. S. 267. “As a matter of propriety and right, the decision of the state courts on the question as to what are the laws of the state is binding upon those of the United States.” Braviey, J. South Ottawa v. Perkins, 94 U.S. 268. “Repeated decisions of this court decide that the court is bound to conform to the decisions of the state courts in the con- struction of their statutes of limitation.” CiirrorD, J. Andreae v. Redfield, 98 U. S. 235. é “It would be strange, indeed, if this court should adjudge that there was error on the part of the Supreme Court of a state in following its own rulings, uniform and un- disturbed for a quarter of a century.’ Brewer, J. Etheridge v. Sperry, 139 U. S. 276, “A construction or meaning attributed to the terms of a state statute by the courts of such state will, of course, be adopted by this court when called upon to decide ques- tions arising under such legislation.” Suiras, J. New York, etc. R. Co. v. Penn- sylvania, 158 U. S. 435. “It has often been held that the settled construction of a state statute by its Supreme Court is considered as a part of the statute.” McLean, J. Massingill v. Downs, 7 How. 767, State Decisions Not Binding on Federal Courts. “This court follows the established con- struction of the statutes of a state by its Supreme Court. Such a construction is consid- 533 COURTS. ered as a part of the statute, and we follow it to avoid two rules of property in the same state. But we do not follow the decisions of the Supreme Court of a state beyond a stat- utory construction as a rule of decision for this court. State decisions are always viewed with respect and treated as authority; but we follow the settled construction of the statutes, not because it is of binding au- thority, but in pursuance of a rule of judicial policy.” McLean, J., dissenting. Scott wv. Sandford, 19 How. 555. “Tt may be suggested that this line of argument leads to the conclusion that a statute of one state whose purpose is declared by its Supreme Court to be a matter of police regulation will be upheld by this court as not in conflict with the federal Constitu- tion, while a statute of another state, pre- cisely similar in its terms, will be adjudged in conflict with that Constitution if the Su- preme Court of that state interprets its pur- pose and scope as entirely outside police reg- ulation. But this by no means follows. This court is not concluded by the Supreme Court of the state. It forms its own inde- pendent judgment as to the scope and pur- pose of a statute, while of course leaning to any interpretation which has been placed upon it by the highest court of the state.” Brewer, J. Atchison, etc., R. Co. v. Mat- thews, 174 U. S. 100. “The decisions of state courts, deriving their authority from state constitutions or laws, are no test of the powers of the United States; nor have their usages or practice ever been adopted by any Act of Congress or rule of the Supreme Court, except so far as re- lates to the federal courts sitting within a state.” Ba.tpwin, J., dissenting. Ex p. Crane, 5 Pet. 219. When State Decisions Are Conflicting. “Tt is true that this court always follows the decision of the state courts in the con- struction of their own constitution and laws. But where those decisions are in conflict, this court must determine between them.” Taney, C. J. Ohio L. Ins. Co. v. Debolt, 16 How. 431. Decision Contrary to Prior Decision of United States Supreme Court. “We have held that when the construction of a state law has been settled by a series of decisions of the highest state court, differently from that given to the stat- ute by an earlier decision of this court, the construction given by the state courts will be adopted by. us.” Stronc, J. Supervisors v. U. S., 18 Wall. 82. “Tf the deed by which a man supposes he has secured to himself and family a home- stead, fails to comply in any essential par- ticular with the statute or constitution of the state, as expounded by the most recent de- cision of the state court, it is held void by this court without hesitation, because it is a rule of property, and the last decision of the state court must govern, even to overturning the well-considered construction of this court.” Mutter, J., dissenting. Gelpcke v. Dubuque, 1 Wall. 214. “Undoubtedly this court will always feel itself bound to respect the decisions of the state courts, and from the time they are made will regard them as conclusive in all cases ‘upon the construction of their own consti- tution and laws. But we ought not to give to them a retroactive effect, and allow them to render invalid contracts entered into with citizens of other states, which in the judg- ment of this court were lawfully made.” Taney, C. J. Rowan v. Runnels, 5 How. 189. “There are, it is true, many dicta to be found in our decisions, averring that the courts of the United States are bound to follow the decisions of the state courts on the construction of their own laws. But al- though this may be a correct, yet a rather strong expression of a general rule, it cannot be received as the enunciation of a maxim of universal application. Accordingly, our re- ports furnish many cases of exceptions to it. In all cases where there is a settled construc- tion of the laws of a state, by its highest judi- cature, established by admitted precedent, it is the practice of the courts of the United States to receive and adopt it without criticism or further inquiry. But when this court have first decided a question arising under state laws, we do not feel bound to surrender our convictions, on account of a contrary subse- quent decision of a state court. When the decisions of the state court are not consistent, we do not feel bound to follow the last, if it is contrary to our own con- victions —and much more is this the case, where, after a long course of consistent de- cisions, some new light suddenly springs up, or an excited public opinion has elicited new doctrines, subversive of former safe prece- dent. Cases may exist also, when a cause is got up in a state court for the very pur- pose of anticipating our decision of a question known to be pending in this court. Nor do we feel bound in any case in which a point 534 COURTS. is first raised in the courts of the United States, and has been decided in a Circuit Court, to reverse that decision contrary to our own convictions, in order to conform to a state decision made in the meantime. Such decisions have not the character of estab- lished precedent declarative of the settled law of a state.” Grier, J. Pease v. Peck, 18 How. 598, “Where the construction of a state stat- ute is involved in a case presented here for decision, and it appears that the statute in question has not been construed by the state court, I hold that it is the duty of this court ‘to ascertain and determine what is its true construction, and that this court, under such circumstances, will not reverse its decision in the same or a subsequent case, even though the state court may afterwards give a dif- ferent construction to the same _ statute.” Cuirrorp, J., dissenting. Supervisors vw. U. S., 18 Wall. 84. 8. Loca Laws As DISCLOSED BY STATE DECISIONS. “This court has ever sought, with solici- tude, for the true spirit of the law, as set- tled in the state tribunals, and has con- formed its judgments to the rules of those tribunals whenever it has been able to find them established.” MarsHatt, C. J. Mat- son v. Hord, 1 Wheat. 132. “The courts of the United States adopt as a rule of decision the established construction of local laws. And it cannot be material, whether such construction has been estab- lished by long usage or a judicial decision.” McLean, J. Carroll v. Safford, 3 How. 460. “No one, we believe, has ever doubted the proposition, that according to the institu- tions of this country, the sovereignty in every state resides in the people of the state, and that they may alter and change their form of government at their own pleasure. But whether they have changed it or not by abolishing an old government, and establish- ing a new one in its place, is a question to be settled by the political power. And when that power has decided, the courts are bound to take notice of its decision, and to follow it.” Taney, C. J. Luther v. Borden, 7 How. 47. “Undoubtedly the courts of the United States have certain powers under the Con- stitution and laws of the United States which do not belong to the state courts. But the power of determining that a state govern- ment has been lawfully established, which the courts of the state disown and repudiate, is not one of them. Upon such a question the courts of the United States are bound to follow the decisions of the state tribunals.” Taney, C. J. Luther v. Borden, 7 How. 40. “It is through these sources alone that this court must seek for a solution of the ques- tion; and finding the law so established by the tribunals of the state, we are bound to acquiesce in and follow their decisions.” Grier, J. Fisher v. Haldeman, 20 How. 194. “Tn this court the construction given by the state courts to the laws of a state, re- lating to local affairs, is uniformly received as the true construction.” Cuase, C. J. Lane County v. Oregon, 7 Wall. 74. “The state courts are the appropriate tribunals, as this court has repeatedly held, for the decision of questions arising under their local laws, whether statutory or other- wise.” Mititer, J. Murdock v. Memphis, 20 Wall. 626. “While this court has been strenuous to uphold the supremacy of federal law, and the interpretation placed upon it by the federal courts, it has been equally strenuous to up- hold the decisions by state courts of questions of purely local law. There should be, in all matters of a local nature, but one law within the state; and that law is not what this court might determine, but what the Supreme Court of the state has determined.” Brewer, J. Detroit v. Osborne, 135 U. S. 498. “The courts of the United States cannot disregard the decisions of the state courts in matters which are subjects of state regula- tion.” Fretp, J., dissenting. Baltimore, etc., R. Co. v. Baugh, 149 U. S. 394. “Tt has never been denied, that I am aware of, that decisions of the regular judi- cial tribunals of a state, especially when concurring for a succession of years, are, at least, evidence of what the law of the state is on the points adjudged. The law, being thus shown, is as obligatory upon those points in another similar case, arising in the state, as if expressed in the most formal statutory enactments.” Fretp, J., dissenting. Balti- more, etc., R. Co. v. Baugh, 149 U. S. 398. “Tf the law were expressed in a statute, no federal court would presume to question its efficacy and binding force. The law of the state on many subjects is found only in the decisions of its courts, and when ascer- tained and relating to a subject within the 535 COURTS. authority of the state to regulate, it is equally operative as if embodied in a statute, and must be regarded and followed by-the fed- eral courts in determining causes of action affected by it arising within the state,” Fieip, J., dissenting. Baltimore, etc., R. Co. v. Baugh, 149 U. S. 397. “Tf a case came to this court from one of the states in which the doctrine of the civil law obtains, it would become our duty, having respect to this which is a matter of local law, to follow the decisions of that state. And in like manner we should follow the adverse ruling in a case coming from one of the states in which the common-law rule is recognized.” Brewer, J. Walker v. South- ern Pac. R. Co., 165 U. S. 604. “As . . . the Circuit Courts of the United States are courts of ‘an independent jurisdiction in the administration of state laws, co-ordinate with and not subordinate to that of the state courts, and are bound to exercise their own judgment as to the meaning and effect of those laws,’ ‘ they may, in suits within their jurisdiction, properly hold, as in numerous cases this court has held, that the rights of parties arising under contracts not involving ques- tions of a federal nature are to be de- termined in accordance with the settled prin- ciples of local law as maintained by the highest courts of the state at the time such rights accrued.” Hartan, J. Loeb v. Co- lumbia Tp. Trustees, 179 U. S. 493. 4, Decisions EsTaBLISHING RULES OF PROPERTY. “In cases depending on the statutes of a state, and more especially in those respecting titles to land, this court adopts the construc- tion of the state where that construction is settled, and can be ascertained.” MarsHALL, C. J. Polk v. Wendell, 9 Cranch 98. “This court has always held in the high- est respect decisions of state courts upon such subjects [local laws which form rules of property].” Story, J. Shipp v. Miller, 2 Wheat. 325, “This court has never hesitated to con- form to the settled doctrines of the states on landed property, where they are fixed, and can be satisfactorily ascertained; nor would it ever be led to deviate from them, in any case that bore the semblance of imperial justice.” Jounson, J. Polk v. Wendell, 5 Wheat. 302. “This court has repeatedly said, speaking of the construction of statutes, that it would be governed by the state construction where it is settled, and can be sanctioned, especially where the title to lands is in question.” NeExson, J., dissenting. Williamson v, Berry, 8 How. 558, “The power to establish federal courts, and to endow them with a jurisdiction to de- termine controversies between certain par- ties, affords no pretext for abrogating any established law of property, or for remov- ing any obligation of her citizens to submit to the rule of the local sovereign.” Suydam uv. Williamson, 24 How. 433. “In the construction of local statutes af- fecting the titles to real estate, this court recognizes the binding force of the interpre- tation given by the highest judicial tribunal of a state.’ Davis, J. Woods uv. Freeman, 1 Wall. 399. “Tt is the settled doctrine of this court in reference to all questions affecting the title to real estate, to permit the different states of the Union to settle them each for itself; and when the point involved is one which becomes a rule of property, we follow the decisions of the state courts, whether founded on the statutes of the states or their views of general policy.” Mutter, J. Miles v. Caldwell, 2 Wall. 43. “Where any principle of law establishing a rule of real property is settled in the state court the same rule will be applied by this court in the same or analogous: cases.” CiirrorD, J. Williamson v. Suydam, 6 Wall, 7236. “Where any rule of real property has been settled in the state courts, the same rule will be applied by this court that would be applied by them.” Currrorp, J. Brooklyn City, etc. R. Co. v. National Bank of Re- public, 102 U. S. 53. “Tn cases depending on the statutes of a state, and more especially in those repre- senting titles to land, the court adopts the construction of the state, where that con- struction is settled and can be ascertained.” Currorp, J. Brooklyn City, ete, R. Co. v. National Bank of Republic, 102 U. S. 53. “Tn controversies arising under this statute, involving, as they do, the rights of creditors locally, and a rule of property, we accept the conclusions of the highest judicial tribunal of the state as controlling.” Futter, C. J. Peters vw. Bain, 133 U. S. 686, 536 COURTS. “With respect to such rights [riparian] we have held that the law of the state, as declared by its Supreme Court is controlling as a rule of property.” Brown, J. Kau- kauna Co. v. Green Bay & etc., Canal Co., 142 UL S. 272. “The question is of the rights attaching to certain lands within the territorial limits of the state, and whatever becomes a settled rule of real property by the decisions of its courts is conclusive on this court.” Brewer, J. Lowndes uv. Huntington, 153 U. S. 19. “Where state decisions have interpreted state laws governing real property or con- trolling relations which are essentially of a domestic and state nature; in other words, where the state decisions establish a rule of property, this court when called upon to interpret the state law will, if it is possible to do so, in the discharge of its duty, adopt and follow the settled rule of construction affixed by the state court of last resort to the statutes of the state, and thus conform to the rule of property within the state. It is undoubted that this rule obtains, even al- though the decisions of the state court, from which the rule of property arises, may have been for the first time announced subsequent to the period when a particular contract was entered into.” Wuure, J. Warburton wv. White, 176 U. S. 496. “Obviously, the question as to the title or right of plaintiffs in error in the land, and whatever appertained thereto, was one of state law and of general public law, on which the decision of the state court was final.” Furier, C. J. Hooker v. Los An- geles, 188 U. S. 317. “The construction of a law of a state, that it was competent for the court to try and determine in a condemnation proceeding, an adverse claim of the plaintiff therein to an interest in property sought to be condemned, is conclusive on this court.” FuLier, C. J. Hooker v. Los Angeles, 188 U. S. 319. “Tt would be difficult to make the laws of the state, in relation to the rights of property, the rule of decision in the Circuit Courts; without associating with them the laws of the same state, prescribing the rules of evidence by which the rights of property must be “decided.” Taney, C. J. M’Niel v. Holbrook, 12 Pet. 89. “ All the statutes of the states which pre- scribe the formalities and incidents to con- veyances of real estate would, I presume, 537 be held to be rules of property.” MULLER, J., dissenting. Gelpcke v. Dubuque, 1 Wall. 214, 5. DECISIONS AS TO QUESTIONS OF TAXATION. “The courts of the United States have always recognized the importance of leaving the powers of the state in respect to taxation unimpaired. Where the questions involved arise under the state constitution and laws, the decisions of its highest tribunal are ac- cepted as controlling. Where the Constitu- tion and laws of the United States are drawn in question, the courts of the United States must determine the controversy for them- selves.” Fuiter, C. J. In re Tyler, 149 U.S. 187. “No constitutional objection lies in the way of a legislative body prescribing any mode of measurement to determine the amount it will charge for the privileges it bestows. It may well seek in this way to increase its revenue to the extent to which it has been cut off by exemption of other property from taxation. As its revenues to meet its expenses are lessened in one direc- tion, it may look to any other property as sources of revenue, which is not exempted from taxation. Its action in this matter is not the subject of judicial inquiry in a federal tribunal.” Furetp, J. Home Ins. Co. uv. New York, 134 U. S. 600. “Great weight ought to be at- tached to the decision of a state court re- garding questions of taxation or exemption therefrom under the constitution or laws of its own state.’ PrecxuHam, J. Theological Seminary v. Illinois, 188 U. S. 674. 6. STATE DECISIONS ON QUESTIONS OF GENERAL Law. “We have often decided that on questions of mercantile or commercial law, or usages which are peculiar to any place, we do not feel bound to yield our own judgment.” Grier, J. Mercer County v. Hacket, 1 Wall. 96. “Federal courts and state courts, it may also be remarked, exercise concurrent juris- diction in a large class of cases, but the decisions of the state courts in such cases, where the question is one of a general char- acter, and not one arising under the local law, are not regarded as authorities in this court, nor are the decisions of this court in such cases obligatory upon the tribunals of the states.” Currrorp, J. Provident Inst. v. Massachusetts, 6 Wall. 628. COURTS. “Where the construction of a state con- stitution or law has become settled by the decision of the state courts, the courts of the United States will, as a general rule, accept it as evidence of what the local law is. Thus, we may be required to yield against our own judgment to the proposition that, under the character of the railway company, the election in this case, which was held under the supervision of a moderator chosen by the electors present, was irregular and therefore void. But we are not bound to accept the inference drawn by the Supreme Court of Illinois, that in consequence of such irregularity in the election the bonds issued in pursuance of it by the officers of the township, which recite on their face that the election was held in accordance with the statute, are void in the hands of bona fide holders. This latter proposition is one which falls among the general principles and doc- trines of commercial jurisprudence, upon which it is our duty to form an independent judgment, and in respect of which we are under no obligation to follow implicitly the conclusions of any other court, however learned or able it may be. Woops, J. Pana v. Bowler, 107 U. S. 540. “On any question depending upon mer- cantile 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 juris- diction attaches only by teason of ‘the citi- zenship 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. 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.” Gray, J. Liverpool, etc., Steam Co. v. Phoenix Ins. Co., 129 U. S. 443. “In this country, the question of interna- tional law must be determined in the first instance by the court, state or national, in which the suit is brought. If the suit is brought in a Circuit Court of the United States, it is one of those questions of gen- eral jurisprudence which that court must de- cide for itself, uncontrolled by local deci- sions. If a suit on the original liability under the statute of one state is brought in a court of another state, the Con- stitution and laws of the United States have not authorized its decision upon such a question to be reviewed by this court. . . But if the original liability has passed into judgment in one state, the courts of another state, when asked to enforce it, are bound by the Constitution and laws of the United States to give full faith and credit to that judgment, and if they do not, their decision, as said at the outset of this opinion, may be reviewed and reversed by this court on writ of error. Gray, J. Huntington v. Attrill, 146 U. S. 683. "The question as to what is a matter of local, and what of general law, and the ex- tent to which in the latter this court should follow the decisions of the state courts, has been often presented. The unvarying rule is, that in matters of the latter class this court, while leaning towards an agreement with the views of the state courts, always exercises an independent judgment; and as unvarying has been the course of decision, that the question of the responsibility of a railroad corporation for injuries caused to or by its servants is one of general law.” Brewer, J. Baltimore, etc., R. Co. v. Baugh, 149 U. S. 370. %: Decisions CONSTRUING UNITED STATES CONSTITUTION OR Laws. “In construing a [state] statute the decisions of the [state] courts would unquestionably give the rule by which this court would be guided; but it is the peculiar province of this court to expound the Acts of Congress, and to give the rule by which they are to be construed.” Mar- SHALL, C. J. Williams v. Peyton, 4 Wheat. 83. “When this court are required to enforce the laws of any state, they are’ governed by those laws. So closely do they adhere to this rule, that during the present term, a judgment of a Circuit Court of the United States, made in pursuance of decisions of this court, has been reversed and annulled, because it did not conform to the decisions of the state court, in giving a construction to a local law. But while this court con- forms its decision to those of the state courts, on all questions arising under the statutes and constitution of the respective states, they are bound to revise and corrrect those de- cisions, if they annul either the Constitution of the United States or the laws made under it? M’Lean, J. Worcester v. Georgia, 6 Pet. 572. “Tt appears, that on all questions arising under the laws of a state, the de- 538 COURTS. cisions of the courts of such state form a rule for the decisions of this court, and that on all questions arising under the laws of the United States, the decisions of this court form a rule for the decisions of the state courts. Is there anything unreasonable in this? Have not the federal, as well as the state courts, been constituted by the peo- ple? Why then should one tribunal more than the other be deemed hostile to the in- terests of the people.” M’Lran, J. Wor- cester v. Georgia, 6 Pet. 572. “The established construction of a statute of the state is received as a part of the stat- ute. But we are called in the case before us not to carry into effect a law of the state, but to test the validity of such a law by the Constitution of the Union. We are exercis- ing an appellate jurisdiction. The decision of the Supreme Court of the state is before us for revision, and if their construction of the contract in question impairs its obligation, we are required to reverse their judgment.” M’Lean, J. State Bank of Ohio v. Knoop, 16 How. 391. “State decisions, . however highly we respect them, carry with them no binding judicial authority, when in conflict with the decisions of the courts of the United States upon questions belonging to the federal courts.” Taney, C. J., dissenting. Thomas v. Osborn, 19 How. 43. “Whatever deference may be due to the decision of the state court of final resort in every case in which it has spoken, and what- ever may be the respect to which its decisions upon questions of purely local law estab- lished as rules of property may be entitled, they are not authority binding upon the courts of the United States, sitting even in the same state, where the questions involved and decided relate to rights arising under the Constitution and laws of the United States.” MatrtrHews, J. Crescent Live Stock Co. v. Butchers’ Union Slaughter-House Co., 120 U. S. 159. “[Where a] question in controversy de- pends upon principles of general jurispru- dence, and upon the true construction of an Act of Congress, and arises in the courts of the United States exercising the admiralty and maritime jurisdiction exclusively vested in them by the Constitution, neither the decisions of the highest court of a state, nor those of the Circuit and District Courts of the United States, can relieve this court from the duty of exercising its own judg- ment.” Gray, J. The J. E. Rumbéll, 148 U.S. 1%. : “While it is settled law that this court will follow the construction put by the state courts upon wills devising property situated within the state, and while it is also true that we adopt the construction of its own stat- utes by the state courts, a question may re- main whether the statute, as so construed, im- ports a violation of any of the rights secured by applicable provisions of the Constitution of the United States.” Sutras, J. Orr v. Gilman, 183 U. S. 283. “Now it is at once conceded that the decision by. a state court of a question of local or of general law involving no federal element does not as a matter of course pre- sent a federal question. But where on the contrary a federal element is specially averred and essentially involved, the duty of this court to apply to such. federal question its own conceptions of the general law we think is incontrovertible.” Wauure, J. Tullock v. Mulvane, 184 U. S. 513. “The decisions of the state courts, particu- larly if they are uniform and concur in their reasoning, are worthy of respectful consider- ation, even if the question be, at last, a federal one.” Sutras, J. Plummer v. Coler, 178 U. S. 120. 8. FoLtowinc Latest DECcISIONS OF STATE Courts. In General. “If there be any inconsistency in the opin- ions of these courts [state courts] the gen- eral rule is that we follow the latest set- tled adjudication in preference to the earlier ones.” Brown, J. Wade v. Travis County, 174 U. S. 508. “When a case is brought in the United States court, comity generally requires of this court that in matters relating to the proper construction of the laws and constitu- tion of its own state, this court should fol- low the decision of the state court, yet in ex- ceptional cases this court has refused to be bound by such rule, and has refused to follow the later decisions of the state court.” PECKHAM, J. Bacon v. Texas, 163 U. S. 221. “The fact that one construction has been placed upon a statute by the highest court of the state does not make that construction be- yond change.” Brewer, J. Backus v. Fort Street Union Depot Co., 169 U. S. 570. When Vested Rights Have Intervened. “The cases are numerous where the court have adopted the constructions given to the statute of a state by its supreme judicial 539 COURTS. tribunal; but it has never been decided, that this court will overrule their own adju- dication, establishing an important rule of property, where it has been founded on the construction of a statute made in conformity to the decisions of the state at the time, so as to conform to a different construction adopted afterwards by the state.’ M’LEAn, J. Green v. Neal, 6 Pet. 295. “Here is a judicial conflict, arising from two rules of property in the same state, and the consequences are not only deeply in- jurious to the citizens of the state, but calcu- lated to engender the most lasting discon- tents. It is therefore essential to the interests of the country, and to the harmony of the judicial action of the federal and state governments, that there should be but one rule of property in a state.” M’Lzan, J. Green v. Neal, 6 Pet. 300. “Tf a gambling stockbroker of Wall Street buys at twenty-five per cent. of their par value, the bonds issued to a railroad com- pany in Iowa, although the court of the state, in several of its most recent decisions, have decided that such bonds were issued in violation of the Constitution, this court will not follow that decision, but resort to some former one, delivered by a divided court, because in the latter case it is not a rule of property, but a case of contract.” Miter, J., dissenting. Gelpcke v. Dubuque, 1 Wall. 214. “Tt is true, that when we have been called upon to consider contracts resting upon state statutes, contracts valid at the time when they were made according to the decisions of the highest courts of the state, contracts entered into on the faith of those decisions, we have declined to follow later state court decisions declaring their invalidity. But in other cases we have held ourselves bound to accept the construction given by the courts of the states to their own statutes.” STRONG, J. Supervisors v. U. S., 18 Wall. 82. “When the highest court of a state has given different constructions to its consti- tution and laws, at different times, and rights have been acquired under the former con- struction, we have followed that, and dis- regarded the latter.” Srrone, J. Fairfield v. Gallatin County, 100 U. S. 52. “Tf the local courts should hold that cer- tain conditions must be performed before jurisdiction is obtained, and thus defeat rights of non-resident citizens acquired when a dif- ferent ruling prevailed, the federal courts would be delinquent in duty if they followed the later decision.” Fiero, J. Mohr v. Manierre, 101 U. S. 422. “As a rule we treat the construction which the highest court of the state has given a statute of the state as part of the statute, and govern ourselves accordingly; but where different constructions have been given to the same statute at different times, we have never felt ourselves bound to follow the latest de- cisions, if thereby contract rights which have accrued under earlier rulings will be in- juriously affected.” Waite, C. J. Doug- lass v. Pike County, 101 U. S. 686. “The exposition given by the highest tri- bunal of the state must be taken as correct so far as contracts made under the act are concerned. Their validity and obligation can- not be impaired by any subsequent decision altering the construction. This doctrine ap- plies as' well to the construction of a provision of the organic law, as to the con- struction of a statute. The construction, so far as contract obligations incurred under it are concerned, constitutes a part of the law as much as if embodied in it. So far does this doctrine extend that when a statute of two states, expressed in the same terms, is construed differently by the highest courts, they are treated by us as different laws, each embodying the particular construction of its own state, and enforced in accordance with it in all cases arising under it.” Fuep, J. Louisiana v. Pilsbury, 105 U. S. 294. “While the courts of the United States accept and apply the construction of a state constitution or of a local statute, upon which the rights of parties depend which has been fixed by the course of decisions in the state court, it is the settled doctrine of this court, that rights accruing under one construction will not be lost merely by a change of opin-, ion in the state court; and where such rights have accrued, before the state court has an- nounced its construction, the federal courts, although leaning to an agreement with the state court, must determine the question upon their own independent judgment.” Harvan, J. Anderson v, Santa Anna, 116 U. S. 365. “The long established doctrine of this court [is] to the effect that the question aris- ing in a suit in a federal court of the power of a municipal corporation to make nego- tiable securities is to be determined by the Jaw as judicially declared by the highest court of the state when the securities were issued, and that the rights and obligations of parties accruing under such a state of the law 540 COURTS. would not be affected by a different course of judicial decisions subsequently rendered any more than by subsequent legislation.’ Haran, J. Loeb v. Columbia Tp. Trustees, 179 U. S. 492. “The statutory provision that the laws of the several states, except where the Con- stitution, treaties or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply, Rev. Stat. s. 721, has not been construed as absolutely requiring conformity, in such cases, to de- cisions of the state courts rendered after rights of parties have accrued ‘under the pre- vious decisions of those courts of a contrary character.” Hartan, J. Loeb v. Columbia Tp. Trustees, 179 U. S. 493. “Cases may be found where a decision made by a state Supreme Court, even in ex- position of state statutes, after the institu- tion of litigation in a federal court, wherein this court has refused to follow such a de- cision, if in it the state court has departed from its previous decisions, which were in force and relied upon by the federal suitor.” Suiras, J. Security Trust Co. v. Black River Nat. Bank, 187 U. S. 226. “The construction given to a state stat- ute by the highest judicial tribunal of such state is to be accepted in the federal courts as a part of the statute whenever they are required to determine questions, or ascer- tain rights arising out of or dependent upon such local statute. But how far the federal courts, in the ascertainment and enforcement of property rights, dependent upon the stat- ute law, or the settled public policy of a state, are bound by the decisions of the state court, rendered after such rights were ac- quired or became vested, is a different ques- tion.” Haran, J. American, etc., Christian Union v. Yount, 101 U. S. 357. 9. STATE CONSTRUCTION OF WRITTEN INSTRUMENTS, “ As precedents entitled to high respect, the decisions of the state courts will always be considered; and in all cases of local law, we acknowledge an established and uniform course of decisions of the state courts, in the respective states, as the law of this court; that is to say, that such decisions will be cs obligatory upon this court as they would be acknowledged to be in their own courts. But a single decision on the construction of a will cannot be acknowledged as of binding 541 efficacy, however it may be respected as a precedent.” Jounson, J., dissenting. Daly v. James, 8 Wheat. 542. “ Controversies often arise where this court will refuse to adopt a decision of the state court, as in the construction of a will, unless it appears that the decision has become, by acquiescence, a rule of property in the state.” CutrForD, J. Brooklyn City, etc, R. Co. v. National Bank of Republic, 102 i S. 53. XII. RULES GOVERNING PROCED- URE OF FEDERAL COURTS. Common-law Procedure. ““In the states governed by the common law, and where the Circuit Courts are not compelled to adopt every new code of prac- tice invented for the benefit of state courts, there is no reason why the strict rules of the common Jaw should be in anywise re- laxed or changed in this court, to suit the anomalies in practice thus introduced in the Circuit Courts.” Grier, J. Graham wv. Bayne, 18 How. 61. “The practice of this court is regulated by the common law and Acts of Congress only.” Grier, J. Graham v. Bayne, 18 How. 62. Conformity to State Procedure —In Gen- eral. “As it is desirable that the practice in the courts of the United States should conform, as nearly as practicable, to that of the state in which they are sitting, tha. mode of pro- ceeding is perhaps to be preferred which, from long established usage and practice, has become the law of the courts of the state.” Tawney, C. J. Mitchell v. Harmony, 13 How. 131. “The sufficiency and scope of pleadings, and the form and effect of verdicts, in actions at law, are matters in which the Cir- cuit Courts of the United States are governed by the practice of the courts of the state in which they are held.” Gray, J. Glenn v. Sumner, 132 U. S. 156. — As to New Trials. “We are of opinion that when an action of ejectment is tried in a Circuit Court of the United States according to the statutory mode of proceeding, that court is governed by the provisions concerning new trials as it is by the other provisions of the state statute. There is no reason why the federal court should disregard one of the rules by which the state legislature has guarded the transfer COURTS. of the possession and title to real estate within its jurisdiction.” MuI.ter, J. Equator Min., etc., Co. v. Hall, 106 U. S. 88. ——Confusion of Legal and Equitable Jurisdiction. “ Although the forms of proceedings and practice in the state courts have been adopted in the District Court, yet the adoption of the state practice must not be understood as con- founding the principles of law and equity, nor as authorizing legal and equitable claims to be blended together in one suit.” Taney, C. J. Bennett v. Butterworth, 11 How. 674. “In the organization of the courts of the United States, the remedies at common law and in equity have been distinguished, and the jurisdiction in equity is confided to the Circuit Courts, to be exercised uniformly through the United States, and does not re- ceive any modification from the legislation of the states, or the practice of their courts hav- ing similar powers.” CAMPBELL, J. Green v. Creighton, 23 How. 105. —— Literal Conformity Impossible. “Tt is obvious that a strict and literal conformity by the United States courts to the state provisions regulating procedure is prac- tically impossible, or, at least, not without overturning and disarranging the settled practice in the federal courts.” Suiras, J. Shepard v. Adams, 168 U. S. 624. —— Alteration or Repeal of State Laws After Federal Adoption. “The laws of the states which regulate the practice of their courts are adopted by Congress to regulate the federal courts. But these laws, so far as they are adopted, are as much the laws of the United States, and it has often been so held, as if they had been specially enacted by Congress. A repeal of them by the state, unless future changes in the acts be also adopted, does not affect their force in regard to federal action.” Mc- Lean, J. Passenger Cases, 7 How. 402. “The practice of the courts of the United States, that is, the remedy of parties therein, is subject to no other power than that of Congress. By the Act of 1789, the practice of the respective state courts was adopted into the courts of the United States, with power to the respective courts, and to the Supreme Court, to make all necessary altera- tions. Whatever changes the practice of the respective states may have undergone since that time, that of the United States courts has remained uniform, except so far as the respective courts have thought it advisable to adopt the changes introduced by the state legislatures.” JoHNnson, J. Green v. Biddle, 8 Wheat. 105. “Instead of framing the forms of process, and prescribing the modes of process, Con- gress adopted those already prepared and in use in the respective states, not as state regulations, but as the rule and regulations prescribed by Congress for use in the several Circuit Courts. Adopted as they were, by an Act of Congress, they became the perma- nent forms and modes of proceeding, and continue in force wholly unaffected by any subsequent state legislation. Alterations can only be made by Congress, or by the federal courts, acting under the authority of an Act of Congress.” Cuirrorp, J. Riggs v. John- son County, 6 Wall. 191. Rules Prescribed by Congress Exclusive. “Whenever Congress has legislated upon any matter of practice, and prescribed a definite rule for the government of its own courts, it is to that extent exclusive of the legislation of the state upon the same mat- ter.” Gray, J. Southern Pac. Co. v. Den- ton, 146 U. S. 209. “The laws of a state, regulating the pro- ceedings of its own courts [cannot], authorize a District or Circuit Court sitting in a state to depart from the modes of proceeding and rules prescribed by the Acts of Congress.” Taney, C.J. Kelsey v. Forsyth, 21 How. 88. Discretion of Court. “Probably the practice in no two states of the Union is exactly the same; and there- fore, in each state, the Circuit Courts must necessarily be vested with a large discretion, in the regulation of their practice.” Story, J. Philadelphia, etc, R. Co. uv. Stimpson, 14 Pet. 463. Rules of Pleading. “This peculiar and limited jurisdiction [of courts of the United States] has made it necessary, in these courts, to adopt different rules and principles of pleading, so far as jurisdiction is concerned, from those which regulate courts of common law in England, and in the different states of the Union which have adopted the common-law rules.” Taney, C. J. Scott v. Sandford, 19 How. 401. Provisions for Procuring Testimony. “No one can examine these provisions [Rev. Stat. U. S., §§ 861, 863, 866-870] for 542 COURTS MARTIAL. procuring testimony to be used in the courts of the United States and have any reasonable doubt that, so far as they apply, they were intended to provide a system to govern the Practice in that respect, in those courts.” Miter, J. Ex p. Fisk, 113 U. S. 722. Rules of Evidence. “Tt has been often decided in this court that in actions at law in the courts of the United States, the rules of evidence and the law of evidence generally of the states pre- vail in those courts.” Mrturr, J. Ex p. Fisk, 113 U. S. 720. Process. “The laws of a state, regulating the proc- ess of its courts, and prescribing the manner in which it shall be executed, of course, do not bind the courts of the United States, whose proceedings must be governed by the Acts of Congress.” Taney, C. J. Bronson v. Kinzie, 1 How. 314. “The doctrine of this court always has been, that executions issuing out of the courts of the United States, are not con- trolled or controllable in their general opera- tion and effect, by any collateral regulations which the state laws have imposed on the state courts to govern them. That such regu- lations are exclusively addressed to the state tribunals, and have no efficacy on the courts of the United States; unless adopted under the authority of the laws of the United States.” THompson, J., dissenting. Beers v. Haughton, 9 Pet. 372. “Circuit Courts were created by the Act of Congress, under which the judicial sys- tem of the United States was organized, but the act made no provision for the forms of process. Forms of processes in the federal courts were regulated by the Act of Con- gress, which was passed five days later.” Currrorp, J. Riggs v. Johnson County, 6 Wall. 189. “Writs and processes issuing from a Cir- cuit Court were required by that act [Act to regulate processes in the courts of the United States, Sept. 29, 1789, 1 U. S. Stat. at L., c. 21, § 1, p. 93] to bear the test of the chief justice of the Supreme Court, to be under the seal of the court, and to be signed by the clerk. By the second section of the act, it was provided that the forms of writs and executions, and the modes of process, in suits at common law, should be the same as were then used in the Supreme Courts of the states. Subsequent act adopted substantially those provisions, 543 and made them permanent [May 8, 1792, 1 U. S. Stat. at L, c. 36, §§ 1, 2, p. 275].” CurrForp, J. Riggs wv. Johnson County, 6 Wall. 189. “Legal effect of those enactments [Acts of Sept. 29, 1789, and May 8, 1792] was, that Congress adopted the forms of writs and executions, and the modes of process, as then known and understood in the courts of the states, for use in the several Circuit Courts.” CurrorpD, J. Riggs v. Johnson County, 6 Wall. 190. “Modes of process, and forms of process, were in use in the states at that period, other than such as were known at common law as understood in the English courts. Radical changes had been made in some of,the states, not only in the forms of mesne process, and the rules of pleading, but in the modes of process in enforcing judgment as was well known to Congress when the Judiciary and Process Acts were passed.” CLIFFORD, J. Riggs v. Johnson County, 6 Wall. 190. “ Authority of the Circuit Courts to issue process of any kind which is necessary to the exercise of jurisdiction and agreeable to the principles and usages of law, is be- yond question, and the power so conferred cannot be controlled either by the process of the state courts or by any act of a state legislature.” C.iFrorD, J. Riggs v. John- son County, 6 Wall. 194. “Repeated decisions of this court 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.” CxiFForD, J. Riggs v. Johnson County, 6 Wall. 195. “State laws furnish rules of decision in trials at common law in the federal courts, in cases where they apply, which leaves it plainly to be understood that those laws do not apply in all cases, and it was early de- cided that they do not apply to the process and practice of the federal courts.” CLiFForpD, J. Brooklyn City, etc, R. Co. v. National Bank of Republic, 102 U. S. 53. COURTS MARTIAL. See Marttat Law; Mirrrary Law; War. Origin and Purpose. “Tt is supposed that courts martial were intended originally to be a partial substitute for the court of chivalry of former times.” Swayne, J. Ex p. Reed, 100 U. S. 20. COURTS MARTIAL. Source of Jurisdiction. “Courts martial derive their jurisdiction and are regulated with us by an Act of Con- gress, in which the crimes which may be committed, the manner of charging the ac- cused, and of trial, and the punishments which may be inflicted, are expressed in terms.” Wayne, J. Dynes v. Hoover, 20 How. 82. “Where there is no law authorizing the courts martial, or where the statutory con- ditions as to the Constitution or jurisdiction of the court are not observed, there is no tribunal authorized by law to render the judgment.” BLatcHrorp, J. Keyes v. U. S., 109 U. S. 340. Power of Congress to Establish. “The power [of Congress] to make rules for the government of the army and navy is a power to provide for trial and punishment by military courts without a jury.” CHASE, C.J. Ex p. Milligan, 4 Wall. 137, “The constitutionality of the Acts of Con- gress touching army and navy courts martial in this country, if there could ever have been a doubt about it, is no longer an open ques- tion in this court. Const., art. 1, sec. 8 and Amendment 5.” Swayne, J. Ex p. Reed, 100 U. S. 21. Are Courts of Special and Limited Juris- diction. “A court martial organized under the laws of the United States is a court of special and limited jurisdiction. It is called into ex- istence for a special purpose and to perform a particular duty. When the object of its creation has been accomplished it is dis- solved.” Warte, C. J. Runkle v. U. S., 122 U. S. 555. “Tt [a court martial] is a special body convened for a specific purpose, and when that purpose is accomplished its duties are concluded and the court is dissolved.” PeckHam, J. McClaughry v. Deming, 186 U.S. 64. Convention and Constitution. “A court martial is the creature of statute, and, as a body or tribunal, it must be con- vened and constituted in entire conformity with the provisions of the statute, or else it is without jurisdiction.” PrcxHam, J. Mc- Claughry v. Deming, 186 U. S. 62. “The court martial that has jurisdiction over any offense must, in the first place, be legally created and convened.” PECKHAM, J. McClaughry v. Deming, 186 U. S. 64. “A court martial is wholly unlike the case of a permanent court created by Constitution or by statute and presided over by one who had some color of authority, although not in truth an officer de jure, and whose acts as a judge of such court may be valid where the public is concerned. The court exists even though the judge may be dis- qualified or not lawfully appointed or elected.” Precxkuam, J. McClaughry vw. Deming, 186 U. S. 64. “Tt seems to us that it cannot be con- sidered that men, not one of whom is au- thorized by law to sit, can constitute a legal court martial because detailed to act as such court by an officer who in making such detail acted contrary to and in complete violation of law.” PreckHam, J. McClaughry v. Dem: ing, 186 U. S. 64. “Tt is difficult for us to understand how an ephemeral court, composed of men de- tailed as members, each one of whom is so detailed in direct violation of the statute on that subject which prohibits their sitting, can obtain any jurisdiction over the subject- matter or person even by the consent of the defendant.” PreckHam, J. McClaughry wv. Deming, 186 U. S. 68. “The question of who shall act on court martial for the trial of offenders belonging to the various branches of the army of the United States is one entirely for Congress to determine.” PrckHam, J. McClaughry v. Deming, 186 U. S. 69. “The rank and number of the members of a court martial must necessarily be, and is, left somewhat to the discretion of the officer convening the court.” Brown, J. Bishop v. U. S., 197 U. S. 340. Offenses and Offenders over Which Courts Martial Have Jurisdiction —In General. “Where the punishment is death, or fine and imprisonment, the jurisdiction [of courts martial] in question is extended to all per- sons ‘in the naval service of the United States’ (Rev. Stat. sec. 1624, arts. 4, 14); and it embraces, besides the frauds enu- merated, ‘any other fraud against the United States.’ Id., art. 14. In case of conviction, adequate punishment is required to be ad- judged. Id, art. 51. Except where the sentence is death or the dismissal of a com- missioned or warrant officer, it may be exe- cuted when confirmed by the officer ordering the court.” Swayne, J. Ex p. Reed, 100 U.S. 21. 544 COURTS MARTIAL. “Under every system of military law for the government of either land or naval forces, the jurisdiction of courts martial extends to the trial and punishment of acts of military or naval officers which tend to bring dis- grace and reproach upon the service of which they are members, whether those acts are done in the performance of military duties, or in a civil position, or in a social relation, or in private business.” Gray, J. Smith v. Whitney, 116 U. S. 183. — Militia. “In the execution of the power to provide for the calling forth of the militia, it cannot well be denied that Congress may pass laws to make its call effectual, to punish disobedi- ence to its call, to erect tribunals for the trial of offenders, and to direct the modes of proceeding to enforce the penalties at- tached to such disobedience.” Joxnson, J., dissenting. Houston v. Moore, 5 Wheat. 56. “When the President issues his orders to assemble the militia to aid in sustaining the civil authorities of the state to enforce the laws, or to suppress actual array and vio- lence by counter force, obedience to those orders by the militia then undoubtedly be- comes a military duty. And a re- fusal to obey such a military summon may be punished in due form, without doubt, by a court martial.” Woopgury, J., dissenting. Luther v. Borden, 7 How. 77. — Private Citizens. “The discipline necessary to the efficiency of the army and navy, required other and swifter modes of trial than are furnished by the common-law courts; and, in pursuance of the power conferred by the Constitution, Congress has declared the kinds of trial, and the manner in which they shall be con- ducted, for offenses committed while the party is in the military or naval service. Every one connected with these branches of the public service is amenable to the juris- diction which Congress has created for their government, and, while thus serving, sur- renders his right to be tried by the civil courts. All other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privi- lege of trial by jury. This privilege is a vital principle, underlying the whole administra- tion of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of state or political necessity.” Davis, J. Ex p. Milligan, 4 Wall, 123. Law Governing. “The law governing courts martial is 1 Os, Dic.—35 BAS found in the statutory enactments of Con- gress, particularly the Articles of War; in the Army Regulations, and in the customary military law.” Fuiuer, C. J. Carter v. Mc- Claughry, 183 U. 5. 386. Procedure. “According to military usage and prac- tice, the charge is in effect divided into two parts, the first technically called the ‘charge, and the second, the ‘specification.’ The charge proper designates the military offense of which the accused is alleged to be guilty. The specification sets forth the acts or omis- sions of the accused which form the legal constituents of the offense. The pleading need not possess the technical nicety of in- dictments as at common law. Not only do military usage and procedure per- mit of an indefinite number of offenses be- ing charged and adjudicated together in one and the same proceeding, but the rule is recognized that whenever an officer has been apparently guilty of several or many offenses, whether of a similar character or distinct in their nature, charges and specifications covering them all should, if practicable, be preferred together, and together brought to trial, . And it has been repeatedly ruled by the judges advocate general that ‘a duly approved finding of guilty on one of several charges, a conviction upon which re- quires or authorizes the sentence adjudged, will give validity and effect to such sentence, although the similar findings on all the other charges are disapproved as not warranted by the testimony.” Futter, C. J. Carter v. McClaughry, 183 U. S. 386. “ The provision of article 43 of the Articles for the Government of the Navy, which pre- scribes that ‘the person accused shall be fur- nished with a true copy of the charges, with the specifications, at the time he is put under arrest,’ evidently refers, as appears by the very next article, to the time when he ‘is arrested for trial’ by court martial, and not to the time of any previous arrest, either by way of punishment, or to await the action of a court of inquiry.” Gray, J. Johnson v. Sayre, 158 U.S. 117. Jurisdiction of Civil Courts over Military Offenses. “Military offenses are not included in the Act of Congress, conferring jurisdiction upon the Circuit and District Courts; no person has ever contended that such offenses are cognizable before the common-law courts.” WasuHincton, J. Houston v. Moore, 5 Wheat. 28. COVENANTS. “Congress has never conferred upon civil officers or magistrates or private citizens any power over offenders punishable only in a military tribunal.” Gray, J. Kurtz v. Mof- fitt, 115 U. S. 500. Jurisdiction of Civil Courts to Review Proceedings. “With the sentences of courts martial which have been convened regularly, and - have proceeded legally, and by which punish- ments are directed, not forbidden by law, or which are according to the laws and cus- toms of the sea, civil courts have nothing to do, nor are they in any way alterable by them.” Wayne, J. Dynes v. Hoover, 20 How. 82. “Neither the Supreme Court of the dis- trict nor this court has any appellate jurisdic- tion over the naval courts martial, nor over offenses which such a court has power to try. Neither of these courts is authorized to interfere with it in the performance of its duty, by way of a writ of prohibition or any order of that nature.” Miter, J. Wales v. Whitney, 114 U. S. 570. “ Tf there is no prisoner to release, if there is no custody to be discharged, if there is no such restraint as requires relief, then the civil court has no power to interfere with the mili- tary court, or other tribunal over which it has by law no appellate jurisdiction.” Mut- LER, J. Wales v. Whitney, 114 U. S. 570. “Courts martial form no part of the judi- cial system of the United States, and their proceedings, within the limits of their juris- diction, cannot be controlled or revised by the civil courts.” Gray, J. Kurtz v. Moffitt, 115 U. S. 500. “Courts martial are lawful tribunals, with authority to finally determine any case over which they have jurisdiction, and their pro- ceedings, when confirmed as provided, are not open to review by the civil tribunals, ex- cept for the purpose of ascertaining whether the military court had jurisdiction of the per- son and subject-matter, and whether, though having such jurisdiction, it had exceeded its powers in the sentence pronounced.” FULLER, C. J. Carter v. Roberts, 177 U. S. 498. “ Persons belonging to the army and the navy are not subject to illegal or ir- responsible courts martial, when the law for convening them and directing their proceed- ings of organization and for trial have been disregarded. In such cases, everything which may be done is void — not voidable, but void; and civil courts have never failed, upon a proper suit, to give a party redress, who has been injured by a void process or void judg- ment.” Wayne, J. Dynes v. Hoover, 20 How. 81. “Tf a court martial has no jurisdiction over the subject-matter of the charge it has been convened to try, or shall inflict a punish- ment forbidden by the law, though its sen- tence shall be approved by the officers having a revisory power of it, civil courts may, on an action by a party aggrieved by it, inquire into the want of the court’s jurisdiction, and give him redress.” Wayne, J. Dynes wv. Hoover, 20 How. 82. COVENANT, ACTION OF. “Tt has been held frequently in cases of this class, where the instrument was under seal and executed by only one of the parties, that covenant would lie against the other.” Swayne, J. Sanger v. Upton, 91 U. S. 64. “A covenant or condition for general per- formance is broken by any single omission of duty, and no inconvenience can arise from stating the particular breach with suitable certainty. But it does not follow, that if not so stated, the objection may be taken in any stage of the suit.’ Story, J. Minor v. Me- chanics Bank, 1 Pet. 67. COVENANTS. See Conprtions, PRECEDENT AND SUBSE- QUENT; Deeps; EyECTMENT; EVICTION. Manner in Which Covenants Arise. “It is undoubtedly true, as argued by counsel, that neither express words of cove- nant, nor any particular technical words, nor any special form of words, is necessary in order to charge a party with covenant.” Haran, J. Hale wv. Finch, 104 U. S. 268. “Tt has been held that even a recital in a deed may amount to a covenant. ... But, from the reason and sense of the thing, a covenant will not arise unless it can be collected from the whole instrument that there was an agreement, or promise, or engagement upon the part of the person sought to be charged, for the performance or non-performance of some act.” HARLAN, J. Hale v. Finch, 104 U. S. 268. Implied Covenants Not Favored. “The tendency of modern decisions is not to imply covenants which might or ought to 546 CREDITORS’ BILLS AND SUITS. have been expressed, if intended.” J. Sheets v. Selden, 7 Wall. 423. Covenants of Warranty — Nature. SWAYNE, “Covenants of warranty do not constitute any operative part of the instrument in trans- ferring the title. That passes independently of them. They are separate contracts, in- tended only as guaranties against future contingencies.” Fretp, J. Moelle v. Sher- wood, 148 U. S. 30. —— Effect at Law. “They [covenants of warranty contained in deeds of conveyance] are contracts, and an action lies for recovery of the damages sustained by their breach. At law, they run with the land; and if the covenantor sub- sequently acquire an outstanding paramount title, it inures by force of the covenant to him who claims under the deed of the covenantor.” Curtis, J. Bush wv. Cooper, 18 How. 83. — Effect in Equity. “Tn equity, the covenantor [in a covenant of warranty] is treated as estopped by his covenant to assert that any outstanding title existed inconsistent with that he undertook té sell and convey.” Curtis, J. Bush v. Cooper, 18 How. 83. : — Distinguished from Covenants Seizin. of “The covenant of warranty and that of seizin or of right to convey are not equiva- lent covenants. Defect of title will sustain an action upon the one, while disturbance of possession is requisite to recover upon the other.” Furter, C. J. Douglass v. Lewis, 131 U. S. 87. Covenant for Quiet Enjoyment Not Broken by Taking of Land under Right of Eminent Domain. “A covenant for quiet enjoyment is not broken, nor is its obligation impaired by the government’s taking the land granted in vir- tue of its right of eminent domain. The expectation of the covenantee may be disap- pointed. He may not enjoy all he antici- pated, but the grant was made and the covenant undertaken in subordination to the paramount right of the government.” Srronc, J. Legal Tender Cases, 12 Wall. 549. Covenants Running with the Land. “All assignees are bound by covenants real, that run with the land.” Woopsury, J. Foxcroft v. Mallett, 4 How. 377. “The covenant to insure does not run with the land, so that one taking a con- veyance comes under a primary obligation to insure, over and above that of a mere in- demnitor.” PseckuaM, J. Farmers’ L. & T. Co. v. Penn Plate Glass Co., 186 U. S. 453. Covenants of Seizin. “Covenants of selzin and of good right to convey are broken, if at all, when the deed is delivered, and if the grantor is not well seized, or if he has not the power to convey, an action at once accrues.” Futter, C. J. Douglass v. Lewis, 131 U. S. 87. Covenants to Sell. “The legal effect of a covenant to sell is, that the land shall be conveyed by a deed from one who has a good title, or full power to convey a good title.” Grier, J. Washing- ton v. Ogden, 1 Black 456. COVERING. “Webster defines a covering as ‘ anything which covers or conceals, as a roof, a screen, a wrapper, clothing, etc.” Brown, J. U. S. uv. Nichols, 186 U. S. 300. CRATES. Definition, “ By crates, . . . we wunder- stand those encasements which are not usu- ally of permanent value, and such as are ordinarily used for the convenient trans- portation of their contents.” Brown, J. U. S. v. Nichols, 186 U. S. 300. CREDIT — CREDITOR. See DEBTOR AND CREDITOR. CREDITORS’ BILLS AND SUITS. Action on the Case in Absence of Statute. “Tn the absence of special legislation, we may safely affirm, that a general creditor cannot bring an action on the case against his debtor, or against those combining and colluding with him to make dispositions of his property, although the object of those dispositions be to hinder, delay, and defraud creditors.” CamppetL, J. Adler v. Fenton, 24 How. 413. Necessity for Prior Judgment at Law, and Execution. “The rule is a familiar one, that a court of equity will not entertain a case for relief 547 CREDITORS’ BILLS AND SUITS. where the complainant has an adequate legal remedy. The complaining party must, there- fore, show that he had done all that he could do at law to obtain his rights. But, after all, the judgment and fruitless execution are only evidence that his legal remedies have been exhausted, or that he is without remedy at law. They are not the only possible means of proof. The necessity of resort to a court of equity may be made otherwise to appear. Accordingly the rule, though general, is not without many exceptions. Neither law nor equity requires a meaningless form, ‘ Bona, sed impossibilia non cogit lex.” Strone, J. Case v. Beauregard, 101 U. S. 690. “It is no doubt generally true that a creditor’s bill to subject his debtor’s interests in property to the payment of the debt must show that all remedy at law had been ex- hausted. And generally, it must be averred that judgment has been recovered for the debt ; that execution has been issued, and that it has been returned nulla bona. The reason is that until such a showing is made, it does not appear, in most cases, that resort to a court of equity is necessary, or in other words, that the creditor is remediless at law. In some cases, also, such an averment is necessary to show that the creditor has a lien upon the property he seeks to subject to the payment of his demand.” ‘Strong, J. Case v. Beauregard, 101 U. S. 690. “Where it appears by the bill that the debtor is insolvent and that the issuing of. an execution would be of no practical utility, the issue of an execution is not a neces- sary prerequisite to equitable interference.” Srronc, J. Case v. Beauregard, 101 U.S. 690. “The judgments and fruitless executions are not necessary to show that the creditor has no adequate legal remedy. When the debtor’s estate is a mere equitable one, which cannot be reached by any proceeding at law, there is no reason for requiring attempts to reach it by legal processes.” Strone, J. Case v. Beauregard, 101 U. S. 691. “A Creditor’s Bill Merely Subrogates the Creditor to the place of the Debtor, and garnishes the debt due to the indebted cor- poration. It does not change the character of the debt attached or garnished. It may be that if the object of the bill is to wind up the affairs of this corporation, all the shareholders at least, so far as they can be ascertained, should be made parties, that complete justice may be done by equalizing the burdens, and in order to prevent a mul- tiplicity of suits.” Strone, J. Hatch vw. Dana, 101 U. S. 211. Lien Created by Filing of Creditors’ Bill. “The filing of a creditor’s bill and the service of process creates a lien in equity upon the effects of the judgment debtor. It has been aptly termed an ‘ equitable levy.’ ” Swayne, J. Miller v. Sherry, 2 Wall. 249. “The general rule is that the filing of a judgment creditors’ bill and service of proc- ess creates a lien in equity on the judg- ment debtor’s equitable assets.” FULLER, C. J. Metcalf v. Barker, 187 U. S. 172. —— Distribution of Assets. “The court of chancery does not give any specific lien to a creditor at large, against his debtor, further than he has acquired at law; for, as he did not trust the debtor on the faith of such lien, it would be unjust to give him a preference over other creditors, and thus defeat a pro rata distribution, which equity favors, unless prevented by the rules of law. It is only when he has obtained a judgment and execution in seeking to sub- ject the property of his debtor in the hands of third persons, or to reach property not accessible to an execution, that a legal prefer- ence is required, which a court of chancery will enforce.” NeEtson, J. Day v. Wash- burn, 24 How. 355. “Tt is true, where a specific fund has been assigned or pledged for the benefit of cred- itors, and it is necessary to go into a court of chancery to make a distribution among them, the equitable lien of each creditor upon the fund lays a sufficient foundation for the interposition of the court. It will enforce this equitable lien thus arising out of the assignment or pledge for the “benefit of creditors, in the exercise of its own appro- priate jurisdiction. But in all these cases, chancery, upon its own principles, distributes the fund pro rata among all the creditors, unless preference is given in the pledge or assignment of the fund.” Netson, J. Day v. Washburn, 24 How. 356. Right of Intervening Creditors to Contest Other Claims. “The authorities abundantly sustain the proposition also that a creditor who comes in under and takes the benefit of a decree is entitled to contest the validity of the claim of any other creditor, except that of the plaintiff whose claim is the foundation of the decree.” Matruews, J. Richmond z,. Irons, 121 U. S. 53. 548 CRIME. Respective Rights of Secured and Unse- cured Creditors. “The contractual relations between the borrower and lender, pledging collaterals, re- main, ‘unchanged when the insol- vency has brought the general estate of the debtor within the jurisdiction of a court of equity for administration and_ settlement.’ The creditor looks to the debtor to repay the money borrowed, and to the collateral to accomplish this in whole or in part, and he cannot be deprived either of what his debtor’s general ability to pay may yield, or of the particular security he has taken.” Fuurer, C. J. Merrill v. Jacksonville Nat. Bank, 173 U. S. 141. “The secured creditor is not to be cut off from his right in the common fund because he has taken security which his co-creditors have not. payment, and surplus assets or so much of his dividends as are necessary to pay him must be applied to the benefit of the other creditors. And while the unsecured creditors are entitled to be substituted as far as possible to the rights of secured creditors, the latter are entitled to retain their securi- ties until the indebtedness due them is ex- tinguished.” Futrer, C. J. Merrill v. Jack- sonville Nat. Bank, 173 U. S. 141. “We repeat that it appears to us that the secured creditor is a creditor to the full amount due him, when the insolvency is de- clared, just as much as the unsecured creditor is, and cannot be subjected to a different rule.” FuLter, C. J. Merrill v. Jackson- ville Nat. Bank, 173 U. S. 146. “And as the basis on which all creditors are to draw dividends is the amount of their claims at the time of the declaration of in- solvency, it necessarily results, for the pur- pose of fixing that basis, that it is imma- terial what collateral any particular creditor may have.” Futier, C. J. Merrill v. Jack- sonville Nat. Bank, 173 U. S. 146. “We cannot concur in the view a ‘the property pledged is in fact security for no more of the debt than its value will amount to; and for all the rest, the creditor relies upon the personal credit of his debtor, in the same manner he would for the whole, if no security were taken.’ We think the collateral is security for the whole debt and every part of it, and is applicable to any balance that remains after the payment from other sources as to the original amount due; and that the assumption is unreasonable that 549 Of course he cannot go beyond the creditor does not rely on the responsi- bility of his debtor according to his promise.” Fu.ier, C. J. Merrill v. Jacksonville Nat. Bank, 173 U. S. 141. CREDITS. See BANKRUPTCY. CRIME. See CriMInaL Law. Crime Defined. “The word ‘crime,’ in its more extended sense, comprehends every violation of public law; in a limited sense, it embraces offenses of a serious or atrocious character.” Har- LAN, J. Callan v. Wilson, 127 U. S. 549. “Tt is a principle of criminal law that an offense which may be the subject of criminal procedure is an act committed or omitted ‘in violation of a public law, either for- bidding or commanding it.” BLATCHFoRD, J. U.S. v. Eaton, 144 U. S. 687. “To say that ‘crimes’ means something different from ‘criminal offenses’ is some- thing I cannot comprehend. A crime is a criminal offense and a criminal offense is a crime.” Harran, J., dissenting. Schick v. U. S., 195 U. S. 98. “ Almost every state in the Union has re- cast her criminal law by the enactment of statutes in such a mode that the common law is now only appealed to as an aid in the definition of crimes.” Mutter, J. Benson v. McMahon, 127 U. S. 466. “For nearly all crimes and misdemeanors the laws of the states, and not the enact- ments of Congress, must be looked to for the definition of the offense.” Futter, C. J. Wright v. Henkel, 190 U. S. 59. Crimes Classified. “In most of the states and territories, by constitution or statute, all crimes, or at least statutory crimes, not capital, are classed as felonies or as misdemeanors, ac- cordingly as they are or are not punishable by imprisonment in the state prison or peni- tentiary.” Gray, J. Mackin v. U. S, 117 U.S. 352. Infamous Crime. “A crime which might have been punished by imprisonment in a penitentiary is an in- famous crime, even if the sentence actually pronounced is-of a small fine only.” Gray, J. The Paquette Habana, 175 U. S. 682. CRIMINAL LAW. CRIMINAL CONVERSATION. Invasion of Husband’s Marital Rights. “Many of the cases hold that the essential injury [by criminal conversation with his. wife] to the husband consists in the defile- ment of the marriage bed, in the invasion of his exclusive right to marital intercourse with his wife and to beget his own children. This is a right of the highest kind, upon the thorough maintenance of which the whole. social order rests, and in order to the main- tenance of the action it may properly be described as a property right.” PrckHam, J. Tinker v. Colwell, 193 U. S. 484. Wilful or Malicious Injury to Person or Property of Husband. “The cause of action [of criminal con- versation] by the husband is based upon the idea that the act of the defendant is a viola- tion of the marital rights of the husband in the person of his wife, to the exclusion of all others, and so the act of the defendant is an injury to the person and also to the prop- erty rights of the husband. We think such act is also a wilful and malicious injury to the person or property of the husband, within the meaning of the exception in the statute. There may be cases where the act has been performed without any malice towards the husband, but we are of opinion that, within the meaning of the exception, it is mot necessary that there should be this particular, and, so to speak, per- sonal malevolence toward the husband, but that the act itself necessarily implies that degree of malice which is sufficient to bring the case within the exception stated in the statute. The act is wilful, of course, in the sense that it is intentional and voluntary, and we think that it is also malicious within the meaning of the statute. In order to come within that meaning as a judgment for wilful and malicious injury to person or property, it is not necessary that the cause of action be based upon special malice, so that without it the action could not be main- tained.” PrckHam, J. Tinker v. Colwell, 193 U. S. 485. CRIMINAL LAW. I. Power oF STaTES AS TO PUNISH- MENT AND PREVENTION OF CRIME, ; II. Orrenses AGAINST THE UNITED STATES. 1. Common-law Offenses. 550 2. Power of Congress to Create and Punish. 3. Venue. 4. Offenses Against State and Fed- eral Governments. III. FepERAL JURISDICTION OF OF- FENSES AGAINST STATES. IV. JurRispicTIon oF OrFrensEs Com- MITTED ON NAVIGABLE Wa- TERS, V. Capacity TO ComMMIT CRIME. VI. INTENT. VII. Ricuts oF ACCUSED. VIII. ProsEcutoR AND DEFENDANT AS WITNESSES. IX. CoNnstRUCTION OF PENAL STAT- UTES. X. PRESUMPTIONS. XI. PRocEDURE. XII. Mi1scELLANEOUS. CROSS-REFERENCES. See Apert; AMBASSADORS AND CONSULS. Burpven oF ProoF; Conspiracy; CoNSULAR Courts; CONTINUANCE; COUNTERFEITING; Crime; Decoy Letrers; Drpositions; DyING DECLARATIONS; EMBEZZLEMENT; Ex Post Facro Laws; FALsE PRETENSES; ForGERY; Homiciwe; INDICTMENTS AND INFORMATIONS; INsANE Persons; INTENTION ; INTOXICATION ; JEOPARDY ; JURY AND JuRY TRIAL; LaRcENY; Motive; Outtaws; Parpon; Perjury; Pr- RACY; RAPE; ‘REASONABLE Doust; RECEIVING SToLen Property ; SepUCTION ; SENTENCE AND PUNISHMENT; SMUGGLING; TREASON. I. POWER OF STATES AS TO PUN- ISHMENT AND PREVENTION OF CRIME. Power to Punish Offenses Against Their Laws. “No one will deny, that a state has a right to punish any individual found within its jurisdiction, who shall have committed an offense within its jurisdiction, against its criminal laws. We speak not here of foreign ambassadors, as to whom the doctrines of public law apply.” Barsour, J. New York v. Miln, 11 Pet. 139. “The right to punish, or to prevent crime, does in no degree depend upon the citizen- ship of the party who is obnoxious to the law. The alien who shall just have set his foot CRIMINAL LAW. upon the soil of the state, is just as subject to the operation of the law, as one who is a native citizen.” Barsour, J. New York v. Miln, 11 Pet. 140. Power to Prevent Commission of Crime. “A state has as much right to guard, by anticipation, against the commission of an offense against its laws, as to inflict punish- ment upon the offender after it shall have been committed.” Barzour, C. J. New York v. Miln, 11 Pet. 140. Punishment of Offenses Committed in Other Jurisdictions. “Crimes and offenses against the laws of any state can only be defined, prosecuted and pardoned by the sovereign authority of that state; and the authorities, legislative, executive or judicial, of other states take no action with regard to them, except by way of extradition to surrender offenders to the state whose laws they have violated, and whose peace they have broken.” Gray, J. Huntington v. Attrill, 146 U. S. 669. “They [states] may, if they think proper, in order to deter offenders in other coun- tries from coming among them, make crimes committed elsewhere punishable in their courts, if the guilty party shall be found within their jurisdiction.” Taney, C. J. Holmes v. Jennison, 14 Pet. 568. “Tt is within the discretion of the legis- lature of the state to treat former imprison- ment in another state, as having the like effect as imprisonment in Massachusetts, to show that the man is an habitual criminal.” Gray, J. McDonald v. Massachusetts, 180 U.S. 318. State Jurisdiction of Federal Offenses. “The statutes of the United States define and punish but a few offenses on the high seas, and, unless other offenses when com- mitted in the sea near the coast can be pun- ished by the states, there is a large immunity from punishment for acts which ought to be punishable as criminal.” Biatcurorp, J. Manchester v. Massachusetts, 139 U. S. 264. “Congress has the right to enact laws for the arrest and commitment of those accused of any such crime or offense [against the United States]; and persons arrested and held pursuant to such laws are in the ex- clusive custody of the United States, and are not subject to the judicial process or executive warrant of any state.” Gray, J. Logan v. U. S., 144 U. S,’ 284. “To leave to the several states the prose- cution and punishment of conspiracies to oppress citizens of the United States, in per- forming the duty and exercising the right of assisting to uphold and enforce the laws of the United States, would tend to defeat the independence and supremacy of the national government.” Gray, J. In re Quarles, 158 U. S. 536. II. OFFENSES AGAINST THE UNITED STATES. 1. CoMMON-LAW OFFENSES. No Common-law Offenses Against United States. “We have under the federal government no common-law offenses, nor common-law powers to punish in our courts.” McLean, J., dissenting. Ex p. Wells, 18 How. 318. “There are no common-la offenses against the United States.” oops, J.° U. S. v. Britton, 108 U. S. 206. For sub- stantially the same language see Benson vw. McMahon, 127 U. S. 466, per Mutter, J.; Pettit v. Walshe, 194 U. S. 217, per Har- LAN, J. Federal Courts Have No Common-law Jurisdiction. “The federal courts have no cognizance of common-law offenses, on the land or on the water.’ McLzan, J. Jackson v. Steam- boat Magnolia, 20 How. 305. “Tt has been decided that no common- law crime or offense is cognizable in the federal courts.” Mutter, J. U.S. wv. Holli- day, 3 Wall. 415. “Federal courts have no common-law jurisdiction in criminal cases, nor can such courts proceed to try or punish any of- fender, except when authorized by an Act of Congress, passed in pursuance of the Con- stitution.” CtiFForD, J., dissenting. Ten- nessee v. Davis, 100 U. S. 282. ° — Jurisdiction Dependent on Acts of Congress. “If Congress has not declared an act done within a state to be a crime against the United States, the courts have no power to treat it as such.” Warts, C. J. U.S. v. Reese, 92 U. S. 216. “Such courts [Circuit Courts] possess no jurisdiction over crimes and offenses com- mitted against the authority of the United States, except what is given to them by the 551 CRIMINAL LAW. power that created them; nor can they be invested with any such jurisdiction beyond what the power ceded to the United States by the Constitution authorizes Congress to confer,— from which it follows that before an offense can become cognizable in the Circuit Court the Congress must first define or,recognize it as such, and affix a punish- ment to it, and confer jurisdiction upon some court to try the offender.” CtirrForp, J. U. S. v. Hall, 98 U. S. 345. “Treason is defined by the Constitution, but it has never been decided that the of- fender could be tried and punished for the offense until some court is vested with the power by an Act of Congress.” CtiFForp, J. U. S. v. Hall, 98 U. S. 346. “Courts of the United States derive no jurisdiction in criminal cases from the com- mon law, nor can such tribunals take cog- nizance of any act of an individual as a public offense, or declare it punishable as such, until it has been defined as an offense by an Act of Congress passed in pursuance of the Constitution.” CLiFForD, J., dissent- ing. Tennessee v. Davis, 100 U. S. 276. “Tt is clear that, in order to ascertain the jurisdiction of the federal courts in criminal cases, resort must be had to the Acts of Con- gress providing for the punishment of crimes; for although such courts are un- questionably to look to the common law, in the absence of statutory provision, for rules of guidance in the exercise of their func tions in criminal as well as in civil cases, it is to the Acts of Congress passed in pur- suance of the Constitution alone that they must have recourse to determine what con- stitutes an offense against the authority of the United States, it being settled law that the United States have no unwritten code to which resort can be had as a source of juris- diction.” CuiFForD, J., dissenting. Ten- nessee v. Davis, 100 U. S. 276. “ Offices may be created by a law of Con- gress, and officers to execute the duties of the same may be appointed in the manner speci- fied in the Constitution; and it is not doubted that Congress may pass laws for their pro- tection, and for that purpose may define the offense of killing such an officer when in the discharge of his duties. Concede that, and it follows that if the punishment for the offense is affixed, and the jurisdiction is given to the Circuit Courts, those courts may try the offender, if legally indicted, and if duly convicted may sentence him to the punish- ment which the Act of Congress prescribes. Beyond all question, the jurisdiction of the Circuit Court over such an indictment would be complete; but the difficulty in the way of the prosecutor in this case is that there is no Act of Congress defining the offense charged in the indictment, nor is there any provision in such law providing for the punishment of such an offense, or which gives the Circuit Court or any other federal court jurisdiction to try or sentence the offender.” CLiFForp, J., dissenting. Tennessee v. Davis, 100 Uz. S. 280. “The whole criminal jurisdiction of the courts of the United States [is] derived from Acts of Congress.” Gray, J. Jones v. U. S., 137 U. S. 211. “We agree that the courts of the United States, in determining what constitutes an offense against the United States, must resort to the statutes of the United States, enacted in pursuance to the Constitution.” FULLER, C. J. In ve Kollock, 165 U. S. 533. —— Executive Regulations Do Not Confer Jurisdiction. “Regulations prescribed by the President and by the heads of departments, under au- thority granted by Congress, may be regu- lations prescribed by law, so as lawfully to support acts done under them and in accord- ance with them, and may thus have, in a proper sense, the force of law; but it does not follow that a thing required by them is a thing so required by law to make the neg- lect to do the thing a criminal offense in a citizen, where a statute does not distinctly make the neglect in question a criminal of- fense.” BiatcHForp, J. U. S. v. Eaton, 144 U. S. 688. Resort to Common Law to Define Offenses. “The courts of the United States have no jurisdiction over offenses not made punish- able by the Constitution, laws or treaties of the United States, but they resort to the common law for the definition of terms by which offenses are designated.” FuLter, C. J. Pettibone v. U. S., 148 U. S. 203. “There are no common-law crimes of the United States, and, indeed, in most of the states the criminal law has been recast in statutes, the common law being resorted to in aid of definition.” Furzer, C. J. Wright v. Henkel, 190 U. S. 59. 2. Power oF ConGcRrESss TO CREATE AND PunIsH. Legislature, and Not Court, Defines Crime. “It is the legislature, not the court, which 552 CRIMINAL LAW. is to define a crime, and ordain its punish- ment.” MarsHatt, C. J. U. S. uv. Wilt- berger, 5 Wheat. 95. Constitutional Authority of Congress. “ Although the Constitution contains no grant, general or specific, to Congress of the power to provide for the punishment of crimes, except piracies and felonies on the high seas, offenses against the law of nations, treason, and counterfeiting the securities and current coin of the United States, no one doubts the power of Congress to provide for the punishment of all crimes and offenses against . the United States, whether com- mitted within one of the states of the Union, or within territory over which Congress has plenary and exclusive jurisdiction.” Gray, J. Logan v. U. S., 144 U. S. 283. “We know of no express authority to pass laws to punish theft or burglary of the treasury of the United States. Is there, therefore, no power in the Congress to pro- tect the treasury by punishing such theft and burglary?” Mutier, J. Ex p. Yarbrough, 110 U. S. 658. ——Implied Authority. “Implied power in Congress to pass laws to define and punish offenses is also derived from the constitutional grant to Congress to declare war, to raise and support armies, to provide and maintain a navy, and to make tules for the land and naval forces, and to provide for organizing, arming and disciplin- ing the militia and for governing such parts of them as may be employed in the public service. Like implied authority is also vested in Congress from the power conferred to exercise exclusive jurisdiction over places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings, and from the clause empowering Congress to pass all laws which shall be necessary and proper for carrying into execution the fore- going powers, and all other powers vested by the Constitution in the government of the United States, or any department or officer thereof.” CurFrorp, J. U. S. v. Hall, 98 Uz S. 346. “Tt is competent for Congress to enforce by suitable penalties all legislation necessary or proper to the execution of power with which jit is intrusted, and any act com- mitted with a view of evading such legisla- tion or fraudulently securing its benefits may be an offense against the United States.” CuirForD, J. U.S. v. Hall, 98 U. S. 357. —— Specific Offenses Punishable. “Congress may provide for the punishment of counterfeiting the securities and current coin of the United States, and may pass laws to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.” CLiFForD, J. U. S. v. Hall, 98 U. S. 345. “Crimes defined by an Act of Congress, and within the jurisdiction of the federal courts, may be divided into two general classes: 1. Such as are committed on the high seas or on navigable waters out of the jurisdiction of any particular state, or within some place under the exclusive jurisdiction of the United States. 2. Such as relate to subjects committed to the charge of the nation, which are comprised within the grant of judicial power over all cases arising under the Constitution, laws, and treaties of the United States, and cases affecting ambassa- dors or other public ministers and consuls.” Cu1FrorD, J., dissenting. Tennessee v. Davis, 100 U. S. 282. —— Power to Punish Felonies Generally. “Tt is clear, that Congress cannot punish felonies generally.” MARSHALL, C. J. Cohen v. Virginia, 6 Wheat. 428. Power to Protect Persons Charged with Crime. “ Any government which has power to in- dict, try and punish for crime, and to arrest the accused and hold them in safekeeping until trial, must have the power and the duty to protect against unlawful interference its prisoners so held, as well as its’ executive and judicial officers charged with keeping and trying them.” Gray, J. Logan v. U. S., 144 UL S. 294. “The United States are bound to protect against lawless violence all persons in their service or custody in the course of the admin- istration of justice. This duty and the cor- relative right of protection are not limited to the magistrates and officers charged with ex- pounding and executing laws, but apply, with at least equal force, to those held in custody on accusation of crime, and deprived of all means of self-defense.” Gray, J. Logan v. U. S., 144 U. S. 295. 3. VENUE. “A crime, committed against the laws of the United States, out of the limits of a state, is not local, but may be tried at stich place as Congress shall designate by law.” Netson, J. U. S. v. Dawson, 15 How. 488. 553 CRIMINAL LAW. “Crimes committed against the laws of the United States out of the limits of a state are not local, but may be tried at such place as Congress shall designate by law, but are local if committed within the state. They must then be tried in the district in which the offense was committed.” U. S. v. Jack- alow, 1 Black 486. “By the Constitution of the United States, while a crime committed within any state must be tried in that state and in a district previously ascertained by law, yet a crime not committed within any state of the Union may be tried at such place as Congress may by law have directed.” Gray, J. Jones v. U. S., 187 U.S, 211. “The boundary of a state, when a ma- terial fact in the determination of the extent of the jurisdiction of a court, is not a simple question of law. The description of a bound- ary may be a matter of construction, which belongs to the court; but the application of the evidence in the ascertainment of it as thus described and interpreted, with a view to its location and settlement, belongs to the jury.” Netson, J. U. S. wv. Jackalow, 1 Black 487. “While it is impossible to speak of the deceased in a murder case as a party, in any proper sense, to a criminal prosecution against his assailant, it can scarcely have been the intention of Congress to vest juris- diction in the federal courts of cases in which the accused, an Indian, was guilty of a felonious assault upon a white man, not resulting in death, and deny it in case of a fatal termination, upon the ground that the accused is the only party to the cause.” Brown, J. Alberty v. U. S., 162 U. S. 504, 4, OFFENSES AGAINST STATE AND FED- ERAL GOVERNMENTS. Act May Be Offense Against Both Gov- ernments. “He who robs the mail, may also steal the horse that carries it, and would, unquestion- ably, be subject to punishment, at the same time, under the laws of the state in which. the crime is committed, and under those of the United States. And these punishments may interfere, and one render it impossible to inflict the other, and yet the two govern- ments would be acting under powers that have no claim to identity.’ JoHNson, J. Gibbons v. Ogden, 9 Wheat. 238. “Exceptional cases undoubtedly arise where it may properly be said that the citi- zen owes allegiance to two sovereigns, and may be liable to punishment for an in- fraction of the laws of either, where the same act is a transgression and defined offense under the laws of both. Thus, an assault on the marshal or hindering him in the execution of legal process is a high offense against the United States, for which the perpetrator is liable to punishment; and the same act may also be a gross breach of the peace of the state, if it results in a riot, assault, or murder, and may subject the same person to the punishment prescribed by the state laws.” CLiFForD, J., dissenting. Ten- nessee v. Davis, 100 U. S. 277. “While offenses exclusively against the states are exclusively cognizable in the state courts, and offenses exclusively against the United States are exclusively cognizable in the federal courts, it is also settled that the same act or series of acts may constitute an offense equally against the United States and the state, subjecting the guilty party to punishment under the laws of each govern- ment.” Futter, C. J. Pettibone v. U. S, 148 U. S. 209. € Subjection to both state and national law in the same matter might often be im- possible.” Brewer, J. Matter of Heff, 197 U. S. 506. Act May Be Punished by Both Govern- ments. “The very act or transaction may con- stitute a crime or offense against both gov- ernments, state and federal.” Suuiras, J., dissenting. Brown v. Walker, 161 U. S. 626. “Tt is settled law that the same act may constitute an offense against the United States and against a state, subjecting the guilty party to punishment under the laws of each government.” Futter, C. J. Crossley v. California, 168 U. S. 641. “The same act may be an offense both against the state and the United States, punishable in each jurisdiction under its laws.” PrcKHAM, J. Sexton wv. California, 189 U. S. 323. — The One Act Constitutes Two Sepa- rate Offenses. “Both governments [federal and state], though there be but one act, if the jurisdic- tion is dual, and the act charged is defined by the laws of each as an offense, may subject the offender to punishment; nor can he plead the conviction and sentence in one forum in bar to an indictment in the other, as the 554 CRIMINAL LAW. act committed was an offense against the authority of each.” CuirForp, J., dissent- ing. Tennessee v, Davis, 100 U. S. 278. “Every citizen of the United States is also a citizen of a state or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both. Thus an assault upon the marshal of the United States, and hindering him in the execution of legal process, is a high offense against the United States, for which the perpetrator is liable to punishment; and the same act may be also a gross breach of the peace of the state, a riot, assault, or a murder, and subject the same person to a pun- ishment, under the state laws, for a misde- meanor or felony. That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offense; but only that by one act he has committed two offenses, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other.” Grier, J. Moore vw. Illinois, 14 How. 20. —Second Punishment Inflicted Only When Demanded by Public Safety. “Tt is almost certain, that, in the benignant spirit in which the institutions both of the state and federal systems are administered, an offender who should have suffered the penalties denounced by one would not be subjected a second time to punishment by the other for acts essentially the same, unless indeed this might occur in instances of pe- culiar enormity, or where the public safety demanded extraordinary rigor.” DAwnrEL, J. Fox v. Ohio, 5 How. 435. — View that Two Punishments Cannot Be Inflicted. “There is no principle better established by the common law, none more fully recog- nized in the federal and state constitutions, than that an individual shall not be put in jeopardy twice for the same offense, This, it is true, applies to the respective govern- ments; but its spirit applies with equal force against a double punishment, for the same act, by a state and the federal government.” McLean, J., dissenting. Fox v. Ohio, 5 How. 439. “Tt is contrary to the nature and genius of our government, to punish an individual twice for the same offense. Where the jurisdic- 555 tion is clearly vested in the federal govern- ment, and an adequate punishment has been provided by it for an offense, no state, it appears to me, can punish the same act. The assertion of such a power involves the right of a state to punish all offenses pun- ishable under the acts of Congress. This would practically disregard, if it did not de- stroy, this important branch of criminal jus- tice, clearly vested in the federal government. The exercise of such a power by the states would, in effect, be a violation of the Con- stitution of the United States, and the consti- tutions of the respective states. They all provide against a second punishment for the same act. It is no satisfactory answer to this, to say that the states and federal gov- ernment constitute different sovereignties, and, consequently, may each punish offenders under its own laws.” McLeay, J., dissent- ing. Moore vw. Illinois, 14 How. 21. “It seems to me it would be as unsatisfac- tory to an individual as it would be illegal, to say to him that he must submit to a second punishment for the same act, because it is punishable as well under the state laws, as under the laws of the federal government.” McLean, J., dissenting. Moore v. Illinois, 14 How. 22. Federal Government as Agent of States. “Tt is true, the criminal laws of the federal and state governments emanate from differ- ent sovereignties; but they operate upon the same people, and should have the same end in view. In this respect, the federal govern- ment, though sovereign within the limitation of its powers, may, in some sense, be con- sidered as the agent of the states, to pro- vide for the general welfare.” Grrer, J. Moore wv. Illinois, 14 How. 22. III, FEDERAL JURISDICTION OF OFFENSES AGAINST STATES. Congress Cannot Punish Disobedience of State Laws. ““To authorize a criminal prosecution in the federal courts for an offense against a law of a state is to extend the judicial power of the United States to a case not arising under the Constitution or laws of the United States.” Fretp, J., dissenting. Ex p. Clarke, 100 U. S. 408. “Tf it be incompetent for the federal gov- ernment to enforce by coercive measures the performance of a plain duty, imposed by a law of Congress upon the executive officer of a state, it would seem to be equally incom- CRIMINAL LAW. petent for it to enforce by similar measures the performance of a duty imposed upon him by a law of a state. If Congress cannot impose upon a state officer, as such, the per- formance of any duty, it would seem logically to follow that it cannot subject him to pun- ishment for the neglect of such duties as the state may impose. It cannot punish for the nonperformance of a duty which it cannot prescribe. It is a contradiction in terms to say that it can inflict punishment for dis- obedience to an act the performance of which it has no constitutional power to command.” Fiexp, J., dissenting. Ex p. Clarke, 100 U. S. 411. “These decisions do indeed, in my judg- ment, constitute a new departure. They give to the federal government the power to strip the states of the right to vindicate their au- thority in their own courts against a violator of their laws, when the transgressor happens to be an officer of the United States, or alleges that he is denied or cannot enforce some right under their laws. And they as- sert for the federal government a power to subject a judicial officer of a state to punish- ment for the manner in which he discharges his duties under her laws. The power to punish at all existing, the nature and extent of the punishment must depend upon the will of Congress, and may be carried to a re- moval from office. In my judgment,— and I say it without intending any disrespect to my associates,— no such advance has ever before been made toward the conversion of our federal system into a consolidated and centralized government. I cannot think that those who framed and advocated, and the states which adopted the amendments, con- templated any such fundamental change in our theory of government as those decisions indicate. Prohibitions against legislation on particular subjects previously existed,— as, for instance, against passing a bill of attain- der and an ex post facto law, or a law im- pairing the obligation of contracts; and, in enforcing those prohibitions, it was never supposed that criminal prosecutions could be authorized against members of the state legis- lature for passing the prohibited laws, or against members of the state judiciary for sustaining them, or against executive officers for enforcing the judicial determinations. Enactments prescribing such prosecutions would have given a fatal blow to the inde- pendence and autonomy of the state. So, of all or nearly all the prohibitions of the recent amendments, the same doctrine may be asserted. In few instances could legisla- tion by Congress be deemed appropriate for \ their enforcement, which should provide for the annulment of prohibited laws in any other way than through the instrumentality of an appeal to the judiciary, when they impinged upon the rights of parties. If in any in- stance there could be such legislation author- izing a criminal prosecution for disregarding a prohibition, that legislation should define the offense and declare the punishment, and not invade the independent action of the dif- ferent departments of the state governments within their appropriate spheres. Legislation by Congress can neither be necessary nor appropriate which would subject to criminal prosecution state officers for the performance of duties prescribed by state laws, not having for the object thte forcible subversion of the government.” Frexp, J., dissenting. Ex p. Clarke, 100 U. S. 414. “Decided cases everywhere hold that un- less Congress first defines the offense, affixes the punishment, and declares, in some way, the court that shall have jurisdiction of the accusation, the Circuit Court can neither try the accused nor sentence him to punish- ment. Even the power of Congress to de- fine offenses and provide for the punishment of offenders is limited to such subjects and circumstances as relate and are peculiar to the federal government. Money may be coined by. that government, and therefore Congress may provide for the punishment of counterfeiting the national coin. Congress may establish post-offices and post-roads, and therefore the legislative department may pass laws providing for the pun- ishment of persons robbing the mails; but the Congress cannot enact laws for punish- ing persons for counterfeiting state bank issues, or for robbing express companies es- tablished by state authority.” Cuirrorp, J., dissenting. Tennessee v. Davis, 100 U. S. 279. Congress Cannot Make Its Punitive Power Dependent on State Legislation. “My second proposition is that it is not competent for Congress to make the exercise of its punitive power dependent upon the legislation of the states. The act upon which the indictment of the petitioner from Ohio is founded makes the neglect or violation of a duty prescribed by a law of the state in regard to an election at which a representa- tive in Congress is voted for a criminal of- fense. It does not say that the neglect or disregard of a duty prescribed by any exist- ing law shall constitute such an offense. It is the neglect or disregard of any duty pre- scribed by any law of the state present or 556 CRIMINAL LAW. future. The act of Congress is not changed in terms with the changing laws of the state; but its penalty is to be shifted with the shift- ing humors of the state legislature. I can- not think that such primitive legislation is valid, which varies, not by direction of the federal legislators, upon new knowledge or larger experience, but by the direction of some external authority which makes the same act lawful in one state and criminal in’ another, not according to the views of Con- gress as to its proprietary, but to those of another body.” Fuiexp, J., dissenting. Ex p. Clarke, 100 U. S. 421. States Have Exclusive Power to Punish State Offenses. “The Act of Congress asserts a power in- consistent with, and destructive of, the inde- pendence of the states. The right to control their own officers, to prescribe the duties they shall perform, without the supervision or interference of any other authority, and the penalties to which they shall’ be sub- jected for a violation of duty is essential to that independence. If the federal govern- ment can punish a violation of the laws of the state, it may punish obedience to them, and graduate the punishment according to its own judgment of their propriety and wisdom. It may thus exercise a control over the legis- lation of the states subversive of all their re- served rights. However large the powers conferred upon the government formed by the Constitution, and however numerous its restraints, the right to enforce their own laws by such sanctions as they may deem appropriate is left, where it was originally, with the states. It is a right which has never been surrendered. Indeed a state could not be considered as independent in any matter, with respect to which its officers, in the dis- charge of their duties, could be subjected to punishment by any external authority; nor in which its officers, in the execution of its laws, could be subject to the supervision and interference of others.” Frevp, J., dissent- ing. Ex p. Clarke, 100 U. S. 409. “ The prosecution and punishment of crimes and offenses committed against one of the states of the Union appropriately belong to the courts and authorities of the state, and can be interfered with by the Circuit Court of the United States so far only as Congress, in order to maintain the supremacy of the Constitution and laws of the United States, has expressly authorized either a removal of the prosecution into the Circuit Court of the United States for trial, or a discharge of the prisoner by writ of habeas corpus issued by that court or by a judge thereof.” Gray, J. Virginia v. Paul, 148 U. S. 114. “The division and apportionment of judi- cial power made by that instrument [the Constitution of the United States] left to the States the right to make and enforce their own criminal laws. And while it is the duty of this court, in the exercise of its judicial power, to maintain the supremacy of the Constitution and laws of the United States, it is also its duty to guard the states from any encroachment upon their reserved rights by the general government or the courts tHereof.” Surras, J. Harkrader v. Wadley, 172 U. S. 162. “The Constitution, it is to be observed, in the distribution of the judicial power, de- clares that in the cases enumerated in which a state is a party the Supreme Court shall have original jurisdiction. Its framers seemed to have entertained great respect for the dignity of a state which was to remain sovereign, at least in its reserved powers, notwithstanding the new government, and therefore provided that when a state should have occasion to seek the aid of the judicial power of the new government, or should be brought under its subjection, that power should be invoked only in its highest tri- bunal. It is difficult to believe that the wise men who sat in the convention which framed the Constitution and advocated its adoption ever contemplated the possibility of a state being required to assert its authority over offenders against its laws in other tribunals than those of its own creation, and least of all in an inferior tribunal of the new govern- ment. I do not think I am going too far in asserting that had it been supposed a power so dangerous to the independence of the states, and so calculated to humiliate and de- grade them, lurked in any of the provisions of the Constitution, that instrument would never have been adopted.” Fietp, J. Vir- ginia v. Rives, 100 U. S: 337. Federal Courts Have No Jurisdiction Over State Offenses. “Neither the Constitution nor the Con- gress ever contemplated, that any court under the United States should take cognizance of anything savoring of criminality against a state.” M’Kean, C. J. Respublica v. Cob- bet, 3 Dall. 476. “Certain implied powers must necessarily result to our courts of justice from the na- tures of their institutions. But jurisdiction 557 woe CRIMINAL LAW. of crimes against the state is not among those powers.” JoHNson, J. U. S. v. Hudson, @ Cranch 34. “Jurisdiction: to try and punish offenders against the authority of the United States is conferred upon the Circuit and District Courts, but those courts have no jurisdiction of offenses committed against the authority - of a state.” Cuirrorp, J., dissenting. Cole- man v. Tennessee, 97 U. S. 535. “Tt [the Constitution of the United States] declares, among other things, that the judicial power shall extend to cases in law and equity arising under the Constitution, laws, and treaties-of the United States, and to various controversies to which a state is a party; but it does not include in its enumeration controversies between a state and its own citizens. There can be no ground, therefore, for the assumption by a federal court of jurisdiction of offenses against the laws of a state. The judicial power granted by the Constitution does not cover any such case or controversy. And whilst it is well settled that the exercise of the power granted may be extended to new cases as they arise under the Constitution and laws, the power itself cannot be enlarged by Congress. The Con- stitution creating a government of limited powers puts a bound upon those which are judicial as well as those which are legisla- tive, which cannot be lawfully passed.” Fietp, J. Virginia v. Rives, 100 U. S. 336. Federal Supervision of Proceedings in State Courts. “The courts of the United States are vested with no power to scrutinize into the proceedings of the state courts in criminal cases; on the contrary, the general govern- ment has, in more than one instance, exhibit- ed their confidence by a wish to vest them with the execution of their own penal law.” Jounson, J., concurring. Martin v. Hunter, 1 Wheat. 377. “The general rule [is] that a Circuit Court of the United States, sitting as a court of equity, cannot stay by injunction proceedings pending in a state court to enforce the crim- inal laws of such state.” Brown, J. Davis, etc., Mfg. Co. v. Los Angeles, 189 U. S. 217. “This court [is restrained] from interfer- ing with the orderly administration of crim- inal law in the courts of a state until after a final determination by the highest court of the state.” Brewer, J., dissenting. U. S. v. Sing Tuck, 194 U. S. 173, IV. JURISDICTION OF OFFENSES COMMITTED ON NAVIGABLE WATERS. In General. “As a general principle, the criminal laws. of a nation do not operate beyond its terri- torial limits, and j to give any gov- ernment, or its judicial tribunals, the right to punish any act or transaction as a crime, it must have occurred within those limits.” Fietp, J. U.S. v. Rodgers, 150 U. S. 264. “Offenses committed upon vessels belong- ing to citizens of the United States, within their admiralty jurisdiction (that is, within navigable waters), though out of the terri- torial limits of the United States, may be judicially considered when the vessel and parties are brought within their territorial jurisdiction.” Fretp, J. U. S. v. Rodgers, 150 U. S. 264. “Some offenses may be completed entirely on the water; yet the state jurisdiction on land is conceded.” Woopgury, J., dissent- ing. Passenger Cases, 7 How. 539. “T have no doubt whatever of the power of Congress to extend its jurisdiction to crimes committed upon navigable waters.” Brown, J., dissenting. U. S. v. Rodgers, 150 U. S. 285. Offense Committed on Foreign Vessel in Domestic Port. “The English judges have uniformly recog- nized the rights of the courts of the country of which the port is part to’ punish crimes committed by one foreigner on another in a foreign merchant ship.” Warts, C. J. Wil- denhus’s Case, 120 U. S. 12. “Disorders which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the home of the ship, but those which disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper authorities of the local jurisdiction.” Warts, C. J. Wildenhus’s Case, 120 U. S. 18. Vv. CAPACITY TO COMMIT CRIME. “The rule of the common law was that one under the age of seven years could not be guilty of felony or punished for any capi- tal offense, for within that age the infant was conclusively presumed to be incapable of committing the crime; and that while be- tween the ages of seven and fourteen the same presumption obtained, it was only prima 558 CRIMINAL LAW. facie and rebuttable, The maxim — malice supplies the want of maturity of years — was then applied, and, upon satisfactory evi- dence of capacity, the child within these ages might be punished; but no presumption ex- isted in favor of the accused when above fourteen.” Futter, C. J. Allen v. U. S, 150 U. S. 558. VI. INTENT. See Morive. Intent Must Have Existed When Offense Was Committed. “The criminal intent essential to the com- mission of a public offense must exist when the act complained of is done: it cannot be imputed to a party from a subsequent inde~ pendent transaction. There are cases, it is true, where a series of acts are necessary to constitute an offense, one act being auxil- iary to another in carrying out the criminal design.” Fretp, J. U. S. v. Fox, 95 U. S. 671. Necessity for Knowledge. “T cannot reconcile to either Jaw or justice the doctrine that a person can be charged and punished for knowingly doing a thing of which he never had any actual knowledge.” Fietp, J., dissenting. Stockwell v. U. S., 13 Wall. 561. “An intent to defraud the revenues im- plies an intent to deprive such revenues of something that is lawfully due them, and there can be no such intent without knowl- edge of the fact that there is something due.” Brewer, J. Dunbar wv. U. S., 156 U. S. 194. “The person who verified the report would not be liable, because he was wholly ignorant of the truth or falsity of the entries, and in- nocent of any criminal intent. His ignorance of the truth of the report might not and probably would not excuse him from liability in a civil action for negligence.” Brown, J. Cochran v. U. S., 157 U. S. 294. Criminal Liability for Act Done Without Criminal Intent. 3 “There are many instances when an act may be criminal in its character without there being a criminal intent. Gross care- lessness, by which a person may be injured or killed, while it may reduce the offense from murder to manslaughter, or modify the penalty, does not wholly relieve the person guilty of it from criminal responsibility. Governments, both national and state, and even municipal, make laws for protection against articles, such as powder or glycerine, from accidents resulting from negligence, where no intention exists to cause an injury. If persons violate these laws they become liable to the penalty prescribed, because the necessity for strict care and caution in re- gard to such dangerous substances requires that carelessness in regard thereto, from which damage might result, should be pun- ished, notwithstanding there may be an ab- sence of any criminal or felonious intent.” Mitter, J. In re Coy, 127 U. S. 754. Evidence as to Intent. “Tt is a familiar rule that where a particu- lar act is equivocal in its nature, and may have been done with fraudulent intent, proof of other acts of a similar nature done con- temporaneously or about the same time are admissible to show such intent. Cases of fraud are recognized exceptions to the gen- eral rule that the commission of one wrong~ ful act has no legal tendency to prove the commission of another. Such’ other acts al- ways have a bearing upon the question of fraudulent intent or guilty knowledge where they are in issue.” Brown, J., dissenting. U. S. uv. Budd, 144 U. S. 169. “It has been often decided that where the intent is a material question, the accused may testify in his own behalf as to what his intent was in doing the act.” Fuuter, C. J. Wallace v. U. S., 162 U. S. 477. Presumption of Intent. “In the proof of intention it is not always necessary that the evidence should apply directly to the particular act with the com- mission of which the party is charged; for the unlawful intent in the particular case may well be inferred from a similar intent, proved to have existed in other transactions done before or after that time.” Sxrras, J. Bird v. U. S., 180 U. S. 359. “JT insist that the true rule is, that where parties combine in an unlawful undertaking — and by that I mean an undertaking unlawful in and of itself, and not one simply forbidden by statute, one which is malum in se, as, dis- tinguished from malum prohibitum— they are amenable to the bar of criminal justice for every violation of law they, in fact, com- mit, whether such violation is intended or not. Take the familiar illustration: Parties combine to break into a house and commit burglary; while engaged in the commission of that offense, resistance being made, one of the party kills the owner of the house, can there be a doubt that they are all guilty of murder, although murder was not the pur- 559 CRIMINAL LAW. , pose of the combination, and was not in the thought of any but the single wrongdoer? In other words, they who did not intend murder, who did not know that murder was, in fact, being committed, are ruled to be chargeable with the intent to commit murder, and to be guilty of that offense, because they were engaged at the time in an unlaw- ful undertaking, and the murder was com- mitted in carrying that undertaking into exe- cution.” Brewer, J., dissenting. Pettibone v. U. S., 148 U. S. 210. “Where parties conspire and combine to do an unlawful act, and in carrying that un- lawful purpose into execution, they do in fact violate a statute of whose terms they may be ignorant, and, therefore, one which they did not intend to violate, they are in law guilty of its violation, and may be pun- ished accordingly. The law under those cir- cumstances imputes to the wrongdoer the intent to violate every law which he does in fact violate.” Brewer, J., dissenting. Petti- bone v. U. S., 148 U. S. 212. Proof of General Disposition to Commit Crime. “When trying a prisoner on an indictment, for a particular crime, proof that he has a general disposition to commit the crime is never permitted.” Davis, J. Thompson v. Bowie, 4 Wall. 471. VII. RIGHTS OF ACCUSED. Right to Be Present at All Proceedings. “The personal presence of the accused, from the beginning to the end of a trial for felony, involving life or liberty, as well as at the time final judgment is rendered against him, may be, and must be assumed to be, vital to the proper conduct of his defense, and cannot be dispensed with.” Harzan, J. Schwab wv. Berggren, 143 U. S. 448. “A leading principle that pervades the entire law of criminal procedure is that, after indictment found, nothing shall be done in the absence of the prisoner.” Sutras, J. Lewis wv. U. S., 146 U. S. 373. Right to Be Confronted with Witnesses. “One of the fundamental guarantees of life and liberty is found in the Sixth Amend- ment of the Constitution of the United States, which provides that ‘in all criminal prosecu- tions the accused shall be confronted with the witnesses against him.’” Haran, J. Kirby v. U. S., 174 U.S. 55, “A fact which can be primarily estab- lished only by witnesses cannot be proved against an accused—charged with a dif- ferent offense for which he may be con- victed without reference to the principal of- fender — except by witnesses who confront him at the trial, upon whom he can look while being tried, whom he is entitled to cross-examine, and whose testimony he may impeach in every mode authorized by the established rules governing the trial or con- duct of criminal cases.” Haran, J. Kirby v. U. S, 174 U. S. 55. But see RECEIVING SToLEN PROPERTY. “The Constitution gives the accused the right to a trial at which he should be con- fronted with the witnesses against him; but if the witness is absent by his own wrongful procurement, he cannot complain if compe- tent evidence is admitted to supply the place of that which he has kept away. The Consti- tution does not guarantee an accused person against the legitimate consequences of his own wrongful acts.” Warte, C. J. Rey- nolds v. U. S., 98 U. S. 158. “ Neither the constitutional provision which protects the people in their persons, houses, papers, and effects against unreasonable searches and seizures, nor the provision that a person shall not be compelled in any crim- inal case to be a witness against himself, has any bearing whatever upon the inquiry whether the right of an accused, in a crim- inal prosecution, ‘to be confronted with the witness against him,’ is infringed by per- mitting a deposition of a living witness to be read against him in an action brought to recover the value of merchandise forfeited to the United States by reason of his acts in violation of law. This is so manifest that it is impossible, by any argument, to make it clearer.” Hartan, J. U.S. v. Zucker, 161 U. S. 480. Waiver of Rights. “Ts it possible that an acctised cannot ad- mit and be bound by the admission that a witness not present would testify to certain facts? Can it be that if he does not wish the assistance of counsel and waives it, the’ trial is invalid? It seems only necessary to ask these questions to answer them. When there is no constitutional or statutory man- date, and no public policy prohibiting, an accused may waive any privilege which he is given the right to enjoy.” Brewer, J. Schick v. U. S., 195 U. S. 72. — Rights that Accused May Not Waive. “That which the law makes essential in 560 CRIMINAL LAW. proceedings involving the deprivation of life or liberty cannot be dispensed with or af- fected by the consent of the accused, much less by his mere failure, when on trial and in custody, to object to unauthorized meth- ods.” Hartan, J. Hopt v. Utah, 110 U. S. 579. “Tf one under trial for a felony the pun- ishment for which is confinement in a peni- tentiary could not legally consent that the trial proceed in his absence, still less could he consent to be deprived of his liberty by a tribunal not authorized by law to deter- mine his guilt.” Haran,’ J. Thompson v. Utah, 170 U. S. 354. “There are some things so vital in their character that they may not be legally done or legally omitted in a criminal prosecution, even with the consent of the accused. This is abundantly established by authority.” Har- LAN, J., dissenting. Schick v. U. S., 195 U.S. 82. Court Must Act Strictly Within Limits of Jurisdiction. “Tn all cases where life or libefty is af- fected by its proceedings, the court must keep strictly within the limits of the law author- izing it to take jurisdiction and to try the case and to render judgment. It cannot pass beyond those limits in any essential re- quirement in either stage of these, proceed- ings; and its authority in those particulars is not to be enlarged by any mere inferences from the law or doubtful construction of its terms.” Fretp, J. Jn re Bonner, 151 U. S. 256. “There has been a great deal said and writen, in many cases with embarrassing looseness of expression, as to the jurisdiction of the courts in criminal cases. From a somewhat extended examination of the au- thorities we will venture to state some rule applicable to all of them, by which the juris- diction as to any particular judgment of the court in such cases may be determined. It is plain that such court has jurisdiction to render a particular judgment only when the offense charged is within the class of of- fenses placed by the law under its jurisdic- tion; and when, in taking custody of the accused, and in its modes of procedure to the determination of the question of his guilt or innocence, and in rendering judgment, the court keeps within the limitations prescribed by the law, customary or statutory. When the court goes out of these limitations, its action, to the extent of such excess, is void. 1 Os, Die.—aé Proceeding within these limitations, its ac- tion may be erroneous, but not void.” FIELp, J. In re Bonner, 151 U. S. 257. Validity of Statute Withdrawing Positive Rights. “A regulation of Congress cannot be sus- tained which, in disregard of the express injunctions of the Constitution, imposes a cruel and unusual punishment for its viola- tion, or compels a person to testify in a crim- inal case against himself, or authorizes him to be put twice in jeopardy of life or limb, or denies to the accused the privilege of being confronted with the witnesses against him, or of being informed of the nature and cause of the accusation against him.” Har- LAN, J., dissenting. Robertson v. Baldwin, 165 U. S. 293. VIII. PROSECUTOR AND DEFEND- ANT AS WITNESSES. Diversity of Rules as to Competency. “The rules as to the competency of wit- nesses in criminal cases are not exactly and throughout the same in America as in Eng- land, although in most cases they concur.” Story, J. U. S. v. Murphy, 16 Pet. 210. Competency of Prosecuting Witness. “The general rule undoubtedly is, in crim- inal cases as well as in civil cases, that a person interested in the event of the suit or prosecution is not a competent witness. But there are many exceptions which are as old as the rule itself.” Story, J. U. S. v. Mur- phy, 16 Pet. 210. “Tt would indeed require strong language in any statute, where the proceedings were by indictment, to construe that indictment, or the sentence thereon, to be controllable by other parties who might have an interest in or under the sentence. In this respect there is a great difference between an information or action qui tam, where a part of the pen- alty or forfeiture belongs to the informer or prosecutor, and an indictment, the convic- tion upon which may entitle the informer or prosecutor to a part of the penalty or for- feiture. In the former case, the informer or prosecutor may not be a good witness; at least not unless under special circumstances; in the latter case he may be: for notwith- standing a conviction upon the indictment, he must still sue for the penalty or forfeiture by action or information, and cannot receive it under the sentence upon the indictment.” Story, J. U.S. v, Murphy, 16 Pet. 209, 561 CRIMINAL LAW. Compelling Accused to Testify Against Himself — General Rule. “There can be no doubt that long prior to our independence the doctrine that one ac- cused of crime could not be compelled to tes- tify against himself had reached its full de- velopment in the common law, was there considered as resting on the law of nature, and was embedded in that system as one of its great and distinguishing attributes.” Waite, J. Bram vw. U. S., 168 U. S. 545. —— Presumption Arising from Silence. “Tn some of the states it has been held that where questions are propounded to a prisoner by one having a right to ask them, and he remains silent, where from the nature of the inquiries, if innocent, reply would naturally be made, the fact of such silence .may be weighed by the jury.” Waar, J. Bram v. U. S., 168 U. S. 559. — Seizure of Defendant’s Private Pa- pers. “We have been unable to perceive that the seizure of a man’s private books and pa- pers to be used in evidence against him is substantially different from compelling him to be a witness against himself.” Bran ey, J. Boyd v. U. S., 116 U. S. 633. “Tt is our opinion, . . . that a com- pulsory production of a man’s private papers to establish a criminal charge against him, or to forfeit his property, is within the scope of the Fourth Amendment to the Constitu- tion, in all cases in which a search and seiz- ure would be; because it is a material in- gredient, and effects the sole object and pur- pose of search and seizure.” Branptey, J. Boyd v. U. S., 116 U. S. 622. — Cross-Examination of Defendant Who Has Testified in His Own Behalf. “Under modern statutes permitting ac- cused persons to take the stand in their own behalf, they may be subjected to cross-ex- amination upon their own statements.” Brown, J. Brown v. Walker, 161 U. S. 597. “While no inference of guilt can be drawn from his [that of an accused] refusal to avail *himself of the privilege of testifying, he has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.” Brown, J. Fitzpatrick v. U. S., 178 U. S. 315. “A refusal to answer a proper question ptt upon cross-examination has been held to be a proper subject of comment to the jury. 562 And it is also held in a large number of cases that when an accused person takes the stand in his own behalf, he is subject to impeachment like other witnesses. If the prosecution should go farther and compel the defendant, on cross-examination, to write his own name or that of another person, * when he had not testified in reference there- to in his direct examination, [there] is authority for saying that this would be error. It would be a clear case of the de- fendant being compelled to furnish original evidence against himself. [There] is also authority for the proposition that he cannot be compelled to answer as to any facts not relevant to his direct examination.” Brown, J. Fitzpatrick v. U. S. 178 U. S. 316. Evidence as to Defendant’s Acts and Dec- larations. “A man’s.own acts, conduct, and declara- tions, where voluntary, are always admissible in evidence against him.” Wayne, J. U. S. v. Wood, 14 Pet. 443. Comments by Trial Court—As to De- fendant’s Credibility. “The court is not at liberty to charge the jury directly or indirectly that the defendant is to be disbelieved because he is a defend- ant.” Brewer, J. Reagan v. U. S., 157 U.S. 310. “As a witness, a defendant is no more to be visited with condemnation than he is to be clothed with sanctity, simply because he is under accusation, and there is no pre- sumption of law in favor of or against his truthfulness.” Futter, C. J. Allison w. U. S., 460 U. S. 210. — As to Defendant’s Refusal to Testify. “The wise and humane provision of the law is that ‘the person charged shall, at his own request, but not otherwise, be a compe- tent witness.’ The policy of this enactment should not be defeated by hostile comments of the trial judge, whose duty it is to give reasonable effect and force to the law.” SxI- RAS, J. Hicks v. U. S., 150 U. S. 452. “Tt is not unusual to warn juries that they should be careful in giving effect to the tes- timony of accomplices; and, perhaps, a judge cannot be considered as going out of his province in giving a similar caution as to the testimony of the accused person. Still it must be remembered that men may testify truthfully, although their lives hang in the balance, and that the law, in its wisdom, has provided that the accused shall have the CRIMINAL LAW. right to testify in his own behalf. Such a privilege would be a vain one if the judge, to whose lightest word the jury, properly enough, give a great weight, should intimate that the dreadful condition in which the ac- cused finds himself should deprive his testi- mony of probability.” Sutras, J. Hicks wv. U.S. 150 U. S, 452. “Where the government calls an accom- plice, it is the right, if not the duty, of the court to call the attention of the jury to his relationship to the case, and the bearing which such relationship has upon his credi- bility. If it may and ought to do that to protect the defendant against the danger of perjury on the part of witnesses of the gov- ernment, may it not, and ought it not to, do the same to protect the government against the, at least equal, danger of perjury on the defendant’s part?” Brewer, J., dissenting. Hicks v. U. S., 150 U. S. 460. IX. CONSTRUCTION OF PENAL STATUTES. Statutes Strictly Construed. “Criminal acts, should receive a strict construction, and no person should be subjected to . . . [their] penalties who has not clearly violated . . [their] let- ter and spirit.” M’Lean, J., dissenting. U. S. uv. Bailey, 9 Pet. 264. Statutes Not Extended by Intendment. “A court, in giving a construction to a highly penal law, will look at its letter and spirit, and cannot extend its provisions by construction, from motives of policy which may be supposed to have influenced the legislature.” M’LeEan, J., dissenting. U. S. vu. Bailey, 9 Pet. 265. “There can be no constructive offenses, and before a man can be punished, his case must be plainly and unmistakably within the statute.’ FuLtek, C. J. U. S. v. Lacher, 134 U. S. 628. “Laws which create crime ought to be so explicit that all men subject to their pen- alties may know what acts it is their duty to avoid. . . . Before a man can be pun- ished, his case must be plainly and unmis- takably within the statute.” BratcHrorp, J. U. S. uv. Brewer, 139 U. S. 288. “Tt is axiomatic that statutes creating and defining crimes cannot be extended by in- tendment, and that no act, however wrong- ful, can be punished under such a statute unless clearly within its terms.” Brewer, J. Todd wv. U. S., 158 U. S. 282. 563 “Tt would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated. If this princi- ple has ever been recognized in expounding criminal law, it has been in cases of consid- erable irritation, which it would be unsafe to consider as precedents forming a general rule for other cases.” Marsuau, C. J. U. S. v. Wiltberger, 5 Wheat. 96. Statutes Construed According to Terms. “While we are bound to give the person accused the benefit of every statutory pro- vision, we are not bound to import words into the statute which are not found there.” Brown, J. Grin v. Shine, 187 U. S. 186. X. PRESUMPTIONS. As to presumption of intent, see supra, VI. Of Innocence. “The general rule of our jurisprudence is, that the party accused need not establish his innocence; but it is for the government itself to prove his guilt before it is entitled to a verdict or conviction.” Srory, J. U. S. ». Gooding, 12 Wheat. 471. “Innocence is presumed in a criminal case until the contrary is proved; or, in other words, reasonable doubt of guilt is in some cases of the kind ground of acquittal, where, if the probative force of the presumption of innocence were excluded, there might be a conviction.” CuxiFForpD, J. Lilienthal’s To- bacco wv. U. S., 97 U. S. 267. “The presumption of innocence as pro- bative evidence is not applicable in civil cases nor in revenue seizures, as, for example, when a railroad company is sued in damages for negligence, the issue depends upon the evidence, without any presumption of inno- cence or guilt, but the company is not put to defense until a prima facie case of negligence is made out by the plaintiff.” Ctirrorp, J. Lilienthal’s Tobacco v. U. S., 97 U. S. 267. “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Waite, J. Coffin v. U. S., 156 U. S. 453. “The presumption of the innocence of an accused attends him throughout the trial and has relation to every fact that must be estab- CRIMINAL LAW. lished in order to prove his guilt beyond reasonable doubt.” Haritan, J. Kirby vw. U. S., 174 U.S. 55. — Nature of the Presumption. “The presumption of innocence is a con- clusion drawn by the law in favor of the citizen, by virtue whereof, when brought to trial upon a criminal charge, he must be ac- quitted, unless he is proven to be guilty. In other words, this presumption is an in- strument of proof created by the law in favor of the accused, whereby his innocence is established until sufficient evidence is intro- duced to overcome the proof which the law has created. This presumption on the one hand, supplemented by any other evidence he may adduce, and the evidence against him on the other, constitute the elements from which the legal conclusion of his guilt or innocence is to be drawn.” WHiItreE, J. Cof- fin v. U. S., 156 U. S. 458. “The fact that the presumption of inno- cence is recognized as a presumption of law and is characterized by the civilians as a presumptio juris, demonstrates that it is evi- dence in favor of the accused. For in all systems of law legal presumptions are treated as evidence giving rise to resulting proof to the full extent of their legal efficacy.” Wuirte, J. Coffin v. U. S., 156 U. S. 460. —— Prevailing Force of Presumption. “Tt is true that it is stated in some of the authorities that where there are conflicting presumptions, the presumption of innocence will prevail against the presumption of the continuance of life, the presumption of the continuance of things generally, the pre- sumption of marriage and the presumption of chastity. But this is said with reference to a class of presumptions which prevail in- dependently of proof to rebut the presump- tion of innocence, or what may be termed abstract presumptions.” Brown, J. Dunlop v. U. S., 165 U. S. 503. “Tf it were broadly true that the pre- sumption of innocence overrides every other presumption, except those of sanity and knowledge of the law, it would be impossible to convict in any case upon circumstantial evidence, since the gist of such evidence is that certain facts may be inferred or pre- sumed from proof of other facts.” Brown, J. Dunlop v. U. S., 165 U. S. 502. “Text-writers of the highest authority state that there is a distinction between civil and criminal cases in respect to the degree or quantum of evidence necessary to justify the jury in finding their verdict. In civil cases their duty is to weigh the evidence care- fully, and to find for the party in whose favor it preponderates; but in criminal trials the party accused is entitled to the legal pre- sumption in favor of innocence, which in doubtful cases, is always sufficient to turn the scale in his favor.’ CtiFForp, J. Lil- ienthal’s Tobacco v. U. S., 97 U. S. 266. —— Evidence Must Show Guilt Beyond Reasonable Doubt. “The evidence must satisfy the judgment of the jurors as to the guilt of the defend- ant, so as to exclude any other reasonable conclusion.” Firtp, J. Hopt v. Utah, 120 U. S. 441. “Tn civil cases it is sufficient if the evi- dence on the whole agrees with and supports the hypothesis that it is adduced to prove, but in criminal cases it must exclude every other hypothesis but that of the guilt of the party.” Futter, C. J. Fidelity Mut. L. As- soc. v. Mettler, 185 U. S. 317. “Tt is frequently assumed by courts that an instruction to a jury that they must not convict unless satisfied of the defendant’s guilt, beyond a reasonable doubt, carries with it an implication that the presumption of innocence has been overborne by satisfac- tory evidence of guilt.” Brown, J. Cochran v. U. S., 157 U. S. 300. — Good Character of Accused. “The decided weight of authority now is, that good character [of an accused], when considered in connection with the other evi- dence in the case, may generate a reasonable doubt. The circumstances may be such that an established reputation for good: charac- ter, if it is relevant to the issue, would alone create a reasonable doubt, although without it the other evidence would be convincing.” Surras, J. Edgington v. U. S., 164 U. S. 366. Of Guilt. “Undoubtedly the flight of the accused is a circumstance proper to be laid before the jury, as having a tendency to prove his guilt.” Brown, J. Alberty v. U. S., 162 U.S. 510. “Tt is not universally true that a man, who is conscious that he has done a wrong, ‘ will pursue a certain course not in harmony with the conduct of a man who is conscious of having done an act which is innocent, right and proper’; since it is a matter of com- mon knowledge that men who are entirely 564 CRIMINAL LAW. innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwilling- ness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that ‘the wicked flee when no man pursueth, but the righteous are as bold as a lion.’ Inno- cent men sometimes hesitate to confront a jury — not necessarily because they fear that the jury will not protect them, but because they do not wish their names to appear in connection with criminal acts, are humiliated at being obliged to incur the popular odium of an arrest and trial, or because they do not wish to be put to the annoyance or ex- pense of defending themselves.” Brown, J. Alberty v. U. S., 162 U. S. 511. : “Nor can there be any question that if the jury were satisfied from the evidence that false statements in the case were made by defendant, or on his behalf, at his instigation, they had the right not only to take such statements into consideration in connection with all the other circumstances of the casé in determining whether or not defendant’s conduct had been satisfactorily explained by him upon the theory of his innocence, but also to regard false statements in explana- tion or defense made or procured to be made as in themselves tending to show guilt. The destruction, suppression or fabrication of evi- dence undoubtedly gives rise to a presumption of guilt to be dealt with by the jury.” Fut- LER, C. J. Wilson v. U. S., 162 U. S. 621. “The rule even in criminal cases is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfa- vorable. But this presumption does not apply to every fact in the case which it may be in the power of the defendant to prove. He is not bound to anticipate every fact which the government may wish to show in the course of the trial, and produce evi- dence of that fact.” Brown, J. Graves v. U. S., 150 U. S. 121. “The policy slips are property of an un- usual character and not likely, particularly in large quantities, to be found in the pos- session of innocent persons. Like other gam- bling paraphernalia, their possession indicates their use or intended use, and may well raise some inference against their possessor in the absence of explanation.” Day, J. Adams vw. New York, 192 U. S. 599. “Innocent persons would have no trouble in explaining the possession of these [policy] tickets, and in any event the possession is only prima facie evidence, and the party is per- mitted to produce such testimony as will show the truth concerning the possession of the slips.” Day, J. Adams v. New York, 192 U. S. 599. Of Sanity. “The law presumes that every one charged with crime is sane, and thus supplies in the first instance the required proof of capacity to commit crime. It authorizes the jury to assume at the outset that the accused is crim- inally responsible for his acts. But that is not a conclusive presumption, which the law upon grounds of public policy forbids to be overthrown or impaired by opposing proof. It is a disputable, or, as it is often desig- nated, a rebuttable presumption.” HarLan, J. Davis v. U. S., 160 U. S. 486. “XI. PROCEDURE. Court Must Be Impartial. “Tt is the duty of the trial court to hold the scales even between the government gnd the defendant, and, generally speaking, what it may and ought to do on the one side it may and ought to do on the other.” Brewer, J., dissenting. Hicks v. U. S., 150 U. S. 460. “The court should be impartial between the government and the defendant. On be- half of the defendant it is its duty to caution the jury not to convict upon the uncorrobo- rated testimony of an accomplice. Indeed, according to some authorities, it should per- emptorily instruct that no verdict of guilty can be founded on such uncorroborated testi- mony, and this because the inducements to falsehood on the part of an accomplice are so great.” Brewer, J. Reagan v. U. S., 157 U. S. 310. “Tf any other witness for the government is disclosed to have great feeling or large interest against the defendant, the court may, in the interests of justice, call the attention of the jury to the extent of that feeling or interest as affecting his credibility.” BREWER, J. Reagan v. U. S., 157 U. S. 311. The Complaint. “The technicalities of an indictment are not requisite in a complaint.” Brown, J. Rice v. Ames, 180 U. S. 379. — Allegations Must Amount to More than Suspicion. “A citizen ought not to be deprived of 565 CRIMINAL LAW. his personal liberty upon an allegation which, upon being sifted, may amount to nothing more than a suspicion.” Brown, J. Rice v. Ames, 180 U. S. 374. Necessity of Arraignment, “In capital or other infamous crimes an arraignment has always been regarded as a matter of substance.” Hartan, J. Crain v. U. S., 162 U. S. 637. Necessity of Plea to Indictment. “We think it may be stated to be the pre- vailing rule, in this country and in England, at least in cases of felony, that a plea to the indictment is necessary before the trial can be properly commenced, and that unless this fact appears affirmatively from the record the judgment cannot be sustained. Until the accused pleads to the indictment and thereby indicates the issue submitted by him for trial, there is nothing for the jury to try; and the fact that the defendant did so plead should not be left to be inferred from a general re- cital in some order that the jury were sworn to ‘try the issue joined.’” Harian, J. Crain v. U. S., 162 U. S. 643. “Tt is true that the Constitution does not, in terms, declare that a person accused of crime cannot be tried until it be demanded of him that he plead, or unless he pleads, to the indictment. But it does forbid the dep- rivation of liberty without due process of law; and due process of law requires that the accused plead, or be ordered to plead, or, in a proper case, that a plea of not guilty be filed for him, before his trial can right- fully proceed; and the record of his convic- tion should show distinctly, and not by in- ference merely, that every step involved in due process of law, and essential to a valid trial, was taken in the trial court; otherwise, the judgment will be erroneous.” HARLAN, J. Crain v. U. S., 162 U. S. 645. Plea of Guilty. “When the accused pleads guilty before a lawful tribunal he admits every material fact well averred in the indictment or informa- tion, and there is no issue to be tried; no facts are to be found; no trial occurs. After such a plea nothing remains to be done ex- cept that the court shall pronounce judgment upon the facts voluntarily confessed by the accused.” Hartan, J., dissenting. Schick v. U. S., 195 U. S. 82. Plea of Not Guilty. “The plea of not guilty is unlike a special plea in a civil action, which, admitting the case averred, seeks to establish substantive ground of defense by a preponderance of evidence. It is not in confession and avoid- ance, for it is a plea that controverts the ex istence of every fact essential to constitute the crime charged. Upon that plea the ac- cused may stand, shielded by the presump- tion of his innocence, until it appears that he is guilty.” Hartan, J. Davis v. U. S., 160 U. S. 485. ‘ “A plea to be good as a bar to the whole indictment must meet the whole case. If it does not it will be held bad upon demurrer.” Warre, C. J. Moore v. Mississippi, 21 Wall. 639. Special Plea in Bar. “Tt is a rule in criminal law in favorem vite, in capital cases, that when a special plea in bar is found against the prisoner, either upon issue tried by a jury, or upon a point of law decided by the court, he shall not be concluded or convicted thereon, but shall have judgment of respondeat ouster, and may plead over to the felony the general issue, not guilty.” Brapiey, J. Rankin wv. State, 11 Wall. 381. “Matters of a special character suggested in defense of a criminal prosecution which are not well pleaded, if duly demurred to, are to be treated as if they had no existence.” CuiFForD, J., dissenting. Coleman v. Ten- nessee, 97 U. S. 528. Rules of Evidence in Federal Courts. “State rules of evidence or of procedure, adopted since the passage of the Act of Con- gress organizing the federal courts, do not apply in criminal cases where the indictment is found in the Circuit Courts.” CLIFForD, J., dissenting. Tennessee v. Davis, 100 U. S. 298. “Tt could not be supposed, without very plain words to show it, that Congress intend- ed to give to the states the power of prescrib- ing the rules of evidence in trials for of- fenses against the United States. For this construction would in effect place the crim- inal jurisprudence of one sovereignty under the control of the other. . . Nor is there any Act of Congress prescribing in ex- press words the rule by which the courts of the United States are to be governed, in the admission of testimony in criminal cases. But we think it may be found with sufficient certainty, not indeed in direct terms, but by necessary implication, in the Acts of 1789 and 1790, establishing the courts of the United States, and providing for the punishment of certain offenses.” Taney, C. J. U. S. Reid, 12 How. 363. 566 CRIMINAL LAW. “The law of evidence in this country, like our other laws, being founded upon the an- cient common law of England, the decisions of its courts show what is our own law upon the subject where it has not been changed by statute or usage. But the rules of evi- dence in criminal cases, are the rules which were in force in the respective states when the Judiciary Act of 1789 was passed. Con- gress may certainly change it whenever they think it proper, within the limits prescribed by the Constitution. But no law of a state made since 1789, can effect the mode of pro- ceeding or the rules of evidence in criminal cases; and the testimony of Clements was therefore properly rejected, and furnishes no ground for a new trial.” Tawney, C.J. U.S. v. Reid, 12 How. 366. Conviction of Lower Offense than that Charged. “When the charge is of a higher degree, including one of a lesser, there may be a finding by a partial verdict of the latter. As upon a charge of burglary, there may be a conviction for a larceny, and an acquittal of the nocturnal entry. So, upon an in- dictment for murder, there may be a ver- dict of manslaughter, and robbery may be reduced to simply larceny, and a battery into an assault.” Wayne, J. Dynes v. Hoover, 20 How. 80. “An indictment for a capital offense usually includes an offense less than cap- ital, and the defendant may be convicted of either. For instance, one indicted of mur- der may be convicted of manslaughter or of an assault only.” Gray, J. Logan vw. U. S., 144 UL S. 307. “On an indictment or information charg- ing an- offense consisting of different de- grees a jury may find the defendant not guilty of the degree charged, but guilty of any degree inferior thereto, and in all other cases defendant may be found guilty of an offense, the commission of which is neces- sarily included within that with which he is charged.” Futter, C. J. Craemer v. Wash- ington State, 168 U. S. 130. Judgment and Commitment. “At the common law, whenever a fine or imprisonment constitute a part of the judg- ment upon a conviction in a criminal case, the judgment, if the party is in the court, is that he be committed to jail in execution of the sentence, and until the fine is paid. Tf he is not then in court, a special writ of capias pro fine issues against him; the ex- igency of which is, that his body be taken and committed to jail until the fine is paid. Unless such a committitur be awarded, he cannot be detained in jail in execution of the sentence. It is the warrant of the jailor, authorizing the detention of the prisoner. No capias ad satisfaciendum in the form ap- propriate to civil cases, where the exigency of the writ is to take the body of the party and him safely keep, so that the sheriff have his body before the court at the return day of the process with the writ, is ever issued or issuable.” Story, J. Ex p. Watkins, 7 Pet. 574, “T have never doubted that under the writ of capias ad satisfaciendum, by the com- mon law, the sheriff may not only take, but detain the defendant until he was legally discharged; or that for the purpose of au- thorizing a detention in his own custody, a commitment to the sheriff was unheard of.” Jounson, J., dissenting. Ex ». Wat- kins, 7 Pet. 581. Suggestion of Insanity After Verdict and Sentence. “ At common law a suggestion made after verdict and sentence of insanity did not give rise to an absolute right on the part of a convict to have such issue tried be- fore the court and to a jury, but addressed itself to the discretion of the judge.” Waits, J. Nobles v. Georgia, 168 U. S. 409. Contents of Record. “Nothing is properly included in the rec- ord of a criminal case except the indict- ment, the arraignment and the plea of the defendant, the impanelling of the jury, the conviction of the defendant and the sen- tence pronounced by the court, and the war- rant for his removal in case the punishment is imprisonment.” CurForD, J., dissenting. Ex p. Lange, 18 Wall. 188. XII. MISCELLANEOUS. Society Interested in Proper Administra- tion of Criminal Justice. “ Society is deeply interested that criminal justice shall be accurately and firmly administered.” Ciirrorp, J. dissenting. Wiggins v. People, 93 U. S. 486. “Tt is desirable that there be uniformity -of rule in the administration of the criminal law in governments whose constitutions equally recognize the fundamental principles that are deemed essential for the protection of life and liberty.” Hartan, J. Davis v. U. S., 160 U. S. 488, 567 DAMAGES. “Tt Is More Congenial with the Hu- mane Principles of Our Criminal Law that a Guilty Man Should Escape than to convict him upon evidence heretofore con- sidered as insufficient, according to what is admitted to have been the settled rule of law.” TuHompson, J., dissenting. U. S. w. Wood, 14 Pet. 446. Person Procuring Commission of Crime. “Tt is the known and familiar principle of criminal jurisprudence, that he who com- mands, or procures a crime to be done, if it is done, is guilty of the crime, and the act is his act.” Story, J. U. S. v. Gooding, 12 Wheat. 469. Presumption that Forbidden Acts Cannot Be Committed. “We cannot destroy the law on the theory that the acts which it forbids cannot be committed.” Wuute, J. Coffin v. U. S., 156 U. S. 447. CURRENCY. See generally Money. “Currency is a national necessity. The operations of the government, as well as pri- vate transactions, are wholly dependent upon it.’ Braptey, J. Legal Tender Cases, 12 Wall. 562. “There is no principle on which the sen- sibilities of communities are so easily ex- cited, as that which acts upon the currency; none of which states are so jealous as that which is restrictive of the exercise of the sovereign powers.” M’LEaN, J. Briscoe v. Commonwealth Bank, 11 Pet. 312. CURTESY. See Divorce AND ALIMONY. As Incident of Marriage Relation. “By the common law, where there was no ante-nuptial contract, certain incidents be- longed to the relation. Among them were the estate of tenant by the curtesy on the part of the husband if issue was born alive and he survived the husband.” Swayne, J. Randall v. Kreiger, 23 Wall. 147. Curtesy in Uses. “A husband, formerly, could not have curtesy of an use; that is, where his wife was cestuy que use; . and this con- tinued to be the law, down to the time of Baron Gilbert.” Jounson, J. Davis v. Mason, 1 Pet. 508, Necessity of Entry. “As it relates to the tenure by curtesy, the necessity of entry grew out of the rule, which invariably existed, that an entry must be made in order to vest a freehold; and out of that member of the definition of the tenure by curtesy, which requires that it should be inheritable by the issue. When a descent was cast, the entry of the mother was necessary, or the heir made title direct from the grandfather, or other person last seized.” JoHNnson, J. Davis v. Mason, 1 Pet. 507. CUSTOMS. ‘See Usaces anp Customs. CUSTOMS DUTIES. See AND CUSTOMS DUTIES. Imports, Exports, CY-PRES. “The doctrine of cy-prés is one of con- struction, and not of administration. By it a fund devoted to a particular charity is applied to a cognate purpose.” Futter, C. J,, dissenting. Mormon Church v. U. S., 136 U” S. 67. DAMAGES. Abuse of process as element of recovery, see ABUSE OF PROCESS. See also CARLISLE TABLES; CARRIERS; COL- LISION; COPYRIGHT; INTEREST; NEGOTIABLE INSTRUMENTS; NEw TRIAL; PROXIMATE Cause; Punitive DAMAGES; VALUE. , Proximate Cause. “Causa proxima non remota spectatur.” Story, J. Bradlie v. Maryland Ins. Co., 12 Pet. 405. “The maxim causa proxima non remota spectatur is not without limitations.” Story, J. Peters v, Warren Ins. Co., 14 Pet. 110. “A person is not to be held responsible in damages for the remote consequences of every negligent act, but only for those which are proximate or natural.” Surras, J. North American Transp., etc., Co. v. Morri- son, 178 U. S. 267. “This ruling is analogous to that of the ancient and universal rule relating to damages in common-law actions; namely, that a wrongdoer shall be held responsible only for the proximate, and not for the remote, con- sequences of his action.” Lamar, J. U. S. v. Weld, 127 U. S. 57. 568 DAMAGES. Damrum Absque Injuria. “Whatever may be the injury that cas- ually results to an individual from the act of another while pursuing the. reasonable exercise of an established right, it is his misfortune. The law pronounces it dam- num absque injuria, and the individual from whose act it proceeds is liable neither at law nor in the forum of conscience. And the principal right necessarily carries with it also all the means essential to its ex- ercise.” JoHNson, J. The Eleanor, 2 Wheat. 358. Breach of Contract — Extent of Liability in General. “A man never can be absolutely certain of performing any contract when the time of performance arrives, and in many cases he obviously is taking the risk of an event which is wholly or to an appreciable extent be- yond his control. The extent of liability in such cases is likely to be within his con- templation, and whether it is or not, should be worked out on terms which it fairly may be presumed he would have assented to if they had been presented to his mind.” Hoimes, J. Globe Refining Co. v. Landa Cotton Oil Co., 190 U. S. 543. « “Tt is true that as people when contract- ing contemplate performance, not breach, they commonly say little or nothing as to what shall happen in the latter event, and the common rules haye been worked out by common sense, which has established what the parties probably would have. said if they had spoken about the matter.” Homes, J. Globe Refining Co. v. Landa Cotton Oil Co., 190 U. S. 543. — Distinguished from Tort. “When a man makes a contract he in- curs by force of the law a liability to dam- ages, unless a certain promised event comes to pass. But unlike the case of torts, as the contract is by mutual consent, the parties themselves, expressly or by implication, fix the rule by which the damages are to be measured.” Hotes, J. Globe Refining Co. v. Landa Cotton Oil Co., 190 U. S. 543. —— Measure of Damages Same Whatever Cause of Breach. “Tf a contract is broken the measure of damages generally is the same, whatever the cause of the breach.” Hotmes, J. Globe Refining Co. v. Landa Cotton Oil Co., 190 U. S. 544. —— Equitable Damages Where Contract Unreasonable but Not Void. “Tf a contract be unreasonable and un- conscionable, but not void for fraud, a court of law will give to the party who sues for its breach damages, not according to its let- ter, but only such as he is equitably en- titled to.” Swayne, J. Scott v. U. S, 12 Wall. 445. — Damages Liquidated. “The subject-matter of a contract may be valued, or the damages in case of a breach may be liquidated in advance.” BLATCHFORD, J. Hart v. Pennsylvania R. Co., 112 U. S. 341. “The decisions of this court on the doc- trine of liquidated damages and penalties lend support to the contention that parties may not bona fide, in a case where the dam- ages are of an uncertain nature, estimate and agree upon the measure of damages which may be sustained from the breach of an agreement.” Wuute, J. Sun Printing, etc. Assoc. v. Moore, 183 U. S. 662. “We think the asserted doctrine [that ‘where actual damages can be assessed from testimony,’ the court must disregard any stipulation fixing the amount and require proof of the damage sustained] is wrong in principle, was unknown to the common law, does not prevail in the courts of England at the present time, and it is not sanctioned by ‘the decisions of this court.” Wuuits, J. Sun Printing, etc. Assoc. v. Moore, 183 U.S. 660. “Tt may, we think, fairly be stated that when a claimed disproportion has been as- serted in actions at law, it has usually been an excessive disproportion between the stip- ulated sum and the possible damages re- sulting from a trivial breach apparent on the face of the contract, and the question of dis- proportion has been simply an element en- tering into the consideration of the question of what was the intent of the parties, whether bona fide to fix the damages or to stipulate the payment of an arbitrary sum as a pen- alty, by way of security.” Wauute, J. Sun Printing, etc., Assoc. v. Moore, 183 U. S. 672. — Actual Damages: “ Actual damage will generally be assumed to be the intended measure of compensa- tion.” Brewer, J. Cincinnati Gas Illuminat- ing Co. v. Western Siemens-Lungren Co., 152 U. S. 207. 569 DAMAGES. “ Actual damages is all the law gives in case of a breach of contract.” Brewer, J. Cincinnati, etc, Gas Illuminating Co. w. Western Siemens-Lungren Co., 152 U. S. 205. —— Contract for Delivery of Specific Arti- cles. “Where a contract is for the delivery of specific articles, the rule undoubtedly is. that the damages recoverable for its breach are to be determined by the value of the articles at the time and place of their delivery.” Fistp, J. Effinger v. Kenney, 115 U. 5S. 575. “ Although it is probable that the plaintiffs could have got the prices which the evidence showed were obtained for coal at and below Cairo, had their coal been furnished ac- cording to the agreement, yet the rule of law does not allow so wide a range of inquiry, but regards the price at the place of de- livery as the normal standard by which to estimate the damage for non-delivery.” Braptey, J. Grand Tower Co. v. Phillips, 23 Wall. 479. “Upon the breach of a contract for the delivery of goods at a particular place the measure of damages is the full value of the goods at such place.” Swayne, J. The Vaughan & Telegraph, 14 Wall. 267. “In cases of .executory contracts for the purchase or sale of personal property ordi- narily, the proper measure of damages is the difference between the contract price and the market.” Martruews, J. Western Union Tel. Co. v. Hall, 124 U. S. 456. “The unanimous opinion of the court is, that the price of the article at the time it was to be delivered is the measure of the damages. For myself only, I can say that I should not think the rule would apply to a case where advances of money had been made by the purchaser under the contract; but I am not aware what would be the opinion of the court in such a case.” MARSHALL, C. J. Shepherd v. Hampton, 3 Wheat. 204. — Contract for Sale of Land. “The measure of damages for breach of a contract of sale of land by the purchaser is the difference between the contract price and the salable value of the property.” Frevp, J. Telfener v. Russ, 145 U. S. 534. “The same rule must apply where the con- tract is not for the land but for a right to purchase the land. The measure of dam- ages must be the difference between the contract price and the salable value of the right when payment was tobe made.” Frexp, J. Teliener v. Russ, 145 U. S. 534, Actual Damages — Compensation Equal to Injury. “Tt is the duty of every state to provide, in administration of justice, for the redress of private wrongs; yet the damages which should be awarded to the injured party are not always readily ascertainable. They are in many cases a matter of conjectural esti- mate, in relation to which there may be great differences of opinion, The general rule undoubtedly is that they should be precisely commensurate with the injury.” Fiexp, J. Missouri Pac. R. Co. v. Humes, 115 U. S. 521 “The general rule is that when a wrong has been done, and the law gives a remedy, the compensation shall be equal to the injury. The latter is the standard by which the for- mer is to be measured. The injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed. In some instances he is made to bear a part of the loss, in others the amount to be recovered is al- lowed, as a punishment and example, ‘to ex- ceed the limits of a mere equivalent.” Swayne, J. Wicker v. Hoppock, 6 Wall. 9. “ Actual damages clearly include the di- rect and actual loss which the plaintiff sus- tains propter rem ipsam non habitam.” Curtis, J. Philadelphia, etc., R. Co. v. How- ard, 13 How. 344. —Compensatory and Actual Damage the Same. “Compensatory damages and actual dam- ages mean the same thing; that is, that the damages shall be the result of the injury al- leged and proved, and that the amount awarded shall be precisely commensurate with the injury suffered, neither more nor less, whether the injury be to the person or estate of the complaining party.” C.ir- ForD, J. Birdsall v. Coolidge, 93 U. S. 64. —— Evidence Necessary. “Where a plaintiff is’ allowed to recover only ‘actual damages’ he is bound to furnish evidence by which the jury may assess them.” Grier, J. New York City v. Ransom, 23 How. 488. —— Measure in Personal Injury Cases. “Damages in such a case must depend very much upon the facts and circumstances proved at the trial. When the suit is 570 DAMAGES. brought by the party for personal injuries, there cannot be any fixed measure of com- pensation for the pain and anguish of body and mind, nor for the permanent injury to health and constitution, but the result must be left to turn mainly upon the good sense and deliberate judgment of the tribunal as- signed by law to ascertain what is a just compensation for the injuries inflicted.” Ciirrorp, J. The “City of Panama,” 101 Uz. S. 464. “{In an action for damages for injury} it is enough to prove what the plaintiff has been in fact deprived of; to show his phys- ical health and strength before the injury, his condition since, the business he was do- ing, . the wages he was receiving, and perhaps the increase which he would receive by any fixed rule of promotion. Be- yond that, it is not right to go and introduce testimony which simply opens the door to a speculation of possibilities.” Brewer, J. Richmond, etc., R. Co. v. Elliott, 149 U. S. 268. “In the absence of gross fraud, malice, or oppression, in cases of trespass to person or estate, the jury should restrict damages to compensation or satisfaction for the actuat injuries sustained. . . They may, when legal justification is not shown, consider the direct expenses incurred by the injured party, his loss of time, his bodily sufferings, under some circumstances his mental agony, his loss of reputation, the degree of indignity involved in the wrong done, and the conse- quent public disgrace: attending the injury.” Harian, J. Beckwith v. Bean, 98 U. S. 276. — Only Damages Allowed Against U. S. “More than compensation for damages ac- tually sustained can never be awarded against the United States.” Warts, C. J. U.S. v. Smith, 94 U. S. 218. Special Damages. “Special damage is a term which denotes a claim for the natural and proximate conse- quences of a wrongful act.” CirForp, J. Pollard v. Lyon, 91 U. S. 236. “Special as contradistinguished from gen- eral damage is that which is the natural, but not the necessary, consequence of the act complained of.” Swayne, J. Roberts wv. Graham, 6 Wall. 579. Statutory Double or Treble Damages. “The statutes of nearly every state of the Union provide for the increase of damages where the injury complained of results from the neglect of duties imposed for the better security of life and property, and make that increase in many cases double, in some cases treble, and even quadruple the actual dam- ages. And experience favors this legislation as the most efficient mode of preventing, with the least inconvenience, the commission of injuries.” Frerp, J. Missouri. Pac. R. Co. v. Humes, 115 U. S. 523, Particular Elements — Counsel Fees. “In debt, covenant and assumpsit damages are recovered, but counsel fees are never in- cluded.” Swayne, J. Oeclrichs v. Spain, 15 Wall. 231. “There is no fixed standard by which the honorarium can be measured. Some counsel demand much more than others. More coun- sel may be employed than are necessary. When both client and counsel know that the fees are to be paid by the other party there is danger of abuse. A reference to a master, or an issue to a jury, might be necessary to ascertain the proper amount, and this grafted litigation might possibly be more animated and protracted than that in the original cause. It would be an office of some delicacy on the part of the court to scale down the charges, as might sometimes be necessary.” SWAYNE, J. Oclrichs v. Spain, 15 Wall. 231. “The doctrine about the right of the jury to include in their verdict, in certain cases, a sum sufficient to indemnify the plaintiff for counsel-fees and other real or supposed expenses over and above taxed costs, seems to have been borrowed from the civil law and the practice of the courts of admiralty.” Grier, J. Day v. Woodworth, 13 How. 371. — Construction of Statute. “A state may not require a railroad com- pany sued for negligently killing an animal to pay to the plaintiff, in addition to the damages proved and the ordinary’ costs, a reasonable attorney’s fee, if it does not al- low the corporation when its defense is sus- tained to recover a like attorney’s fee from the plaintiff.” Harzan, J., dissenting. Atch- ison, etc, R. Co. v. Matthews, 174 U. S. 111. —— Profits. “Profits which are a mere matter of spec- ulation cannot be made the basis of recov- ery in suits for breach of contract, while profits which are reasonably certain may be.” Brewer, J. Anvil Min. Co. v. Humble, 153 U.S. 549. “The grounds upon which the general rule of excluding profits, in estimating dam- 571 DAMAGES. ages, rests are (1) that in the greater num- ber of cases such expected profits are too dependent upon numerous, uncertain and changing contingencies to constitute a def- inite and trustworthy measure of actual dam- ages; (2) because such loss of profits is or- dinarily remote and not, as a matter of course, the direct and immediate result of the non-fulfilment of the contract; (3) and be- cause most frequently the engagement to pay such loss of profits, in case of default in the performance, is not a part of the contract itself, nor can it be implied from its nature and terms.” Lamar, J. Howard v. Stillwell & Bierce M’f’g. Co, 139 U. S. 206. y “In cases of marine torts, no damages can be allowed for loss of a market; nor for the probable profits of a voyage.” Ca- TRON, J., dissenting. Williamson v. Barrett, 13 How. 113. “A person may make considerable profits by the use of an old hulk of little value in the market for vessels. His loss cannot be measured by the ratio of her profits, as he might supply himself with another at a much cheaper rate.” -Grier, J. The Gran- ite State, 3 Wall. 314. “The mere opinion of witnesses, unfor- tified by any data, as to what the earnings would probably have been, is usually re- garded as too uncertain and conjectural to form a proper basis for estimation, though in a few cases they seem to have been re- ceived. The damages must not be merely speculative, and something else must be shown than the simple fact that the vessel was laid up for repairs. Thus, if a vessel employed upon the lakes should receive dam- ages by collision, occurring just before the close of navigation, and she were repaired during the winter, no demurrage could be allowed, since no vessel upon the lakes can earn freight during the winter.” Brown, J. The Conqueror, 166 U. S. 127. “That there may be such certainty of profits as in some actions for breach of con- tract will justify their recovery is undoubt- edly true.” Brewer, J. Fidelity, etc., Co. v. L. Bucki, etc., Lumber Co., 189 U. S. 142. “The value of a stock of goods is not al- ways, nor usually, indicated by its purchase price. Such goods are often bought in the country to sell at retail and at a profit. What may be expected to be obtained for them under such circumstances may reasonably be 572 considered their value.” Hunt, J. Frank- lin F. Ins. Co. v. Vaughan, 92 U. S. 519. “ Wherever profits are spoken of as not a subject of damages, it will be found that something contingent upon future bargains, or speculations, or states of thé market, are referred to, and not the difference between the agreed price of something contracted for and its ascertainable value, or cost.” Curtis, J. Philadelphia, etc, R. Co. w. Howard, 13 How. 344. “Whether prevented gains or prospective profits are or are not too ‘uncertain and con’ tingent to be regarded as probable and con- templated consequences is always a ques- tion of ‘difficulty, and as in such cases juries are permitted to exercise a wide discretion in the allowance of damages, great care is required in advising them as to the elements proper to be considered in making up their verdicts.” Futter, C. J. Eckington, etc. R. Co. v. McDevitt, 191 U. S. 112. —— Repudiation of Contract Before Com- pletion. “Tf a vendor is to manufacture goods, and during the process of manufacture the con- tract is repudiated, he is not bound to com- plete the manufacture, and estimate his dam- ages by the difference between the market price and the contract price, but the meas- ure of damages is the difference between the contract price and the cost of perform- ance. . . Even if in such cases the man- ufacturer actually obtains his profits before the time fixed for performance, and recovers on a basis of cost which might have been in- creased or diminished by subsequent events, the party who broke the contract before the time for complete performance cannot com- plain, for he took the risk involved in such anticipation. If the vendor has to buy in- stead of to manufacture, the same principle prevails, and he may show what was the value of the contract by showing for what price he could have made subcontracts, just as the cost of manufacture in the case of a manufacturer may be shown. Although he may receive his money earlier in this way, and may gain, or lose, by the estimation of his damages in advance of the time for per- formance, still, he has the right to accept the situation tendered him, and the other party cannot complain.” Futter, C. J. Roehm v. Horst, 178 U. S. 21. — Deprivation of Political and Social Rights. “The deprivation of a man’s political and social rights properly may be alleged to in- DEATH. . volve damage to that amount, capable of estimation in money.” Hotmes, J. Giles v. Harris, 189 U. S. 485. Pleading in Defense. “Tt is certainly one way of defending against the charge of a wrongful act for which damages are sought, to show that, not- withstanding the wrong committed, the dam- ages resulted from other causes, however objectionable a pleading might be with aver- ments to that effect instead of a distinct traverse of the allegations of the complaint.” Fiexp, J. U.S. v. Chouteau, 102 U. S. 609. Mitigation of Damages. “Tt is a rule of law, without exception so far as we are aware, that any circumstance, otherwise competent in evidence to reduce the damages, may be proven on the trial for that purpose, although it may not have come into existence until after. the commencement of the action.” MattHews, J. Marsh v. Mc- Pherson, 105 U. S. 716. DAMNUM ABSQUE INJURIA. See DAMAGES. DAMS. See Eminent Domain; FisH anp FIsH- ERIES; MILLS AND MILLDAMS. DATE AND DAY. See TIME. Fractions of a Day. “The common law knows of no fractions of a day; custom, however, and that in- troduced, too, principally by banks, has lim- ited the day to a few hours of business. This and whatever other rules have been adopted by consent, and merely for the convenience of commercial men, are departures from the common-law doctrine.” THompson, J. Ren- ner v. Bank of Columbia, 9 Wheat. 585. DAY. See Date anp Day; TERM AND VACATION; TIME. DAYS OF GRACE. See NecoTIABLE INSTRUMENTS. DEADLY WEAPON. “We have so little doubt that when one uses a stone of such size and strikes a blow on the skull so severe as to fracture it, a 573 jury ought to find that the stone was a deadly weapon, that if the court had ex- pressed a definite opinion to that effect we should have been reluctant on that account alone to have disturbed the judgment.” Brewer, J. Acers v. U. S., 164 U. S. 391. DEATH. As to the effect of death on judgments ren- dered before or after, see JUDGMENTS AND DECREES. Inference of. Death from Disappearance. “Reasonable inquiry is frequently a pre- requisite to the inference of death from dis- appearance.” FuLier, C. J. Fidelity Mut. L. Assoc. v. Mettler, 185 U. S. 321. Right of Action for Death by Wrongful Act. “A negligent act causing death is in it- self a tort, and, were it not for the rule founded on the maxim actio personalis mori- tur cum persona, damages therefor could have been recovered in an action at com- mon law.” Brewer, J. Stewart v. Balti- more, etc., R. Co., 168 U. S. 448. “A statute which makes a person liable for his wrongful neglect or default by which the death of another person is caused, and which gives a right of action to the admin- istrator for the benefit of the widow and next of kin, to recover damages for the pecuniary injuries resulting from his death, thus altering the common law and impos- ing a new liability, has been held by this court not to be penal, and to be enforce- able in a state in which the statute was passed, and in which the wrongful act and death occurred.” PzckuHam, J. Brady vw. Daly, 175 U. S. 156. -— Must Be an Omission of Duty. “The two terms, therefore, wrongful act and neglect, imply alike the omission of some duty, and that duty must, as stated, be a duty owing to the decedent. It cannot be that if the death was caused by a right- ful act, or an unintentional act with no omis- sion of duty owing to the decedent, it can be considered wrongful or negligent at the suit of the heirs of the decedent.” Brewer, J. Northern Pac. R. Co. v. Adams, 192 U. S. 450. “If there be no omission of duty to the decedent his heirs have no claim. Suppose an individual is wantonly assailed and in order to protect his own life is obliged to kill his assailant, may the heirs of the de- DEBTOR AND CREDITOR. cedent have that act of taking life, rightful as against the decedent, adjudged wrongful as against them, and recover damages from one who did only that which his duty to himself and family required him to do? The statute does not provide that when one’s life is taken by another the heirs of the former may recover damages, but only when it is wrongfully taken, that is, when it is taken in violation of the rights of the de- cedent, wrongful as against him.” Brewer, J. Northern Pac. R. Co. vw. Adams, 192 U.S. 449. DEATH BY WRONGFUL ACT. See ABATEMENT AND ReEvivAL; ADMIRALTY}; DEATH; MASTER AND SERVANT; NEGLIGENCE. DEBT — ACTION OF. Nature in General. “The action of debt is in legal contempla- tion for the recovery of a debt eo nomine and in numero.” Swayne, J. Carrol wv. Green, 92 U. S. 513. When Lies— Where Amount Is Certain or Ascertainable. “Actions for debt will always lie where the amount sought to be recovered is cer- tain, or can be ascertained from fixed data by computation.” Fretp, J. Mills v. Scott, 99 U. S. 29. “The action of debt lies on a statute where it is brought for a sum certain, or where the sum is capable of being readily reduced to a certainty. It is not sustainable for unliquidated damages.” Swayne, J. Carrol v. Green, 92 U. S. 513. — Express Contract or Duty to Pay Money at Common Law. “Debt lies in every case where the com- mon law creates a duty for the payment of money, and in every case where there is an express contract for the payment of money.” Story, J. Raborg v. Peyton, 2 Wheat. 389. —For Debt of Record or on Simple Contract. “ At common law, an action of debt would lie on a debt appearing by a record, or by any other specialty, such as a contract under seal; and would also lie for a definite sum of money due by simple contract.” Gray, J. Hilton v. Guyot, 159 U. S. 199. —— Express or Implied Contract. “Debt lies upon every express contract to pay a sum certain; . . . and it lies though there be only an implied contract.” Story, J. Raborg v. Peyton, 2 Wheat. 385. —By Third Person Against Bailee, “Tf one person deliver money to another for the use of a third person, it has been settled that such a privity exists that the latter may maintain an action of debt against the bailee.” Story, J. Raborg v. Peyton, 2 Wheat. 386, — Against Executors. “The general rule is, that debt does lie against executors upon a simple contract; and that an exception is, that it does not lie in the particular case, where the testa- tor may wage his law. When, therefore, it is established in any given case that there can be no wager of law by the testator, debt is a proper remedy.” Story, J. Chil- dress v. Emory, 8 Wheat. 672. DEBTOR AND CREDITOR. See Banxruptcy; DissoLuTIon oF Cor- PORATIONS; IGNORANCE OF THE Law; InN- SOLVENCY ; SUBROGATION. Definitions — Debts. “Debts are obligations for the payment of money founded upon contract, express or im- plied.” Frerp, J. Meriwether wv. Garrett, 102 U. S. 513. — Debt of Record. “A debt of record, in the sense of the common law, is a debt of contract created of record; such as a statute staple, or statute merchant, and not one whose previous ex- istence is only admitted of record.” Mar- SHALL, C. J. Bowie v. Henderson, 6 Wheat. 519. Nature of Relation — Correlative Terms. “Creditors must have debtors; debtors is the correlative term.” PATERSON, J., con- curring. Ware v. Hylton, 3 Dall. 249, “There can be no creditor without two correlatives, a debtor and a debt.” IrepELL, J. Ware v. Hylton, 3 Dall. 278. — Must Be Created Voluntarily — Pay- ment of Another’s Debt. “It is an elementary proposition, which does not require support from adjudged cases, that one person can not make an- other his debtor by paying the debt of the latter without his request or assent.” Davis, J. Homestead Co. v. Des Moines Valley R. Co., 17 Wall. 167. 5u4 DEBTOR AND CREDITOR. : “Tt is not in accordance with common ex- perience for one man to pay the debt of another, without receiving any benefit from his act.” Srronc, J. Ketchum v. Duncan, 96 U. S. 662. Creditor Need Not Show Disposition of Money. “To require that the creditor should not only in good faith have extended the credit and that the money or property should have passed into and become a part of the debtor’s estate, but that he should also show the ac- tual disposition thereof made by the debtor would in many cases practically deny the creditor the benefit of a credit which he has extended in good faith.” Brewer, J. Kaufman v. Tredway, 195 U. S. 275. Debt and Contract for Future Indebted- ness Distinguished. “There is a distinction between a debt and a contract for a future indebtedness to be incurred, provided the contracting party perform the agreement out of which the debt may arise. There is also a distinc- tion between the latter case and one where an absolute debt is created at once, as by the issue of railway bonds, or for the erec- tion of a public improvement, though such debt be payable in the future by instal- ments. In the one case the indebtedness is not created until the consideration has been furnished; in the other debt is created at once, the time of payment being only post- poned.” Brown, J. Walla Walla v. Walla Walla Water Co., 172 U. S. 20. Debt as Property. “Ttis: « « true in one sense, that debts are property, and this sense of the word is coming more into use in legislation every day.” Murer, J. Jenkins v. Chicago In- ternational Bank, 106 U. S. 574. “Debts being obligations of the debtors are the property of the creditors as far as they have any commercial value, and it is a mis- use of terms to call them anything else; they accompany the creditors wherever they go; their situs is with the latter.” Fretp, J., dissenting. U. S. v. Erie R. Co., 106 U. S. 332. — Situs. “The proposition that the situs of a debt is where it is to be paid, is indefinite.” Mc- Kenna, J. Chicago, etc, R. Co. v. Sturm, 174 U. S. 716. “The idea of locality of things which may be said to be intangible is somewhat con- fusing, but if it be kept up the right of the creditor and the obligation of the debtor cannot have the same, unless debtor and creditor live in the same place.” McKenna, J. Chicago, etc., R. Co. v. Sturm, 174 U. S. 715. Liability Measured by Amount of Property Available. “A man’s liability for a demand against him is measured by the amount of property that may be taken from him to satisfy that demand. In the matter of liability, a man and his property cannot be separated, unless where, for public reasons, the law exempts particular kinds of property from seizure.” Braviey, J. The City of Norwich, 118 U. S. 503. Use and Advantage of Credit System. “In the actual state of the commercial world, it is perhaps impossible to conduct the business of any company without credit. Large purchases are occasionally made on credit; and it is a question of convenience to be adjusted by the parties, whether the credit shall be given by the vendor or ob tained at the bank. If the vendor receives a note, he may discount it at the bank.” MarsHalLt, C. J. Winship v. U. S. Bank, 5 Pet. 563. Fidelity to Engagements. “Infidelity to engagements causes loss of character to the individual; it entails re- proach upon the state.” Meriwether v. Gar- rett, 102 U. S. 520. Right of Debtor to Make Preferences. “That a debtor has a legal right to pre- fer one or more of his creditors over others, when the transaction is bona fide, is not an open question in this court.” Tompson, J. Tompkins v. Wheeler, 16 Pet. 118. Exoneration of Debtor from Personal Liability. “ Because a state assigns funds for the pay- ment of its debts or bills, does it follow, that the holder trusts exclusively to those funds? When a creditor takes a pledge, or has a security for payment of his debt, does he thereby exonerate the debtor from all per- sonal responsibility? If the agent is autho- tized to pledge certain funds of his principal for the payment of the debt,. does not exon- erate the principal from all personal respon- sibility? No such doctrine has ever yet been established to my knowledge, in any code of law; and least of all, in the common law. On the contrary, it is at the common law held incumbent on those who insist that there BIS DECISIONS. has been any exclusive credit given to a fund, to establish that fact, by clear and irresist- ible proofs.” Story, J., dissenting. Bris- coe v, Commonwealth Bank, 11 Pet. 345. Remedy. “Where there are a creditor and a debtor, there is to be no lawful impediment to the former recovering against the latter.” Irk- DELL, J. Ware v. Hylton, 3 Dall. 278. “A recovery of a debt can only be pre- vented by a plea in bar to the action. A recovery of a debt in sterling money, can only be prevented by a like plea in bar to the action, as tender and refusal, to op- erate as an extinguishment. After judgment, payment thereof in sterling money can only be prevented by some proceedings under some law, that authorizes the debtor to discharge an execution in paper money, or in property, at a valuation.” CHasr, J. Ware v. Hylton, 3 Dall. 244. “The right of a creditor and the obliga- tion of a debtor are correlative but differ- ent things, and the law in adapting its rem- edies for or against either must regard that difference.” McKenna, J. Chicago, etc., R. Co. wv. Sturm, 174 U. S. 714. “He who enters into a pecuniary con- tract, knowing that he may have to pursue his debtor, if he flees from justice, casts himself, in fact, upon the justice of na- tions.” JoHNson, J. Ogden wv. Saunders, 12 Wheat. 288. — Debt Recoverable Out of After-ac- quired Property. “Tt is said that a creditor has, by his contract, the same right to enforce its per- formance out of property acquired after his debt is created as he had against that which the debtor owned when the contract was made. In a general sense there can be no dcubt of the truth of this proposition.” Miter, J. New Orleans v. Morris, 105 U. S. 604. — Regard to Interests of Debtor and Society. “When that state of things has arrived in which the community has fairly and fully discharged its duties to the creditor, and in which pursuing the debtor any longer would destroy the one, without benefiting the other, must always be a question to be determined by the common guardian of the rights of both; and in this originates the power exercised by governments in favor of insolvents.” JoHNson, J. Ogden v. Saun- ders, 12 Wheat. 283. “Tt is among the duties of society to enforce the rights of humanity, and both the debtor and the society have their in- terests in the administration of justice; and in. the general good; interests which must not be swallowed up and lost sight of while yielding attention to the claim of the cred- itor.” Jounson, J. Ogden v. Saunders, 12 Wheat. 283. — Effect of Discharge of Debtor. “Prima facie, if a debtor has been discharged, he is not the person whom any other person can sue as a creditor.” TREDELL, J. Ware v. Hylton, 3 Dall. 278. Same Law for Debtor and Creditor. “There cannot be one law for debtors and another law for creditors.” Fretp, J., dissenting: Legal Tender Cases, 12 Wall. 669, Death of Joint Obligor Discharges His Estate. “Tt is conceded by me, that, in case of a debt entirely joint, if one of the obligors die, it is a rule in a court of law, that ‘his executor is totally discharged, and the sur- vivor or survivors only chargeable.’” Woop- Bury, J., dissenting. U. S. v. Price, 9 How. 96. DEBTS. , See Bankruptcy; DEBTOR AND CREDITOR: IMPRISONMENT FoR DEBT. DECEDENTS’ ESTATES. See Descent AnD DistrisuTion; Egui- TABLE ASSETS; EXECUTORS AND ADMINIS- TRATORS, DECISIONS. See JUDGMENTS AND DECREES; PRECEDENTS ; Res Jupicata; Stare DEcisis. Final Tribunal for Decision. “There must be a final tribunal some- where for deciding every question in the world.” Braprey, J., dissenting. Chicago, etc., Ry. Co. v. Minnesota, 134 U. S. 465. Duty of Judge. “T should be unworthy of the high station, I hold, if I did not speak my real sentiments as a judge, uninfluenced by any authority whatsoever.” IREDELL, J. Ware v. Hylton, 3 Dall. 276. “Few minds are accustomed to the same habit of thinking, and our conclusions are 576 4 DECISIONS. most satisfactory to ourselves when arrived at in our own way.” JouHNson, J., concur- ring. Martin v. Hunter, 1 Wheat. 362. —to Determine What the Law Is. “It is of more importance, for a judicial determination, to ascertain what the law is, than to ‘speculate upon what it ought to be.” EtswortH, C. J. Wiscart v. Dauchy, 3 Dall. 328. “Tt is not always that the ill consequences of a principle should control a court in de- ciding what the established law on a par- ticular subject is.” Mrter, J. U. S. wv. Schurz, 102 U. S. 404. Right to Unbiased Decision. “Parties who, by the Constitution and laws of the United States, have a right to have their controversies decided in their tribunals, have a right to demand the unbiased judg- ment of the court.” Grier, J. Pease v. Peck, 18 How. 599. Court Should Not Generalize. “Dangerous as it always is, in a court of justice, to generalize in the propositions which it decides, it is peculiarly so, in ques- tions arising on policies of insurance.” Jounson, J. Buck v. Chesapeake Ins. Co., 1 Pet. 159. Uniformity of Decision Important. “Uniformity in decisions is often as im- portant as their abstract justice.” JoHNSON, J., dissenting. Ex p. Bollman, 4 Cranch 103. Decision of Matters Not Involved. “TI object, in all cases, to the decision of questions not strictly in point, or which have not been regularly discussed, and not only maturely but necessarily considered. If there is any one source of embarrassment more prolific than all others, it is this very prac- tice. I cannot perceive the necessity nor the propriety of deciding matters in advance. The effect of such a practice is either the difficulty of getting clear of irregular and in- apposite conclusions, or the sanction of them with the view of maintaining consistency whether right or wrong.” DawnieL, J., dis- senting. Ward v. Peck, 18 How. 271. “Tt is of extreme moment, that no judge should rashly commit himself upon impor- tant questions, which it is unnecessary for him to decide.” Irepett, J. Chisholm vw. Georgia, 2 Dall. 449. ——Abstract Propositions Not Supported by Evidence. Nor is a court to be required to give opinions on abstract propositions not sup- 1 Os. Dic.—37 ‘ ported by any evidence in the cause.” Mar- SHALL, C, J. Brooks v. Marbury, 11 Wheat. 94. And see ABUSE oF PROCESS. Opinion Should Not Be Expressed When No Suit Before Court. “Tt would hardly be proper for this court to express opinions upon constitutional questions; when it appears, clearly, by the record that there is no suit legitimately be- fore it.” Taney, C. J. U. S. uv. Stone, 14 Pet. 525, Propositions Not in Mind of Court Not Overruled. “No proposition of law can be said to be overruled by a court, which was not in the mind of the court when the decision was made.” Mrtier, J. Woodruff v. Parham, 8 Wall. 138. Dissent. “On ordinary occasions my habit is to submit in silence to the judgment of the court where I happen to entertain an opin- ion different from that of my brethren.” Story, J., dissenting. Cary v. Curtis, 3 How. 252. “Upon constitutional questions, the public have a right to know the opinion of every judge who dissents from the opinion of the court, and the reasons of his dissent.” Story, J., dissenting. Briscoe wv. Commonwealth Bank, 11 Pet. 350. Pride of Opinion Sacrificed to Public Wel- fare. “Tt is the nature of the human mind to press a favorite hypothesis too far, but mag- nanimity will always be ready to sacrifice the pride of opinion to public welfare.” Jounson, J., concurring. Martin v. Hunter, 1 Wheat. 365. Report of Decision. “There can be little necessity for report- ing decisions upon questions that cannot be controverted.” JoHnson, J. Croudson vw. Leonard, 4 Cranch 436. Form of Decisions. “The forms and modes of expression, by which any tribunal pronounces its discretion to have been exercised, does not affect the nature or character of its decision; that de- pends on what it has decided and its effect, whether it is a final judgment, or an inter- locutory one, or a mere summary order, di- rection, or decision, on a rule or motion, which is not in law a judgment, though it may be expressed in the words appropriate to 577 . DEDICATION. a judgment.” Batpwin, J. Holmes v. Jen- nison, 14 Pet. 628. DECOY LETTERS. “A decoy letter is not subject to the crit- icism frequently properly made in regard to other measures sometimes resorted to, that it is placing temptation before a man and en- deavoring to make him commit a crime. There is no temptation by a decoy letter.” Pecxuam, J. Scott v. U. S., 172 U. S. 351. DEDICATION. Sufficiency — Abandonment of Use by Owner. “The dedication [of land to public use] must be under such circumstances as to indicate an abandonment of the use exclusively to the community by the owner of the soil. Hence there must not have been, repeated declarations made by the owner in- consistent with any dedication. Nor must the acts and words be equivocal or ambiguous on that subject. In short, the idea of a dedi- cation to the public of a use of land for a public road must rest on the clear as- sent of the owner, in some way, to such ded- ication.” Woopsury, J. Irwin v. Dixion, 9 How. 30. Proof of Assent. “ This assent [of dedication of land to pub- lic use] may be proved by a deed or unsealed writing expressing such assent, or as no fee in the land, but only an easement generally is given, it may be by parol or by acts in- consistent and irreconcilable with any con- struction except such consent.” Woopsury, J. Irwin v. Dixion, 9 How. 31. : — By Use for Years. “As to the dedication it is true that this may at times be proved by the use of land, al- lowed unconditionally and fully to the public for a period of thirty years, or even less.” Woopvsury, J. Irwin v. Dixion, 9 How. 30. “Jn some cases a dedication of property to public use, as for instance a street or public road, where the public has enjoyed the un- molested use of it for six or seven years, has been deemed sufficient evidence of dedi- cation.” M’LEaN, J. Barclay v. Howell, 6 Pet. 513. —— Presumption of Dedication. “Tt is true that the presumption of a ded- ication is one of fact, and not an artificial in- ference of mere law, to be made by the court, yet it is an inference which the court ad- vise the jury to make upon proof of certain facts. It is the duty of the court to state what facts, if proved, will justify such a presumption. To instruct the jury that cer- tain facts are not ‘sufficient’ evidence on which to presume a dedication, without in- forming them what facts would constitute sufficient evidence for that purpose, is devolv- ing on them the decision of both law and fact, and permitting them to dispose of men’s property at their discretion, by presuming grants without a particle of evidence to au- thorize such presumption.” Grrr, J. Bos- ton v. Lecraw, 17 How. 436. “Land may be dedicated by the owner to highways, and without deed or much for- mality. Thus, if one allows his land long to be occupied by the public as a highway, such a dedication may be presumed. So if the actual user has not been long, but clearly acquiesced in. So if one makes a map of land proposed to be sold, with streets contiguous and for the accommo- dation of side owners, and sells accordingly, it may generally be presumed that he thus dedicates the land contiguous for the streets. And certainly, if he allows them aft- erwards to be so occupied.” Woopsury, J. U. S. uv. Chicago, 7 How. 195. Making Plans with Streets, etc., Laid Out. “Tt has been presumed, if one makes a plan of his land in a city with certain streets laid down between certain lots, and sells the lots accordingly, that he thus means to ded- icate those streets to the public. And more particularly is it so if the community are allowed to begin to occupy the streets ac- cordingly. Buta mere survey of such streets, without selling the contiguous lots or let- ting the streets be occupied, is not enough.” Woopsury, J. Irwin v. Dixion, 9 How. 31. “Tt has been the practice in this country, in laying out towns, to have the plat sur- veyed, and a plan in accordance with the survey, designating the streets, public squares and open spaces left for commons, wharves or other public purposes. Those streets, squares and open spaces are thus dedicated to the public by the proprietors of the soil, whether they be the state or private indi- viduals.” Sutras, J. Morris v. U. S., 174 U.S. 246. “Tn the familiar case where a man lays out a street or public highway over his land, there is, strictly speaking, no grantee of the easement, but it takes effect by way of 578 DEEDS. grant or dedication to public uses.” THomp- son, J. Cincinnati v. White, 6 Pet. 436. Where There Is No Corporate Entity as Grantee. “A dedication to the public may exist where there is no city or town or corporate entity to take as grantee, and in such case, while the fee may remain in the individual who dedicates the land, he will be estopped from setting it up as against the public who may be interested in the use of the land ac- cording to its dedication.” PrckHam, J, Werlein v. New Orleans, 177 U. S. 401. Dedication in City — Title Trustee. “When a dedication is made in an existing city, the city takes title as trustee.” PrcK- HAM, J. Werlein v. New Orleans, 177 U. S. 401. “The title to land which has been ded- icated to public use, as for a highway or public square in a city, is in the city as trustee for the public, and it has been held, in the case of such a dedication of land in a proposed city, to be thereafter built, that the fee will remain in abeyance until the proper grantee or city comes im esse, when it will vest in such city.” PreckHam, J. Werlein v. New Orleans, 177 U. S. 401. Effect of Dedication. “All property dedicated to public use by an individual owner, as in the case of land for a park or street, falls at once, by force of the dedication, under the law govern- ing property appropriated by the government for similar purposes.” Frietp, J., dissenting. Munn zv. Illinois, 94 U. S. 150. in City as “By its dedication to public use, a wharf is as much brought under the common law of subjection to reasonable charges as it would be if originally established or licensed by the crown.” Fretp, J., dissenting. Munn v. Illinois, 94 U. S. 150. DEEDS. See ALTERATION oF INVESTMENTS; ATTES- TATION; CovENANTS; Escrows; EstTopret;: More or Less; Morreaces; Parot Evt- DENCE; QUITCLAIMS; RELATION; VENDOR AND PURCHASER; WARRANTY. Necessity of Deed for Conveyance of Freehold. “By the laws of Massachusetts, no es- tate of freehold in land can be conveyed unless by a deed or conveyance under the hand and seal of the party.” Story,J. U.S. v. Crosby, 7 Cranch 116. To the same effect see the language of Cuirrorp, J., dis- senting, in Burbank v. Conrad, 96 U. S. 298. —— Surrender of Deed Back to Feoffer. “Tf the feoffee, by deed of land, grants his deed by parol to the feoffer, it is a sur- render of the property, as well as of the deed.” Story, J. Miller wv. Stewart, 9 Wheat. 709. Contract. “T cannot rid myself of the conviction that the deed which conveys to a man his homestead, or other real estate, is as much a contract as the paper issued by a munic- ipal corporation to a railroad for its worth- less stock.” Mutzer, J., dissenting. Gelpcke v. Dubuque, 1 Wall. 214. Execution — When Executed in General. “Certainly a deed may be said to be fully executed when all has been done that is necessary to entitle it to record.” WaAITE, C. J. Elwood v. Flannigan, 104 U. S. 568. — Delivery and Acceptance — Necessity. “Delivery is essential to the validity of a deed, and that acceptance is essential to a complete delivery.” MarsHatt, C. J., dissent- ing. Bank of U. S. v. Dandridge, 12 Wheat. 90. “Tf there be subscribing witnesses to the instrument [a deed], it can be proved only by them, if attainable. If unattainable, or if there be no subscribing witnesses, other proof may be admitted; but, in every case, a delivery and acceptance must be legally proved.” MarsHAtt, C. J., dissenting. Bank of U. S. v. Dandridge, 12 Wheat. 91. “Nothing passes by a deed until it is de- livered.” Davis, J. Parmelee v. Simpson, 5 Wall. 85. “In order to pass the legal right to lands something more is necessary than the signa- ture of the grantor to a blank instrument. There must be an intent to convey, and the delivery of a deed for the purpose of vesting a present title in grantee, and a deed delivered without the consent of the grantor is of no more effect to pass the title than if it were a forgery.” Brown, J. Felix v. Patrick, 145 U. S. 329. “Tf a deed of real estate be executed and recorded, prima facie it conveys the legal title; but if it be shown it was not delivered, 579 DEEDS. that destroys its effect.” Swayne, J. Phila- delphia, etc, R. Co. v. Trimble, 10 Wall. 382. “ The execution and registration of a deed, and delivery of it to the register for that purpose, does not vest the title in the gran- tee.” Davis, J. Parmelee v. Simpson, 5 Wall. 86. “Tt is a well established doctrine of the common law, that a deed becomes complete, when sealed and delivered. It then becomes the act of the person who has executed it, and whatever its operation may be, it is his deed. The very act of livery, which puts the paper into the possession of the party for whose benefit it is made, seems to re- quire the construction that it has become a deed.” MarsHatt, C. J. Wood v. Owings, 1 Cranch 251. — What Constitutes Delivery. “What constitutes a delivery is a sub- ject of great difference of opinion, some cases holding that a parting with a deed, even for the purpose of recording, is in itself a delivery.” Hunt, J. Adams v. Adams, 21 Wall. 191. “Tf, in transactions between individuals, where a deed is without a subscribing wit- ness, proof of the signature of the maker, accompanied with the facts that the instru- ment has passed out of his hands, and is in the possession of the person for whose ben- efit it was made, be prima facie evidence of its delivery, it is because delivery by mere manual tradition, without witnesses, is good; and the assertion of title under it is proof of acceptance, because that requires only the assent of the mind, which assent is legally manifested by asserting a claim to it.” Mar- SHALL, C. J., dissenting. Bank of U. S. wv. Dandridge, 12 Wheat. 91. — Ratification of Unauthorized Delivery. “ Another illustration of the application of the doctrine is where a grantee or mortga- gee ratifies an unauthorized delivery of a conveyance or mortgage to a third person, in which case it is held that the title may re- late back to the unauthorized delivery, ex- cept as to vested rights of third persons.” Wuire, J., dissenting. U. S. v Loughrey, 172 U.S. 22%. — Parol Authority. “It may be, and probably is, the law in Towa, as it is in several states, that the grantor in a deed conveying real property, signed and acknowledged, with a blank for the name of the grantee, may authorize an- other party, by parol, to fill up the blank.” Fietp, J. Allen v. Withrow, 110 U. S. 128. — Statutory Control. “We find in the statute books of all the states, numerous acts regulating the signing, acknowledging and recording of deeds.” Mc- Lean, J. Daviess v. Fairbairn, 3 How. 645. —— Parties — By Public Officer. “The general rule is ‘that when a deed is executed, or a contract is made on be- half of a state by a public officer duly au- thorized, and this fact appears upon the face of the instrument, it is the deed or con- tract of the state, notwithstanding that the officer may be described as one of the par- ties, and may have affixed his individual name and seal. In such cases the state alone is bound by the deed or contract, and can alone claim its benefits.”” Futter, C. J. District of Columbia v. Camden Iron Works, 181 U. S. 460. —— By Person Holding Title in Different Capacities. “When a person having title in property in different capacities, executes a deed in one capacity only, and holds the considera- tion received for the benefit of those en- titled to it, a court of equity, at least, will be slow to hold the deed invalid for want of a more complete and formal execution.” Gray, J. Wall v. Bissell, 125 U. S. 393. — Fraud or Mistake in Execution. “Fraud or mistake in the execution of a deed may be shown at law.” Swayne, J. Philadelphia, etc., R. Co. v. Trimble, 10 Wall. 383. Form and Sufficiency — Presumption in Favor Of. “Facts will not be presumed against a deed of conveyance which on its face has ,all the legal requisites to make it a valid in- strument.” C.iFForD, J. Clements v. Mache- boeuf, 92 U. S. 425. “The rule is, that he who would invalidate such a deed [which has on its face all the legal requisites to make it valid], must im- peach it by affirmative proof.” Czrrrorp, J. Clements v. Macheboeuf, 92 U. S. 425. — Description of Property Conveyed. “A conveyance of the right, title, and in- terest in land, is certainly sufficient to pass the land itself, if the party conveying has an estate therein at the time of the convey- ance; but it passes no estate which was not 580 DEEDS. then possessed by the party.” Topp, J. Brown v. Jackson, 3 Wheat. 452. “A deed ‘of all my estate’ is sufficient. So a deed ‘of all my lands wherever sit- uated’ is good to pass title” Hunt, J. Wilson v. Boyce, 92 U. S. 325. “Where A conveys to B, by metes and bounds, the circumstances ought to be very strong to prove that he meant to convey any other lands than those specifically described, before this court would be induced to set aside one deed, and decree the execution of another. If the vendee may set up such a ground of equity, the vendor may do the same; and the intrinsic difficulties which such investigations would present, would make it generally better to leave the parties to their remedy at law.” Jounson, J. Russell v. Trustees of Transylvania University, Wheat. 436. “Where an individual, supposing his war- rant located on black acre, when it is, in fact, located on white acre, conveys the for- mer by metes and bounds, it must be a strong case which will sanction a court in setting aside the conveyance of one, and de- creeing that of the other.” JoHNson, J. Russell v. Trustees of Transylvania Univ., 1 Wheat. 437. “A deed inter partes may be made as ef- fectual by referring to a description else- where as by reciting it in full in the present instrument. The consequence is the same in both cases.” Swayne, J. Shields v. Ohio, 95 U. S. 323. “A grantee can acquire by his deed only the lands described in it by metes and bounds, and with sufficient certainty to enable a per- son of reasonable skill to locate it, and can- not acquire lands outside of the descrip- tion by way of appurtenance or accession.” NeEtson, J. Jones v. Johnston, 18 How. 155. —— Circumstances May Aid Imperfect Description. “Surrounding circumstances may some- times sustain an imperfect description in a voluntary deed by a grantor, but seldom one made in hostile tax proceedings.” BREWER, J. Stout v. Mastin, 139 U. S. 152. ——Land under Water. “A grant of land on each side of an arm of the sea, and embracing it, does not pass the land under the water by general words: there must be special words of grant, show- ing plainly the land covered with water, was intended to be granted; without such ex- plicit words of grant, the high lands only pass. Such is the settled doctrine of this court.” Catron, J., dissenting. Mobile v. Emanuel, 1 How. 103. — Covenants — Of Title. “The covenant that the grantor is ‘seized of an indefeasible estate in fee simple’ is a covenant for a perfect title.’ Futter, C. J. Douglass v. Lewis, 131 U. S. 85. —— Covenants Not Implied from Words of Bargain and Sale. “At common law, in the transfer of es- tates of freehold by deed, a warranty was implied from the word of the feoffment, dedi, and from no other word, and from words of bargain and sale merely no covenant was implied in any case.” FuLier, C. J. Doug- lass v. Lewis, 131 U. S. 82. Words of Inheritance. “No words of inheritance or terms of grant are necessary by the civil law.” Mc- Lean, J., dissenting. U.S. v. King, 7 How. 858. Deed Executed under Power. “Every deed executed under a power must refer to the power. As an independent in- strument of the holder of the power it would not convey the interest intended.” Frexp, J. French v. Edwards, 13 Wall. 515. Consideration — Recital Prima Facie Evi- dence. “Tt is well settled in Massachusetts, that a recital in a deed, acknowledging payment of the consideration stated, is only prima facie proof, and is subject to be controlled or re- butted by other evidence.” BLATCHFoRD, J. Mills v. Dow, 133 U. S. 431. “It is not to be denied, that a deed, which misrepresents the transaction it recites, and the consideration on which it is executed, is liable to suspicion. It must sustain a rigor- ous examination. It is, certainly, always ad- visable fairly and plainly to state the truth. But if, upon investigation, the real transac- tion shall appear to be fair, though somewhat variant from that which is described, it would seem to be unjust and unprecedented to de- Prive the person claiming under the deed, of his real equitable rights, unless it be in favor of a person who has been, in fact, injured and deceived by the misrepresentation.” Mar- SHALL, C. J. Shirras v, Caig, 7 Cranch 50, 51. See also Evmence, 581 DEEDS. -—— Validating by Subsequent Considera- tion. “A deed voidable under certain circum- stances may be made valid for all purposes by a sufficient after-consideration.” Swayne, J. Hooper v. Robinson, 98 U. S. 537. Reservation — Oral Assertion Not Neces- sary. . “When a reservation is made in a deed, it is not necessary in order to give it effect that the grantor should, when he executes the deed, assert verbally his right to the property excepted from the conveyance. Evi- dence that he made no such assertion is clearly incompetent and inadmissible.” -Woons, J. Hornbuckle v. Stafford, 111 U. S. 394. —— Validity. “An exception or reservation is some- times void for uncertainty, and sometimes for being in favor of third persons.” Woopsury, J. Foxcroft v. Mallett, 4 How. 375. —— In What Part of Deed. “A condition or reservation may be in- serted in any part of a deed.” Woopsury, J. Foxcroft v. Mallett, 4 How. 374. — Reservation or Condition. “The nature of a transaction, as well as the language, may well be regarded always in deciding whether a case is a reservation or a condition.” Woopsury, J. Foxcroft v. Mallett, 4 How. 376. — Of Quarries — Knowledge of Grantee. “The granting of lands, either by the gov- ernment or individuals, with a reservation of certain quarries therein, as of marble, or granite, or slate, or of certain mines, as of copper, or lead, or iron found therein, is not an uncommon proceeding, and the knowledge or want of knowledge at the time by the grantee in such cases, of the property reserved in no respects affects the transfer to him of the title to it.’ Fern, J. Barden wv, Northern Pac. R. Co., 154 U. S. 314. — Of Building. “Tf the vendor of a city lot should, in a deed of such lot, reserve to himself a build- ing standing thereon, it would be manifest that he reserved only the right to remove such building, since a different construction would be destructive of the grant.” Brown, J. Chicago, etc, R. Co. v. Denver, etc., R. Co., 143 U. S. 613, Construction — To Make Deed Operative According to Intention. “A deed is, if possible, to be made opera- tive in some way; and the construction should be liberal, in order to effect that object, and enforce the original design.” Woopsury, J. Foxcroft v. Mallett, 4 How. 376. “The court [equity] directs its attention to the real object of the deed, and the in- tention of the parties, and will compel a ful- fillment of both.” Wasuineton, J. Hughes v. Edwards, 9 Wheat. 495. “Tt is a well settled principle of construc- tion, that conveyances are, if practicable on any reasonable view of the subject, to be sustained rather than to be pronounced void.” Woopsury, J. Beals v. Hale, 4 How. 51. — Restriction by Implication Not Fa- vored. “The case ought to be a very strong one, which should authorize a court to create, by implication, a restriction [in an indenture] which the otder of the language does not necessarily import or justify. It ought to be one in which no judicial doubt could exist of the real intention of the parties to create such a restriction.” Story, J. Duvall vw. Craig, 2 Wheat. 58. — Deed of Trust. “Instruments like this [deed of trust se- curing an indebtedness] should be construed, if it can be reasonably done, ut res magis quam pereat. It should be the aim of courts, in cases like this, to preserve and not to destroy.” Swayne, J. Kelly v. Calhoun, 95 U.S. 712. — Technical Words Control. “Where technical words are used in a deed of conveyance, the legal import of such words must govern.” McLzan, J. Shriver v. Lynn, 2 How. 56. Void Deed. “Deeds which are absolutely void cannot be the foundation of title.” MarsHatt, C. J. Brooks v. Marbury, 11 Wheat. 90. —— Conveyance of Property Not Owned. “Whenever a party undertakes by deed 3 to grant property, real or personal, in presenti, which does not belong to him or has no existence, the deed is inop- erative and void, and this either in a court of law or equity.” Netson, J. Pennock v. Coe, 23 How. 128. 582 DE FACTO CORPORATIONS. Who Bound — Privies. “Tt would be strange that a deed should be binding upon the grantee and his heirs, and yet void as to persons claiming under him, for a valuable consideration.” WASHINGTON, J. Pierce v. Turner, 5 Cranch 166. “All privies in estate by subsequent deed are bound in the same manner as privies in blood.” Story, J. Carver v. Jackson, 4 Pet. 86. — Recitals. “To what extent, and between what parties the recital of a lease in a deed of release (for we need not go into the consideration of recitals generally), is evidence, is a mat- ter not laid down with much accuracy or precision in some of the elementary treatises on the subject of evidence. It is laid down generally, that a recital of one deed in an- other binds the parties and those who claim under them. Technically speaking, it oper- ates as an estoppel, and binds parties and privies; privies in blood, privies in estate, and privies inlaw. But it does not bind mere strangers, or those who claim by title para- mount the deed. It does not bind persons claiming by an adverse title, or persons claim- ing from the parties by title anterior to the date of the reciting deed.” Story, J. Carver v. Jackson, 4 Pet. 83. See also Estoprret. Burden of Proving Exemption from Ex- ception to Granting Clause. “There is a general rule, applicable both to conveyances and statutes, that where there is an exception in the general granting or enacting clause, the party relying upon such general clause must in pleading state the general clause, together with the exception, and must also show by the testimony that he is not within the exception.” Brown, J. Maxwell Land Grant Co. v. Dawson, 151 U. S. 604. DEEDS OF TRUST. See Mortcaces; TRUSTS AND TRUSTEES. DE FACTO CORPORATIONS. That a de facto corporation cannot exercise the right of eminent domain, see Emt1- NENT DoMAIN. And see generally Corporations; Drsso- LUTION OF CorporsTions; Nut TreL Corror- ATION. What Constitutes De Facto Corporation. “Tt appears that the requisites to constitute a corporation de facto are three: (1) a 583 charter or general law under which such a corporation as it purports to be might law- fully be organized; (2) an attempt to or- ganize thereunder; and (3) actual user of the corporate franchise.” PzEckHaM, J. Tu- lare Irrigation Dist. v. Shepard, 185 U. S. 13. “Even though the irrigation district failed to become organized as a de jure corporation, it may still have been acting as a corpora- tion de facto. That there can be such a corporation cannot be doubted.” PreckHamM, J. Tulare Irrigation Dist. v. Shepard, 185 U.S. 13. Right of De Facto Corporation to Sue. “[That a corporation is a de facto one] is all that is necessary to enable it to main- tain an action against any one, other than the state, who has contracted with the cor- poration, or who has done it a wrong.” Gray, J. Baltimore, etc, R. Co. v. Fifth Baptist Church, 137 U. S. 572. Only State May Question Existence. “The question, whether the bank was reg- ularly, and bona fide, ‘put into operation, is matter not inquirable into, in a suit of this nature [an action of debt], but only upon a quo warranto, instituted by the govern- ment.” Story, J. Minor v. Mechanics Bank, 1 Pet. 63. “TAn irrigation district] being a de facto corporation, the general rule is that none but the state can call its existence in question.” PrckHAM, J. Tulare Irrigation Dist. wv. Shepard, 185 U. S. 14. Estoppel to Deny Rightful Existence — Estoppel of Corporation. “The corporation having assumed by en- tering into the contract with the plaintiff to have the requisite power, both parties are estopped to deny it.” Swayne, J. Whitney v. Wyman, 101 U. S. 397. —— Estoppel of Stockholders. “Where there are defects in the organiza~ tion of a corporation which might be fatal upon a writ of quo warranto, a stockholder who has participated in its acts as a corpora- tion de facto is estopped to deny its right- ful existence.” Swayne, J. Sanger v. Up- ton, 91 U. S. 64. —— Estoppel of Persons Contracting with Corporation. “Tt is settled by the decisions of the coutts of the United States and by the de- cision of many of the state courts that one ’ DEMURRERS. who contracts with an acting corporation cannot defend himself against a claim on such contract, in a suit by the corporation, by alleging the irregularity of its organiza- tion.” Hunt, J. Chubb v. Upton, 95 U. S. 667. “One who deals with a corporation as existing in fact is estopped to deny as against the corporation that it has been legally or- ganized.” Gray, J. Close wv. Glenwood Cemetery, 107 U. S. 477. Legislative Recognition Validates Cor- poration. “The power which can give authority to act can ratify any act that is taken, and generally legislative recognition of an act or a corporation validates the act or the corporation, although neither one nor the other may have full prior legal authority.” Brewer, J. Street v. U. S., 183 U. S. 307. DEFALCATIONS. “The truth is that in spite of strict su- pervision and the pursuit of the best systems of keeping accounts, there is always a risk of defalcation. The prevention of defaults or their detection at the earliest possible moments are of even more vital importance to financial institutions than to the guaran- tors of the fidelity of their employes.” Fut- LER, C. J. Guarantee Co. of North America v. Mechanics’ Savings Bank, etc, Co., 183 U. S. 422. DEFINITIONS. See Worps and Purases, and see the specific titles, passim. DELIRIUM TREMENS. Nature. “In the American Encyclopedia, under the head of ‘ Delirium Tremens,’ it is stated that it ‘sometimes makes its appearance in con- sequence of a single debauch’; though com- monly it is the result of protracted or long- continued intemperance. Vol. v. p. 782.” Fie.p, J. Knickerbocker L, Ins. Co. v. Foley, 105 U. S. 354. “ An attack of delirium tremens may some- times follow a single excessive indulgence. Ray, in his treatise on Medical Jurisprudence, says that though it most commonly occurs in habitual drinkers, after a few days of total abstinence from spirituous liquors, it may be the immediate effect of an excess * or series of excesses in those who are not habitually intemperate as well as in those who are.” Sect. 545. Fretp, J. Knicker- bocker L. Ins. Co. v. Foley, 105 U. S. 354. DELIVERY. See Carriers; Deeps; NEGOTIABLE INSTRU- MENTS. DEMAND. See NEGOTIABLE INSTRUMENTS; SERVICES. DE MINIMIS NON CURAT LEX. See Larceny. DEMISE. See LANDLORD AND TENANT. DEMURRERS. As to demurrers to evidence, see TRIAL. aider by verdict, see VERDICT. Definition. “A demurrer is an objection made by one party to his opponent’s pleading, alleging that he ought not to answer it, for some defect in law in the pleading.’ Wayne, J. Tyler v. Hand, 7 How. 581. Distinguished from Motion to Strike. “This [raising and deciding a pure issue of law] should always be done, when it can, by a demurrer, which is the recognized and appropriate mode in the common law; or by exception, which amounts to the same thing in the civil law, as it is applied to answers in chancery practice. A motion to strike out a plea is properly made when it has been filed irregularly, is not sworn to, if that is required, or wants signature of counsel, or any defect of that character; but if a real and important issue of law is to be made, that issue should be raised by demurrer.” Mut- LER, J. Bates v. Clark, 95 U. S. 206. General and Special Demurrer. “A general demurrer lies only for de- fects in substance, and excepts to the suf- ficiency of the pleading in general terms, without showing specially the nature of the objection. A special demurrer is only for defects in form, and adds to the terms of a general demurrer a specification of the partic- ular grounds of exception.” Wayne, J. Tyler v. Hand, 7 How. 582. “Demurrers, says Chitty, are either gen- eral or special: general, when no particular 584 \ DEMURRERS. cause is alleged; special, when the particular imperfection is pointed out and insisted upon as the ground of demurrer. The former will suffice when the pleading is defective in sub- stance, and the latter is requisite where the objection is only to the form of the plead- ing.” CLiFForD, J. Christmas v. Russell, 5 Wall. 303. . “Where the objection is to matter of sub- stance, a general demurrer is sufficient; but where it is to matter of form only, a special demurrer is necessary.” CLIFFORD, J. Christmas v. Russell, 5 Wall. 303. —to Plea in Abatement. “Tt is never necessary to demur specially to a plea in abatement; all matters, though of form only, may be taken advantage of upon a general demurrer to such a plea.” Curtis, J., dissenting. Scott v. Sandford, 19 How. 568. —— Want of Facts to Constitute Cause of Action. “A demurrer to a complaint because it does not state facts sufficient to constitute a cause of action, is equivalent to a general demurrer to a declaration at common law, and raises an issue which, when tried, will finally dispose of the case as stated in the complaint, on its merits, unless leave to amend or plead over is granted.” Waite, C. J. Alley o. Nott, 111 U. S. 475. —— General Demurrer to Pleading Good in Part. “A general demurrer must be overruled if the pleading demurred to contain any good ground to support it.” Brapiry, J. Buf- fington v. Harvey, 95 U. S. 100. Reaches Only Objections on Face of Record. “The opposite party may demur when his opponent’s pleading is defective in substance or form, but there can be no demurrer for a defect not apparent in the pleadings.” Wayne, J. Tyler v. Hand, 7 How. 582. Necessity to Demur — Objection to Equity of Bill. “That an objection to the equity of the plaintiff’s claim as stated in the bill, must be taken by demurrer and not by plea is so well established, that it has been constantly as- sumed and thereforé seldom stated in ju- dicial opinions; yet there are instances in which it has been explicitly recognized by other courts of chancery, as well as by this court.” Gray, J. Farley v. Kittson, 120 U. S. 316. 585 —— Defects Waived by Failure to Demur. “ Defects of form in the writ or declaration, not pointed out by demurrer, are not in gen- eral regarded in this court as of error, as the federal courts possess the power to per- mit such imperfections to be amended in their discretion and upon such terms and con- ditions as the rules of the court prescribe.” CuirrorD, J. Ewing v. Howard, 7 Wall. 503. “(It] is the settled rule of this court in cases at law, they will not reverse a judg- ment for any defective averment in a declara- tion, not demurred to, if the plaintiff has substantially set out a cause of action; such, too, is the established principle in cases in equity.” Barpwin, J., dissenting. Harrison uv. Nixon, 9 Pet. 513. “Before the decision of this case, it was considered to be a settled principle, that a final decree in chancery was of equal effect as a judgment at law, till reversed. ; That the sufficiency of an averment in a declaration, bill, or petition, was a question of merits examinable on demurrer, at the hearing, on a motion in arrest of judgment, or by writ of error, or appeal, but in no case was a question of jurisdiction, unless for the want of parties or a proper cause of action. That if there was a substantial cause of action alleged, all defects in the plead- ings were cured by a verdict or decree, if not pleaded or demurred to for cause; and that no appellate court could reverse a final judgment or decree, for any error in either on the ground of an insufficient averment, if the plaintiff’s case was one that would en- title him to a judgment on a general de- murrer.” BA.LpwIn, J., dissenting. Harrison v. Nixon, 9 Pet. 534. — Objections Raised Otherwise, “The case is like one at common law, where the defendant should propose to demur generally to the declaration, but, be- ing refused, objects to the sufficiency of it to cover various portions of the evidence as it is offered, and also objects to the suf- ficiency of the declaration in arrest of judg- ment. He thus, by a subsequent bill of ex- ceptions to the rulings on the testimony and on the sufficiency of the declaration, ob- tains every advantage that he could have had under his general demurrer, and thus suffers nothing which requires a reversal of the judgment and a new trial for his re- lief.” Woopzury, J. Phillips v. Preston, 5 How. 288. , DEMURRERS. Demurrer and Issue of Fact at Same Time. “An issue in fact and a demurrer cannot both be allowed to reach the same count.” Woopsury, J. Townsend v. Jemison, 7 How. 723. Joinder in Demurrer. “Tt is true that some books appear to con- sider it the duty of the plaintiff to join in a demurrer soon after it has been tendered by the defendant. But this, it is believed, gen- erally depends on a positive rule of court, which may exist, to require it.” Woopsury, J. Townsend v. Jemison, 7 How. 717. Waiver of Demurrer. “ A waiver of a demurrer often takes place, and is, by law, permissible.” Woopsury, J. Townsend v. Jemison, 7 How. 717. Effect of Demurrer — Searches the Record. “A demurrer, whenever interposed, reach- es back through the whole record, and ‘seizes hold of the first defective pleading.’” Davis, J. Clearwater v. Meredith, 1 Wall. 38. “Tt is the settled rule of law in this court in respect to demurrers, that although the pleadings demurred to may be bad, the court will nevertheless give judgment against the party whose pleading was first defective in substance.” Cuirrorp, J. Aurora City wv. West, 7 Wall. 93. To the same effect see the language of MarsHatt, C. J., in Cook v. Graham, 3 Cranch 235; of Grier, J., in Piquignot v. Pennsylvania R. Co., 16 How. 105; of Woopzury, J., in Townsend v. Jem- ison, 7 How. 723. — Admission of Facts Well Pleaded. “Facts well pleaded are admitted by a demurrer.” Cuirrorp, J. U. S. v. Ames, 99 U. S. 45. To the same effect see the lan- guage of Taney, C. J., in Rhode Island v. Massachusetts, 15 Pet. 270; Burgess v. Gray, 16 How. 62. “Whether general or special, a demurrer admits all such matters of fact as are suff- ciently pleaded.” C.trrorp, J. Christmas v. Russell, 5 Wall. 303. “Tt [a demurrer] admits the facts, and refers the law arising thereon to the court.” Wayne, J. Tyler v. Hand, 7 How. 581. — Admission Available as if Made Be- fore Jury. “Tt is settled law, that it makes no differ- ence in principle whether the facts upon which the court proceeded were proved by competent evidence, or whether they were admitted by the parties; and that the admis- sion, even if by way of demurrer to a plead- ing in which the facts are alleged, is just as available to the opposite party as if the admission was made ore tenus before a jury.” CurrForp, J. Gould v. Evansville, etc, R. Co., 91 U. S. 533. — Only Facts Well Pleaded Admitted. “A demurrer admits only facts, and facts well pleaded.” Gray, J. Hopper v, Coving- ton, 118 U. S. 151. To the same effect see the language of Ctirrorp, J. in U. S. wv. Mann, 95 U. S. 587; of Warts, C. J., in Shelton v. Van Kleeck, 106 U. S. 534. “Matters not alleged in the information cannot be regarded as confessed by the de- fendant, as the demurrer only admits what is well pleaded.” Ctirrorp, J. U. S. v. Mann, 95 U. S. 584. “A fact impossible in law cannot be admit- ted by a demurrer.” Matruews, J. Louis- ville, etc., R. Co. v. Palmes, 109 U. S. 253. “As questions of fact are not open for re- examination on a bill of review for errors in law, the truth of any fact averred in that kind of a bill of review inconsistent with the decree is not admitted by a demurrer, because no error can be assigned on such a fact, and it is, therefore, not properly pleaded.” Waite, C. J. Shelton v. Van Kleeck, 106 U. S. 534. “Matters well pleaded, it is true, are ad- mitted by the demurrer; but it is equally true, that every ingredient of the offense may be accurately and clearly described, and that no indictment is sufficient if it does not accu- rately and clearly describe all the ingredients of which the offense is composed.” CLiFForRD, J., dissenting. U. S. v. Reese, 92 U. S. 225. — Matters of Inference or Argument and Legal Conclusions Not Admitted. “But it [a demurrer] does not admit mat- ters of inference or argument, nor does it admit the alleged construction of an instru- ment when the instrument itself is set forth in the record, in cases where the construction assumed is repugnant to its language.” CLIF- ForD, J. U.S. v. Ames, 99 U. S. 45. “But it is equally well settled that more conclusions of law are not admitted by such a proceeding [a demurrer].” Currrorp, J. U. S. v. Ames, 99 U. S. 45. “A demurrer only admits facts well plead- ed; it does not admit matters of inference and argument however clearly stated; it does not admit, for example, the accuracy of 586 DEMURRERS. an alleged construction of an instrument, when the instrument itself is set forth in the bill, or a copy is annexed, against a construc- tion required by its terms; northe correct- ness of ascription of a purpose to the parties when not justified by the language used.” Fiztp, J. Dillon v. Barnard, 21 Wall. 437. “The demurrer admits only the facts which are well pleaded; that it does not admit the accuracy of an alleged construction of an instrument when the instrument is set forth in the record, if the alleged construction is not supported by the terms of the instru- ment.” CuiFForD, J. Gould v. Evansville, etc., R. Co. 91 U. S. 536. “Mere legal conclusions are never admit- ted by a demurrer.” CurFrorp, J. U. S. vu. Ames, 99 U. S. 46. “The demurrer admits only the facts al- leged, and does not admit the conclusion of law, inserted in the petition.” Gray, J. Mosher wv. St. Louis, etc, R. Co., 127 U. S. 395. “Mere averments of a legal conclusion are not admitted by a demurrer unless the facts and circumstances set forth are sufficient to sustain the allegation.” C.rFrorp, J. Gould v. Evansville, etc., R. Co., 91 U. S. 536. Judgment. “Due service of process compels the de- fendant to appear, or to submit to a default; but, if he appears, he may, in most juris- dictions, elect to plead or demur, subject to the condition, that, if he pleads to the dec- laration, the plaintiff may reply to his plea, or demur; and the rule is, in case of a de- murrer by the defendant to the declaration, or of a demurrer by the plaintiff to the plea of the defendant, if the other party joins in demurrer, it becomes the duty of the court to determine the question presented for de- cision; and it involves the merits of the con- troversy, and is determined in favor of the party demurring, and the other party for any cause does not amend, the judgment is in chief; and it is settled law that such a judg- ment: of the Circuit Court, if the sum or value in controversy is sufficient, may be re- moved into this court for re-examination by writ of error, under the twenty-second sec- tion of the Judiciary Act.” Czirrorp, J. Gould v. Evansville, etc, R. Co., 91 U. S. 527. “Tt does not follow, because a demurrer in abatement cannot be available for the de- fendant, that it is to be rejected altogether from the pleading, if tendered in proper time. It will be received, but being erroneously put in, it entitles the plaintiff to final judgment.” Wayne, J. Tyler v. Hand, 7 How. 584. — Effect of Judgment — Res Judicata. “There are undoubtedly many cases where a final judgment upon a demurrer will not conclude as to a future action. The demur- rer may go to the form of the action, to a defect of pleading, or to the jurisdiction of the court. In all such instances the judgment thereon will not preclude future litigation on the merits of the controversy in a court of competent jurisdiction upon proper pleadings. And it has been held that where a demurrer goes both to defect of form and also to the merits, a judgment thereon, not designating between the two grounds, will be presumed to rest on the former. But where the de- murrer is to a pleading setting forth dis- tinctly specific facts touching the merits of the action or defense, and final judgment is rendered thereon, it would be difficult to find any reason in principle why the facts thus admitted should not be considered for all purposes as fully established as if found by a jury, or admitted in open court. If the party against whom a ruling is made on a demurrer as an admission of the facts in the pleading demurred to, he should seek to amend his pleading or answer, as the case may be. Leave for that purpose will seldom be refused by the court upon a statement that he can controvert the facts by evidence which he can produce. If he does not ask for such permis- sion, the inference may justly be drawn that he is unable to produce the evidence, and that the fact is as alleged in the pleading.” Fietp, J. Bissell v. Spring Valley Tp. 124 UL S. 232. “A judgment rendered upon a demurrer to the declaration or to a material pleading, setting forth the facts, is equally conclusive of the matters confessed by the demurrer as a verdict finding the same facts would be, since the matters in controversy are estab- lished in the former case, as well as in the latter, by matter of record; and the rule is, that facts thus established can never after be contested between the same parties or those in privity with them.” CLiFForD, J. Gould v. Evansville, etc., R. Co., 91 U. S. 533. “On the overruling of a demurrer, the general rule is that judgment for the plaintiff is final if the merits are involved, but a judg- ment that a declaration is bad, cannot be pleaded as a bar to a good declaration for the same cause of action, because such a judgment is in no just sense a judgment 587 DEPOSITIONS. upon the merits.” Crirrorp, J. Aurora City uv. West, 7 Wall. 99. Pleading Over. “Pleading over to a declaration adjudged good on demurrer is a waiver of the demur- rer, and when a defendant files a rejoinder to a replication, previously adjudged good on demurrer, his act in pleading over must for the same reason be held to have the same effect.” CiirForD, J. Aurora City v. West, 7 Wall. 92. Amendment After Demurrer Sustained. “The right to amend after a demurrer has been sustained must rest largely, if not whol- ly, in the discretion of the court; and while we are not prepared to hold that in no case will its action in the matter be reviewed here, we have no hesitation in saying that the abuse of this discretion must be made plain to authorize us to do so.” Mutter, J. U. S. v. Atherton, 102 U. S. 375. DENIZENS. See ALIENS. Grant of Land Does Not Make Alien a Denizen. “The king’s grants shall not inure to the double intent, when made to an alien, of vesting in him the thing granted, and then, by implication, constituting him a denizen, so as to enable him to hold an indefeasible es- tate.” Jounson, J. Doe v. Robertson, 11 Wheat. 352. “The Effect of an Alien’s Being Made Denizen is not to enable him to take lands, but to enable him to hold them against the king.” Jounson, J. Doe v. Robertson, 11 Wheat. 352. ° ' DEPORTATION. See Atiens; Curtnese Exctusion Acts. Transportation, Extradition, and Deporta- tion Distinguished. “Strictly speaking, ‘transportation,’ ‘ex- tradition’ and ‘deportation,’ although each has the effect of removing a person from the country, are different things, and have different purposes. ‘Transportation’ is by way of punishment of one convicted of an offense against the laws of the country. ‘Extradition’ is the surrender to another country of one accused of an offense against its laws, there to be tried, and, if found guilty, punished. ‘Deportation’ is the re- moval of an alien out of the country, simply because his presence is deemed inconsistent with the public welfare, and without any punishment being imposed or contemplated, either under the laws of the country out of which he is sent, or under those of the coun- try to which he is taken.” Gray, J. Fong Yue Ting v. U. S., 149 U. S. 709. DEPOSIT. See SEQUESTRATION. DEPOSIT IN COURT. “Cases, no doubt, sometimes arise, where the purposes of justice require that money be paid into court.” Taney, C. J. Forgay v. Conrad, 6 How. 205. DEPOSITIONS. As to admissibility of dying declarations, see Dyi1nc DECLARATIONS. How Taken Generally. “There are two modes of taking deposi- tions under the Act of Congress. By the first, notice in certain cases is not necessary, but the forms prescribed must be strictly pur- sued. This deposition is not taken under that part of the act. By a subsequent part of the section, depositions may be taken by dedimus potestatem, according to common usage.” MarsHatt, C. J. Buddicum v. Kirk, 3 Cranch 297. : — Statute Must Be Followed, Unless by Consent or Waiver. “No practice, however convenient, can give validity to depositions which are not taken according to law, or the rules of the Circuit .Court, unless the parties expressly waive the objection, or, by previous consent, agree to have them taken and made evi- dence.” Story, J. Evans v. Eaton, 7 Wheat. 426. —State or Federal Practice May Be Followed. “The courts of the United States are not given discretion to make depositions not authorized by federal law, but in respect of depositions thereby authorized to be taken, they may follow the federal practice in the manner of taking, or that provided by the state law.” FuLier, J. Hanks Dental Assoc. v. International Tooth Crown Co., 194 U. S. 309. —— Commission and Authority of Com- missioners. “Commissions are always granted for tak- ing testimony abroad, and the commissioners 588 DESCENT AND have authority to administer oaths, and to certify the depositions by them taken.” Mar- SHALL, C. J. Church v. Hubbart, 2 Cranch 238. —— Reducing to Writing in Presence of Officer. “The reducing of the deposition to writing, in the presence of the magistrate, is a fact made material by the statute, and ; proof of it is a necessary preliminary to the right of introducing it at the trial.” Story, J. Bell v. Morrison, 1 Pet. 356. Admissibility — Deposition De Bene Esse. “The deposition is taken de bene esse, not in chief; and a deposition so taken can be read only when the witness himself is unat- tainable.’?’ MarsHatt, C. J. The Samuel, 1 Wheat. 16. “ The certificate of the clerk to the deposi- tion is thought of equal validity as if forming a part of his general certificate. It shows that this deposition formed no part of the cause in the Circuit Court, and is, therefore, liable to every exception which could be made to it, if it was not found in the record, and was now offered for the first time to this court.’ MarsHaLt, C. J. The Samuel, 1 Wheat. 15. —— After Death of Witness. “Tf a deposition be not properly taken it is not made admissible by the death of the witness.” SwAYNE, J. Burton wv. Driggs, 20 Wall. 134. — Deposition Taken in Another Suit. “The rule is that depositions taken in one cause may be used in another trial between the same parties, involving the same issues, if the witnesses are dead or absent. They have never been permitted, when thé witness was alive and within the jurisdiction of the court.” Catron, J. Gaines v. Relf, 12 How. 576. —— Against Defendant in a Criminal Case. “ At common law, the right existed to read a deposition upon the trial of the defendant, if such deposition- had been taken when the defendant was present and when the defend- ant’s counsel had had an opportunity to cross-examine, upon proof being made to the satisfaction of the court that the witness was at the time of the trial dead, insane, too ill even to be expected to attend the trial, or kept away by the connivance of the defend- ant.” PEcKHAM, J. West v. Louisiana, 194 Uz. S. 262. DISTRIBUTION. “The provision [in the Constitution] that an accused person shall be confronted with the witnesses against him [does not] pre- vent the admission of . . the deposi- tions of witnesses who have died since the former trial.” Brown, J. Robertson v. Baldwin, 165 U. S. 282. DEPOSITS. See BANKS AND BANKING. DEPRIVE. “The Constitution contains no definition of the word ‘deprive,’ as used in the Four- teenth Amendment. To determine its sig- nification, therefore, it is necessary to ascer- tain the effect which usage has given it, when employed in the same or a like connec- tion”? Warts, C. J. Munn vw. Illinois, 94 U.S, 123. DESCENT AND DISTRIBU- TION. See Exercutors AND ADMINISTRATORS; Herrs AnD Next oF Kin. Nature of Estate of Decedent in General. “The estate of a decedent is neither a person nor a corporation. It can neither sue nor be sued. It consists of property, of rights to property, the title of which passes on his death, with right of possession, ac- cording to the varying laws of the states, to executors of a will, administrators of estates, heirs or devisees, as the case may be. These parties represent in their respective charac- ters the rights which have devolved on them in any controversy, legal or equitable, which may become a matter of judicial contest with other parties having conflicting interests.” Mriuer, J. Hess v. Reynolds, 113 U. S. 76. See also ExEcuToRS AND ADMINISTRATORS. Nature of Right or Title by Distribution. “Distribution neither gives a new title to property nor transfers a distinct right in the estate of the deceased owner, but is simply declaratory as to the persons upon whom the Jaw casts succession, and the ex- tent of their respective interests.” Haran, J. Robinson v. Fair, 128 U. S. 84. What Law Governs — Heirship. “Heirship, or the right of legitimate chil- dren to inherit from deceased parents, depends upon the law of the place where the property may be. Parents cannot change it except as they may do so according to law.” Catron, J. Gaines v, Relf, 12 How. 595. 589 — DESCENT AND —— Personal Estate. “Tt has long been settled, and is a prin- ciple of universal jurisprudence, in all civil- ized nations, that the personal estate ot the deceased is to be regarded, for the purposes of succession and distribution, wherever situ- ated, as having no other locality than that of his domicil.” Netson, J. Wilkins v. Ellett, 9 Wall. 741. See also PERSONAL PROPERTY; PROBATE AND ADMINISTRATION. — Common Law and Statute. “Before the Revolution, some of the col- onies had passed laws regulating the descent of real property upon principles essentially different from those of common law. In most of them the common law _ subsisted until the close of the Revolution and the return of peace.” Swayne, J. Bates vw. Brown, 5 Wall. 716. “ “In England, the canons of descent by the common law are never confounded with de- scents specially authorized by statute: and the statute [of descent] of New York re- fers, not to any particular law of that state, then existing, but to the common origin of our jurisprudence, the common law of Eng- land.” Story, J. Levy v. M’Cartee, 6 Pet. 111. — Each Government May Regulate for Itself. “Every government has, and from the nature of sovereignty must have, the exclu- sive right of regulating the descent, distribu- tion and grants of the domain within its own boundaries; and this right must remain until it yields it up by compact or conquest.” Story, J. Green v. Biddle, 8 Wheat. 12. “The laws of the states are valid which provide for the descent and distribution of property of a decedent.” Muzier, J. Hess v. Reynolds, 113 U. S. 76. Proceedings to Determine Succession. “When a man dies, the legislature is under no constitutional obligation to leave the title to his property, real or personal, in abeyance for an indefinite period; but it may provide for promptly ascertaining, by appropriate judicial proceedings, who has succeeded to his estate.” Gray, J. Hamilton v. Brown, 161 U. S. 275. See also Escurat; Propate AND ADMINISTRATION. Dependent upon Death of Ancestor. “Tt is true, as a general rule, that so long as the ancestor lives the heirs have no inter- est in his estate.” Watre, C. J. Pike wv. Wassell, 94 U. S. 714, DISTRIBUTION. “The heir, during the lifetime of his an- cestor, has no right, claim, title, or interest, in the ancestral estate. It is a mere naked expectancy, liabie to be defeated at the will of the ancestor at all times, and in no just sense, a possibility of interest, a right in the thing itself.” Story, J. Comegys v. Vasse, 1 Pet. 220. Until Death of Ancestor Laws May Be Changed. “Until [the death of the ances- tor] occurs, the law of descent and distribu- tion may be molded according to the will of the legislature.” Swayne, J. Randall w. Kreiger, 23 Wall. 148. “Laws upon those subjects [descent and distribution] in such cases take effect at once, in all respects as if they preceded the birth of such persons then living. Upon the death of the husband and the ancestor the rights of the widow and the heirs become fixed and vested. Thereafter their titles respectively rest upon the same foundation, and are pro- tected by the same sanctions as other rights of property. The power of a legislature under the circumstances of this case to pass laws giving validity to past deeds which were before ineffectual is well settled.” Swayne, J. Randall v. Kreiger, 23 Wall. 148. “The heir apparent loses no legal right if, before descent cast, the law of descents is changed so as to ‘shift the inheritance to another, however his expectations may be disappointed.” Mattuews, J., dissenting. Kring v. Missouri, 107 U. S. 250. “Though the general consent of the most enlightened nations has, from the earliest historical period, recognized a natural right in children to inherit the property of their parents, we know of no legal principle to prevent the legislature from taking away or limiting such conditions upon its exercise as it may deem conducive to public good.” Brown, J. U.S. v. Perkins, 163 U. S. 628. See also Girts; WILLs. Repeal of Statute Does Not Affect Vested Rights. SOE cs a statute of descents be repealed, it has never been supposed that rights of property already vested during its existence were gone by such_ repeal.” Wasuincton, J. Society v. New Haven, 8 Wheat. 493. Particular Rules— When Heir Takes by Descent, Not by Devise. “The general rule is, that an heir shall not take by devise, when he may take the same 590 : DESIGNS. estate in the land by descent.” Story, J. Barnitz v. Casey, % Cranch 464. Hereditaments Descend Lineally. “ According to the canons of descent, here- ditaments descend lineally, but can never as- cend. This rule is applied so rigidly that it is said ‘the estate shall rather escheat than violate the laws of gravitation.’ The male issue is admitted before the female. When there are two or more males, the eldest only shall inherit, but females altogether. Lineal descendants, in infinitum, represent their an- cestors, standing in the same place the an- cestor would have stood, if living. On fail- ure of lineal descendants of the ancestor, the inheritance descends to his collateral rela- tions — being of the blood of the first pur- chaser — subject to the three preceding rules. The collateral heir of the intestate must be his collateral kinsman of the whole blood. In collateral inheritances, the male stock is preferred to the female. Kindred of blood of the male ancestor, however remote, are ad+ mitted before those of the blood of the female, however near, unless where the lands have, in fact, descended from a fe- male.” Swayne, J. Bates v. Brown, 5 Wall. 715. — Necessity that Ancestor Should Be Seized. “Even at common law, it was not always necessary that the ancestor should be seized to enable the heir to take by descent. Shel- ley’s case is that where the ancestor might have taken and been seized, the heir shall inherit.” Stronc, J. Wallach v. Van Ris- wick, 992 U. S. 218. — After-born Brother Cuts off Sister. “Tf lands are given to a son, who dies, leaving a sister his heir, if the parents have, at any distance of time afterwards, another son, the common law devests the descent upon the sister in favor of such son, and he is entitled to take the estate as heir to his brother.” Story, J. McCreery’s Lessee v. Somerville, 9 Wheat. 360. -—~ Descent from Brother to Brother and Child to Parent. “By the common law [of descents of Maryland], a descent from brother to brother is held to be an immediate descent, and not from or through the parents; and the express provisions of the statute of Maryland as to estates of purchase, necessarily involves the same conclusion; and the same may be de- clared of a descent from a child to a parent under the same statute.” Story, J. Barnitz v. Casey, 7 Cranch 467. — All Children Share Alike in Delaware. “The rule is Shelley’s case is in force in Delaware, and an estate tail may be barred there by such a conveyance as that by Rich- ard to Hazel. Under the law of descend- ants of Delaware all the children share alike — descendants from them taking per stirpes.” Swayne, J. Daniel v. Whartenby, 17 Wall 641, DESERTION. As a Felony. “By some early English statutes, which appear to have been in force down to the Revolution of 1688, desertion was made fel- ony, punishable in the civil courts. . . . But those statutes fell into disuse after Par- liament by the Mutiny Acts, beginning with the statute of 1 W. & M., ch. 5, and re-enact- ed almost every year since, for the first time authorized mutiny and desertion to be punish- ed at the sentence of a court martial in time of peace.” Gray, J. Kurtz v. Moffitt, 115 U. S. 499. Punishment. “From the year of the Declaration of In- dependence, Congress has dealt with deser- tion as exclusively a military crime, triable and punishable in time of peace, as well as in time of war, by court martial only, and not by the civil tribunals; the only qualification being that since 1830 the punishment of death cannot be awarded in time of peace.” Gray, J. Kurtz v. Moffitt, 115 U. S. 501. Procuring Desertion. “The Articles of War have . . . al- ways provided that any officer or soldier who advises or persuades any other officer or soldier to desert the service shall be punished by court martial.” Gray, J. Kurtz v. Moffitt, 115 U. S. 502. DESIGNS. See Patents. “We are in the habit of regarding a de- sign as a thing of distinct and fixed individ- uality of appearance—a representation, a picture, a delineation, a device.” Bran ey, J. N. Y. Belting, etc, Co. v. New Jersey Car Spring, etc., Co., 137 U. S. 450. “A design or pattern in ornamentation or shape appeals only to the taste through the eye, and is often a matter of evanescent caprice.” BLATcHFoRrD, J. Dobson v, Hart- ford Carpet Co., 114 U. S. 445. 591 DISCOVERY. DETINUE. See REPLEVIN. Judgment. “The judgment in detinue is for the thing itself or its value.” MarsHALt, C. J. Mar- bury v. Madison, 1 Cranch 173. DEVISEE. See PurcHASER. DEVISES. See Lrcacies AND DEVISEs. DILIGENCE. See Lacnes; NEGLIGENCE; NECOTIABLE IN- STRUMENTS. “Ordinarily diligence, like most other hu- man qualifications or characteristics, is a rel- ative term, to be judged of by the nature of the subject to which it is directed.” Brap- Ley, J. Holladay v. Kennard, 12 Wall. 258. DIRECTORS. See Corporations; BANKS AND BANKING; NationAL Banks; OFFICERS OF PRIVATE CorPoraTions; STOCK AND STOCKHOLDERS. DISCHARGE. “Tt is quite true that in the military service the word ‘ discharge’ is the word applied to an order ending the service of an officer at his own request. But in other connections it conveys the notion of a movement beginning with the superior and more or less adverse to the object, as, for instance, when we speak of discharging a servant. Usually it is a slightly discrediting verb.” Hotmes, J. U. S. v. Sweet, 189 U. S. 473. DISCOUNT. See Banxs AND BANKING. DISCOVERY. As to the acquisition of title to an uninhab- ited country, see TITLE By DIscov- ERY. Jurisdiction. “Tt is of the essence of the jurisdiction of courts of equity, in bills of discovery merely, that it is in aid of the legal right; and it is a fundamental rule, prescribed for the exer- cise of that jurisdiction, in the words of Story (Eq. Jur., sec. 1495), that ‘courts of equity will not entertain a bill for discovery to assist a suit in another court, if the latter is, of itself, competent to grant the same relief; for in such a case the proper exercise of the jurisdiction should be left to the func- tionaries of the court where the suit is de- pending.’ It follows, then, that although at one time courts of equity would entertain bills of discovery, in aid of executions at law, because courts of law were not armed with adequate powers to execute their own process, yet the moment those powers were sufficiently enlarged, by competent authority, to accomplish the same beneficial result, the jurisdiction in equity, if it did not cease as ‘unwarranted, would, at least, become inoper- ative and obsolete. A bill in equity to com- pel disclosures from a plaintiff or a defend- ant, of matters of fact peculiarly within his knowledge, essential to the maintenance of the legal rights of either in a pending suit at law, would scarcely be resorted to, unless under special circumstances, now, when parties are competent witnesses, and can be compelled to answer under oath, all relevant interrogatories properly exhibited; nor to compel the production of books, deeds, or other documents, important as instru- ments of evidence, when a court of law, in which the suit is pending, is authorized by summary proceedings to enforce the same right.” MatrHews, J. Ex p. Boyd, 105 U. S. 657. “The authorities are abundant and well settled that a creditor of a deceased person parties represent in their respective charac- has a right to go into a court of equity for a discovery of assets and the payment of his debt. When there, he will not be turned back to a court of law to establish the valid- ity of his claim. The court being in right- ful possession of the cause for a discovery and account, will proceed to a final decree upon all the merits.” Braptzy, J. Kennedy v. Creswell, 101 U. S. 646. Production of Books and Papers. “No one has ever questioned the authority of Congress to make parties to a suit com- petent witnesses, or to confer upon courts of law power to compel the production of books and papers, because discovery was an ancient. head of equitable jurisdiction.” MattHews, J. Ex p. Boyd, 105 U. S. 657. See also Witnesses. Evidence Tending to Convict of Crime. “One cardinal rule of the court of chancery is never to decree a discovery which might tend to convict the party of a crime, or to forfeit his property.” Brapvtey, J. Boyd w. U. S., 116 U. S, 631. 592 DISCRETION. “Any compulsory discovery by extorting the party’s oath, or compelling the produc- tion of his private books and papers, to con- vict him of crime, or to forfeit his property, is contrary to the principles of a free gov- ernment.” Brapiey, J. Boyd v. U. S., 116 U. S. 681. ; See also CrrminaL Law. DISCRETION. See AMENDMENTS; APPEAL AND ERRor; Manpamus; MIntstTERIAL Duty. Definition and Nature. “The term discretion implies the absence of a hard-and-fast rule. The establishment of a clearly defined rule of action would be the end of discretion, and yet discretion should not be a word for arbitrary will or in- considerate action.” Suiras, J. The Styria, etc., v. Morgan, 186 U. S. 9. “The court would certainly not feel itself at liberty to exercise on a common occasion a discretionary power, limited only by the opinion entertained of the naked justice of the case.” MarsHALL, C. J. Faw v. Mar- steller, 2 Cranch 31. Discretion Exercised Must Be Legal. “Judicial power, as contradistinguished from the power of the laws, has no exist- ence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exer- cised in discerning the course ‘prescribed by law; and, when that is discerned, it is the duty of the court to follow it.” MarsHALL, C. J. Osborn v. Bank of U. S., 9 Wheat. 866. Security Against Abuse. “The idea is Utopian, that government can exist without leaving the exercise of discre- tion somewhere. Public security against the abuse of such discretion must rest on respon- sibility, and stated appeals to public appro- bation.” Jounson, J. Anderson v. Dunn, 6. Wheat. 226. Liability for Error of Judgment. “Where a discretion may be exercised, if it be exercised in good faith, the officer is not responsible for an error of judgment. But this, of necessity, is limited to matters which come within his jurisdiction. He can claim no immunity beyond this. If he could, he might act without any other restraint than his own discretion; and this would be to 1 Ox, Dic.—38 exercise an unmitigated and irresponsible despotism.” McLean, J., dissenting. Ken- dall v. Stokes, 3 How. 792, Control of Exercise. “Whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion.” Mar- SHALL, C. J. Marbury v. Madison, 1 Cranch 166. “It has been uniformly held in this court that a Circuit Court could not be controlled in the exercise of the discretion thus con- ceded to it.” CAMPBELL, J. Eberly v. Moore, 24 Wall. 158. “Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts.” Story, J. Martin v. Mott, 12 Wheat. 31. Injunction and Mandamus. An officer to whom public duties are con- fided by law, is not subject to the control of the courts in the exercise of the judgment and discretion which the law imposes in him as a part of his official functions. Certain powers and duties are confided to those offi- cers, and to them alone, and however the courts may, in ascertaining the rights of par- ties in suits properly before them, pass upon the legality of their acts, after the matter has once passed beyond their control, there ex- ists no power in the courts, by any of its processes, to .act upon the officer so as to interfere with the exercise of that judgment while the matter is properly before him for action. The reason for this is, that the law reposes this discretion in him for that occasion, and not in the courts. This doc- trine therefore, is as applicable to the writ of injunction as it is to the writ of man- damus. In the one case the officer is required to abandon his right to exercise his personal judgment, and to substitute that of the court, by performing the act as it commands. In the other he is forbidden to do the act which his judgment and discretion tell him should be done. There can be no difference in the principle which forbids interference with the duties of these officers, whether it be by writ of mandamus or injunction.” Mutter, J. Gaines v. Thompson, 7 Wall. 352. “The courts cannot control, though in proper cases they may direct, the exercise of judgment or discretion in an executive offi- 593 DISMISSAL AND NONSUIT. cer.” Futter, C. J. U. S. uv. Bashaw, 152 U.S. 443. Review. “Where the decision of questions of fact is committed by Congress to the judgment and discretion of the head of a department, his decision thereon is conclusive; and . even upon mixed questions of law avd fact, or of law alone, his action will carry wih it a strong presumption of its correctness, and the courts will not ordi- narily review it, although they may have the power, and will occasionally exercise the right of so doing.” Brown, J. Bates, etc., Co. v. Payne, 194 U. S. 109. “Where Congress has committed to the head of a department certain duties requiring the exercise of judgment and discretion, his action thereon, whether it involve questions of law or fact, will not be reviewed by the courts, unless he has exceeded his authority or this court should be of opinion that his action was clearly wrong.’ Brown, J. Bates, etc., Co. v. Payne, 194 U. S. 108. “We admit that where matters appertain- ing to the postal service are left to the dis- cretion and judgment of the postmaster- general, the exercise of that judgment and discretion cannot in géneral be interfered with, and the results following defeated.” Fietp, J. U.S. v. Barlow, 132 U. S. 280. “Tt is familiar law that when jurisdiction is delegated to any officer or tribunal, his or its determination is conclusive.” BREWER, J. U. S. v. California, etc, Land Co., 148 U, S. 43. : —— Acts Binding and Valid. “Tt is the general principle, that when power or jurisdiction is delegated to any public officer or tribunal over a subject-mat- ter, and its exercise is confided to his or their discretion, the acts so done are binding and valid as to the subject-matter.” CAMPBELL, J. Bartlett v. Kane, 16 How. 272. “When power or jurisdiction is delegated to any public officer or tribunal over a sub- ject-matter, and its exercise is confided to his or their discretion, the acts so done are in general binding and valid as to the sub- ject-matter. The only questions which can arise between an individual and the public, or any person, denying their validity, are power in the officer and fraud in the party. All other questions are settled by the decision made or the act done by the tribunal or offi- cer, whether executive, legislative, judicial, or special, unless an appeal or other revision is provided for by some appellate or supervi- sory tribunal prescribed by law.” CLIFForp, J. Belcher v. Linn, 24 How. 522. —— Discretionary and Ministerial Acts Distinguished. “It was held by this court as early as 1803, in the great case of Marbury v. Madi- son, 1 Cranch 137, that there was a dis- tinction between acts involving the exercise of judgment or discretion and those which are purely ministerial; that, with respect to the former, there exists, and can exist, no power to control the executive discretion, however erroneous its exercise may seem to have been, but with respect to ministerial duties, an act or refusal to act is, or may become, the subject of review by the courts.” Brown, J. Noble v. Union River Logging R. Co., 147 U. S. 171. DISEASE. See Accrpent INsuRANCE; HEALTH; Po- LICE Power. DISMISSAL AND NONSUIT. Asionolle prosequi in criminal proceedings, see INDICTMENT AND INFORMATION ; right of district attorney to consent to nonsuit or discontinuance, see D1s- TRICT AND ProsEcuTING ATTOR- NEYS; direction of verdict, see TRIAL. Right of Plaintiff to Discontinue and at What Stage. “ According to the practice of some of the courts in the Union, it is understood to be the right of the plaintiff to enter a discon- tinuance of the cause at any time, either in term or in vacation, upon the payment of costs, before a verdict is given, without any formal assent of, or application to, the court; and that thereupon the cause is deemed, in contemplation of law, to be discontinued. In Massachusetts and Maine, a different practice is understood to prevail; and the discontinu- ance can only be in term, and is generally upon application to the court. In many cases, however, in these states, it is a matter of right.” Story, J. Veazie v. Wadleigh, 11 Pet. 61. “Before trial, then, the plaintiff may, in many cases, as a matter of right, discontinue his cause according to the practice of the state courts, at any time when he is demand- able in court. After a trial or verdict, he can do so only by leave of the court, which it 594 DISMISSAL AND NONSUIT. may grant or refuse, in its discretion. But, under ordinary circumstances, before verdict, it is almost a matter of course to grant it upon payment of costs, when it is not strictly demandable of right.” Story, J. Veazie v. Wadleigh, 11 Pet. 61. “The general proposition is true that a complainant in an equity suit may dismiss his bill at any time before the hearing, but to this general proposition there are some well recognized exceptions. Leave to dismiss a bill is not granted where, beyond the inci- dental annoyance of a second litigation upon the subject-matter, such action would be manifestly prejudicial to the defendant.” PreckHaM, J. Pullman’s Palace Car Co. v. Central Transportation Co., 171 U. S. 145. Dismissal as to One of Several Defend- ants — Joint and Several Obligors. “Though the plaintiff should elect to bring a joint suit against all the obligors, if they sever in their pleas, and the bond be joint and several, he may enter a nolle prose- qui against one of them, even although his plea go to the action of the writ; it being the same with that of the other defendants, and take judgment against the other defendants, which cannot be reversed on error, where no objection to the judgment against them was made by those defendants at the time.” Bargour, J. U.S. v. Leffler, 11 Pet. 98. “Tf a nolle prosequi may be entered after verdict, and before judgment, without dis- charging the other party, there is no good reason, why it may not be done after judg- ment, when there has been no proceeding, which binds the plaintiff to consummate a judgment against the party whom he wishes to dismiss. In each case the judgment upon the whole record is consistent with the writ.” Story, J. Minor v. Mechanics Bank, 1 Pet. 80. “T conceive the nolle prosequi cannot be entered at any point of time, when it would place the defendants in a worse situation, or deprive them of any advantage of making their defense.” JoHNson, J., dissenting. Minor v. Mechanics Bank, 1 Pet. 87. “Tt is a question of no importance — one of no influence upon the law of the case— whether a nolle prosequi may be entered be- fore, or after judgment, or when it may be entered; otherwise than as it affects the legal relations of the parties, and the rules which govern suits at law.” Jouwnson, J., dissent- ing. Minor v. Mechanics Bank, 1 Pet. 86. “Tf the nolle prosequi be entered, so as to produce any derangement in the rights of the defendant, to deprive them of a legal de- fense, or subject them to increased difficulties or liabilities, it is error.” JoHNson, J., dis- senting. Minor v. Mechanics Bank, 1 Pet. 86. “The cases are very few in the books, in which the effects of a nolle prosequi, in such a case [joint action against several], has been tried by the only sufficient test —a plea in bar, to a suit upon the same con- tract. But as far as they have gone, they maintain the bar.” JoHNson, J., dissenting. Minor v. Mechanics Bank, 1 Pet. 82. “TI think, I may very confidently main- tain, that in no case can a nolle prosequi be legally entered, as to one of the defendants, unless the suit might originally have been maintained against those who remain; or, un- less the remaining defendants might have availed themselves of pleading the non- joinder of their co-obligor, if their rights were affected by his exclusion from the ac- tion.” Jounson, J., dissenting. Minor v. Mechanics Bank, 1 Pet. 86. “Tt cannot be contended that the use of the nolle prosequi in cases of tort, in which the defendants may be joined and disjoined at the pleasure of the plaintiff, can afford prec- edent or authority for the use of it, in cases of joint contract; in which the law, re- garding the nature of the contract, and the rights of the parties, imposes on the plain- tiff the obligation to sue them jointly.” Jounson, J., dissenting. Minor v. Mechanics Bank, 1 Pet. 84. “It cannot be doubted, that had this nolle prosequi been entered before trial, the de- fendants must have been permitted to plead it, puis darrein continuance, and that the plea must have been sustained.” Jouwnson, J., dissenting. Minor v. Mechanics Bank, 1 Pet. 82, “T am yet to learn, that, in a joint action in contract against several, a nolle prosequi as to the whole action, against one, is not a bar as to him.” Jounson, J., dissenting. Minor v. Mechanics Bank, 1 Pet. 82. “Tf [a molle prosequi is] a bar, in cases in which the suit is against a single defend- ant, there can be no reason assigned why it should not be a bar as against one of the several defendants.” Jounson, J., dissenting. Minor v. Mechanics Bank, 1 Pet. 83. 595 DISMISSAL AND NONSUIT. ——In Tort. “Tn tort, it does not seem to have been denied, that cases might exist, in which, if the defendants severed in their pleas, the plaintiff might, after judgment against one, have entered a nolle prosequi as to the others. The doubt was, whether he could do so be- fore judgment, which was finally settled in favor of the right; and in such cases, where several damages were assessed against the different defendants, the difficulty was after- ‘wards cured, by entering a nolle prosequi as to all but one defendant. And in the same manner, a misjoinder of improper parties is sometimes aided.” Story, J. Minor vw. Mechanics Bank, 1 Pet. 75. “In cases of tort against several defend- ants, though they all join in the same plea, and are found jointly guilty, yet the plaintiff may, after verdict, enter a nolle prosequi, as to some of them, and take judgment against the rest. The reason is said to be, that the action is in its nature joint and several; and, as the plaintiff might originally have commenced his suit against one only, and proceeded to judgment and execution against him alone, so he might, after the ver- dict against several, elect to take his dam- ages against either of them. A fortiori, the same doctrine applies where the defendants sever in their pleas.” Story, J. Minor v. Mechanics Bank, 1 Pet. 74. By Agreement on Case Submitted. “Tt is not, however, only for a non-appear- ance, or for delays or defaults that a non- suit may be entered. The plaintiff in such particulars may be altogether regular, and the pleadings may be completed to an issue for a trial by the jury; yet the parties may concur to take it from the jury with the view to submit the law of the case to the court upon an agreed statement of facts with an agreement that the plaintiff shall be non- pros’d, if the facts stated are insufficient to maintain the right which he claims.” Wayne, J. Homer v. Brown, 16 How. 365. Motion to Dismiss Not Analogous to Plea to Jurisdiction. “A motion to dismiss a cause pending in the courts of the United States, is not anal- ogous to the plea to the jurisdiction of a court of common law or equity in Eng- land.” Dawntet, J. Scott v. Sandford, 19 How. 473. Involuntary Nonsuit. . “There are many cases in the books, in which this court has held that a court of the United States has no power to order a non- suit without the plaintiff’s acquiescence. Yet, instead of overruling, upon that ground alone, exceptions to a refusal to order a nonsuit, this court, more than once has considered and determined questions of law upon the deci- sion of which the nonsuit was refused in the court below.” Gray, J. Central Transp. Co. v. Pullman’s Palace Car Co., 139 U. S. 39. “Tt is well’ settled law that the Circuit Court does not possess the power to order a peremptory nonsuit against the will of the plaintiff.” CiirForp, J. New York Mercan- tile Mut. Ins. Co. v. Folsom, 18 Wall. 250. “A defendant has an undoubted right to stand upon his motion for a nonsuit, and have his writ of error if it be refused; but he has no right to insist upon his exception, after having subsequently put in his testi- mony and made his case upon the merits, pince the court and jury have the right to consider the whole case as made by the testi- mony. It not infrequently happens that the defendant himself, by his own evidence, sup- plies the missing link, and, if not, he may move to take the case from the jury upon the conclusion of the entire testimony.” Brown, J. Bogk v. Gassert, 149 U. S. 23. -—— After Appearance of Defendant. “A judgment of nonsuit is only given after the appearance of the defendant, when, ftom any delay or other fault of the plaintiff against the rules of law in any subsequent stage of the case, he has not followed the remedy which he has chosen to assert his claim as he ought to do. For such delin- quency or mistake he may be nonpros’d and is liable to pay the costs.” Wayne, J. Homer v, Brown, 16 How. 365. Effect— Order of Court to Redocket Necessary. “ After a cause has been docketed and dis- missed it cannot be again docketed unless by order of the court.” Warts, C. J. Ed- wards v. U. S., 102 U. S. 576. — Not a Retraxit and No Bar to New Suit. “The plaintiffs in error deny that this is the effect of the order, and insist that the pleas present a case of retraxit, by which the United States forever lost their action, be- cause they voluntarily announced to the court that, on the defendant’s paying the costs, the suit would be dismissed. Such an an- nouncement does not imply that they had no cause of action, or, if they had, that they in- 596 DISSOLUTION OF tended to renounce it, or that it was ad- justed.” Davis, J. Haldeman wv. U. S., 91 U. S. 585. “The nature and effect of a nolle prosequi, was not well defined, or understood, in early times; and the older authorities involve con- tradictory conclusions. In some cases it was considered in the nature of a retraxit, operat- ing as a full release and discharge of the action, and, of course, as a bar to any future suit. In other cases it was held not to amount to a retraxit, but simply to an agree- ment not to proceed further in that suit, as to the particular person, or cause of action, to which it was applied.” Story, J. Minor v. Mechanics Bank, 1 Pet. 74. “Nonsuits are frequently taken, on pay- ment of costs by the adverse party, in order that the controversy may be arranged out of court; but they do not preclude the institution and maintenance of subsequent suits in case of failure to settle the matters in dispute.” Davis, J. Haldeman v. U. S., 91 U. S. 585. “The general entry of the dismissal of a suit by agreement is evidence of an intention, not to abandon the claim on which it is founded, but to preserve the right to bring a new suit thereon, if it becomes necessary. It is a withdrawal of a suit on terms, which may be more or less important. They may re- fer to costs, or they may embrace a full settle- ment of the contested points.’ Davis, J. Haldeman v. U. S., 91 U. S. 586. “A judgment of nonsuit, whether ren- dered because of the failure of the plaintiff to appear and prosecute his action, or be- cause upon the trial he fails to prove the par- ticulars necessary to make good his action, or when rendered by consent upon an agreed statement of facts, is not conclusive as an estoppel, because it does not determine the rights of the parties.” Matruews, J. U.S. v. Parker, 120 U. S. 95. “The entry that the ‘cause is hereby dis- continued by consent of both parties, without cost to either party,’ although entered as a judgment of the court, does not of itself im- port an agreement to terminate the contro- versy, nor imply an intention to merge the cause of action in the judgment.” Sxrras, J. Jacobs v. Marks, 182 U. S. 591. — General Dismissal of Bill. “A [general] dismissal of the bill under such directions [to reverse the judgment and dismiss the bill] is presumed to be upon the merits, unless it be otherwise stated in CORPORATIONS. the decree of dismissal.” PeckHAm, J. Baker v. Cummings, 181 U. S. 125. Review on Error. “Tt is true that a plaintiff, who appears by the record to have voluntarily become non- suit, cannot sue out a writ of error. But in the case of a compulsory nonsuit it is otherwise; and a plaintiff, against whom a judgment of nonsuit has been rendered without his consent, and against his objec- tion, is entitled to relief by writ of error.” Gray, J. Central Transp. Co. v. Pullman’s ' Palace Car Co., 139 U. S. 39. “Writs of error are sued continually in England, upon judgments, on _ nonsuits.” JouNson, J., dissenting. Doe v. Grymes, 1 Pet. 473. DISSEIZIN. Lease of Another’s Land. “Tt is laid down that if A. ex- ecutes to B. a lease for the lands of C., and B. enters, this is a disseizin by A., and the reason assigned is, that the demise to B. is equivalent to a command to enter the land of C.” Jonson, J. Bradstreet v. Hunting- ton, 5 Pet. 434. Release to Disseizor Good Conveyance. “Tt is not necessary to recur to authority to prove that a release to the disseizor, by the disseizee in fee, is as good a conveyance as can be executed; or that an absolute con- veyance in fee, especially with words of re- lease, to a disseizor, is a release to the dis- seizor or to his feoffee.” Jounson, J. Bradstreet v. Huntington, 5 Pet. 434, DISSENT. See Decrsions. DISSOLUTION OF COR- PORATIONS. See CoNSOLIDATION AND MERGER oF Cor- PORATIONS; Corporations; Divipenps; Mu- NICIPAL CORPORATIONS; RECEIVERS. Modes of Dissolution. “The dissolution of corporations is or may be effected by expirations of their charters, by failure of any essential part of the cor- porate organizations that cannot be restored, by dissolution and surrender of their fran- chises with the consent of the state, by legis- lative enactment within constitutional author- ity, by forfeiture of their franchises and 597 DISSOLUTION OF CORPORATIONS. judgment of dissolution declared in regular judicial proceedings, or by other lawful means.” Jackson, J. Swan Land, etc., Co. v. Frank, 148 U. S. 611. “A private corporation created by the legis- lature may lose its franchises by a misuser or a nonuser of them; and they may be re- sumed by the government under a judicial judgment upon a quo warranto to ascertain . and enforce the forfeiture. This is the com- mon law of the land, and is a tacit condi- tion annexed to the creation of every such corporation.” Story, J. Terrett v. Taylor, 9 Cranch 51. ne Right of State to Dissolve or Declare For- feiture. “A corporation is altogether dependent on that government to which it owes its exist- ence. Its charter may be forfeited by abuse; its authority may be annihilated, without abuse, by an act of the legislative body.” IREDELL, J. Chisholm v, Georgia, 2 Dall. 448° “No corporation can exist in Louisiana, have a public character, appear in courts of justice, exercise rights as a political body, except by legislative authority; and each may be dissolved, when deemed necessary or con- venient to the public interest.” CAMPBELL, J. McDonogh v. Murdock, 15 How. 406. “The cause of forfeiture was the fact, which was found by the court, that the cor- poration had charged illegal rates for the water it furnished, and the right to declare such forfeiture because of a violation by de- fendant of the conditions of its charter, was implied in the very grant of the charter it- self.” Pecknam, J. New Orleans Water- works Co. wv. Louisiana, 185 U. S. 352. “The corporation, by the very terms of its existence, is subject to a dissolution at the suit of the state on account of any wilful vio- lation of its charter, and the creditors of the corporation deal with it subject to this power. They must accept the result of the decision of the state court.” PeckHam, J. New Or- leans Waterworks Co. v. Louisiana, 185 U. S. 353. — State Must Act Through Attorney, by Quo Warranto. “For the purpose of effecting a dissolu- tion of a corporation grounded upon some al- leged forfeiture of its rights and powers, the state must act through its attorney-gen- eral and by action in the nature of quo war- ranto.” PreckHam, J. Planters’ Ins. Co. v. Tennessee, 161 U. S. 197. ——Conclusiveness of Decision of State - Court. ‘ “Whether defendant [corporation] had so violated its charter [as to work a forfeiture] was a fact to be decided by the state court. That court had full jurisdiction over the parties and the subject-matter, and its deci- sion of the question was conclusive in this case so far as this court is concerned.” Peckuam, J. New Orleans Waterworks Co. v. Louisiana, 185 U. S. 353. “When analyzed, the whole claim [against forfeiture of franchise] is reduced to the as- sertion that in enforcing a condition which is impliedly a part of the charter, the state, through the regular administration of the law by its courts of justice, has by such courts, erroneously construed its own laws. This court in such a case has no jurisdiction to review that determination.” PrckHam, J. New Orleans Waterworks Co. v, Louisiana, 185 U. S. 353. Contracts Enforceable After Dissolution. “The obligation of contracts, made whilst the corporation was in existence, survives its dissolution; and the contracts may be en- forced by a court of equity, so far as. to subject, for their satisfaction, any property possessed by the corporation at the time.” Frevp, J. Broughton v. Pensacola, 93 U. S. 268. “Valid contracts made by a corporation survive even its dissolution by voluntary sur- render or sale of its corporate franchises, and the creditors of the corporation, notwith- standing such surrender or sale, may still enforce their claims against the property of the corporation as if no such surrender or sale had taken place.” CuiFrorp, J. Missis- sippi, etc, R. Co. v. Howard, 7 Wall. 410. Property Not Forfeited by Dissolution. “Even when corporations are dissolved by writs of scire facias or decrees in equity, at the suit of the sovereign, their moneys and property not essential to the exercise of their franchises are not forfeited, but are left to the ownership of the stockholders.” Surras, J., dissenting. Kinkead v. U. S., 150 U. S. 511. “To terminate the charter and thus end the legal life of the company does not take away its property, but, on the contrary, leaves it all to the shareholders of the company after the payments of its debts.” PeckHAM, J. Lake Shore, etc., R. Co. v. Smith, 173 U. S. 698. 598 DISSOLUTION OF CORPORATIONS. Assets of Dissolved Corporation — Are Trust Fund for Benefit of Creditors. “The assets of such a corporation [an in- solvent banking corporation] are a fund for the payment of its debts. If they are held by the corporation itself, and so invested as to the subject to legal process, they may be levied on by such process. If they have been distributed among stockholders, or gone into the hands of others than bona fide creditors or purchasers, leaving debts of the corporation unpaid, such holders take the property charged with the trust in favor of creditors, which a court of equity will en- force, and compel the application of the prop- erty to the satisfaction of their debts.” Curtis, J. Curran v. Arkansas, 15 How. 307. “In our judgment, a law distributing the property of an insolvent trading or banking corporation among its stockholders, or giving it to strangers, or seizing it to the use of the state, would as clearly impair the obligation of its contracts as a law giving to the heirs the effects of a deceased natural person, to the exclusion of his creditors, would im- pair the obligation of his contracts.” Cur- tis, J. Curran v. Arkansas, 15 How. 312. “Whatever losses a bank sustains, that is the only fund it has to lose. When it has become insolvent, it has lost all that fund, and has nothing belonging to its stockhold- ers. In some sense a bank may be said to be indebted to its stockholders for the capital they have paid in. With the leave of the state, they have a right to withdraw it, after all debts are paid, and, if the state is itself the sole stockholder, it may withdraw its capital while any of it shall remain. But, from the very nature of things, it cannot withdraw capital from an insolvent bank, because it has none of their capital remain- ing. When insolvent, its assets belong solely to its creditors.” Curtis, J. Curran v. Arkansas, 15 How. 315. “The ancient doctrine, that, upon the re- peal of a private corporation, its debts were extinguished, and its real property reverted to its grantors, and its personal property vested in the state, has been so far modified by modern adjudications, that a court of equity will now lay hold of the property of a dissolved corporation, and administer it for the benefit of its creditors and stockholders.” Fietp, J. Broughton v. Pensacola, 93 U. S. 268. “The property of a corporation constitutes the fund from which its debts are to be 599 paid, and if the officers improperly attempt to divert this fund from its legitimate uses, justice requires that they should in some way be restrained.” Waite, C. J. Sinking- Fund Cases, 99 U. S. 722. — Trust Fund for Benefit of All Stock- holders and Creditors. “Tt is an established rule of equity that when a corporation becomes insolvent it is so far civilly dead that its property may be administered as a trust fund far’ the benefit of its stockholders and creditors, . not simply of stockholders and credit- ors residing in a particular state, but all stockholders and creditors of whatever state they may be citizens.” Haran, J. Blake v. McClung, 172 U. S. 254. — Following Assets into Hands of Third Persons. “Money derived from the sale and transfer of the franchises and capital stock of an incorporated company are assets of the cor- poration, and as such constitute a fund for the payment of its debts, and if held by the corporation itself, and so invested as to be subject to legal process, the fund may be - levied on by such process; but if the fund has been distributed among the stockholders, or passed into the hands of other than bona fide creditors or purchasers, leaving any debts of the corporation unpaid, the estab- lished rule in equity is, that such holders take the fund charged with the trust in favor of creditors, which a court of equity will enforce, and compel the application of the same to the satisfaction of their debts.” CuirFrorD, J. Mississippi, etc, R. Co. wv. Howard, 7 Wall. 410. “ Assets derived from the sale of the capi- tal stock of the corporation, or of its prop- erty, become, as respects creditors, the substitutes for the things sold, and as such are subject to the same liabilities as re- strictions as the things sold were before the sale, and while they remain in the possession of the corporation. Even the sale of the en- tire capital stock of the company and the division of the proceeds of the sale among the stockholders will not defeat the trust nor impair the remedy of the creditors, if any debts remain unpaid, as the creditors in that event may pursue the consideration of the sale in the hands of the respective stockhold- ers, and compel each one, to the extent of the fund, to contribute pro rata towards the payment of their debts out of the moneys so received and in their hands.” Ctirrorp, J. Mississippi, etc., R. Co. v. Howard, 7 Wall. 410. DISSOLUTION OF CORPORATIONS. “Tn the case of an insolvent incorporation thus brought into liquidation, and wound up by judicial process at the suit of a creditor, whether he sues in his own right, or on behalf of himself and other creditors, the rule of distribution is the same, and is founded upon the principle of equality in which equity delights; unless a claimant or some other judgment creditor had, previously to the filing of the bill, obtained a lien at law upon some portion of the property dis- tributed, or could establish a superior equity, existing at the time of the filing of the bill’ Matruews, J. Richmond vw. Trons, 121 U. S. 44. “Money derived from the sale and trans- fer of the franchises and capital stock of an incorporated company are the assets of the corporation, and, as such, constitute a fund for the payment of its debts; and if held by the corporation itself, and so in- vested as to be subject to legal process, the fund may be seized by a creditor on such process, and subjected to the payment of the indebtedness of the company. Where the fund has been improperly distributed among the stockholders, or passed into the hands of third persons not bona fide creditors or purchasers, the established rule in equity is, if the debts of the company remain unpaid, that such holders take the fund charged with the trust in favor of the creditors, which a court of equity will enforce, and compel the application of the same to the satisfaction of the debts of the corporation.” CLiFForp, J. Scammon wv. Kimball, 92 U. S. 367. “The property of a corporation is doubt- less a trust fund for the payment of its debts, in the sense that when the corporation is lawfully dissolved and all its business wound up, or when it is insolvent, all its creditors are entitled in equity to have their debts paid out of the corporate property before any distribution thereof among the stockholders. It is also true, in the case of a corporation, as in that of a natural person, that any conveyance of property of the debtor, without authority of law, and in fraud of existing creditors, is void as against them.” Gray, J. Wabash, etc., R. Co. v. Ham, 114 U. S. 594. —No Express Trust Exists. “While it is true language has been fre- quently used to the effect that the assets of a corporation are a trust fund held by a corporation for the benefit of creditors, this has not been to convey the idea that there is a direct and express trust attached to the property.” Brewer, J. Hollins v. Brierfield Coal, etc., Co,, 150 U. S. 381. —Rule for Distribution. “Tt is undoubtedly true that, in Pennsyl- vania, in the case of an insolvent corpora- tion, its assets, including unpaid capital stock, constitute a trust fund, and that such fund cannot be appropriated by individual credit- ors, by means of attachments or executions directed against particular assets, but should be distributed, on equitable principles, among the creditors at large.’ Sutras, J. Potts v. Wallace, 146 U. S. 700. “Tt would seem to me a justice unknown to the common law, to apply all the effects of an insolvent corporation to the debt of the government, and strip individuals. In such a case, the rule that equality is equity, would seem a very appropriate one. An equal distribution of all the effects among all the creditors, would certainly not operate un- justly.” Batpwin, J., dissenting. U. S. wv. Robertson, 5 Pet. 668. —— Rights of Stockholders. “Equity regards the property of a cor- poration as held in trust for the payments of the debts of the corporation, and recog- nizes the right of creditors to pursue it into whosesoever possession it may be trans-' ferred, unless it has passed into the hands of a bona fide purchaser; and the rule is well settled that stockholders are not entitled to any share of the capital stock nor to any dividend of the profits until all the debts of the corporation are paid.” CLIFForD, J. Mis- sissippi, etc., R. Co. v. Howard, 7 Wall. 409. “Where an act of incorporation is re- pealed, few questions of difficulty can arise. Equity takes charge of all the property and effects which survive the dissolution, and ad- ministers them as a trust fund, primarily for the benefit of the creditors. If anything is left, it goes to the stockholders. Even the executory contracts of the defunct corpora- tion are not extinguished.” Swayne, J. Shields v. Ohio, 95 U. S. 324. “We do not say that there may not be circumstances presented to a court of chan- cery, which is winding up a dissolved corpor- ation and distributing its assets, that will justify a decree ascertaining their value, or the value of certain parts of them, and mak- ing a distribution to partners or shareholders on that basis; but this is not the general rule by which the property in such cases is disposed of in the absence of an agree- ment.” Murer, J. Mason v. Pewabic Min. Co., 1383 U. S. 63. 600 DISSOLUTION OF CORPORATIONS. — Jurisdiction of Equity to Administer Trust. “Whatever technical difficulties exist in maintaining an action at law by or against a corporation after its charter has been re- pealed, in the apprehension of a court of equity, there is no difficulty in a creditor following the property of the corporation into the hands of any one not a bona fide creditor or purchaser, and asserting his lien thereon, and obtaining satisfaction of his just debt out of that fund specifically set apart for its payment when the debt was contracted, and charged with a trust for all the creditors when in the hands of the cor- poration; which trust the repeal of the char- ter does not destroy.” Curtis, J. Curran v. Arkansas, 15 How. 311. “Indeed, if it be once admitted that the property of an insolvent trading corporation, while under the management of its officers, is a trust fund in their hands for the benefit of creditors, it follows, that a court of equity, which never allows a trust to fail for want of a trustee, would see to the execution of that trust, although by the dissolution of the corporation, the legal title to its property had been changed.” Curtis, J. Curran v. Arkansas, 15 How. 311. “When a corporation becomes insolvent, it is so far civilly dead, that its property may be administered as a trust-fund for the bene- fit of its stockholders and creditors. A court of equity, at the instance of the proper par- ties, will then make those funds trust-funds, which, in other circumstances, are as much the absolute property of the corporation, as any man’s property is his.” Braprey, J. Graham v. La Crosse, etc., R. Co., 102 U. S. 161. “No doubt there are technical difficulties in the way of maintaining proceedings at law against a corporation after its charter has been repealed, but a court of equity is competent to enforce justice to some extent, even where the processes of law fail.” Strona, J., dissenting. Meriwether v. Gar- rett, 102 U. S. 526. “Tt must, we think, be admitted that a court of equity would be entitled, upon the general principles of its jurisdiction, to en- tertain a bill by one or more creditors whose suit would necessarily be for the benefit of all, against the association and its officers and managers, and all those participating in its voluntary liquidation, for the purpose of pre- venting and redressing any maladministra- tion or fraud against creditors, contemplated or executed. In the liquidation of such an association, those entrusted with its manage- ment occupy the relation of trustees, first for creditors, and the terms of that trust, im- plied by law, require them to reduce the assets of the association to money or its equivalent, and to pay out those assets or their proceeds equally among creditors.” MattTHews, J. Richmond w. Irons, 121 U. S. 48. “The administration of the assets of an in- solvent corporation is within the functions of a court of equity, and the parties being be- fore the court it has power to proceed with such administration.” Brewer, J. Hollins v. Brierfield Coal, etc., Co., 150 U. S. 380. Assets of Dissolved Charitable Corpora- tion. “When a business corporation, instituted for the purpose of gain, or private interest, is dissolved, the modern doctrine is, that its property after payment of its debts, equi- tably belongs to its stockholders. But this doctrine has never been extended to public or charitable corporations. As to these the ancient and established rule prevails, namely: that when a corporation is dissolved, its personal property, like that of a man dying without heirs, ceases to be the subject of private ownership, and becomes subject to the disposal of the sovereign authority; whilst its real estate reverts or escheats to the grantor or donor, unless some other course of devolution has been directed by pos- itive law, though still subject as we shall hereafter see to the charitable use.” Brap- LEY, J. Mormon Church v. U. S., 136 U. S. 47. “Where a charitable corporation is dis- solved, and no private donor, or founder, ap- pears to be entitled to its real estate (its personal property not being subject to such reclamation), the government, or sovereign authority, as the chief and common guardian of the state, either through its judicial tri- bunals or otherwise, necessarily has the dis- position of the funds of such corporation, to be exercised, however, with due regard to the subjects and purposes of the chari- table uses to which the property was orig- inally devoted, so far as they are lawful and not repugnant to public policy.” Brapiey, J. Mormon Church v. U. S., 136 U. S. 48. Proceedings for Dissolution and Winding Up. * The common law of Great Britian was deficient in supplying the instrumentalities for 601 DISTRICT AND PROSECUTING ATTORNEYS. a speedy and just settlement of the affairs of an insolvent corporation whose charter had been forfeited by a judicial sentence.” CAMPBELL, J. Bacon v. Robertson, 18 How. 483. “A statutory proceeding to wind up a cor- poration is not a common-law remedy.” Futter, C. J. Moran v. Sturges, 154 U. S. 277. DISTANCE. See Bounparies; Proximity; SPAN. By Land and Watercourses. “The same rules which govern the cases on the subject of distances by land, have been distinctly and rationally applied to dis- tances called for with reference to water- courses.” JoHNSON, J. Littlepage v. Fowler, 11 Wheat. 220. Meanders of Road. “One general rule is never departed from, to wit, that when distance is indicated by a road, it shall be held to mean by the me- anders of the road.” Jounson, J. Little- page v. Fowler, 11 Wheat. 219. “ From,” oe To,” é At.” ji “Instances are not rare in which statutes have been construed, not literally, but in ac- cordance with the common use of the lan- guage employed by the law-makers. Author- ity to construct a railroad or turnpike from A. to B., or beginning at A, and running to B., is held to confer authority to commence the road at some point within A., and to end it at some point within B. The words ‘from,’ ‘to,’ and ‘at,’ are taken inclusively, according to the subject-matter.” Srrone, J. Union Pacific R. Co. v. Hall, 91 U. S. 348. DISTILLATION OF SPIRITS. “ The distillation of spirits, and the rectifi- cation of them after they are distilled, appear to be distinct and separate acts.” Duvatt, J. U. S. v. Tenbroek, 2 Wheat. 258. DISTRIBUTION. See Descent AnD D1strRIBUTION. DISTRICT AND PROSECUT- ING ATTORNEYS. Suits in Name of United States Must Be Represented by District Attorney. “Settled rule is that those courts [Circuit and District Courts] will not recognize any 602 suit, civil or criminal, as regularly before them, if prosecuted in the name and for the benefit of the United States, unless the same is represented by the district attorney, or some one designated by him ‘to attend to such business, in his absence, as may appertain to the duties of his office.’ CLzFForpD, J. Confiscation Cases, 7 Wall. 457. Duty of District Attorneys as to Suits in Courts of Appeals. “That act [the Court of Appeals Act] was a new and great departure in the judicial sys- tem of the United States. It divided the appellate jurisdiction theretofore vested in this court and distributed it between this and the newly created Courts of Appeal. To ac- commodate suitors it provided that the ses- sions of those courts should be held within their respective circuits, but for all practical purposes those courts became for several classes of cases practically the Supreme Court, and this notwithstanding the fact that there was reserved to this court a con- trol over their proceedings. They were . . . in no sense courts in or for a dis- trict, but distinctively appellate courts for the entire circuit. No express provision was made for appearances in those courts by the district attorneys of the several districts, and the control of cases in them comes within the general jurisdiction of the attorney-gen- eral as head of the department of justice. While one city in each circuit was named as a place for holding at least one term of the court, authority was given to the judges to hold terms at other places within the cir- cuit, and in fact in several circuits the Courts of Appeals are held at more than one place. Obviously great practical inconven- ience would result if the management and control of a case pending in a Court of Appeal was adjudged the duty of the dis- trict attorney of the district in which the court is held. For if the case was placed on the docket for one term and the district attorney of the district in which that term was held should assume the management and control of the case, it might often be that before the case was reached for argu- ment the court would have finished its term there and adjourned to a place in some other district, and then upon the district attorney of that district would rest the duty of un- dertaking the management and control. So not merely the nature of the court and its relations to the entire circuit, but the prac- tical difficulties which would attend the mat- ter, concur in compelling the conclusion that it is not a part of the official duties of the DISTRICT OF COLUMBIA. district attorney of the district in which at the time a session of the Court of Appeals is held to assume the management and con- trol of government cases in that court.” Brewer, J. U. S. v. Garter, 170 U. S. 528. Control of Suit by District Attorney. “Civil suits, in the name and for the benefit of the United States, are . , instituted by the district attorney, and, in the absence of any directions from the at- torney-general, he controls the prosecution of the same in the District and Circuit Courts, and may, if he sees fit, allow the plaintiffs to become nonsuit, or consent to a discontinuance.” CiiFForp, J. Confiscation Cases, ? Wall. 457. “Public prosecutions, until they come be- fore the court to which they are returnable, are within the exclusive direction of the district attorney, and even after they are en- tered in court, they are so far under his control that he may enter a nolle prosequi at any time before the jury is impaneled for the trial of the case, except in cases where it is otherwise provided in some Act of Con- gress. CurFForp, J. Confiscation Cases, 7 Wall. 457. Respective Duties of State and Federal Prosecutors. “Tt was suggested at the argument that the attorney-general of the state might ap- pear in the Circuit Court as the public prose- cutor, but he may not deem it any part of his duty to conduct criminal prosecutions in any other tribunals than those of the state from which he received his commission. Public prosecutions against the authority of the United States are in the Circuit Courts within the exclusive direction of the district attorneys, but they have nothing to do with prosecutions against the statutes, peace, and dignity of a state.” CLiFForD, J., dissenting. Tennessee v. Davis, 100 U. S. 297. Compensation, Fees, and Emoluments. “The government can only be called upon to pay for services earned by the district attorney in his official capacity, and for the fees earned in the performance of these services he should account to the govern- ment in his fee and emolument returns, un- less there be some express exception taking them out of the general rule.” Brown, J. Hilborn v. U. S., 163 U. S..346. — Special Counsel in Circuit Court of Appeals. “When the attorney-general calls upon a district attorney to appear for the govern- ment in a case pending in the Circuit Court of Appeals, he is not directing him in the dis- charge of his official duties as district attor- ney, but is employing him as special counsel. The duties so performed are not per- formed by him as district attorney, but by virtue of the special designation and employ- ment by the attorney-general, and the com- pensation which he may receive is not a part of his compensation as district attorney or limited by the maximum prescribed therefor. It seems to us that this is the clear import of the statutes, and we have difficulty in agree- ing with the Court of Appeals in its opinion on this question.” Brewer, J. U. S. uw. Winston, 170 U. S. 525. Term of Office. “The term of office of a district attorney of the United States is fixed by statute at ~ four years. When this four years comes round, his right or power to perform the duties of the office is at an end, as completely as if he had never held the office.” Hunt, J. Badger v. U. S., 93 U. S. 601. DISTRICT OF COLUMBIA. See WasHiIncTon, City OF, Nature as State. “That Columbia [District of Columbia] is a distinct political society, and is, therefore, ‘a state’ according to the definitions of writers on general law . . is true.” MarsHatt, C. J. Hepburn wv. Ellzey, 2 Cranch 452. “The District of Columbia . . . [is a state] as that word is used in treaties with foreign powers, with respect to the owner- ship, disposition and inheritance of property.” Brown, J. Downes v. Bidwell, 182 U. S. 270. —— Not a State under Constitution. “The District of Columbia . . . [is not a state] within the judicial clause of the Constitution giving jurisdiction in cases between citizens of different states.” Brown, J. Downes v. Bidwell, 182 U. S. 270. “ As citizens of the United States, and of that particular district [District of Colum- bia] which is subject to the jurisdiction of Congress, it is extraordinary that the courts of the United States, which are open to aliens, and to the citizens of every state in the Union, should be closed upon them. But this is a subject for legislative, not for judi- cial, consideration.” MarsHatt, C.J. Hep- burn v. Ellzey, 2 Cranch 453. 6038 DISTRICT OF COLUMBIA. — Not Distinguishable from Territory. “It has been attempted to distinguish a territory from the District of Columbia; but the court is of opinion that this distinction cannot be maintained. They may differ in many respects, but neither of them is a state, in the sense in which that term is used in the Constitution.” Marsuatt, C. J. New Orleans Corporation v. Winter, 1 Wheat. 94. Rights of Citizens under Constitution. “It has been adjudged repeatedly that the people of the District of Columbia, are en- titled, by force of the Constitution [of the United States] alone, to the guarantees of life, liberty and property found in the Con- stitution.” Haran, J., dissenting. Hawaii v. Mankichi, 190 U. S. 237. “There is nothing in the history of the Constitution or of the original amendments to justify the assertion that the people of this District [District of Columbia] may be lawfully deprived of the benefit of any of the constitutional guarantees of life, liberty, and property.” Hartan, J. Callan v. Wil- son, 127 U. S. 550. Sovereign Power Is in United States Gov- ernment and Congress. “Tt is undoubtedly true that the District of Columbia is a separate political community in a certain sense, and in that sense may be called a state; but the sovereign power of this qualified state is not lodged in the cor- poration of the District of Columbia, but in the government of the United States. Its supreme legislative body is Congress.” Brab.ey, J. Metropolitan R. Co. v. Dist. of Columbia; 132 U. S. 9. “The United States possess complete ju- risdiction, both of a political and municipal nature, over the District of Columbia.” Brown, J. Parsons v. District of Columbia, 170 U. S. 52. —— Necessity of Supreme Authority in Congress. “The necessity of supreme legislative au- thority over the seat of government was for- cibly impressed upon the members of the Constitutional Convention by occurrences.” Fiztp, J. Fort Leavenworth R. Co. v. Lowe, 114 U. S. 529. “The necessity of complete jurisdiction over the place which should be selected as the seat of government was obvious to the framers of the Constitution. Unless it were conferred the deliberations of Congress might in times of excitement be exposed to interruptions without adequate means of pro- tection; its members, and the officers of the government, be subjected to insult and in- timidation, and the public archives be in danger of destruction.” Fietp, J. Fort Leavenworth R. Co. uv. Lowe, 114 U. S. 528, —— Extent of Power of Congress. “The Congress of the United States, be- ing empowered by the Constitution ‘to ex- ercise exclusive legislation in all cases what- soever’ over the seat of the national govern- ment, has the entire control over the Dis- trict of Columbia for every purpose of guv- ernment, national and local. It may exercise within the District all legislative powers that the legislature of a state might exercise with- in a state; and may vest and distribute the judicial authority in and among courts and magistrates, and regulate judicial pro- ceedings before them, as it may think fit, so long as it does not contravene any provision of the Constitution of the United States.” Gray, J. Capital Traction Co. v. Hof, 174 U.S. 5. “Tt is well settled, by repeated decisions of this court, that the power of Congress to exercise exclusive jurisdiction in all cases whatever within the District includes the power of taxation.” Brown, J. Parsons wv. District of Columbia, 170 U. S. 56. Subordinate Powers Lodged in City or District Corporation. “The subordinate legislative powers of a municipal character which have been or may be lodged in the city corporations, or in the District corporation, do not make those bodies sovereign.” Brapiey, J. Metropoli- tan R. Co. v. Dist. of Columbia, 132 U. S. 9. Government Of by Commissioners. “It [Congress] has provided in the Dis- trict of Columbia for a board of three com- missioners, who are the controlling officers of the District. It may entrust to them a largé volume of legislative power, or it may by direct legislation create the whole body of statutory law applicable thereto.” Brewer, J. Binns v. U. S., 194 U. S. 491. “When to a board having general admin- istrative supervision of the affairs of a com- munity, and with plenary power in the mat- ter of appointment and removal of subordi- nates, is added the control of another depart- ment, and no express words of limitation are found in the act making the transfer, it is to be presumed that such board has the same plenary power in respect to this new department, and is' not hampered by limita- 604 DIVIDENDS. tions attached to the board which theretofore had control of it. The presumption against implied repeal obtaining in the construction of ordinary statutes yields to the inferences arising from the subject-matter of legislation. Plenary powers having been found by ex- perience valuable in the management of af- fairs already under the control of the board, the transfer of another department to the same control carries with it a strong im- plication that the added department is sub- ject to the same plenary powers. The pri- mary though is not a mere transfer of author- ity, but the bringing of the added department within the control of the general supervising board. It is unity of administration and not change of commission.” Brewer, J. Eck- loff v. District of Columbia, 135 U. S. 242. — Official Acts Binding. “The board of commissioners was consti- tuted by statute to carry the powers of the municipal corporation called the District of Columbia into effect. The commissioners could adopt for the corporation any seal they chose, whether intended to be permanently used, or adopted for the time being. When, acting officially, as in this instance, they signed and sealed the instrument as for the corporation, their signatures and seals bound the corporation as by a specialty.” FULLER, C. J. District of Columbia v. Camden Iron Works, 181 U. S. 460. Title to Streets in Washington. “The title to the streets of Washington is in the United States, arid not in the city, or in the owners of the adjacent lots.” Mitter, J. District of Columbia wv. Balti- more, etc., R. Co. 114 U. S. 460. Liability of District for Acts of Officers, “T do not think the District of Columbia should be held responsible for the neglect and omissions of officers whom it has no power to select or control.” Fretp, J., dis- senting. Barnes v. District of Columbia, 91 UL S. 557. Crimes Against United States. “Crimes committed in the District [of Co- lumbia] are not crimes against the District, but against the United States.” Bran.ey, J. Metropolitan R. Co. v. Dist. of Columbia, 132 U. S. 9. Laws Adopted — Common Law. “A part of the laws so adopted [for the District of Columbia] was the common law.” Swayne, J. Morsell v. Washington First Nat. Bank, 91 U. S. 359. 605 “The District of Columbia, for which that court sits, and whose laws it administers, has preserved the principles of the common law less affected by statutes than any part of America, and, perhaps, less than Eng- land herself.” Murer, J., dissenting. Sykes v. Chadwick, 18 Wall. 150. —— Construction of Act Adopting Laws of Maryland. “The laws of the state of Maryland derive their force, in this District, under the first section of the Act of Congress of the 27th of February, 1801. But we cannot admit that the section which gives effect to those laws amounts to a re-enactment of them, so as to sustain them, under the powers of exclusive legislation, given to Congress over this District.” JoHnson, J. Columbia Bank v. Okely, 4 Wheat. 242. DIVIDENDS. Definition and Nature — Part of Profits. “The term ‘dividend’ in its technical as well as in its ordinary acceptation means that portion of its profits which the corpora- tion, by its directory, sets apart for ratable division among its shareholders.” Jackson, J. Mobile, etc., R. Co. v. Tennessee, 153 U. S. 496. “The dividends declared by a corporation in business usually are, and, except under special circumstances, always should be, from profits. Hence, the word frequently carries with it the idea of a division of profits; but that is not necessarily its only meaning. Its special signification, in any particular case, is always dependent upon the character of the thing divided.” Warrte, C. J. Eyster wv. Centennial Board of Finance, 94 U. S. 504. See also ProrFirs. — Distribution of Capital Restrained. “ Again, dividends can be rightfully paid only out of profits. Corporations are liable to be enjoined by shareholders or creditors from making a distribution, in dividends, of capital.” Jackson, J. Mobile, etc., R. Co. v. Tennessee, 153 U. S. 496. Declaring — Presumption of Legality. “The declaration and payment of a divi- dend is part of the course of business of these corporations [national banks]. It is the thing for which they are established, and its payment is looked for as the appro- priate result of the business which has been done. The presumption of legality attaches DIVIDENDS. to its declaration and payment, because de- claring it, is to assert that it is payable out of the profits.” PeckHam, J. McDonald v. Williams, 174 U. S. 407. — Formal Act Required. “A declaration of profits, as, in itself, and without further action by the directors, en- titling shareholders to dividends, is unknown in the law or in the practice of corporations. Dividends are ‘declared’ by some formal act of the corporation — the question whether they are or are not profits being settled en- tirely by the accounts of the company as kept by subordinate officers, not by the mere statement of directors as to what appears upon its books.” Harian, J. New York, etc., R. wv. Nickals, 119 U. S. 306. — Discretion of Corporation. “Money earned by a corporation remains the property of the corporation, and does not become the property of the stockholders, unless and until it is distributed among them by the corporation. The corporation may treat it and deal with it either as profits of its business, or as an addition to its capital. Acting in good faith for the best interests of all concerned, the corporation may distribute its earnings at once to the stockholders as income; or it may reserve part of the earn- ings of a prosperous year to make up for a possible lack of profits in future years; or it may retain portions of its earnings and allow them to accumulate, and then invest them in its own works and plant, so as to secure and increase the permanent value of its property.” Gray, J. Gibbons v. Mahon, 136 U. S. 558. Incident to Ownership of Stock. “The owner of a share of stock in a corporation holds the share with all its in- cidents, and that among those incidents is the right to receive all future dividends, that is, his proportional share of all profits not then divided. Profits are incident to the share to which the owner at once becomes entitled provided he remains a member of the cor- poration until a dividend is made.” Cuir- ForD, J. Collector v. Hubbard, 12 Wall. 18. —— Profits Pass by Transfer or Bequest of Stock. “ Purchasers of stock have a right to claim and receive all dividends subsequently de- clared, no matter when the fund appropriated for the purpose was earned, whether before or after the transfer of delivery of the cer- tificates constituting the evidence of owner- ship.” Currrorp, J. Bailey v. New York Cent. R. Co., 22 Wall. 637. “Unless otherwise provided by the charter or by-laws of a corporation the profits and surplus funds of a-corporation, whenever they have accrued, are, until separated from the capital by the declaring of a dividend, a part of the stock itself and will pass with the stock under this name in a transfer or bequest.” CuiFForD, J. Bailey v. New York Cent. R. Co., 22 Wall. 637. ——Entitle Holder to Vote. “As a general rule stock dividends, even when they represent net earnings, become at once a part of the capital of the company, and, of course, entitle the holder to vote, unless it is otherwise provided in the char- ter or by-laws.” Cuirrorp, J. Bailey v. New York Cent. R. Co., 22 Wall. 637. Effect on and Relation to Corporation and Stockholders. “A stock dividend really takes nothing from the property of the corporation, and adds nothing to the interests of the share- holders. Its property is not diminished, and their interests are not increased. After such a dividend, as before, the corporation has the title in all the corporate property; the aggregate interests therein of all the share- holders are presented by the whole number of shares; and the proportional interest of each shareholder remains the same. The only change is in the evidence which repre- sents that interest, the new shares and the original shares together representing the same proportional interest that the original shares represented before the issue of new ones.” Gray, J. Gibbons v. Mahon, 136 U. S. 559. Increase of Value of Stock. “A dividend, if earned and declared, nec- essarily increases the value of the old stock if new stock is not issued, and in that mode reaches substantially the same result.” CutrrorD, J. Bailey v. New York Cent. R. Co., 22 Wall. 637. Dividend Distributes Stock. “A stock dividend distributes nothing but stock.” PEckHaM, J. Logan County wv. U. S., 169 U. S. 263. Whether Capital or Income, Between Life Tenants and Remaindermen. “Whether the gains and profits of a cor- poration should be so invested and appointed as to increase the value of each share of stock, for the benefit of all persons inter- ested in it, either for a term of life or of years, or by way of remainder in fee; or should be distributed and paid out as income, 606 DIVORCE AND ALIMONY. to the tenant for life or for years, excluding the remainderman from any participation therein; is a question to be determined by the action of the corporation itself, at such times and in such manner as the fair and honest administration of its whole property and business may require or permit, and by a rule applicable to all holders of like shares of its stock; and cannot, without producing great embarrassment and inconvenience, be left to be tried and determined by the courts, as often as it may be litigated between per- sons claiming successive interests under a trust created by the will of a single share- holder, and by a distinct and separate in- vestigation, through a master in chancery or otherwise, of the affairs and accounts of the corporation, as of the dates when the provisions of the will of that shareholder take effect, and with regard to his shares only.” Gray, J. Gibbons v. Mahon, 136 UL S. 558. “Reserved and accumulated earnings, so long as they are held and invested by the corporation, being part of its corporate prop- erty, it follows that the interest therein, rep- resented by each share, is capital, and not income, of that share, as between the tenant for life and the remainderman, legal or equi- table, thereof.” Gray, J. Gibbons v. Ma- hon, 136 U. S. 558. . “When a distribution of earnings is made by a corporation among its stockholders, the question whether such distribution is an ap- portionment of additional stock representing capital, or a division of profits and income, depends upon the substance and intent of the action of the corporation, as manifested by its vote or resolution; and ordinarily a divi- dend declared in stock is to be deemed capi- tal, and a dividend in money is to be deemed income, of each share.” Gray, J. Gibbons v. Mahon, 136 U. S. 559. “From the beginning of this century, it has been established, by decisions of the Court of Chancery in England, and of the House of Lords on appeal from Scotland, that where a bank, having no power by law to increase its capital stock, has used its accumulated profits as floating capital, and invested them in securities which can be turned into cash at pleasure, an extraordi- nary dividend or bonus declared out of such profits is capital, and not income, of each share, as between owners of the life interest and of the interest in remainder therein, without inquiring into the time when the profits were actually earned.” Gray, J. Gib- bons v, Mahon, 136 U. S. 561. “In Great Britain, it is well settled that where a corporation, whether authorized or unauthorized by law to increase its capital stock, accumulates and invests part of its earnings, and afterwards apportions them among its shareholders as capital, the amount so apportioned must be deemed an accretion to the capital of each share, the income of which only is payable to a tenant for life.” Gray, J. Gibbons v. Mahon, 136 U. S. 561. Dividing Profits of Dissolved Corporation. “When a corporation is to be wound up, there is not, ordinarily, a necessity for an account of profits. After the liabilities are paid, the remaining assets belong to the stockholders, and all that need be done is to make the proper division. For that purpose, it is quite immaterial whether what remains is profit or capital. In either case, it be- longs to the stockholders, and is to be dis- tributed among them pro rata. Such a di- vision produces a dividend,— that is to say, a part or share of the thing divided. If the division is of profits, then the dividend is of profits; if of capital, then of capital.” Waite, C. J. Eyster v. Centennial Board of Finance, 94 U. S. 503. DIVORCE AND ALIMONY. See Huspanp AnD WIFE; MARRIAGE AND Marrirep Women. Law of Domicil Controls. “The marriage relation is so interwoven with public policy that the consent of the parties is impotent to dissolve it contrary to the law of domicil.” Wuurz, J. Andrews v. Andrews, 188 U. S. 41. “The courts of the state of the domicil of the parties doubtless have jurisdiction to decree a divorce, in accordance with its laws, for any cause allowed by those laws, without regard to the place of the marriage, or to that of the commission of the offense for which the divorce is ‘granted; and a divorce so obtained is valid everywhere.” Gray, J. Cheely v. Clayton, 110 U. S. 705. “The state, for example, has absolute right to prescribe the conditions upon which the marriage relation between its own citi- zens shall be created, and the causes for which it may be dissolved. One of the par- ties guilty of acts for which, by the law of the state, a dissolution may be granted, may have removed to a state where no dissolu- tion is permitted. The complaining party would, therefore, fail if a divorce were sought in the state of the defendant; and if applica- 607 DIVORCE AND ALIMONY. tion could not be made to the tribunals of the complainant’s domicil in such case, and proceedings be there instituted without per- sonal service of process or personal notice to the offending party, the injured citizen would be without redress.” FiEeLp, J. Pen- noyer v. Neff, 95 U. S. 734. Jurisdiction and Venue — County of Hus- band’s or Wife’s Residence. “By the General Statutes of Kentucky of 1873, c. 52, art. 3, courts of equity may grant a divorce for abandonment by one party of the other for one year; petitions for divorce must be brought in the county where the wife usually resides if she has an actual residence in the state; if not, then in the county of the husband’s residence.” Gray, J. Atherton v. Atherton, 181 U. S. 160. — Domicil for Purposes of Jurisdiction. . “The law of North Dakota requires a domicil in good faith of the libellant for ninety days as a prerequisite to jurisdiction of a case of divorce.” Gray, J. Streitwolf v. Streitwolf, 181 U. S. 182. “By the law of Pennsylvania every peti- tioner for a divorce must have had a bona fide residence within the state for one year before the filing of the petition.” Gray, J. Bell v. Bell, 181 U. §.177. —— Appearance Cannot Confer Jurisdic- tion. “The appearance of one or both the par- ties to a divorce proceeding could not suffice to confer jurisdiction over the subject-matter where it was wanting because of the absence of domicil within the state.’ Wuurtz, J. Andrews v. Andrews, 188 U. S. 41. — Domicil of Husband, When that of Wife. “Tf a wife is living apart from her hus- band without sufficient cause, his domicil is in law her domicil; and, in the absence of any proof of fraud or misconduct on his part, a divorce obtained by him in the state of his domicil, after reasonable notice to her, either by personal service or by publica- tion, in accordance with its laws, is valid, although she never in fact resided in that state.’ Gray, J. Cheely v. Clayton, 110 U.S. 705. “The general rule is, that a voluntary separation will not give to the wife a differ- ent domiciliation in law from that of her husband. But if the husband aban- dons their domicil, and his wife, to get rid of all those conjugal obligations which the marriage relation imposes upon him, neither giving to her the necessaries nor the com- . forts suitable to her condition and his’ for- tune, and relinquishing altogether his marital control and protection, he yields up that power and authority over her which alone makes his domicil hers, and places her in a situation to sue him for a divorce a mensa et thoro, and to ask the court having juris- diction of her suit to allow her from her husband’s means, by way of alimony, a suita- ble maintenance and support.” Wayne, J. Barber v. Barber, 21 How. 595. “A married woman cannot, during the ex- istence of the matrimonial relation, and dur- ing the life of the husband the wife cannot, be remitted to the civil or political position of feme sole, and cannot therefore become a citizen of a state or community different from that of which her husband is a mem- ber.” DanreL, J., dissenting. Barber v. Barber, 21 How. 602. —— Misconduct of Husband. “The doctrine of status does not reach the case of a husband by his miscon- duct rendering it necessary for the wife to leave him.” PrckHam, J., dissenting. Ath- erton v. Atherton, 181 U. S. 175. Federal Courts Are Without Jurisdiction. “The federal tribunals can have no au- thority to control the duties or the habits of the different members of private families in their domestic intercourse. This power be- longs exclusively to the particular communi- ties of which those families form parts, and is essential to the order and to the very ex- istence of such communities.” DAwnteEL, J., dissenting. Barber v. Barber, 21 How. 602. “Tt may . . . be assumed as indubi- table that the Circuit Courts of the United States have no jurisdiction, either of suits for divorce, or of claims for alimony, wheth- er made in a suit for divorce, or by an orig- inal proceeding in equity, before a decree for such alimony in a state court. Within the states of the Union, the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the state, and not to the laws of the United States.” Gray, J. Simms v. Simms, 175 U. S. 167. Equity Jurisdiction. “Courts of equity will interfere to compel the payment of alimony which has been de- creed to a wife by the ecclesiastical court in England. Such a jurisdiction is ancient 608 DIVORCE AND ALIMONY. there, and the principal reason for its exer- cise is equally applicable to the courts of equity in the United States. It is, that when a court of competent jurisdiction over the subject-matter and the parties decrees a divorce, and alimony to the wife as its inci- dent, and is unable of itself to enforce the decree summarily upon the husband, courts of equity will interfere to prevent the decree from being defeated by fraud. The interference, however, is limited to cases in which alimony has been decreed; then only to the extent of what is due, and always to cases in which no appeal is pending from the decree for the divorce or for alimony.” Wayne, J. Barber v. Barber, 21 How. 590. “As the jurisdiction of the chancery in England does not extend to or embrace the subjects of divorce and alimony, and as the jurisdiction of the courts of the United States in chancery is bounded by that of the chancery in England, all power or cogni- zance with respect to those subjects by the courts of the United States in chancery is equally excluded.” Dantet, J., dissenting. Barber v. Barber, 21 How. 605. Alimony Not Enforceable in Action at Law. “Alimony cannot ordinarily be enforced by action at law, but only by application to the court which granted it, and subject to the discretion of that court.” Gray, J. Audu- bon v. Shufeldt, 181 U. S. 578. Nature of Alimony. “Alimony decreed to a wife in a divorce of separation from bed and board is as much a debt of record, until the decree has been recalled, as any other judgment for money is. When it is not paid, the wife can sue her husband for it in a court of equity, as an incident of that condition which gave to her the right to sue him, by her next friend, for a divorce.” Wayne, J. Barber v. Bar- ber, 21 How: 595. “This allowance fof alimony to a wife] is not in the nature of an absolute debt. It is not unconditional, but always dependent upon the personal merits and conduct of the wife — merits and conduct which must exist and continue, in order to constitute a valid claim to such an allowance. This allowance might unquestionably be forfeited upon proof of criminality or misconduct of the wife, who would not be permitted to enforce the payment of that to which it should be shown she had lost all just claim; and this inhibi- tion, it is presumed, might embrace as well 1 Os. Dic.—39 a portion of that allowance at any time in arrears, as its demand in future. The essen- tial character, then, of this allowance, viz.: its being always conditional and dependent, both for its origin and continuation, upon the circumstances which produced or justified it, is demonstrative of the propriety and the necessity of submitting it to the control of that authority whose province it was to judge of those circumstances. That authority can exist nowhere but with the power and the : right to control the private and domestic relations of life. The federal government has no such power; it has no commission of censor morum over the several states and their people.” Dawnret, J., dissenting. Bar- ber v. Barber, 21 How. 603. “ Alimony does not arise from any busi- ness transaction, but from the relation of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdiction.” Gray, J. Audu- bon v. Shufeldt, 181 U. S. 577. “Permanent alimony is regarded rather as a portion of the husband’s estate to which the wife is equitably entitled, than as strictly a debt; alimony from time to time may be regarded as a portion of his current income or earnings; and the considerations which affect either can be better weighed by the court having jurisdiction over the relation of husband and wife, than by a court of a dif- ferent jurisdiction.” Gray, J. Audubon v. Shufeldt, 181 U. S. 578. “Tn England, it seems to be the law that alimony is neither discharged nor provable in bankruptcy.” Gray, J. Audubon v. Shu- feldt, 181 U. S. 580. Process — Notice. “The rule as to the notice necessary to give full effect to a decree of divorce is different from that,which is required in suits in personam.” Gray, J. Atherton v. Ather- ton, 181 U. S. 162. “By the Civil Code of Practice of Ken tucky of 1876, tit. 4, c. 2, art. 2, if a defend- ant has been absent from the state four months, and the plaintiff files an affidavit stating in what country the defendant resides or may be found and the name of the place wherein a post-office is kept nearest to the place where the defendant resides or may be found, the clerk may make an order warn- ing the defendant to defend the action within 609 DIVORCE AND ALIMONY. sixty days; and shall at the same time ap- point, as attorney for the defendant, a regu- lar practicing attorney of the court, whose duty it shall be to make diligent efforts to inform the defendant by mail concerning the pendency and nature of the action against him, and to report to the court the result of his efforts; and a defendant against whom a warning order is made, and for whom an attorney is appointed, is deemed to have ‘been constructively summoned on the thir- tieth day thereafter, and the action may pro- ceed accordingly.” Gray, J. Atherton v. Atherton, 181 U. S. 161. “That a husband can drive his wife from her home by conduct which entitles her to a divorce, and thus force her to find another domicil, and then commence proceedings in a court of his own domicil, for a divorce, which court obtains jurisdiction over her only by a service of process in the state of her new domicil, through the mail, and that on such service he can obtain a judgment of divorce which shall be conclusive against her in her action in the court of her new domicil, seems to me to be at war with sound principle and the adjudged cases.” PEcKHAM, J., dissenting. Atherton v. Ath- erton, 181 U. S. 175. “T think if the husband had, at his domi- cil in Kentucky, been guilty of such mis- conduct and cruelty towards his wife as en- titled her to a divorce, she had a legal right for that reason to leave him and to acquire a separate domicil, even in another stafe. Tf, under such circumstances, she did leave him, and did acquire a separate domicil in New York state, the Kentucky court did not obtain jurisdiction over her as an absent defendant, by publication of process or send- ing a copy thereof through the mail to her address in New York. It has long been held that the wife upon such facts could acquire a separate domicil.” PrcKHAM, J., dissent- ing. Atherton v. Atherton, 181 U. S. 173. Proof. “Petitions for divorce [under statute in Kentucky] shall not be taken for confessed, or be sustained by confessions of the defendant alone, but must be sup- ported by proof.” Gray, J. Atherton v. Atherton, 181 U. S. 160. Death Pending Litigation. “(Upon the death of one of the parties] the whole subject of litigation would be at an end, and no power can dissolve a mar- riage which has already been dissolved by act of God.” U. S. 178. Decree — Binding Effect. “The parties to a cause for a divorce and for alimony are as much bound by a decree for both, which has been given by one of our state courts having jurisdiction of the subject-matter and over the parties, as the same parties would be if the decree had been given in the ecclesiastical court of Eng- land. The decree in both is a judgment of record, and will be received as such by other courts. And such a judgment or decree, rendered in any state of the United States, the court having jurisdiction, will be car- ried into judgment in any other state, to have there the same binding force that it has in the state in which it was originally given. For such a purpose, both the equity courts of the United States and the same courts of the states have jurisdiction.” Wayne, J. Barber v. Barber, 21 How. 591. e —— Both Parties Freed. “The purpose and effect of a decree of divorce from the bond of matrimony, by a court of competent jurisdiction, are to change the existing status or domestic rela- tion of husband and wife, and to free them both from the bond. The marriage tie when thus severed as to one party, ceases to bind Gray, J. Bell v. Bell, 181 either.” Gray, J. Atherton v. Atherton, 181 U. S. 162. — Effect of Divorce a Mensa et Thoro — Alimony. “The divorce a mensa et thoro does not sever the matrimonial tie; on the contrary, it recognizes and sustains that tie, and the allowance of alimony arises from and de- pends upon reciprocal duties and obligations involved in that connection. The wife can have no claim to alimony but as wife, and such as arises from the performance of her duties as wife; the husband sustains no re- sponsibilities save those which flow from his. character and obligations as husband, pre- supposing the existence and fulfilment of conjugal obligations on the part of the wife.” Danigi, J., dissenting. Barber v. Barber, 21 How. 601. —— Remarriage Prohibited as Penalty. “A husband without a wife, or a wife without a husband, is unknown to the law. When the law provides, in the nature of a penalty, that the guilty party shall not marry again, that party, as well as the other, is still absolutely freed from the bond of the former marriage.” Gray, J. Atherton wv. Atherton, 181 U. S. 162. 610 DOLLARS. — Divorce Ends Rights Not Vested. “A divorce ends all rights not previously vested.” Fretp, J. Maynard v. Hill, 125 U. S. 216, — Cuts off Dower and Curtesy. ‘A wife divorced has no right of dower in his [the husband’s] property; a husband divorced has no right by the curtesy in her [the wife’s] lands, unless the statute author- izing the divorce specially confers such right.” Fretp, J. Maynard v. Hill, 125 U.S. 216. “Unless otherwise provided by local law, a decree of divorce by a court having juris- diction of the cause and of the parties dis- solving the bond of matrimony, puts an end to all obligations of either party to the other, and to any right which either has acquired by the marriage in the other’s property, ex- cept so far as the court granting the divorce, in the exercise of an authority vested in it by the legislature, orders property to be transferred or alimony to be paid by one party to the other.” Gray, J. Barrett v. Failing, 111 U. S. 524. “Tt has been generally held that a valid divorce from the bond of matrimony, for the fault of either party, cuts off the wife’s right of dower, and the husband’s tenancy by the curtesy, unless expressly or impliedly preserved by statute.” Gray, J. Barrett v, Failing, 111 U. S. 525. “Whether a statute of one state, securing or denying the right of dower in case of di- vorce, extends to a divorce in a court of an- other state, having jurisdiction of the cause and of the parties, depends very much upon the terms of the statute, and upon its inter- pretation by the courts of the state by the legislature of which it is passed, and in which the Jand is situated.” Gray, J. Barrett v. Failing, 111 U. S. 526. — Power of Court to Alter Alimony. “Generally speaking, alimony may be al- tered by that court [of appropriate jurisdic- tion] at any time, as the circumstances of the parties may require.” Gray, J. Audu- bon v. Shufeldt, 181 U. S. 577. —— Decree Is a Record, Entitled to Faith and Credit in Other States. “The decree of a court of one state 3 for the present payment of a definite sum of money as alimony, is a record which is entitled to full faith and credit in another state, and may therefore be there enforced by suit.” Gray, J. Audubon v. Shufeldt, 181 U. S. 577. 611 DOCK. Definition. “A dock is defined by philologists, ac- cording to the American use of the term, to be ‘the space between wharves.’” Grier, J. Boston v. Lecraw, 17 How. 434. “A dock is an artificial basin in connec- tion with a harbor, used for the reception of vessels in taking on or discharging of their cargoes, and provided with gates for pre- venting the rise and fall of the waters occa- sioned by the tides, and keeping a uniform level within the docks.” Brown, J. The Robert W. Parsons, 191 U. S. 33. — Dry Dock. “A dry dock differs from an ordinary dock only in the fact that it is smaller, and provided with machinery for pumping out the water in order that the vessel may be repaired.” Brown, J. The Robert W. Par- sons, 91 U. S. 33. DOGS. See ANIMALS. DOING BUSINESS. See Carry On. What Is. “A man does business when he contracts obligations — he ceases to do business when he discharges them.” Brown, J. Knights Templars’ Indemnity Co. v. Jarman, 187 U. S. 204. Economic Effect of Changes in Methods. “Tn any great and extended change in the manner or method of doing business it seems to be an inevitable necessity that distress, and, perhaps, ruin, shall be its accompani- ment in regard to some of those who were engaged in the old methods. A change from stage coaches and canal boats to railroads threw at once a large number of men out of employment; changes from hand labor to that of machinery, and from operating ma- chinery by hand to the application of steam for such purpose, leave behind them for the time a number of men who must seek other avenues of livelihood.” Prcxuam, J. U. S. v. Trans-Missouri Freight Assoc.,-166 U. S. 323. DOLLARS. See Currency; Lecat Tenper; Money. Dollar Is Money Unit of United States. “Beyond all doubt the framers of the Constitution intended that the money unit of DOMICIL, the United States, for measuring values, should be one dollar, as the word dollar in the plural form is employed in the body of the Constitution, and also in the Seventh Amendment, recommended by Congress at its first session after the Constitution was adopted.” Currrorp, J., dissenting. Legal Tender Cases, 12 Wall. 590. “The money unit of the United States is the coined dollar, described in the act estab- lishing the mint.” C.irrorp, J., dissenting. Legal Tender Cases, 12 Wall. 594. Dollar Always Means Money. “A dollar is the unit of our currency. It always means money, or what is regarded as money.” Swayne, J. U. S. v.. Van Au- ken, 96 U. S. 368. What Is a Dollar. “The dollar note is an engagement to pay a dollar, and the dollar intended is the coin dollar of the United States; a certain quan- tity in weight and fineness of gold or silver, authenticated as such by the stamp of the government. No other dollar had before been recognized by the legislation of the national government as lawful money.” Cuase, C. J. Bank w. Supervisors, 7 Wall. 30. “Every such dollar [‘dollars payable in gold and silver coin, lawful money of the United States’] is a piece of gold or silver, certified to be of a certain weight and purity, by the form and impress given to it at the mint of the United States, and therefore declared to be legal tender in payments. Any number of such dollars is the number of grains of standard gold or silver in one dollar multiplied by the given number.” Cuasez, C. J. Bronson v. Rodes, 7 Wall. 250. DOMICIL. See Army AND Navy; CrrizENs AND Crrt- ZENSHIP; Courts; Divorce AND ALIMONY; HusBanp AND WIFE; INFANTS. Definition. “By the term domicil, in its ordinary acceptation, is meant the place where a per- son lives and has his home.” Swayne, J. Mitchell v. U. §., 21 Wall. 352. Every One Has Legal Domicil. SA person cannot be without a legal domi- cil somewhere. Swayne, J. Desmare v. U.S, 93 U. S. 610. Of Corporations. “In the case of-a corporation the question of inhabitancy must be determined, not by the residence of any particular officer, but by the principal offices of the corporation, where its books are kept and its corporate business is transacted, even though it may. transact its most important business in an- other place.” Brown, J. Galveston, etc. R. v. Gonzales,.151 U. S. 504. Elements — Residence and Animus Ma- nendi. “Domicil is acquired by residence and the animus manendi, the intent to remain. A permanent residence is acquired in the same way. In neither case is the idea in- volved that a change of domicil or of residence may not thereafter be made.” Swayne, J. Newton v. Mahoning County Com’rs, 100 U. S. 562. “Tt is difficult to lay down any rule under which every instance of residetice could be brought, which may make a domicil of choice. But there must be to constitute it actual residence in the place, with the in- tention that it is to be a principal and per- manent residence. That intention may be inferred from the circumstances or condition in which a person may be as to the domicil of his origin, or from the seat of his for- tune, his family and pursuits of life.” Wayne, J. Ennis v. Smith, 14 How. 423. “An individual is almost universally held to be an inhabitant of the place in which he dwells, and though he do business for a long time in another place, he will not be regarded as changing his domicil so long as the animus revertendi continues.” Brown, J. Galveston, etc., R. v. Gonzales, 151 U. S. 504. “The trade in which he is engaged, the family that he possesses, and the transitory or fixed character of his business, are in- gredients which may properly be weighed in deciding on the nature of an equivocal residence or domicil. But when once that domicil is fixed and ascertained, all other circumstances become immaterial.” Story, J., dissenting. Livingston wv. Maryland Ins. Co., 7 Cranch 542. —— Commercial Domicil — Occasional Visits. “Whatever facility may be given to the acquisition of a commercial domicil, it has never heretofore been contended that a mer- chant having a fixed residence, and carrying ot business at the place of his birth, ac- 612 DOMICIL. quires a foreign commercial character by occasional visits to a foreign country.” MarsHaut, C, J. The Nereide, 9 Cranch 414. Requisites and Proof of Change of Domi- cil. “Where a change of domicil is alleged the burden of proving it rests upon the per- son making the allegation. To constitute the new domicil two things are indispensa- ble: First, residence in the new locality; and, second, the intention to remain there.” Swayng, J. Mitchell v. U. S., 21 Wall. 353. “Tt is elementary that, to effect a change of one’s legal domicil, two things are in- dispensable: First, residence in a new domi- cil; and, second, the intention to remain there. The change cannot be made, except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change.” Wuits, J. Sun Printing, etc., Assoc. v. Ed- wards, 194 U. S. 383. “What amount of proof is necessary to change a domicil of origin into a prima facie domicil of choice? It is residence elsewhere, or where a person lives out of the domicil of origin. That repels the presumption of its continuance, and casts upon him who denies the domicil of choice, the burden of disproving it.” Wayne, J. Ennis v. Smith, 14 How. 422. “A removal which does not contemplate an absence from the former domicil for an indefinite and uncertain time is not a change of it.” Wayne, J. Ennis v. Smith, 14 How. 423. “When there is a removal, unless it can be shown or inferred from circumstances that it was for some particular purpose, ex- pected to be only of a temporary nature, or in the exercise of some particular profes- sion, office, or calling, it does change the domicil.” Wayne, J. Ennis v. Smith, 14 How. 423, — According to the Law of Nations. “ According to the law of nations, domicil depends on the intention to reside perma- nently in the country to which the individual has removed; and that a change of this in- tention is, at any time, allowable.” Mar- SHALL, C. J., dissenting. The Venus, 8 Cranch 295. 613 —— Presumption of Continuance of Domi- cil Once Acquired. “A domicil once acquired is presumed to continue until it is shown to have been changed.” Swayne, J. Mitchell v. U. S, 21 Wall. 353. Presumed to Be Place of Residence. “The domicil of a citizen of Pennsylvania is certainly not presumed by law to be in England, without some proof of his residence there, but is presumed to be in Pennsylvania till the contrary is proved.” BAaLpwin, J., dissenting. Harrison v. Nixon, 9 Pet. 516. “Where a petson lives, is taken prima facie to be his domicil, until other facts es- tablish the contrary.” Wayne, J. Ennis v. Smith, 14 How. 423. “The place where a person lives is taken to be his domicil, until facts adduced estab- lish the contrary.” Swayne, J. Mitchell z. U. S., 21 Wall. 352. “The place of residence is prima facie the domicil, unless there be some motive for that residence not inconsistent with a clearly established intention to retain a permanent residence in another place.” Wayne, J. Ennis v. Smith, 14 How. 423. —of Military Officer. “Tt is true, that under some circumstances the residence of a military officer at a par- ticular place, in the discharge of his official duties, does’ not amount to the acquisition of a technical domicil. But it cannot be affirmed, with correctness, that it never does. There being actual residence, and this being presumptive evidence of domicil, all the cir- cumstances of the case must be considered, before a legal conclusion can be reached, that his place of residence is not his domicil. If a military officer stationed at a particular post should entertain an expectation that his residence there would be indefinitely pro- tracted, and in consequence should remove nis family to the place where his duties were to be discharged, for a permanent domestic establishment there, exercise there the civil rights and discharge the civil duties of an inhabitant, while he did no act and mani- fested no intent to have a domicil elsewhere, I think no one would say that the mere fact that he was himself liable to be called away by the orders of the government would pre- vent his acquisition of a technical domicil at the place of the residence of himself and his family. In other words, I do not think a DOWER. military officer incapable of acquiring a dom- icil.” Curtis, J. Scott v. Sandford, 19 How. 597. In the Law of Prize. “Domicil in the law of prize becomes an important consideration because every per- son is to be considered in such proceedings as belonging to that country where he has his: domicil, whatever may be his native or adopted country.” Cxirrorp, J. The Wil- liam Bagaley, 5 Wall. 408. DOWER. As to effect of divorce, see Divorce AND ALI- , MONY. Kinds at Common Law. “Dower by the common law was of three kinds: Ad ostium ecclesia, ex assensu pa- tris, and that which in the absence of the others the law prescribed. The two former were founded in contract. The latter was the creature of the law.” Swayne, J. Ran- dall v. Kreiger, 23 Wall. 147. “Dower ad ostium ecclesie and ex as- sensu patris were abolished in England by a statute of the 3rd and 4th William IV, ch. 105. The dower given by law is the only kind which has since existed in England, and it is believed to be the only kind which ever obtained in this country.” Swayne, J. Randall v. Kreiger, 23 Wall. 148. Nature of Estate. “The wife at common law was endowable where there had been no actual possession, and the reason is, that during coverture she could not take possession of the lands of her husband.” McLean, J. Mercer v. Sel- den, 1 How. 54. ‘ —— Secured by Statute. “ Although restrictions [on testa- mentary disposition] have long since been abolished in England, and never existed in this country, except in Louisiana, the right of a widow to her dower and to a share in the personal estate is ordinarily secured to her by statute.” Brown, J. U. S. uv. Per- kins, 163 U. S. 627. —— Expectancy Subject to Change by Law. “During the life of the husband the right [dower] is a mere expectancy or possibility. In that condition of things, the law-making power may deal with it as may be deemed proper. It is not a natural right. It is wholly given by law, and the power that gave it may increase, diminish, or otherwise alter the expectancy of heirs, apparent or presumptive, before the death of the ances- tor. Until that event occurs the law of de- scent and distribution may be moulded ac- cording to the will of the legislature.” Swayne, J. Randall v. Kreiger, 23 Wall. 148. ‘ Election. “Tt is a maxim in a court of equity not to permit the same person to hold under and against a will. If therefore it be manifest, from the face of the will, that the testator did not intend the ‘provision it contains for his widow to be in addition to her dower, but to be in lieu of it; if his intention dis- covered in other parts of the will must be defeated by the allotment of dower to the widow, she must renounce either her dower, or the benefit she claims under the will. But if the two provisions may stand well to- gether, if it may fairly be presumed that the testator intended the devise or bequest to his wife as additional to her dower, then she may hold both.” Marsuart, C. J. Herbert v.. Wren, 7 Cranch 378. “Tt seems to us to be contrary to reason and to the ordinary rules of construction to intend, that a large estate is given by an unnecessary implication to a wife who takes her dower in the whole, and also a large part by express words.” MarsHALL, C. J. Finlay v. King, 3 Pet. 378. —Time to Make. “The time given to the widow by the law, to’make her election, is intended for her pro- tection, and not that she shall use it as a weapon of offense to defraud others. Courts of equity do not exert their powers, even in favor of widows, to assist them in such a transaction.” Grier, J. Dundas wv. Hitch- cock, 12 How. 271. Jurisdiction to Assign. “According to the practice which prevails generally in England, courts of equity and courts of law exercise a concurrent jurisdic- tion in assigning dower. Many reasons ex- ist in England in favor of this jurisdiction; one of which is, that partitions are made and accounts are taken in chancery in a manner highly favorable to the great purposes of justice.” MarsHatt, C. J. Herbert vw. Wren, 7 Cranch 376. Conveyance and Release. “It is undoubtedly true that a release of dower is a good consideration for a promise, whether in writing or otherwise, and the 614 DROITS OF ADMIRALTY. , promise would be valid if made to a person capable of contracting.” Mutter, J., dis- senting. Sykes v. Chadwick, 18 Wall. 150. “Usually this initiate and contingent right of dower is barred, in deeds of sale and mortgage, by a conveyance making the grant in the joint names of the husband and wife, in the same manner as if the estate belonged to the wife; the deed operating by way of estoppel when the right of dower becomes complete by the death of the hus- band. But when the legal estate is vested wholly in the husband, and the right of the wife is but a contingent incumbrance, there is no necessity that she should join in the grant of the fee, the release of her inchoate right, acknowledged in due form, being all that is necessary to bar her from setting up a claim of dower, after the death of her husband.” Grier, J. Dundas v. Hitchcock, 12 How. 267. — Privy Examination. “Her [a widow’s] right of dower is a valuable interest, which she cannot be com- pelled to resign, and which the law very carefully protects from the control of her husband. When she does part with it an officer must examine her apart from her hus- band, to ascertain whether she does it freely and voluntarily. And whilst this interest is a’ valuable right of the wife, it is a corre- sponding incumbrance upon the land which it attaches.” Brapiey, J. Sykes v. Chad- wick, 18 Wall. 145. DRAINS AND SEWERS. See Eminent Domain; SPECIAL or LocaL ASSESSMENTS. Statutes. “Statutes authorizing drainage of swamp lands have frequently been upheld independ- ently of any effect upon the public health, as reasonable regulations for the general ad- vantage of those who are treated for this purpose as owners of a common property.” Pecxuam, J. Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 163. Quasi-judicial Duties of Municipal Author- ities. “The duties of the municipal authorities, in adopting a general plan of drainage, and determining when and where sewers skall be built, of what size and at what level, are of a quasi-judicial nature, involving the exercise of deliberate judgment and large discretion’ and depending upon considera- tions affecting the public health and general convenience throughout an extensive terri- tory; and the exercise of such judgment and discretion, in the selection and adoption of the general plan or system of drainage, is not subject to revision by a court or jury in a private action for not sufficiently draining a particular lot of land.” Gray, J. John- ston v. District of Columbia, 118 U. S. 20. Liability for Negligence in Constructing or Keeping in Repair. “The construction and repair of sewers, according to the general plan so adopted, are simply ministerial duties; and for any neg- ligence in so constructing a sewer, or keep- ing it in repair, the municipality which has constructed and owns the sewer may be sued by a person whose property is thereby in- jured.” Gray, J. Johnston v. District of Columbia, 118 U. S. 21. Expense to Private Owners. “If it be essential or material for the prosperity of the community, and if the im- provement be one in which all the land- owners have to a certain extent a common interest, and the improvement cannot be ac- complished without the concurrence of all or nearly all of such owners by reason of the peculiar natural condition of the tract sought to be reclaimed, then such reclama- tion may be made and the land rendered useful to all and at their joint expense. In such case the absolute right of an individual owner of land must yield to a certain ex- tent or be modified by corresponding rights on the part of other owners for what is de- clared upon the whole to be for the public benefit.” PeckuHam, J. Fallbrook Irriga- tion Dist. v. Bradley, 164 U. S. 163. “Private owners may be asstimed to be interested in draining their own property, but in the absence of a special provision to that effect there is no presumption that they are also to be called upon to pay that which prima facie belongs to the public.” Brown, J. New Orleans v. Warner, 175 U.S. 141, DRESS. See WEARING APPAREL. DROITS OF ADMIRALTY. See Prracy. “In our jurisprudence there are, strictly speaking, no droits of admiralty.” Swayne, J. The Siren, 13 Wall. 393. 615 DUE. PROCESS OF LAW. DRUGGISTS. Liability for Negligence in Labeling Poi- sons. “Pharmacists or apothecaries who com- pound or sell medicine, if they carelessly label a poison as a harmless medicine and send it so labelled into the market, are liable to all persons who without fault on their part, are injured by using it as such medicine, in consequence of the false label; the rule being that the liability in such a case arises not out of any contract or direct privity between the wrongdoer and the per- son injured, but out of the duty which the law imposes on him to avoid acts in their na- ture dangerous to the lives of others. He is liable, therefore, though the poisonous drug with the label may have passed through many intermediate sales before it reached the hands of the person injured.” CL1FForD, J. Savings Bank v. Ward, 100 U. S. 204. “Such an act of negligence [of pharma- cists or apothecaries in compounding or selling medicine] being imminently dangerous to the lives of others, the wrongdoer is liable to the injured party, whether there be any contract between them or not, Where the wrongful act is not immediately danger- ous to the lives of others, the negligent party, unless he be a public agent in the performance of some duty, is in general lia- ble only to the party with whom he con- tracted, and on the ground that negligence is a breach of the contract.” Curirrorp, J. Savings Bank v. Ward, 100 U. S. 204. DUE PROCESS OF LAW. See Civi Ricuts; CoNSTITUTIONAL Law; Costs; Deprive; Eminent Domain; Eguity; GoveRNMENT; INJUNCTIONS; JURY AND Jury TriaL; Liperty; Lire; Marrtiau Law; Persons; Potice Power; SuMMARY PROCEEDINGS. Origin. “The phrase ‘due process of law’ is not new in the constitutional history of this country or of England. It antedates the establishment of our institutions.” HARLAN, J., dissenting. Hurtado v. California, 110 U. S. 539. “Due process of law, in spite of the ab- solutism of continental governments, is not alien to that code which survived the Ro- man empire as the foundation of modern civ- ilization in Europe, and which has given us 616 that fundamental maxim of distributive jus- tice — suum cuique tribuere.” MatTuEws, J. Hurtado v. California, 110 U. S. 531. “They [the terms ‘due process of law’] came to us from England, from which coun- try our jurisprudence is to a great extent derived.” Fuietp, J. Dent v. West Virginia, 129 U. S. 123. “The prohibition against depriving the citizen or subject of his life, liberty, or property without due process of law, is not new in the constitutional history of the English race. It is not new in the consti- tutional history of this country, and it was not new in the Constitution of the United States when it became a part of the Four- teenth Amendment, in the year 1866.” Mut- LER, J. Davidson v. New Orleans, 96 U. S. 101. Definition. “*Due process of law’ is the application of the law as it exists in the fair and regu- lar course of administrative procedure.” Swayne, J., dissenting. Slaughter-House Cases, 16 Wall. 127. [The provision of the Fifth Amendment that no, person should be deprived of his liberty without due process of law was] “designed to prevent the government from depriving any individual of his rights ex- cept by due process of legal proceedings ac- cording to those rules and principles estab- lished in our systems of jurisprudence for the protection and enforcement of the rights of all persons.” Frexp, J., dissenting. Beck- with v. Bean, 98 U. S. 295. — Not Precisely Definable. “This court has never attempted to define with precision the words ‘due process of law.” Brown, J. Holden v. Hardy, 169 U.S. 389. “This phrase ‘due process of law,’ has always been one requiring construction; and, as this court observed long ago, never has been defined, and probably never can be de- fined, so as to draw a clear and distinct line, - applicable to all cases, between proceedings which are by due process of law and those which are not.” Mutter, J. Freeland vw. Williams, 131 U. S. 418. “A perfectly satisfactory definition of due process may perhaps not be easily stated.” Brewer, J. Brown v. New Jersey, 175 U. S. 176. IDUE PROCESS OF LAW. “Tt must be confessed, however, that the constitutional meaning or value of the phrase ‘due process of law,’ remains to-day with- out that satisfactory precision of definition which judicial decisions have given to nearly all the other guarantees of personal rights found in the constitutions of the several and of the United States.” Mutter, J. Davidson v. New Orleans, 96 U. S. 101. “Tf it were possible to define what it is for a state to deprive a person of life, liberty, or property without the due process of law, in terms which would cover every exercise of power thus forbidden to the states, and exclude those which are not, no more useful construction could be furnished by this or any other court to any part of the fundamental law.” Mutier, J. Davidson v. New Orleans, 96 U. S. 104. “What amounts to deprivation of prop- erty without due process of law . . . is often difficult to determine, especially where the question relates to the property of a quasi-public corporation and the extent to which it may be subjected to public con- trol.” Hunt, J. Smyth v. Ames, 169 U. S. Dee. The Requirement in General. “When a state legislature deals with a matter within its jurisdiction, and which in- volves the life, liberty or property of the citizen, it cannot ignore the requirement of due process of law.” Harvan, J., dissenting. Taylor v. Beckham, 178 U. S. 605. “Tt is true that one cannot be deprived of his property without due process of law.” Waite, C. J. Newport, etc, Bridge Co. v. U. S., 105 U. S. 481. “No man is to be condemned without the opportunity of making a defense, or to have his property taken from him by a judicial sentence without the privilege of showing, if he can, that the pretext for do- ing it is unfounded.” CztrForp, J. Ray v. Norseworthy, 23 Wall. 136. “Tt has been adjudged that the due proc- ess of law prescribed by that amendment {the Fourteenth Amendment] requires com- pensation to be made or secured to the owner when private property is taken by a state or under its authority for public use.” Hartan, J. Norwood v. Baker, 172 U. S. 277. “The right of a citizen to due process of law must rest upon a basis more sub- stantial than favor or discretion.” Brown, J. Roller v. Holly, 176 U. S. 409, “An Act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself and brought his property into a particular territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law.” Taney, C. J. Scott v. Sandford, 19 How. 450. “Tt will hardly be contended that Con- gress could by law quarter a soldier in a house in a territory without the consent of the owner, in time of peace; nor in time of war, but in a manner prescribed by law. Nor could they by law forfeit the property of a citizen in a territory who was con- victed of treason, for a longer period than the life of the person convicted; nor take private property for public use without just compensation.” Taney, C. J. Scott w. Sandford, 19 How. 450. Constitutional Inhibition Applicable to All Departments of State. “When the Fourteenth Amendment for- bade any state from depriving any person of life, liberty or property without due proc- ess of law, I had supposed that the in- tention of the people of the United States was to prevent the deprivation of any legal right in violation of the fundamental guar- antees inhering in due process of law.. The prohibitions of that amendment as we have often said, apply to all the instrumentalities of the state, to its legislative, executive and judicial authorities.” Harzan, J., dissent- ing. Taylor v. Beckham, 178 U. S. 599. “The judicial department of the govern- ment is, in the nature of things, necessarily governed in the exercise of its functions by the rule of due process of law.” Wuutz, J. Hovey v. Elliott, 167 U. S. 418. “A statute undertaking to take the prop- erty of A. and transfer it to B. is not legislation. It would not be a law. It would be a decree or sentence, the right to declare which, if it exists at all, is in the judicial department of the government.” Strone, J., dissenting. Sinking-Fund Cases, 99 U. S. 738. — Applicable to United States as Well as to States. “The requirement of due process of law is applicable to the United States as well 617 DUE PROCESS OF LAW. as to the states.” HARLAN, J., dissenting. Taylor v. Beckham, 178 U. S. 601. “The United States cannot any more than a state interfere with private rights, except for legitimate governmental purposes. They are not included with the constitutional pro- hibition which prevents states from pass- ing laws impairing the obligation of con- tracts, but equally with the states they are prohibited from depriving persons or cor- porations of property without due process of law.” Warts, C. J. Sinking-Fund Cases, 99 U. S. 718. “*Due process of law,’ within the mean- ing of the national Constitution, does not import one thing with reference to the powers of the states, and another with reference to the .powers of the general government.” Haran, J., dissenting. Hurtado v, Califor- nia, 110 U. S. 541. — Manner of Violating Rule in General. “Tt seems to me that private property may be taken by a state without due process of law in other ways than by mere direct enactment, or the want of a judicial: pro- ceeding.” BrapLey, J., concurring. David- son v. New Orleans, 96 U. S. 107. —— Prohibition Applicable Only to Direct Appropriation. “That provision [of the Fifth Amend- ment, forbidding the taking of property without due process of law] has always been understood as referring only to a direct appropriation, and not to consequential in- juries resulting from the exercise of lawful power. It has never been supposed to have any bearing upon, or to inhibit laws that indirectly work harm and loss to individ- uals.” Stronc, J. Legal Tender Cases, 12 Wall. 551. —— Purpose of the Requirement. “The great purpose of the requirement [of due process of law] is to exclude every- thing that is arbitrary and capricious in legislation affecting the rights of the citizen.” Fietp, J. Dent v. West Virginia, 129 U. S. 124. “They [the terms ‘due process of law’] come to us from England, from which coun- try our jurisprudence is to a great extent dérived, 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 citi- zen against any arbitrary deprivation of his rights, whether relating to his life, his liberty, or his property.” Frexp, J. Dent v. West Virginia, 129 U. S. 123. To the same effect see the language of Fretp, J., dissent- ing, in Powell v. Pennsylvania, 127 U. S. 691. —— Substance Regarded, Not Form. “In determining what is due process of law regard must be had to substance, not to form.” Harian, J. Chicago, etc., R. Co. v, Chicago, 166 U. S. 235. —Nature of Particular Cases Controls. “Whether property is taken without due process of law depends upon the nature of each particular case.” Day, J. Leigh wv. Green, 193 U. S. 87. “What due process of law may require in particular cases may not be applicable in other cases.” Haran, J., dissenting. Tay- lor v. Beckham, 178 U. S. 605. “T think . . we are entitled, under the Fourteenth Amendment, not only to see that there is some process of law, but ‘due process of law,’ provided by the state law when a citizen is deprived of his property; and that, in judging what is ‘due process of law,’ respect must be had to the cause and object of the taking, whether under the taxing power, the power of eminent domain, or the power of assessment for local im- provements, or none of these; and if found to be suitable or admissible in the special case, it will be adjudged to be ‘due process of law’; but if found to be arbitrary, op- pressive, and unjust, it may be declared to be not ‘due process of law.’” Brapb.ey, J. concurring. Davidson v. New Orleans, 96 U. S. 107. . Essential Principle. “The essential principle is that the state shall not by any of its agencies destroy or impair any right appertaining to life, liberty or property in violation of the principles upon which the requirement of due process of law rests.” Hartan, J., dissenting. Taylor v. Beckham, 178 U. S. 605. Law of the Land. “Due process of law is process due ac- cording to the law of the land. This proc- ess in the states is regulated by the law of the state. Our power over that law is only to determine whether it is in conflict 618 DUE PROCESS OF LAW. t with the supreme law of the land —that is to say, with the Constitution and the laws of the United States made in pursuance thereof,—or with any treaty made under the authority of the United States.” Warte, C. J. Walker v. Sauvinet, 92 U. S. 93. “Tn England the requirement of due proc- ess of law, in cases where life, liberty and property were affected, was originally de- signed to secure the subject against the ar- bitrary action of the crown, and to place him under the protection of the law. The words were held to be the equivalent of ‘law of the land.’ And a similar purpose must be ascribed to them when applied to a legislative body in this country.” Frep, J. Missouri Pac. R. Co. v. Humes, 115 U. S. 519. “The equivalent of the phrase ‘due proc- ess of law,’ according to Lord Coke, is found in the words ‘law of the land,’ in the Great Charter, in connection with the writ of habeas corpus, the trial by jury, and other guarantees of the rights of the sub- ject against the oppression of the Crown.” Miter, J. Davidson v. New Orleans, 96 U. S. 101. “As due process of law in the Fifth Amendment referred to that law of the land which derives its authority from the legis- lative powers conferred on Congress by the Constitution of the United States, exercised within the limits therein prescribed, and in- terpreted according to the principles of the common law, so in the Fourteenth Amend- ment, the same words refer to that law of the land in each state, which derives its au- thority from the inherent ‘and_ reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and _ political institutions.” Futter, C. J. In ve Kemmler, 136 U. S. 448. —— Same Provision in Magna Charta. “The clauses of that: instrument [Magna Charta] which declare that no freeman shall be taken or imprisoned, or be disseised of his freehold or liberties or free customs, or be outlawed or exiled, or any otherwise destroyed, or be passed upon except by the lawful judgment of his peers or by the law of the land, and that justice shall not be sold, nor denied, nor delayed to any man, are considered by English jurists and statesmen to be sufficient to protect the personal liberty and property to every freeman from arbitrary imprisonment and arbitrary spoliation.” Fretp, J., dissenting. Beckwith v. Bean, 98 U. S. 295. “Those terms [due process of law], as is known to every one, were originally used to express what was meant by the terms ‘the law of the land’ in Magna Charta, and had become synonymous with them.” FrExp, J., dissenting. Beckwith v. Bean, 98 U. S. 294. “The words, ‘due process of law,’ were undoubtedly intended to convey the same meaning as the words, ‘by the law of the land,’ in Magna Charta.” Curtis, J. Mur- tray v. Hoboken Land, etc., Co. 18 How. 276. Enforcement through Judicial Tribunals. “ The existence of this [third] clause in the [first section of the Fourteenth] amendment is to me a persuasive argument that those who framed it, and the legislatures of the states which adopted it, never contemplated that the prohibition was to be enforced in any other way than through the judicial tribunals, as previous prohibitions upon the states had always been enforced. If Con- gress could, as an appropriate means to en- force the prohibition, prescribe criminal pros- ecutions for its infraction against legisla- tors, judges, and other officers of the states, it would be authorized to frame a vast por- tion of their laws; for there are few sub- jects upon which legislation can be had besides life, liberty and property.” Frexp, J., dissenting. Ex p. Virginia, 100 U. S. 366. “No general power of inflicting punish- ment by the Congress of the United States is found in that instrument [the Constitu- tion]. It contains in the provision that no ‘person shall be deprived of life, liberty or property without due process of law,’ the strongest implication against punish- ment by order of the legislative body. It has been repeatedly decided by this court, and by others of the highest au- thority, that this means a trial in which the rights of the party shall be decided by a tribunal appointed by law, which tribunal is to be governed by rules of law previously established. An Act of Congress which pro- posed to adjudge a man guilty of a crime and inflict the punishment, would be con- ceded by all thinking men to be unauthor- ized by anything in the Constitution.” Mu- LER, J. Kilbourn v. Thompson, ‘103 U. S. 182. 619 DUE PROCESS OF LAW. Nature and Elements— Laws Operating on All Alike. “Due process of law within the meaning of the [Fourteenth] amendment is secured if the laws operate on all alike, and do not subject the individual to an arbitrary exer- cise of the powers of government.” FULLER, C. J. Giozza v. Tierman, 148 U. S. 662. “The requirements of the Fourteenth Amendment are satisfied if trial is had ac- cording to the settled course of judicial pro- cedure obtaining in the particular state, and the laws operate on all persons alike and do not subject the individual to the arbi- trary exercise of the powers of government.” Futter, C. J. Minder v. Georgia, 183 U. S. 562. — Law in Regular Course of Adminis- tration. “What is due process of law is well un- derstood. It is law in regular course of administration through courts of justice.” StronG, J., dissenting. Sinking-Fund Cases, 99 U. S. 737. “Law, in its regular course of administra- tion through courts of justice, is due process and when secured by the law of the state, the constitutional requisition is satisfied,” Futter, C. J. Caldwell v, Texas, 137 U. S. 697, “[The clause of the Constitution provid- ing that] no state shall ‘deprive any person of life, liberty, or property without due proc- ess of law’ . . . means that neither can be taken, or the enjoyment thereof impair- ed, except in the course of the regular ad- ministration of the law in the established tribunals.” Fretp, J., dissenting. Powell v. Pennsylvania, 127 U. S. 691. “Tt is true that this court has said that a trial in a court of justice according to the modes of proceeding applicable to such a case, secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of govern- ment unrestrained by the established prin- ciples of private right and distributive jus- tice—the court having jurisdiction of the subject-matter and of the parties, and the defendant having full opportunity to be heard — met the requirement of due process of law.” Haran, J. Chicago, etc., R. Co. v, Chicago, 166 U. S. 234. “Without attempting to define exactly in what due process of law consists, it is suffi- cient to say that, if the Supreme Court of a state has acted in consonance with the constitutional laws of a state and its own procedure, it could only be in very excep- tional circumstances that this court would feel justified in saying that there had been a failure of due legal process. We might ourselves have pursued a different course . . but that is not the test. The plain- tiff in error must have been deprived of one of those fundamental rights, the observance of which is indispensable to the liberty of the citizen, to justify our interference,” Brown, J. Allen v. Georgia, 166 U. S. 140. “The third clause in the first section of the [Fourteenth] amendment declares that no state ‘shall deprive any person of life, lib- erty, or property without due process of law.’ . It exists in the Constitution of near- ly all the states, and is only an additional security against arbitrary deprivation of life and liberty and arbitrary spoliation of prop- erty. It means that neither can be taken, or the enjoyment thereof impaired, except in the course of the regular administration of the law in the established tribunals.” Frexp, J., dissenting. Ex p. Virginia, 100 U. S, 366. “A departure from established modes of procedure will often render the judgment void,” Fietp, J. Windsor v. McVeigh, 93 U *S. 283. “Tt is not possible to hold that a party ° has, without due process of law, been de- prived of his property, when, as regards the issues affecting it, he has, by the laws of the state, a fair trial in a court of justice, according to the modes of proceeding ap- plicable to such a case.” MutiER, J. Da- vidson v. New Orleans, 96 U. S. 105. Notice and Opportunity to Be Heard. “ At common law no man was condemned without being afforded opportunity to be heard,” Wuute, J. Hovey v. Elliott, 167 U.S. 415. “Can it be doubted that due process of law signifies a right to be heard in one’s defense? If the legislative department of the government were to enact a statute con- ferring the right to condemn the citizen without any opportunity whatever of being heard, would it be pretended that such an enactment would not be violative of the Constitution? If this be true, as it undoubt- edly is, how can it be said that the judicial department, the source and fountain of jus- tice itself, has yet the authority to render lawful that which if done under express 620 DUE PROCESS OF LAW. legislative sanction would be violative of the Constitution? If such power: obtains, then the judicial department of the government sitting to uphold and enforce the Constitu- tion is the only one possessing a power to disregard it. If such authority exists then in consequence of their establishment, to compel obedience to law and to enforce jus- tice, courts possess the right to inflict the very wrongs which they were created to prevent.” Wuutt, J. Hovey v.. Elliott, 167 U.S. 417. “The court has never held that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental | principles that inhere in ‘due process of law’ as understood at the adoption of the Con- stitution. One of these principles is that no person shall be deprived of his liberty without opportunity, at some time, to be heard, before such officers, in respect of the matters upon which that liberty depends — not necessarily an opportunity upon a regu- lar, set occasion, and according to the forms of judicial procedure, but one that will secure the prompt, vigorous action contemplated by Congress, and at the same time be appro- priate to the nature of the case upon which such officers are required to act.” Haran, J. The Japanese Immigrant Case, 189 U. S., 100. “The law is, and always has been, that whenever notice or citation is required, the party cited has the right to appear and be heard; and when the latter is denied, the former is ineffectual for any purpose. The denial to a party in such a case of the right to appear is in legal effect the recall of the citation to him.” Fietp, J. Windsor v. McVeigh, 93 U. S, 278. “By ‘due process’ is meant one which, following the forms of law, is appropriate to the case, and just to the parties to be affected. It must be pursued in the ordi- nary mode prescribed by the law; it must be adopted to the end to be attained; and wherever it is necessary for the protection of the parties, it must give them an oppor- tunity to be heard respecting the justice of the judgment sought.” Fretp, J. Hagar v. Reclamation Dist. No. 108, 111 U. S. 708. “Undoubtedly where life and liberty are involved, due process requires that there be a regular course of judicial proceedings, which imply that the party to be affected shall have notice and an opportunity to be heard; so, also, where title or possession of property is involved. But where the tak- ing of property is in the enforcement of a tax, the proceeding is necessarily less for- mal, and whether notice to him is at all necessary may depend upon the character of the tax, and the manner in which its amount is determinable.” Fietp, J. Hagar v. Rec- lamation Dist. 111 U. S. 708.. “Recognizing the difficulty in defining, with exactness, the phrase ‘due process of law,’ it is certain that these words imply a conformity with natural and inherent prin- ciples of justice, and forbid that one man’s property, or right to property, shall be taken for the benefit of another, or for the benefit of the state, without compensation; and that no one shall be condemned in his person or property without an opportunity of being heard in his own defense.” Brown, J. Holden v. Hardy, 169 U. S, 390. “Tt is scarcely necessary to say that this court, when asked to revise proceedings in state courts, have always held that due proc- ess of law is afforded litigants if they have an opportunity to be heard at any time before final judgment is entered.” Sutras, J. Wilson v. Standefer, 184 U. S. 415. “Tt is a rule old as the law that no man shall be condemned in his rights of prop- erty, as well as in his rights of person, without his day in court; that is, without being duly cited to answer respecting them, and being heard or having opportunity of being heard thereon.” Fietp, J. Terrell v. Allison, 21 Wall. 292. “The fundamental conception of a court of justice is condemnation only after hear- ing. To say that courts have inherent power to deny all right to defend an action and to render decrees without any hearing what- ever is, in the very nature of things, to convert the court exercising such an author- ity into an instrument of wrong and oppres- sion, and hence to strip it of that attri- bute of justice upon which the exercise of judicial power necessarily depends.” Wutte, J. Hovey wv. Elliott,.167 U. S. 413. “If the appellant’s want of knowledge of the English language put her at some dis- advantage in the investigation conducted by that officer, that was her misfortune, and constitutes no reason, under the Act of Con- gress, or under any rule of law, for the intervention of the court by habeas corpus.” Haran, J. The Japanese Immigrant Case, 189 U. S. 102. 621 DUE PROCESS OF LAW. —— Publication. “Tt is the duty of the owner of real estate, who is a nonresident, to take measures that in some way he shall be rep- resented when his property is called into requisition [as in condemnation proceed- ings]; and if he fails to do this, and fails to get notice by the ordinary publications which have usually been required in such cases, it is his misfortune, and he must abide the consequences. Such publication is ‘due process of law’ as applied to this class of cases.” Mutter, J. Huling v. Kaw Val- ley R., etc, Co., 130 U. S. 564. See also Process. —— Regular Judicial Proceeding and Trial Not Necessary. “Though ‘due process of law’ generally implies and includes actor, reus, judex, reg- ular allegations, opportunity to answer, and a trial according to some settled course of judicial proceedings, . . yet this is not universally true. There may be, and we have seen that there are cases, under the law of England after Magna Charta, and as it was brought to this country and acted on here, in which process, in its nature final, issues against the body, lands, and goods of certain public debtors without any such trial.” Curtis, J. Murray v. Hoboken Land, etc., Co., 18 How. 280. “The phrase ‘due process of law’ does not necessarily mean a judicial proceeding.” Futter, C, J. Palmer v. McMahon, 133 U. S. 668. “Where life and liberty are involved, due process requires that there be a regular course of judicial proceedings.” Fuievp, J. Hagar v. Reclamation Dist., 111 U. S. 708. — Plenary Suit Not Necessary. “Tt is a mistaken idea that due process of law requires a plenary suit and a trial by jury, in all cases where property or personal rights are involved. The impor- tant right of personal liberty is generally determined by a’single judge, on a writ of habeas corpus, using affidavits or depositions for proofs, where facts are to be establish- ed. Assessments for damages and benefits occasioned by public improvements are usu- ally made by commissioners in a summary way. Conflicting claims of creditors, amount- ing to thousands of dollars, are often set- tled by the courts on affidavits or deposi- tions alone. And the courts of chancery, bankruptcy, probate, and admiralty admin- ister immense fields of jurisdiction without trial by jury. In all cases, that kind of procedure is due process of law which is suitable and proper to the nature of the case, and sanctioned by the established cus- toms and usages of the courts.” BrabLey, J. Ex p. Wall, 107 U. S. 289. “T[It is] consistent with due process of law for Congress to provide summary means to compel revenue officers—and in case of default, their sureties —to pay such balances of the public money as might be in their hands.” Haran, J. The Japanese Immi- grant Case, 189 U. S. 100. —— Court Not Necessary. “Due process of law does not always re- quire a court. It merely requires such tri- bunals and proceedings as are proper to the subject in hand.” Braptey, J., dissent- ing. Chicago, etc, Ry. Co. v. Minnesota, 134 U. S. 464. —— Age of Proceeding Not Material. “The question whether a certain pro- ceeding is due process of law is not deter- mined by the matter of age.” Brewer, J. Montana Co. v. St. Louis Min., etc., Co., 152 U. S. 168. —- Jury Trial. “A jury trial is not in all cases essen- tial to due process of law.” Brewer, J. Montana Co. v. St. Louis Min., etc, Co, 152 U. S. 171. “Trial by jury has never been affirmed to be a necessary requisite of due process of law.” PeckHAM, J. Maxwell v. Dow, 176 U. S. 603. —— Indictment by Grand Jury. “The natural and obvious inference is, that in the sense of the Constitution, ‘due process of law’ was not meant or intended to include, ex wi termini, the institution and procedure of a grand jury in any case.” MatrHews, J. Hurtado v. California, 110 U.S. 534, “A state cannot, consistently with due process of law, requiré a person to answer for a capital offense, except upon the pre- sentment or indictment of a grand jury.” Haran, J., dissenting. Baldwin v. Kansas, 129 U. S. 57. —— Rehearing or New Trial Not Neces- sary. ay hearing before judgment, with full op- portunity to present all the evidence and the arguments which the party deems im- 622 DUE PROCESS OF LAW. portant, is all that can be adjudged vital. Rehearings, new trials, are not essential to due process of law, either in judicial or administrative proceedings. One hearing, if ample, before judgment, satisfies the demand of the Constitution in this respect.” Brewer, J. Pittsburgh, etc., R. Co. v. Backus, 154 U. S. 426. “Tf a single hearing is not due process of law, doubling it will not make it so; and the power of a state to make classifications in judicial or administrative proceedings carries with it the right to make such clas- sification as will give to parties belonging to one class two hearings before their rights are finally determined, and to parties belong- ing to a different class only a single hear- ing.” Brewer, J. Pittsburgh, etc, R. Co. v. Backus, 154 U. S. 427. —— Review, Reconsideration, and Re- versal of Judgments. “Judgments, however solemn, however high the court which rendered them, and however conclusive in a general way be- tween the parties, have been subject to re- view, to reconsideration, to reversal and to modification by various modes. Among these are motions for new trials, appeals, writs of error and bills of review, and these have always been held to be due process of law, »So, also, judgments of courts of law have been subject to be set aside, to be corrected and the execution of them enjoined, by bills in chancery, under circumstances appropri- ate to such relief. This also must be held to be due process of law.” Mutter, J. Freeland v. Williams, 131 U. S. 418. Harshness or Injustice of Laws Does Not Invalidate. “Tf the laws enacted by a state be within the legitimate sphere of legislative power, and their enforcement be attended with the observance of those general rules which our system of jurisprudence prescribes for the security of private rights, the harshness, in- justice, and oppressive character of such law will not invalidate them as affecting life, liberty or property without due proc- ess of law.” Fretp, J. Missouri Pac. R. Co. v. Humes, 115 U. S. 520. “Injustice may take place in all tribunals. All human institutions are imperfect ceurts as well as commissions and legisla- tures.” BrapLey, J., dissenting. Chicago, etc, Ry. Co. v. Minnesota, 134 U. S. 465. Particular Proceedings — Levy and Collec- tion of Taxes. “The general system of procedure for the levying and collection of taxes which is es- tablished in this country is, within the mean- ing of the Constitution, due process of law. A provision made by the legislature of | a state in relation to the manner of levy- ing an assessment for a local improvement is within this principle a proceeding for the levying and collection of taxes, and unless it be ‘in violation of some particular provi- sion of the federal Constitution, it will be upheld in this court.” PeckHaAm, J. Hib- ben v. Smith, 191 U. S. 325. “Tt has frequently been held by this ccurt, when asked to review tax proceed- ings in state courts, that due process of law is afforded litigants if they have an op- portunity to question the validity or the amount of an assessment or charge before the amount is determined, or at any subse- quent proceedings to enforce its collection, or at any time before final judgment is entered.” Suiras, J. Gallup v. Schmidt, 183 U. S. 307. — Proceedings Without Jurisdiction. “ Proceedings in a court of justice to de- termine the personal rights and obligations of parties over whom that court has no ju- risdiction do not constitute due process of law.” Fretp, J. Pennoyer v. Neff, 95 U. S. 773. ——Imposing Punishment. “Tt cannot be due process of law to im- pose punishment on any person for failing to have that in his possession, the possession of which he can obtain only at the arbitrary and unregulated discretion of any official.” Brewer, J., dissenting. Fong Yue Ting v. U. S., 149 U. S. 742. —— Appointment of Receiver. “The appointment of a receiver to take possession of the property of an insolvent corporation upon the petition of a creditor is certainly ‘due process.” McKenna, J. Remington Paper Co. v. Watson, 173 U. S. 450. — Inspection of Mines. “Tnspection does not deprive the owner of the title to any portion of his property, nor does it deprive him permanently of the use. The property, therefore, is not taken in the sense that he no longer remains the owner, nor in the sense that the permanent 623 DURESS. use of the property has been appropriated.” Brewer, J. Montana Co. v. St. Louis Min., etc, Co, 152 U. S. 169. “ By an inspection neither the title nor the general use is taken, and all that can be said is that there is a temporary and limited interruption of the exclusive use.” BREWER, J. Montana Co. v, St. Louis, Min, etc, Co., 152 U. S. 169. —— Allowance of Attorney’s Fee in Par- ticular Classes of Actions. “The constitutionality of statutes allowing plaintiffs only to recover an attorney’s fee, as part of the judgment, in particular classes of actions selected by the legislature, ap- pears to have been upheld by the courts of most of the states in which it has been challenged.” Gray, J., dissenting. Gulf, etc. R. Co. v. Ellis, 165 U. S. 167. Legislation Regulating Use of Property — Police Power. “A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a tak- ing or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes nor restrict his right to dispose of it, but is only a declaration by the state that its use by any one, for certain forbidden purposes, is prej- udicial to the public interests.” Har.an, J. Mugler v. Kansas, 123 U. S. 668. “The principle, that no person shall be deprived of life, liberty, or property, without due process of law, was embodied in sub- stance, in the constitutions of nearly all, if not all, of the states at the time of the adoption of the Fourteenth Amendment; and it has never been regarded as incompatible with the principle, equally vital, because es- sential to the peace and safety of society, that alf property in this country is held un- der the implied obligation that the owner’s use of it shall not be injurious to the com- munity.” Hartan, J. Mugler v. Kansas, 123 U. S. 665. “It is true that under the Fourteenth Amendment no state can deprive a person of his life, liberty or property without due process of law; but in determining what is due process of law we are bound to con- sider the nature of the property, the neces- sity for its sacrifice, and the extent to which it has heretofore been regarded as within the police power. So far as property is inof- fensive or harmless, it-can only be con- demned or destroyed by legal proceedings, with due notice to the owner; but so far as it is dangerous to the safety or health of the community, due process of law may authorize its summary destruction.” Brown, J. Sen- tell v. New Orleans, etc., R. Co., 166 U. S. 705. “The [Fifth] amendment forbids any ar- bitrary deprivation of life, liberty, or prop- erty, and secures equal protection to all un- der like circumstances in the enjoyment of their rights; and, in the administration of criminal justice, requires that no different or higher punishment shall be imposed upon one than is imposed upon all for like offenses. But it was not designed to interfere with the power of the state to protect the lives, liberties and property of its citizens, and to promote their health, peace, morals, educa- tion and good order.” Futter, C. J. In re Kemmiler, 136 U. S. 448. —— Forbidding Importation of Particular Goods. “A statute which restrains the introduc- tion of particular goods into the United States from considerations of public policy does not violate the due process clause of the Constitution.” Wuure, J. Buttfield v. Stranahan, 192 U. S. 493. DUES. “The word ‘dues’ is one of general Significance, and includes all contractual ob- ligations.” Brewer, J. Whitman v. Oxford Nat. Bank, 176 U. S. 562. DUNNAGE. See Suips AND SHIPPING. : DUPLICITY. See PLEADING. DURESS. Definition — At Common Law. “Duress per minas, as defined at common law, is where the party enters into a con- tract (1) For fear of loss of life; (2) For fear of loss of limb; (3) For fear of may- hem; (4) For fear of imprisonment.” C.iF- ForD, J. Brown wv. Pierce, 7 Wall. 215. — More Comprehensive Meaning. “Duress, in its more extended sense, means the degree of constraint or danger, 624 DURESS. either actually inflicted or threatened and impending, which is sufficient, in severity and in apprehension, to overcome the mind and will of a person of ordinary firmness.” CuirForp, J. Brown v. Pierce, 7 Wall. 214. To the same effect see the language of CurrrorD, J., in Trench v. Shoemaker, 14 Wall. 332. Classification at Common Law. “Text-writers usually divide the subject [of duress] into two classes, namely, duress per minas and duress of imprisonment, and that classification was uniformly adopted in the early history of the common law, and is generally preserved in the decisions of the English courts to the present time.” CuirForD, J. Brown v. Pierce, 7-Wall. 215. Duress of Imprisonment. “Where there is an arrest for an im- proper purpose, without just cause, or where there is an arrest for a just cause, but with- out lawful authority, or for a just cause, but for an unlawful purpose, even though under proper process, it may be construed as duress of imprisonment; and if the person arrested execute a contract or pay money for his release, he may avoid the contract as one procured by duress, and may recover back the money in an action for money had and received.” C.tFForD, J. Brown v, Pierce, 7 Wall. 215. Actual Violence Need Not Be Shown — Moral Compulsion. “Tt [is not] necessary to show, in order to establish such a defense, that actual vio- lence was used, because consent is the very essence of a contract, and if there be com- pulsion there is no binding contract, and it is well settled that moral compul- sion, such as that produced by threats to take life or to inflict great bodily harm, as well as that produced by imprisonment, is sufficient in legal contemplation to destroy free agency, without which there can be no contract, because in that state of the case there is no consent.” CtirForD, J. U. S. v. Huckabee, 16 Wall. 431. “ Actual violence is not necessary to con- stitute duress, even at common law, as un- derstood in the parent country, because consent is the very essence of a contract, and, if there be compulsion, there is no actual consent, and moral compulsion, such as that produced by threats to take life or to in- flict great bodily harm, as well as that pro- 1 Os. Dic.—40 duced by imprisonment, is everywhere re- garded as sufficient, in law, to destroy free agency, without which there can be no con- tract, because, in that state of the case, there is no consent.” CtiFForp, J. Brown vw. Pierce, 7 Wall. 214. For substantially sim- ilar language see the opinions of CLIFForD, J., in French v. Shoemaker, 14 Wall. 332, and Baker v Morton, 12 Wall. 157. “Where a party enters into a contract for fear of loss of life, or for fear of loss of limb, or fear of mayhem, or for fear of imprisonment, the contract is as clearly void as when it was procured by duress of im- prisonment, which is where there is an ar- rest for an improper purpose without just cause, or where there is an arrest for a just cause but without lawful authority, or for a just cause but for an unlawful pur- pose, and the rule is that in either of those events the party arrested, if he was there- by induced to enter into a contract, may avoid it as one procured by duress,” CuiF- ForD, J. Baker v. Morton, 12 Wall. 158. “Tt is well-settled law that moral com- pulsion, such as that produced by threats to take life or to inflict great bodily harm, as well as that produced by imprisonment, is sufficient to destroy free agency, without which there can be no contract, as in that state of the case there is no consent.” CurrrorpD, J. Baker v. Morton, 12 Wall. 157 Menace of Battery or Trespass Sufficient. “Positive menace of battery to the per- son, or of trespass to lands, or of destruction of goods, may undoubtedly be, in mariy cases, sufficient to overcome the mind and will of a person entirely competent, in all other re- spects, to contract, and it is clear that a contract made under such circumstances, is as utterly without the voluntary consent of the party menaced, as if he were induced to sign it by actual violence, nor is the reason assigned for the more stringent rule, that he should rely upon the law for redress, satis- factory, as the law may not afford him any- thing like a sufficient and adequate com- pensation for the injury.” Cuirrorp, J. U. S. v. Huckabee, 16 Wall. 432. “Many modern decisions of the courts of that country [England] still restrict the operations of the rule within those limits [the four ingredients of duress per minas, as defined at common law]. . . . They deny that contracts procured by menace of a mere battery to the person, or of trespass to lands, or loss of goods, can be avoided 625 DYING DECLARATIONS. on that account, and the reason assigned for this qualification of the rule is, that such threats are held not to be of a nature to overcome the mind and will of a firm and prudent man, because it is said that if such an injury is inflicted, sufficient and adequate redress may be obtained in a suit at law. Cases to the same effect may be found also in the reports of decisions in this country, and some of our text-writers have adopted the rule, that it is only where the threats ut- tered excite fear of death, or of great bodily harm, or unlawful imprisonment, that a contract, so procured, can be avoided, be- cause, as such courts and authors say, the person threatened with slight injury to the person, or with loss of property, ought to have sufficient resolution to resist such a threat, and to rely upon the law for his remedy. On the other hand, there are many American decisions, of high author- ity which adopt a more liberal rule, and hold that contracts procured by threats of battery to the person, or the destruction of property, may be avoided on the ground of duress, be- cause in such a case there is nothing but the form of a contract, without the substance.” CuirForD, J. Brown v. Pierce, 7 Wall. 215. Defense. “Unlawful duress is a defense to a con- tract if it includes such degree of constraint or danger, either actually inflicted or threat- ened and impending, as is sufficient in se- verity or apprehension to overcome the mind and will of a person of ordinary firmness.” CurrForD, J. U. S. v. Huckabee, 16 Wall. 432. “A deed or other written obligation or contract, procured by means of duress, is inoperative and void.” CLiFFoRrD, J. Brown v. Pierce, 7 Wall. 214. To the same effect see the language of CuirForpD, J., in U. S. v. Huckabee, 16 Wall. 431. Payment under Duress Not Voluntary. “When such [moral] duress is exerted un- der circumstances sufficient to influence the apprehensions and conduct of a prudent bus- iness 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 consider- ation.” Braptey, J. Robertson v. Frank Bros. Co., 132 U. S. 23. Compromise without Intimidation. “ Acceptance from the government of a smaller sum than the one claimed, even in a case where thé amount relinquished is large, does not leave the government open to further claim on the ground of duress, if the acceptance was without intimidation and with a full knowledge of all the cir- cumstances, and the case is not changed because the circumstances attending the trans- action were such that the claimant was in- duced from the want df money to accept the smaller sum in full. C.iFForp, J. Ma- son v. U. S., 17 Wall. 74. Burden of Proof. “Duress, if proved, may be a defense to an action, and it would doubtless be sufficient to relieve a party from the effect of com- promise which was procured by such means, but the burden of proof to establish such charge, in every such case, is upon the party making it, and if he fails to introduce any such evidence to support it, the pre- sumption is that the charge is without any foundation.” CtuirForp, J. Mason v. U. S., 17 Wall. 74. To the same effect see the language of CiiFForD, J., in Savage v. U. S., 92 U. S. 387. Degree of Proof — Duress by Officer. “When the duress has been exerted by one clothed with official authority, or exercising a public employment, less evidence of compul- sion or pressure is required,—as where an officer exacts illegal fees, or a common car- tier excessive charges.” BrapLey, J. Rob- ertson v. Frank Bros. Co., 182 U. S. 23. DYING DECLARATIONS. Admissibility — Confronting Accused with Witness. “It is scarcely necessary to say that to the rule that an accused is entitled to be con- fronted with witnesses against him the ad- mission of dying declarations is an exception which arises from the necessity of the case. This exception was well established before the adoption of the Constitution, and was not intended to be abrogated. The ground upon which such exception rests is that from the circumstances under which dying declara- tions are made they are equivalent to the evidence of a living witness upon oath.” Haran, J. Kirby v. U.S, 174 U.S. 61. “The provision [in the Constitution] that an accused person shall be confronted with the witnesses against him [does not] pre- vent the admission of dying declarations.” Brown, J. Robertson v. Baldwin, 165 U. S. 282. 626 EASEMENTS. —— Exception to Rule Requiring Sworn Testimony. “The admission of the testimony. [dying declarations] is justified upon the ground of necessity, and in view of the consideration that the certain expectation of almost imme- diate death will remove all temptation to falsehood, and enforce as strict adherence to the truth as the obligation of an oath could impose.” Fuuter, C. J. Mattox v. U. S, 146 U. S. 152, . “Dying declarations are an exception to the general rule that only sworn testimony can be received, the fear of impending death being assumed to be as powerful an incentive to truth as the obligation of an oath.” Brown, J. Carver v. U. S., 164 U. S. 695. ~—— Exception to Rule as to Hearsay Tes- timony. “Dying declarations are a marked excep- tion to the general rule that hearsay testi- mony is not admissible, and are received from the necessities of the case and to pre- vent an entire failure of justice.” Brown, J. Carver v. U. S., 164 U. S. 697. — Must Be Made under Sense of Im- pending Dissolution. “In the admission of the [dying] declara- tions of the victim as to the facts of a homicide the utmost caution must be exer- cised to the end that it be satisfactorily es- tablished that they were made under the im- pression of almost immediate dissolution.” Futter, C. J. Carver v. U. S., 160 U. S. 554. To the same effect see the language of Brown, J., in Carver v. U. S., 164 U. S. 697. “Tt must be shown by the party offering them [dying declarations] in evidence that they were made under a sense of impending death. This may be made to appear from what the injured person said; or from the nature and extent of the wounds inflicted, being obviously such that he must have felt or known that he could not survive; as well as from his conduct at the time and the com- munications, if any, made to him by his medical advisers, if assented to or under- standingly acquiesced in by him. The length of time elapsing between the making of the declaration and the death is one of the ele- ments to be considered.” Futter, C. J. Mattox v. U. S., 146 U. S. 151. “The evidence must be received ‘with the utmost caution, and if the circumstances do not satisfactorily disclose that the awful and solemn situation in which he is placed is realized by the dying man because of the 627 hope of recovery, it ought to be rejected.” Fuer, C. J. Mattox vw. U. S. 146 U. S. 152. ‘ “A declaration is admissible if made while hope lingers, if it is afterwards ratified when hope is gone, or if made when the person is without hope, though afterwards he regains confidence. But the repe- tition of a dying declaration cannot itself be admitted as a reiteration of the alleged facts if made when hope has been regained.” Fuiier, C. J. Carver v. U. S., 160 U. S. 555. Objections to Competency. “ [Dying declarations] may be in- admissible by reason of the extreme youth of the declarant, . .*. or by reason of ary other fact which would make him in- competent as an ordinary witness.” Brown, J. Carver v. U. S., 164 U. S. 697. Value as Evidence and Right to Explain or Contradict. “A dying declaration by no means im- ports absolute verity. The history of crim- inal trials is replete with instances where witnesses, even in the agonies of death, have through malice, misapprehension or weak- ness of mind made declarations that were inconsistent with the actual facts; and it would be a great hardship to the defendant, who is deprived of the benefit of a cross-ex- amination, to hold that he could not explain them. They may be contradicted in the same manner as other testimony, and may be discredited by proof that the character of the deceased was bad, or that he did not believe in a future state of rewards or pun- ishment.” Brown, J. Carver v. U. S., 164 U. S. 697. EASEMENTS. Twenty-year Prescription. “Tt [a prescription for an easement] re- quires twenty years.” Mutter, J. Pumpelly v. Green Bay Co., 138 Wall. 181. ; Passes as Incident to Grant without Ex- press Words. “A mere easement may, without express words, pass as an incident to the principal object of the grant.” THompson, J. Harris v. Elliott, 10 Pet. 54. Prescription Vests Title—No Possessory Easement. “Prescription which.applies to easement the analogy of the statute of limitations un- questionably vests a title. There is no such thing as a mere possessory easement. A dis- EJECTMENT. seisor of a dominant estate may get an ease- ment which already is attached to it, but the easement is attached to the land by title or not at all.” Hotmes, J. Davis v. Mills, 194 U. S, 456. Abandonment — Without Writing. “An easement in real estate may be aban- doned without any writing to that effect and by any act evincing an intention to give up and renounce the same.” PrcxkHam, J, Black v. Elkhorn Min. Co., 163 U. S. 450. — Nonuser. “An easement may be lost by nonuser in twenty years, and even in a less time if it is affected by positive acts of invasion.” Brabiey, J. Given v. Wright, 117 U. S. 656. Easement in Street for Limited Time and in Perpetuity. “Easements in the public streets for a limited time are different and have differ- ent consequences from those given in perpe- tuity. Those reserved from monopoly are different and have different consequences from those fixed in monopoly. Consequently those given in perpetuity and in monopoly must have for their authority explicit per- mission, or, if inferred from other powers, it is not enough that the authority is con- venient to them, but it must be indispensable to them.” McKenna, J. Citizens’ St. Ry. Co. v. Detroit R., 171 U. S. 55. See also STREETS AND HIGHWAYS. Easements Not Favored. “Whatever the form which the attempt to restrict may take, obviously it is not desira- ble to allow large tracts of land to be tied up and cut off from the ordinary incidents of ownership, according to the invention of the owner, in perpetuity, in‘ favor of other large tracts which may come by division into many hands. If such restrictions should be enforced without limit in equity as against all purchasers with notice, the prac- tical result would be an unlimited extension of easements, since notice always can be secured by registration.” Hotes, J. Beas- ley v. Texas, etc., R. Co., 191 U. S. 496. EFFECT. See CAUSE AND EFFECT. EJECTMENT. See ApveRSE Possession; Petitory ACc- TIONS. Legislative Regulation of Remedy, “The legislature was competent to reg- ulate the remedy by ejectment, and to limit its operation. It has so limited it. It has - taken away by implication the right to re- cover mesne profits, as consequential upon the recovery in ejectment, and given the party his damages in the latter action. It has prescribed the restrictions under which mesne profits shall be recovered; and these restrictions are obligatory upon the citizens of the state.” Story, J. Society v. Pawlet, 4 Pet. 509. “In most of the states in this country, < the action of ejectment to recover the posession of real property as existing at common law has been abolished with all its fictions. Actions for the possession of such property are now not essentially different in form from actions for other property.” Fieip, J. Holland v. Challen, 110 U. S. 19. Plaintiff Must Show that He Has Legal Title. “The action of ejectment deals altogether with legal estates. Mere equities are un- known to it.” Jounson, J. Bradstreet wv. Huntington, 5 Pet. 443. “A recovery can not be had in an action of ejectment in the federal courts except on a legal title.’ Davis, J. Alexander v. Rou- let, 13 Wall. 387. “In the federal courts, where the dis- tinction between legal and equitable proceed- ings is strictly maintained, and remedies af- forded by law and equity are separately, pursued, the action of ejectment can only be sustained upon the possession of the plain- tiff of the legal title.” Fretp, J. Gibson wv. Chouteau, 13 Wall. 102. “The law is settled, that where there is a specific tract of land confirmed, according to ascertained boundaries, the confirmee takes a title on which he may sue in ejectment. ‘ But where the claim has no certain limits, and the judgment of confirmation car- ries along with it the condition that the land shall be surveyed, and severed from the public domain and the lands of others then it is not open to controversy, that the title attaches to no land; nor has a court of jus- tice any authority in law to ascertain and establish its boundaries, this being reserved to the executive department.” Catron, J. Stanford v. Taylor, 18 How. 412. “A practice has prevailed in some of the states of permitting the action of ejectment to be maintained upon war- rants for land, and upon other titles not com- 628 EJECTMENT. plete or legal in their character; but this practice can in no Wise affect the jurisdiction of the courts of the United States, who, both by the Constitution and by the Acts of Corgress, are required to observe the distinction between legal and equitable rights, and to enforce the rules and principles of decision approptiate to each.” Dantzt, J. Fenn v. Holme, 21 How. 488. — Possession Without Title Insufficient. “The mere possession of public land, with- out title, will not enable the party to main- tain a suit against any one who enters on it.” Taney, C. J. Burgess v. Gray, 16 How. 65. —— Action After Sale but Before Con- veyance. “Tf the vendor has actually made a con- veyance, his title is extinguished in law as well as equity, and it will not be pre- tended that he can maintain an ejectment. If he has sold, but not conveyed, the con- tract of sale binds him to convey, unless it be conditional. If, after such a contract, he brings an ejectment for the land, he vio- lates his own contract, unless the condi- tion be broken by the vendee; and if it be, the vendor ought to show it.’ MarsHALL, C. J. Blight v. Rochester, 7 Wheat. 548. — Mortgagor Cannot Maintain Action. “Tt has been held that ejectment will not lie at the suit of a mortgagor against his mortgagee in possession, after breach of the condition, even if the money secured by the mortgage be paid or tendered.” Strone, J. Brobst v. Brock, 10 Wall. 536. — Title of Joint Plaintiffs. “It is a general rule that no recovery [in ejectment] can be had unless all the plaintiffs are competent to maintain the suit. If, there- fore, the title fails as to one, it is not maintainable in favor of the others.” Story, J. Chirac v. Reinicker, 11 Wheat. 301. Plaintiff Must Have Right of Possession. “This doctrine of Lord Mansfield [that ejectment will lie by the owner of the soil for land which is subject to a passage over it as the king’s highway] has crept into most of our elementary treatises on the action of ejectment, and has apparently, in seme instances, been incidentally sanctioned by judges. But we are not aware of its having been adopted in any other case where it was the direct point in judgment.” TuHompson, J. Cincinnati v. White, 6 Pet. 442, “Tt ig said in the case in Burrow [1 Burr. 143] that an ejectment could be maintained because trespass would lie. But this cer- tainly does fot follow. The object and ef- fect of the recoveries are entirely differ- ent. The one is to obtain possession of the land, which is inconsistent with the enjoy- ment of the public right; and the other is to recover damages merely, and not to in- terfere with the possession, which is in perfect harmony with the public right.” Tuompson, J. Cincinnati v. White, 6 Pet. 443. Plaintiff Must Recover on Strength of His Own Title. “Tn an action of ejectment the plaintiff must recover, if at all, upon the strength of his own title. The weakness of his ad- versary’s cannot avail him.” Swayne, J. McNitt v. Turner, 16 Wall. 362. “In ejectment, the plaintiff recovers upon the strength of his own title, and not upon the weakness of that of his adversary.” Wartz, C. J. Palmer v. Low, 98 U. S. 19. “Tf there is any exception to the rule that in an action to recover possession of land the plaintiff must recover on the strength of his own title, and that the defendant in possession can lawfully say until you show some title, you have no right to disturb me, it has not been pointed out to us.” MILLER, J. Reynolds v. Iron Silver Min. Co., 116 U. S. 692. “So far as a federal question is con- cerned, it is familiar law that ejectment turns on the plaintiff’s title. If that be good, he is entitled to recover; if it fails, then it is immaterial what claim or title defendant may have, the verdict must be in his favor.” Brewer, J., dissenting. Mitchell v. Smale, 140 U. S. 416. “He [plaintiff] must recover upon the strength of his own title, even if that of the defendant be defective.” Harztan, J. Me- Cormick v. Hayes, 159 U. S. 339. “Tt is well settled that in ejectment the plaintiffs must rest on their own title. If that title fails it is immaterial what wrong the defendant may have committed.” Brew- gr, J. Filhiol v. Torney, 194 U. S. 360. “Tn a case of doubtful construction, the claim of the party in actual possession ought to be maintained, especially where it has been upheld by the decision of the state tribu- 629 EJECTMENT. nals.” Swayne, J. St. Clair County vw. Lovingston, 23 Wall. 62. “The rule of law, that a plaintiff must recover by the strength of his own title, and not the weakness of his adversary’s, must be limited and explained by the nature of each case as it arises. Since the rule is univer- sal that a plaintiff in ejectment must show the right to possession to be in himself positively, and it is immaterial as to his right of recovery whether it be out of the tenant or not, if it be not in himself, it follows that a tenant is always at liberty to prove the title out of the plaintiff, although he does not prove it to exist in himself.” JoHNsoN, J. Love v. Simms’ Lessee, 9 Wheat. 524. — State of Title at Commencement of Action. ‘ “In ejectment, the plaintiff must recover, if at all, upon the state of his title as it subsisted at the commencement of the suit. Evidence of any after-acquired title is whol- ly inadmissible.” Swayne, J. Johnston v. Jones, 1 Black 224. -—— Exceptions to General Rule. “Prior possession is sufficient to entitle a party to recover in an action of ejectment only against a mere intruder or wrongdoer, or a person subsequently entering without right.” Matruews, J. Sabariego v. Mav- erick, 124 U. S. 299. “The elementary rule is that one must recover on the strength of his own and not on the weakness of the title of his adversary, but this principle is subject to the qualifica- tion that possession alone is adequate as against a mere intruder or trespasser with- out even color of title, and especially so against one who has taken possession by force and violence. This exception is based upon the most obvious conception of justice and good conscience. It proceeds upon the theory that a mere intruder and trespasser cannot make his wrongdoing successful by asserting a flaw in the title of the one against whom the wrong has been by him com- mitted.” Wuurte, J. Haws v. Victoria Cop- per Min. Co., 160 U. S. 316. Legal Title Must Prevail. “Tn the action of ejectment. in the federal courts, the legal title must prevail.” Frexp, J. Gibson v. Chouteau, 13 Wall, 102. “Tt is undoubtedly true, that upon com- mon law principles the legal title should prevail in the action of ejectment upon the same grounds that the legal right prevails in other actions in courts of law. It is so held in those states in which the principles of the common law are carried into full ef- fect, and the course of proceeding in the action of ejectment are according to those principles. In the states where these prin- ciples prevail, it is held, that in a trial at law the courts will not look behind, or be- yond a grant, to the rights upon which it is founded; nor examine the progressive stage of the title, antecedent to the grant.” TRIMBLE, J. Ross v. Doe, 1 Pet. 664. “Tt is among the elementary principles of the law that in actions of ejectment the legal title must prevail. The patent of the United States passes that title. Whoever holds it must recover against those who have only unrealized hopes to obtain it, or claims which it is the exclusive province of a court of equity to enforce.” Fuiep, J. Steel v. St. Louis Smelting, etc., Co., 106 U. S. 452. “The defendant in ejectment can never defend his possession against the plaintiff upon a title in himself, by which he could not recover the possession, if he were out, and the plaintiff in possession.” McKINLEy, J. Hickey v. Stewart, 3 How. 759. “Tn ejectment the question always is who has the legal title for the demanded prem- ises, not who ought to have it.” Fretp, J. Sanford vw. Sanford, 139 U. S. 646. Action Lies Only Against Person in Pos- session. “There can be no controversy at law respecting the title to or right of posses- sion of real property when neither of the parties is in possession. An action at law, whether in the ancient form of ejectment or in the form now commonly used, will lie only against a party in possession.” FIExp, J. Holland v. Challen, 110 U. S. 25. Right of Defendant to Set up Outstanding Title. “In the language of ejectment law, an outstanding title means a title in a third person, under which the tenant in posses- sion does not claim.” Taney, C. J. Hen- derson v. Tennessee, 10 How. 323. “There is, a difference between setting up an adverse title in a third person, to controvert an actual existing title, and resisting a claim made by a person having no title whatever.” MarsHatt, C. J. Blight v. Rochester, 7 Wheat. 550. 630 EJECTMENT. “In an action of ejectment, the defendant may show a paramount outstanding and sub- sisting title for the same land in a stranger, to defeat the plaintiff.” McLran, J. Dos- well v. De La Lanza, 20 How. 33. “A simple grantee in a deed can set up another title in a third party, and can him- self claim title under such party and can deny the title of his grantor. He takes no title under the grantor, and is at full liberty to deny the title of the latter.” PrckHAM, J. Guaranty Sav. Bank v. Bladow, 176 U. S. 456. “Tt is argued that in ejectment a stranger to the outstanding title cannot invoke it to defeat the action. Whether this be so or not depends on the laws of the state.” Davis, J. Best v. Polk, 18 Wall. 119. “The title of the lessee is, in fact, the title of the lessor. He comes in by vir- tue of it, holds by virtue of it, and rests upon it to maintain and justify his posses- sion. He professes to have no independent right in himself, and it is a part of the very essence of the contract under which he claims that the paramount ownership of the lessor shall be acknowledged during the continuance of the lease, and that posses- sion shall be surrendered at its expiration. He cannot be allowed to controvert the title of the lessor, without disparaging his own, and he cannot set up the title of an- other, without violating that contract by which he obtained and holds possession; and breaking that faith which he has pledged, and the obligation of which is still contin- uing, and in full operation.” MarsHALt, C. J. Blight v. Rochester, 7 Wheat. 547. Joinder of Causes of Action and Parties. “In the action of ejectment, a plaintiff will not be allowed to join in one suit several and distinct parcels, tenements, or tracts of land, in possession of several defendants, each claiming for himself. But he is not bound to bring a separate action against sev- eral trespassers on his single, separate, and distinct tenement or parcel of land. As to him they are all trespassers, and he cannot know how they claim, whether jointly or severally; or if severally, how much each one claims; nor is it necessary to make such proof in order to support his action. Each defendant has a right to take defense specially for such portion of the land as he claims, and by doing so he necessarily disclaims any title to the residue of the land described in the declaration; and if on the trial he succeeds in establishing the title to so much of it as he has taken defense for, and in showing that he was not in posses- sion of any of the remainder disclaimed, he will be entitled to a verdict. He may also demand a separate trial, and that his: case be not complicated or impeded by the issues made with others, or himself made sliable for costs unconnected with his sepa- rate litigation. If he pleads nothing but the general issue, and is found in posses- sion of any part of the land demanded, he is considered as taking defense for the whole.” Grier, J. Greer v. Mezes, 24 How. 277. Description of Premises in Suit. “The strict rule of pleading which form- erly required exact accuracy in the descrip- tion of premises sought to be recovered, has, in modern practice, been relaxed, and a gen- eral description of the property held to be good. The provisions of state statutes as to the description of the premises by metes and bounds have been held to be only di- rectory, and a description by name where the property is well known is often sufficient.” Lamar, J. Glacier Mountain Silver Min. Co. v. Willis, 127 U. S. 480. Amendment of Pleadings. “The power of amendment is extended at least as far in the 32d section of the Ju- diciary Act, as in any of the British statutes; and there is no species of action to which the discretion of the court in this respect ought to be more liberally applied than to the act of ejectment. The proceed- ings are all fictitious, fabricated for the mere purposes of justice, and there is every rea- son for allowing amendments in matters of mere form.” MarsHatit, C. J. Walden v. Craig, 9 Wheat. 577. “Tn an ejectment the lease is entirely a fiction invented for the purpose of going fairly to trial on the title. Courts have exercised a full discretion in allowing it to be amended. A plaintiff has frequently been allowed to enlarge the term when it has ex- pired before a final decision of the cause. Between making the term extend to a more distant day, and commence at a later day, the court can perceive no difference in sub- stance. They are modifications of the same power intended to effect the same object; and although not precisely the same in form the one is not greater in degree than the other.” MarsHatt, C. J. Blackwell v. Pat- ton, 7 Cranch 478. 631 EJECTMENT. Judgment — Binds Parties and Privies, “In general, a recovery in ejectment, like other judgments, binds only parties and privies.” Story; J. Chirac v. Reinicker, 11 Wheat. 296. Only As Notice to Defendant’s Warrantor. “At common law, as is familiar to all of us, when an action is brought to recover real estate which a defendant holds by pur- chase from another, accompanied with a cov- enant of warranty, the defendant may, at his option, elect either to give notice of the pending action to his vendor and warrantor, or to await the result of the suit, and, if judgment passes against him, sue upon his covenant of warranty. In the first case, the warrantor may take upon himself the bur- den of the defense, if he pleases, or may omit it. In either case, notice of the case hav- ing been given to him, he is bound by the judgment. It is, nevertheless, still necessary that an action upon the warranty should be brought against him to enforce his per- sonal liability. And upon proof that he had notice of the first suit, the judgment against his vendee will be conclusive evidence against him of the breach of his ‘covenant. If no such notice of the first suit be given to him, he may, in an action on the cov- enant, controvert the title of the original plaintiff, and require full proof of it to fix his liability. In all cases, however, “the re- sponsibility of the warrantor is judicially settled in the second suit.” Wayne, J., dis- senting. U. S. v. King, 7 How. 878. —— Does Not Bar Subsequent Actions. “On account of the fictitious character of the common-law action of ejectment, a judg- ment was not a complete bar, as in other actions.” Davis, J. Blanchard v. Brown, 3 Wall. 249. “The action of ejectment was devised for a lessee of a term of years, who was ousted of his term, and who, having but a chattel interest, could not support a real action to recover possession. It was but an action of trespass in effect, and the remedy was in damages only for the dispossession. But afterward the court determined the lessee should not only recover damages, but also his term, which soon brought the action into general use; and, by the formal scaffolding of a lease, entry, and ouster, the action was converted into a method of trying, collaterally and incidentally, the title of the lessor. Hence, as the title of the freehold was never formally and directly in issue by the plead- ings, but only a trespass committed by John Doe on Richard Roe, in forcibly expelling him from a term of years, no verdict be- tween these parties for the supposed tres- pass could be pleaded in bar to another ac- tion of trespass by Thomas Troublesome on Timothy Peaceable.” Grier, J. Sturdy v. Jackaway, 71 U. S. 175. “By the common law a party was not concluded by a single verdict and judgment in ejectment, but might bring as many suc- cessive ejectments as he pleased, unless re- strained by a court of equity after repeated verdicts against him.” Gray, J. Capital Traction Co. v. Hof, 174 U. S. 13. “While some of our older states still uphold many of the safeguards of the com- mon law, with its complicated system of con- veyancing, operating as a strong drag upon the facility and frequency of transfers of real property, our western people traffic in land as they do in horses or merchandise, and sell a quarter-section of land as readily and as easily as they do a mule or a wagon. The laws of the people correspond with their habits. Deeds of conveyance are, by statute, rendered exceedingly simple and effectual, the main safeguard being a well-digested sys- tem of registration. In consonance with this general facility of traffic, it is their policy to prevent those endless litigations concerning titles to lands, which, in other countries, are transmitted from one generation to another, The rapid settlement of a new country re- quires that a title once fairly determined shall not ‘be again disturbed as between the same parties.” Mutuer, J. Miles v. Caldwell, 2 Wall. 43. — Bill to Quiet Title. “At common law a party might by suc- cessful fictitious demises bring as many ac- tions of ejectment as he chose, and a bill to quiet title was only permitted for the pur- pose of preventing the party in possession being annoyed by repeated and vexatious actions. The jurisdiction was in fact only another exercise of the familiar power of a court of equity to prevent a multiplicity of suits by bills of peace.” Brown, J. Wehr- man v. Conklin, 155 U. S. 322. “By the common law the action of eject- ment was purely one of possession, and as it proceeded upon a fictitious demise be- tween fictitious parties, its determination de- cided nothing beyond the right of the plain- tiff at the date of the alleged demise. A new action upon the allegation of a different de- 632 ELECTION OF REMEDIES AND RIGHTS. mise might immediately be instituted. It was only after repeated verdicts in such cases in favor of the plaintiff that the real claimant could apply to a court of equity to quiet the possession and put an end to the fruitless litigation respecting the property. A judgment in ejectment in an action was consequently not a bar to a second action for the same premises.” Fretp, J. Smale v. Mitchell, 143 U. S. 105. Recovery of Mesne Profits. “By the ancient law, where there was an entire disseizin, the estate was deemed out of the disseizee for the time being, and no intrusion upon the land was a trespass against him; and, therefore, a grantee of the disseizor, or a second disseizor, was not re- sponsible to the true owner at all, who had to look to his immediate disseizor for dam- ages in an assize. But the modern action for mesne profits only lies against the tenant in possession who is cast in an action of ejectment; and where no ejectment has been brought, the actual trespasser on the land is the person amenable to an action of trespass quare clausum fregit, or assumpsit for use and occupation, when the trespass is waived.” Braptry, J. New Orleans v. Gaines, 131 U. S. 210. “There is a] doctrine which allows the plaintiff in ejectment to recover mesne profits upon the theory that the land has always been his, and that the defendant illegally ob- tained possession of it.” Brown, J. U. S. v. Loughrey, 172 U. S. 215. Habere Facias Possessionem. “The writ of habere facias possessionem is the established remedy to obtain the fruits of a judgment for the plaintiff in eject- ment. It is a full, adequate, and complete remedy.” Hunt, J. Rees v. Watertown, 19 Wall. 124. ELECTION OF REMEDIES AND RIGHTS. Plaintiff Bound by Election. “Tf two or more are bound jointly and severally, the obligee may elect to sue them jointly or severally. But having once made his election and obtained a joint judgment, his bond is merged in the judgment, quia transit in rem judicatum. It is essential to the idea of election that a party cannot have both. One judgment against all of each of the obligors is a satisfaction and extinguish- ment of the bond. It no longer exists as a security, being superseded, merged, and ex- tinguished in the judgment, which is a se- curity of a higher nature. The creditor has no longer a remedy, either at law or in equity, on his bond, but only on his judg- ment. The obligor is no longer bound by the bond; but by the judgment, it has become the evidence of his indebtedness, and the measure of his liability.” Grier, J. U. S. v. Price, 9 How. 93. “An obligee who has a joint and several bond, and elects to treat it as joint, may sometimes act unwisely in so doing, but his want of prudence is no sufficient plea for the interposition of a chancellor. Nor can the conscience of a mere surety be af- fected, who, having tendered to the obligee his choice of holding him jointly or sev- erally liable, has been released at law by the exercise of such election.” Grier, J. U. S. v. Price, 9 How. 95. “Tf the goods of a party are forcibly taken away under circumstances of violence and aggravation, he may bring trespass, and in that form of action recover not only the value of the property, but also what are called vindicative damages—that is, such damages as the jury may think.proper to give to punish the wrongdoer. But if in- stead of an action of trespass he elects to bring trover, where he can recover only the value of the property, it never has been supposed that, after having prosecuted the suit to judgment and received the damages awarded him, he can then bring trespass trpon the ground that he could not in the action of trover give evidence of the circum- stances of aggravation, which entitled him to demand vindicative damages.” Taney, C. J. Kendall v. Stokes, 3 How. 99. Election Between Contract and Tort. “There is a class of cases known to the common law, in which a plaintiff having a right of action arising upon contract may waive his remedy directly upon the contract in form, and allege his gravamen as orig- inating in tort, produced by a violation or neglect of duty.” DawnieL, J., dissenting. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 410. “A party may in some cases waive a tort, that is, he may forbear to sue in tort, and sue in contract, where the matter out of which his claim arises has in it the elements of beth contract and tort. But it is well said that ‘a right of action in contract cannot be created by waiving a tort, and the duty to pay damages for a tort does not imply a 633 ELECTION OF REMEDIES AND RIGHTS. promise to pay them, upon which assumpsit can be maintained.’” Haran, J. Bigby v. U.'S., 188 U. S. 409. “At law, in many cases, if property be tortiously taken or converted, the tortfeasor may be sued in trespass or trover, or the injured party may waive the tort and sue in assumpsit. In the latter case the same re- sults follow as if there had been an im- plied contract. The plaintiff [defendant] is not permitted to set up his tort to defeat the action, and the recovery of a judgment will bar a further action ex delicto by the plaintiff. In the same class of cases where the converted property has assumed altered forms by successive investments, the owner may follow it as far as he can trace it and sue at law for the substituted property, or he may hold the wrongdoer liable for ap- propriate damages. There are kindred prin- ciples in equity jurisprudence, whence, in- deed, these rules of the common law seem to have been derived.” Swayne, J. May v. Le Claire, 11 Wall. 235, 236. Election Between Damages and Rescis- sion. “When a party discovers that he has been deceived in a transaction of this character he may resort to’an action at law to re- cover damages, or he may have the transac- tion set aside in which he has been wronged by the rescission of the contract. If he chooses the latter remedy, he must act promptly, ‘announce his purpose and ad- here to it,’ and not by acts of ownership con- tinue to assert right and title over the prop- erty as though it belonged to him.” Day, J. Shappirio v. Goldberg, 192 U. S. 242. “A purchaser has a reasonable time in which to make election of such remedy [right to rescind] after discovery of the fraud.” Day, J. Shappirio v. Goldberg, 192 U. S. 242. , Election Between Replevin and Assumpsit. “Tt is consonant neither with good morals nor sound sense to hold that one may take a mortgage upon the property of another, which he knows to have been fraudulently acquired, and to which the purchaser has no valid title, whether the vendor elect to pur- sue the purchaser by a retaking of the prop- erty, or by an action for the price and an attachment of the property to secure the debt. Whichever remedy be pursued the fact re- mains that, at the time the mortgage was taken, the mortgagor had a voidable title to the property mortgaged; and while an 634 election to sue in assumpsit recognizes this title as between him and the vendor, such recognition does not redound to the validity. of the mortgage, which must be judged of by the circumstances under which it was taken. In other words, the suit in assumpsit affirms the title of the vendee but not the title of his mortgagee.” Brown, J. Brown- ing v. DeFord, 178 U. S. 204. Election Between Joint and Several Ac- tions. “We have held that a defendant cannot make an action several which the plaintiff elects to make joint.” Brapiry, J. Mitch- ell v. Smale, 140 U. S. 409. Election as to Remedies under Maritime Lien. “State legislatures have no authority to create a maritime lien, nor can they confer any jurisdiction upon a state court to en- force such a lien by a suit or proceeding in vem, as practiced in the admiralty courts, but whenever a maritime lien arises the injured party may pursue his remedy by a suit in personam or by a proceeding im rem at his election. Such a party may proceed in rem in the admiralty, and if he elects to pur- sue his remedy in that mode he cannot pro- ceed in any other form, as the jurisdiction of the admiralty courts is exclusive in respect to that mode of proceeding, but such a party is not restricted to that mode of proceeding, even in the admiralty court, as he may waive his lien and proceed in personam against the owner or master of the vessel in the same jurisdiction, nor is he compelled to proceed in the admiralty at all, as he may resort to his common-law remedy in the state courts, or in the Circuit Court, if he and his debtor are citizens of different states.” CLIFFoRD, J. Leon v. Galceran, 11 Wall. 190. Election by Alien. ; “Equity will surely proceed contrary to its’ regular course, and the principles which uni- versally govern it, to allow the right of elec- tion where it is desired, and can be lawfully made, and yet refuse to decree the money upon the application of the alien, upon no other reason, but because, by law, he is in- capable to hold the land. In short, to con- sider him in the same situation as if he had made an election, which would have been refused had he asked for a conveyance. The more just and correct rule would seem to be; that where the cestui que trust is in- capable to take or to hold the land bene- ficially, the right of election does not exist, ‘ ELECTIONS. and, consequently, that the property is to be considered as being of that species into which it is directed to be converted.” WaAsHING- Ton, J. Craig v. Leslie, 3 Wheat. 587. ELECTIONS. See Appoint; CITIZENS AND CITIZENSHIP. American System of Elections Unknown to Common Law. “Our system of elections was unknown to the common law, and the whole subject is regulated by constitutions and statutes passed thereunder.” Furier, C. J. Taylor v. Beck- ham, 178 U.S. 577. Nature and Source of Right to Vote. “The right of suffrage, when granted, will be protected. He who has it can only be deprived of it by due process of law, but in order to claim protection he must first show that he has the right.” Wartr, C. J. Minor v. Happersett, 21 Wall. 176. “The privilege to vote in any state is not given by the federal Constitution, or by any of its amendments. It is not a privilege spring- ing from citizenship of the United States. . . . It may not be refused on account of race, color or previous condition of servitude, but it does not follow from mere citizen- ship of the United States, In other words, the privilege to vote in a state is within the jurisdiction of the state itself, to be ex- ercised as the state may direct, and upon such terms as to it may seem proper, pro- vided, of course, no discrimination is made between individuals in violation of the federal Constitution. The state might provide that persons of foreign birth could vote without being naturalized, and such persons were al- lowed to vote in several of the states upon having declared their intentions to become citizens of the United States. Some states permit women to vote; others refuse them that privilege. A state, so far as the fed- eral Constitution is concerned, might pro- vide by its own constitution and laws that none but native-born citizens should be per- mitted to vote, as the federal Constitution does not confer the right of suffrage upon any one, and the conditions under which that right is to be exercised are matters for the state alone to prescribe, subject to the conditions of the federal Constitution, al- ready stated; although it may be observed. that the right to vote for a member of Con- gress is not derived exclusively from the state law. But the elector must be one en- titled to vote under the state statute.” Preckuam, J. Pope v. Williams, 193 U. S. 632. “The states in prescribing the qualifications of voters for the most numerous branch of their legislatures, do not do this with ref- erence to the election for members of Con- gress. Nor can they prescribe the qualifica- tion for voters for those eo nomine. They define who are to vote for the popular branch of their own legislature, and the Con- stitution of the United States says the same persons shall vote for members of Congress in that state. It adopts the qualification thus furnished as the qualification of its own elec- tors for members of Congress.” Mutter, J, Ex p. Yarbrough, 110 U. S. 663. “Tt is not true, that electors for members of Congress owe their right to vote to the state law in any sense which makes the exercise of the right to depend exclu- sively on the law of the state.” Mutter, J. Ex p. Yarbrough, 110 U. S. 663. Persons Entitled to Vote. “A person may be entitled to vote by the law of the state, who is not a citizen even of the state itself’ Taney, C. J. Scott v- Sandford, 19 How. 422. “In some of the states of the Union for- eigners not naturalized are allowed to vote.” Taney, C. J. Scott v. Sandford, 19 How. 422, “It would be quite competent for the sov- ereign power to declare that no one but a married person shall be entitled to vote: and in that event the election officers would be authorized to determine for that occa- sion, in case of question in any instance, upon the fact of marriage as a continuing status.” MattHew, J. Murphy v. Ramsey, 114 U. S. 43. “ At common law one convicted of crime was incompetent as a witness, and this rule was in no manner affected by the lapse of time since the commission of the offense and could not be set aside by proof of a com- plete reformation. So in many states a con- vict is debarred the privileges of an elector, and an act so debarring was held applicable to one convicted before its passage.” Brewer, J. Hawker v. New York, 170 U. S. 197. Effect of Fourteenth Amendment on Right to Vote. “By the second section of the Fourteenth Amendment [of the Constitution], each state 635 ELECTIONS. had the power to refuse the right of voting at its elections to any class of persons; the only consequence being a reduction of its representation in Congress, in the proportion which such excluded class should bear to the whole number of its male citizens of the age of twenty-one years. This wag under- stood to mean, and did mean, that if one of the slaveholding states should desire to exclude all its colored population from the right of voting, at the expense of reducing its representation in Congress, it could do so.” Hunt, J., dissenting. U. S. v. Reese, 92 U. S. 247. Effect of Fifteenth Amendment on Right to Vote. “To the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of the country, it was declared by the Fif- teenth Amendment that ‘the right of the citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude.’” Haran, J., dissenting. Plessy v. Ferguson, 163 U. S. 555. —— Prohibition of Amendment Applies to States as Well as to United States. “States, as well as the United States, are prohibited by the Fifteenth Amendment of the Constitution from denying or abridging the right of citizens of the United States to vote on account of race, color, or previous condition of servitude; and power is vested in Congress, by the second article of that amendment, to enforce that prohibition ‘by appropriate legislation.’” Ctrrrorp, J., dis- senting. U.S. v. Reese, 92 U. S. 222. / “Citizens of the United States, without distinction of race, color, or previous condi- tion of servitude, if otherwise qualified to vote at a state, territorial, or municipal elec- tion, shall be entitled and allowed to vote at such an election, even though the Con- stitution, laws, customs, usages, or regula- tions of the state or territory do not allow, or even prohibit, such voter from exercising that right.’ Cxirrorp, J., dissenting. U. S. v. Reese, 92 U. S. 225. “State election laws creating such dis- criminations [on account of race, color, or previous condition of servitude] are super- seded in that regard by the Fifteenth Amend- ment; but the Enforcement Act [of May 31, 1870] furnishes no ground to infer that the law-makers intended to annul the state election laws in any other respect what- ever.” CuirForp, J., dissenting. U. S. wv. Reese, 92 U. S. 231. “The power of any state to deprive a citizen of the right to vote on account of race, color, or previous condition of ser- vitude, or to impede or to obstruct such right on that account, was expressly negatived [by the Fifteenth Amendment to the Constitu- tion]. It was declared that this right of the citizen should not be thus denied or abridged.” Hunt, J., dissenting. U. S. wu, Reese, 92 U. S. 248. “T hold that the Fifteenth Amendment embraces the case of elections held for state or municipal as well as for federal officers; and that the first section of that Act of May 31, 1870, wherein the right to vote is freed from all restriction by reason of race, color, or condition, at all elections by the people — state, county, town, municipal, or of other subdivision—is jus- tified by the Constitution.” Hunt, J., dis- senting. U. S. vw. Reese, 92 U. S. 248, —— Right Protected by the Enforcement Act. “The right here protected [by Act of May 31, 1870] is in behalf of a particular class of persons; to wit, citizens of the United States. The limitation is to the persons con- cerned, and not to the class of cases in which the question shall arise. The right of the citizens of the United States to vote, and not the right to vote at an election for United States officers, is the subject of the provision. The person protected must be a citizen of the United States; and, when- ever a right to vote exists in such person, the case is within the amendment. This is the literal and grammatical construction of the language; and that such was the inten- tion of Congress will appear from many con- siderations.” Hunt, J., dissenting. U. S. v. Reese, 92 U. S. 246. — Effect of First Section of Enforce- ment Act. “Since the adoption of that amendment [Fifteenth Amendment of the Constitution], Congress has legislated upon the subject; and, by the first section of the Enforcement Act [ist section of Act of May 31, 1870], it is provided that citizens of the United States, without distinction of race, color, .or previ- ous condition of servitude, shall, if other- wise qualified to vote in state, territorial, or municipal elections, be entitled and allowed to vote at all such elections, any constitu- 686 ELECTIONS. tion, law, custom, usage, or regulation of any state or territory, or by or under its au- thority, to the contrary notwithstanding. Beyond doubt, that section forbids all dis- crimination between male citizens and citi- zens of color in respect to their right-to vote; but the section does not provide that the person or officer making such discrimination shall be guilty of any offense, nor does it pre- scribe that the person or officer guilty of making such discrimination shall be sub- ject to any fine, penalty, or punishment whatever.” C.tFForD, J., dissenting. U. S. v, Reese, 92 U. S. 222. “White male citizens, not possessing the qualifications to vote required by law, find no guaranty of the right to exercise that privilege by the first section of the Enforce- ment Act [Act of May 31, 1870]; but the mandate of the section is explicit and im- perative, that all citizens, without distinc- tion of race, color, or previous condition of servitude, if otherwise qualified to vote at any state, territorial, or municipal elections, even though forbidden so to do, on account of race, color, or previous condition of ser- vitude, or by the laws, customs, usage, or regulations of the state or territory where the election is held.” Ctrrrorp, J. U.S. v. Reese, 92 U. S. 225. “Disability to vote of every kind, aris- ing from race, color, or previous condition of servitude, is declared by the first sec- tion of that act [Act of May 31, 1870] to be removed from the colored male citizens; but, unless otherwise qualified by law to vote at such an election, he is no more en- titled to enjoy that privilege than a white male citizen who does not possess the qual- ifications required by law to constitute him a legal voter at such an election.” CLiFForp, J., dissenting. U. S. uv. Reese, 92 U. S. 226. —— Effect of Second Section of Enforce- ment Act. “Equal opportunity is required by that sec- tion [section 2 of Act of May 31, 1870] to be given to all citizens, without distinc- tion of race, color, or previous condition of servitude, to perform the described prereq- uisites; and the further provision of the same section is, that, if any such person or officer charged with the performance of the described duties shall refuse or know- ingly omit to give full effect to the require- ments of that section, he shall for every such offense forfeit and pay $500 to the person aggrieved, and also be deemed guilty of a 637 nisdemeanor, and punished as therein pro- vided.” Cuirrorp, J., dissenting. U. S. wv. Reese, 92 U. S. 223. “Where an act is or shall be required to be done as a prerequisite or qualification for voting, and persons and officers are charged in the manner stated with the performance of duties in furnishing to citizens an op- portunity to perform such prerequisites or to become qualified to vote, it shall be the duty of every such person and officer to give all citizens, without distinction of race, color, or previous condition of servitude, the same and equal opportunity to perform such pre- requisites, and to become qualified to vote. Persons or officers who wrongfully refuse or knowingly omit to perform the duty with which they are charged by that clause of the second section of the Enforcement Act [Act of May 31, 1870] commit the offense defined by that section, and incur the pen- alty, and subject themselves to the punish- ment, prescribed for that offense.” CLIFForRD, J., dissenting. U. S. uv. Reese, 92 U. S. 227, — Effect of Third Section of Enforce- ment Act. “Performance of that prerequisite [refer- red to in the 3d section of the Act’ of May 31, 1870], by citizens otherwise qualified, en- titles all such, without distinction of race, color, or previous condition of servitude, to vote at such an election; and the offer to perform the same, if the offer is made in terms, and under such circumstances, that, if it be accepted and carried into execu- tion, it will constitute performance, will also entitle such citizens to vote in the same man- ner and to the same extent as if they had performed such prerequisite, provided the of- fer fails to be carried into execution by rea- son of the wrongful act or omission of the person or officer charged with the duty of receiving and permitting such performance. Judges, inspectors, and other officers of elec- tions, must take notice of these provisions, as they constitute the most essential element or ingredient of the offense defined by the third section of the act. Officers of the elec- tions, whether judges or inspectors, are re- quired to carry those regulations into full effect; and the provision is, that any judge, inspector, or other officer of election, whose duty it is or shall be to receive, count, cer- tify, register, report, or give effect to the vote of such citizens, who shall wrongfully refuse or omit to receive, count, certify, reg- ister, or give effect to the vote of any such citizen, upon the presentation by him ELECTIONS. of his affidavit stating such offer, and the time and place thereof, and the name of the officer or person whose duty it was to act on such offer, and that he, the citizen, was wrongfully prevented by such person or of- ficer from performing such prerequisite act, shall for every such offense forfeit and pay the sum of $500 to the person aggrieved, and also be guilty of a misdemeanor, and be fined and imprisoned as therein pro- vided.” CxrFForp, J., dissenting. U. S. v. Reese, 92 U. S. 236. “None will deny, it is presumed, that the word ‘offer’ in the affidavit [provided for in the 3d section of the Act of May 31st, 1870] means the same thing as the word ‘offer’ used in the declaratory part of the same section; and, if so, it must be held that the offer described in the affidavit must have been one made in such terms, and under such circumstances, that, if the offer had been accepted, it might have been carried into execution by the person or officer to whom it was made; or, in other words, it must have been an offer to do whatever it was necessary to do to perform the prerequi- site act; and it follows, that if the word ‘offer,’ as used in the Act of Congress, necessarily includes readiness to pay the tax, it is equally clear that the affidavit should contain the same statement.” CLiFForD, J., dissenting. U.S. v. Reese, 92 U. S. 237. —— Effect of Fourth Section of Enforce- ment Act. “Sect. 4 [of the Act of May 31, 1870] en- acts, that if any person by unlawful means shall hinder or prevent any citizen from voting at any election ‘as aforesaid,’ he shall be subject to fine and imprisonment. What do the words, ‘as aforesaid,’ mean? They mean, for the causes or pretenses or upon the grounds in the first and second sections mentioned; that is, on account of the race or color of the person so prevented. All those necessary words are by this expres- sion incorporated into the fourth section. The same is true of the words ‘the wrong- ful act or omission as aforesaid,’ and ‘the person so offering and failing as aforesaid,’ in the third section. By this application of the words ‘as aforesaid,’ they become per- tinent and pointed. Unless so construed, they are wholly and absolutely without meaning. No other meaning can possibly be given to them. ‘The person (Garner) so offering and failing as aforesaid shall be entitled to vote as if he had performed the act.’ He failed ‘as aforesaid’ on account of his race. The inspectors thereupon ‘ wrongfully 638 refused to receive his vote’ because he had not paid his capitation tax. His race and color had prevented that payment. The words ‘hindered and prevented his voting as aforesaid,’ in the fourth section, and in the third section the words ‘wrongfully refuse’ and ‘as aforesaid,’ sufficiently accomplish this purpose of the statute. They amount to an enactment that the refusal to receive the vote on account of race or color shall be punished as in the third and fourth sections is declared.” Huwnt, J., dissenting. U. S. v. Reese, 92 U. S. 242. “The third and fourth sections of the statute we are considering [Act of May 31, 1870] do provide for the punishment of inspectors of elections who refuse the votes of qualified electors on account of their race or color.” Hunt, J., dissenting. U. S. vy, Reese, 92 U. S. 245. Legislative Control of Elections — Pre- venting Corruption. “The legislature may make laws ever so stringent to prevent the corrupt use of money in elections, or in political matters generally, or to prevent what are called po- litical assessments on government employees, or any other exercise of undue influence over them by government officials or others.” Braptey, J., dissenting. Ex p. Curtis, 106 U. S. 378. — Preventing Violence and Corruption. “Tf this government is anything more than a mere aggregation of delegated agents of other states and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption.” Mitter, J. Er p. Yar- brough, 110 U. S. 657. “In a republican government, like ours, where political power is reposed in repre- sentatives of the entire body of the people, chosen at short intervals by popular elections, the temptations to control these elections by violence and by corruption is a constant source of danger.” Muxier, J. Ex p. Yar- brough, 110 U. S. 666. “Tt is as essential to the successful work- ing of this government that the great organ- isms of its executive and legislative branches should be free choice of the people as that the original form of it should be so. MuILuer, J. Ex p. Yarbrough, 110 U. S. 666. “Tn absolute governments, where the mon- arch is the source of all power, it is still ELECTIONS. held to be important that the exercise of that power shall be free from the influence of extraneous violence and internal corruption.” Miter, J. Ex p. Yarbrough, 110 U. S. 666. —— Regulation of Elections Is Legislative Function. “The Constitution does not provide that the appointment of electors shall be by popu- lar vote, nor that the electors shall be voted for upon a general ticket, nor that the ma- jority of those who exercise the elective fran- chise can alone choose the electors. It rec- ognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object.” FULLER, C. J. McPherson v, Blacker, 146 U. S. 27. —— Power of Congress as to Elections for State and Federal Officers. “Can it be doubted that Congress can by law protect the act of voting, the place where it is done, and the man who votes, from per- sonal violence or intimidation and the elec- tion itself from corruption and fraud? If this be so, and it is not doubted, are such powers annulled because an election for state officers is held at the same time and place? Is it any less important that the election of members of Congress should be the free choice of all the electors because state officers are to be elected at the same time?” Mutter, J. Ex p. Yarbrough, 110 U. S. 661. — Respective Powers of Congress and the States. “Congress is empowered to determine the time of choosing the electors and the day on which they are to give their votes, which is required to be the same day throughout the United States, but otherwise the power and jurisdiction of the state is exclusive, with the exception of the provisions as to the number of electors and the ineligibility of certain persons, so framed that congres- sional and federal influence might be ex- cluded.” Futter, C. J. McPherson wv. Blacker, 146 U. S. 35. “Congress has never undertaken to inter- fere with the manner of appointing electors, or, where (according to the now general usage) the mode of appointment prescribed by the law of the state is election by the people, to regulate the conduct of such elec- tion, or to punish any fraud in voting for electors; but has left these matters to the control of the states.’ Gray, J. In re Green, 134 U. S. 380. 639 “The power vested in Congress is to alter the regulations prescribed by the legislatures of the states, or to make new ones, as to the times, places, and manner of holding the elections. Those which relate to the times and places will seldom require any affirma- tive action beyond their destination. And regulations as to the manner of holding them cannot extend beyond the designation of the mode in which the will of the voters shall be expressed and ascertained. The power does not authorize Congress to determine who shall participate in the election, or what shall be the qualification of voters. These are matters not pertaining to or involved in the manner of holding the election, and their regulation rests exclusively with the state. The only restriction upon them with respect to these matters is found in the provision that the electors of representatives in Con- gress shall have the qualification required for electors of the most numerous branch of the state legislature, and the provision re- lating to the suffrage of the colored race. And whatever regulations Congress may pre- scribe as to the manner of holding the elec- tion for representatives must be so framed as to leave the election of state officers free, otherwise they cannot be maintained.” Frexp, J., dissenting. Ex p. Clarke, 100 U. S. 418. “Certainly it is no part of the judicial functions of any court of the United States ‘to prescribe the qualification of voters in a state, giving the right to those to whom it is denied by the written and established con- stitution and laws of the state, or taking it away from those to whom it is given; nor has it the right to determine what political privileges the citizens of a state are entitled to, unless there is an established constitution or law to govern its decision.” Taney, C. J. Luther v. Borden, 7 How. 41. —— Adoption by Congress of State Stat- utes, “The power, under the Constitution of the United States, of Congress to make such - provisions as are necessary to secure the fair and honest conduct of an election at which ‘a member of Congress is elected as well as the preservation, proper return, and counting of the votes cast thereat, and, in fact, what- ever is necessary to an honest and fair cer- tification of such election, cannot be ques- tioned. The right of Congress to do this, by adopting the statutes of the states, and enforcing them by its own sanctions, is con- ceded by counsel to be established.” MuiER, J. In re Coy, 127 U. S. 752. ELECTRICITY. “With respect to the election of repre- sentatives, so long as Congress does not adopt regulations of its own and enforce them through federal officers, but permits the regu- lations of the states to remain, it must de- pend for a compliance with them upon the fidelity of the state officers and their respon- sibility to their own government. All the provisions of the law, therefore, authorizing supervisors and marshals to interfere with those officers in the discharge of their duty, and providing for criminal prosecution against them in the federal courts, are, in my judg- ment, clearly in conflict with the Constitu- tion.” Fietp, J., dissenting. Ex p. Clarke, 100 U. S. 420. “The general authority of Congress to pass all laws necessary to carry into execu- tion its granted powers, supposes some at- tempt to exercise those powers. There must, therefore, be some regulations made by Con- gress, either by altering those prescribed by the state or by adopting entirely new ones, as to the times, places,.and manner of hold- ing elections for representatives before any incidental powers can be invoked to compel obedience to them. In other words, the im- plied power cannot be invoked until some exercise of the express power is attempted, and then only to aid its execution. There is no express power in Congress to enforce state laws by imposing penalties for dis- obedience to them; its punitive power is only implied as a necessary or proper means of enforcing its own laws; nor is there any power delegated to it to supervise the execu- tion by state officers of state laws.” FIELD, J., dissenting. Ex p. Clarke, 100 U. S. 416. “The recognition by Congress of local customs and statutory provisions as at times controlling the right of possession does not incorporate them into the body of fed- eral law. Section 2 of article 1 of the Con- stitution provides that the electors in each state of members of the House of Repre- sentatives ‘shall have the qualifications requi- site for electors of the most numerous branch of the state legislature, but this does not make the statutes and constitutional pro- visions of the various states in reference to the qualifications of electors part of the Con- stitution or laws of the United States.” Brewer, J. Shoshone Min. Co. v. Rutter, 177 U. S. 508 Registration, “The laws of the several states usually rec- ognize the fact that a person, whose name appears upon the registry of a certain pre- cinct, is presumed to be qualified at the next election in that precinct.” Brown, J. Sherman wv. U. S., 155 U. S. 683. “A registry of voters, to be made of any value, must be kept at the polling places in each precinct, in order that, as each voter presents himself, reference may instantly be made to the list to ascertain his qualifica- tions.” Brown, J. Sherman v. U. S., 155 UL S. 683. “The registry would certainly furnish prima facie evidence of the number of legal or qualified voters.” Braptey, J. Cass County v. Johnson, 95 U. S. 372. -— Decision of Contested Election Cases. “T grant that it is competent for a state to provide for the determination of con- tested election cases by the legislature.” Har- LAN, J., dissenting. Taylor v. Beckham, 178 U. S. 605. Miscellaneous — United States Officers Elected by State Voters. “The United States has no voters in the states of its own creation. The elective offi- cers of the United States are all elected directly or indirectly by state voters.” ee C. J. Minor v. Happersett, 21 Wall. ——Presumption that Citizens Favor Purity in Elections. “The law assumes that every citizen is equally interested in the enforcement of the statute enacted to guard the integrity of na- tional elections, and that his political opinion or affiliations will not stand in the way of an honest discharge of his duty as a juror in cases arising under that statute. So, also, active participation in politics cannot be said, as matter of law, to imply either unwilling- ness to enforce the statutes designed to in- sure honest elections and due returns of the votes cast, or inability to justice to those charged with violating the provisions of those statutes. Strong political convictions are by no means inconsistent with a desire to pro- tect the freedom and purity of elections.” Haran, J. Connors v. U. S., 158 U.S. 414. ELECTRICITY. “The art of insulating electric wires has been known almost as long as that of con- ducting electricity for practical purposes by means of wires.” Brown, J. Ansonia Brass, etc., Co. v. Electrical Supply Co., 144 U. S. 14. See Patents. 640 ELEEMOSYNARY CORPORATIONS. ELEEMOSYNARY CORPORA- TIONS. See CHarities; CORPORATIONS. Definition. “Eleemosynary corporations are such as are constituted for the perpetual distribution of the free alms and bounty of the founder, in such manner as he has directed; and in this class are ranked hospitals for the relief of poor and impotent persons, and colleges for the promotion of learning and piety, and the support of persons engaged in literary pursuits.” Story, J. Dartmouth College v. Woodward, 4 Wheat. 668. Distinguished from Civil Corporations. “These corporations, civil and eleemosy- nary, which differ from each other so espe- cially in their nature and constitution, may very well differ in matters which concern their rights and privileges, and their exist- ence and subjection to public control. The one is the mere creature of public institution, created exclusively for the public advantage, without other endowments than such as the king or government: may bestow upon it, and having no other founder or visitor than the king or government, the foundator incipiens. The validity and justice of its laws and con- stitution are examinable by the courts hav- ing jurisdiction over them; and they are subject to the general law of the land. It would seem reasonable that such a corpora- tion may be controlled, and its constitution altered and amended by the government, in such manner as the public interest may re- quire. Such legislative interferences cannot be said to impair the contract by which the corporation was formed, because there is in reality but one party to it, the trustees or governors have no interest, no privileges or immunities, which are violated by such in- terference, and can have no more right to complain of them than an ordinary trustee, who is called upon in a court of equity to execute the trust. They accepted the charter for the public benefit alone, and there would seem to be no reasons why the government, under proper limitations, should not alter or modify such a grant at pleasure. But the case of a private corporation is entirely dif- ferent. That is the creature of private pur- pose. It is endowed and founded by pri- vate persons, and subject to their control, laws, and visitation, and not to the general control of the government; and all these powers, rights and privileges flow from the property of the founder in the funds as- 1 Os, Dic.—41 641 signed for the support of the charter.” Wasuincton, J. Dartmouth College vw. Woodward, 4 Wheat. 660. Character Cannot Be Affected by Incor- porating Act. “The character of civil institutions does not grow out of their corporation, but out of the manner in which they are formed, and the objects for which they are created. The right to change them is not founded on their being incorporated, but on their being the instruments of government, created for its purposes. The same institutions, created for the same objects, though not incor- porated, would be public institutions, and of course, be controllable by the legislature. The incorporating act neither gives nor pre- vents this control. Neither, in reason, can the incorporating act change the character of a private eleemosynary institution.” Marsuatt, C. J. Dartmouth College v. Woodward, 4 Wheat. 638. Repeal, Alteration, or Amendment of Charters. “ Although the king, by the grant of the charter, is in some sense the founder of all eleemosynary corporations, because, without his grant they cannot exist; yet the patron or endower is the perficient founder, to whom belongs, as of right, all the powers and priv- ileges, which have been described. With such corporations, it is not competent for the legislature to interfere. It is a fran- chise, or incorporeal hereditament, founded upon private property, devoted by its patron to a private charity of a peculiar kind, the offspring of his own will and pleasure, to be managed and visited by persons of his own appointment, according to such laws and regulations as he, or the persons so selected, may ordain.” WasHincton, J. Dartmouth College v. Woodward, 4 Wheat. 661. : “When a private eleemosynary corpora- tion is thus created by the charter of the crown, it is subject to no other control on the part of the crown than what is expressly or implicitly reserved by' the charter itself. Unless a power be reserved for this purpose, the crown cannot, in virtue of its preroga- tive, without consent of the corporation, alter or amend the charter, or divest the corpora- tion of any of its franchises, or add to them, or add to, or diminish, the number of the trustees, or remove any of the members, or change, or control the administration of the charity, or compel the corporation to receive a new charter. This is the uniform language EMBEZZLEMENT. of the authorities, and forms one of the most stubborn and well-settled doctrines of the common law.” Story, J. Dartmouth Col- lege v. Woodward, 4 Wheat. 675. ELEVATORS. See WAREHOUSES AND ELEVATORS. EMBARGO. Definition. “When we look into the definition of the word embargo, we find it to mean a prohibi- tion to sail.” Jounson, J. The William King, 2 Wheat. 153. Distinction Between Embargo and Arrest at Sea. “In what consists the difference between a detention occasioned by an embargo and a detention occasioned by an arrest at sea of a neutral by a belligerent power? An em- bargo is not laid with a view to deprive the owner of his property, but the arrest is made with that view.” Marswatt, C. J. Rhine- lander v. Insurance Co.,.4 Cranch 44. Power to Lay. ; “The right of any power to lay an em- bargo has not been questioned.” MARSHALL, C. J. Rhinelander wv. Insurance Co, 4 Cranch 43. “Congress has power to regulate com- merce, and, in the exercise of its discretion, to lay an embargo, which suspends com- merce; so, under the same power, harbors, light-houses, breakwaters, etc., are con- structed.” McLean, J., dissenting. Scott: v. Sandford, 19 How. 542. “An embargo is a temporary regulation, and is designed for the protection of com- merce, though for a time it may suspend it. There are, however, limitations on the exer- cise of the commercial power by Congress.” McLzan, J., dissenting. Pennsylvania v. Wheeling, etc., Bridge Co, 18 How. 439. Not Necessarily a War Measure. “That it [embargo] may be, and often is, used as an instrument of war cannot be de- nied. An embargo may be imposed for the purpose of facilitating the equipment or man- ning of a fleet, or for the purpose of concealing the progress of an expedition pre- paring to sail from a particular port. In these and in similar cases it is a military instrument, and partakes of the nature of war. But all embargoes are not of this de- scription. They are sometimes resorted to without a view to war, and with a single view to commerce. In such a case, an em- bargo is no more a war measure than a merchantman is a ship of war, because both are vessels which navigate the ocean with sails and seamen.” MarsHatt, C. J. Gib- bons v. Ogden, 9 Wheat. 192. May Be Casus Belli. “An embargo, though not an act of war, is frequently resorted to as preliminary to a declaration of war, and may be treated under certain circumstances as a sufficient casus belli.” Brown, J. Louisiana v. Texas, 176 U.S. 27, EMBEZZLEMENT. Jurisdiction to Punish. “Embezzlement by an officer of a bank organized under a state statute is not an offense which can be inquired into or pun- ished by a federal court. Such an offense is against the authority and laws of the state. The judicial power granted to their courts by the Constitution of the United States does not cover such a case.” Surras, J. Hark- rader v. Wadley, 172 U. S. 168. . Indictment — Manner in Which Defendant Acquired Property. “We think the rules of good pleading would suggest, even if they did not absolute- ly require, that the indictment [for embezzle- ment] should set forth the manner of capacity in which the defendant became pos- sessed of the property.” Brown, J. Moore v. U. S., 160 U. S. 274. —— Identification of Property. “{In an indictment for embezzlement] the property embezzled should be identified with particularity, the general rule in the absence of a statute being that averment of the em- bezzlement of a certain amount in dollars and cents is insufficient.” Brown, J. Moore v. U. S., 160 U. S. 274. “There are undoubtedly cases which hold that, where the crime consists, not in the em- bezzlement of a single definite quantity of coin or bills, but in a failure to account for a number of small sums received —a series of petty and continuous peculations — where it would be manifestly impossible, probably for the defendant himself, but much more for the prosecution, to tell of what the money embezzled consisted, an allegation of a par- ticular amount is sufficient. These cases, however, are confined to public officers, or to the officers of corporations.” Brown, J. Moore v. U. S., 160 U. S. 275. 642 EMINENT DOMAIN. EMIGRATION. See IMMIGRATION, “The right to enjoy, transmit, and inherit the fruits of our own labor, or that of our ancestors, stands on the same footing with the right to employ our industry wherever it can be best employed; and the obligation to obey the laws of the community on the subject of the right to emigrate, is as clearly to be inferred from the reason and nature of things, as the obligation to use or exercise any other of our rights, powers, or faculties, in subordination to the public good.” JoHn- son, J., dissenting. Shanks v. Dupont, 3 Pet. 261. EMINENT DOMAIN. I. DEFINITION AND Power.’ 1. Definition. 2. Nature and Extent of Power. a. In General. b. Requirement of Compensation Be- fore Taking. c. What Property Protected. d. What Can Be Taken. e. Necessity for Taking. f. Taking Must Be for Public Use. g. Distinction Between Taking and Consequential Damage. h. Just Compensation — Measure. II. PRocEeEDINGs. NATURE OF CROSS-REFERENCES. As to whether a mortgagee is an owner, see Owner. That a franchise may be condemned, see FRANCHISES. See also ConstiruttonAL Law; CovE- NANTS; Due Process oF LAw; Parks; RAIL- ROADS; STREETS AND HicHwAys; TAXATION. I. DEFINITION AND NATURE OF POWER. 1. DEFINITION. Right to Dispose of Wealth of ee “[The] right of eminent domain Vattel defines to be the right of disposing, in case of necessity and for the public safety, of all the wealth of the country.” Frexp, J. U. S. v. Jones, 109 U. S. 518. “The right which belongs to the society, or to the sovereign, of disposing, in case of necessity, and for the public safety, of alt the wealth contained in the state, is called the eminent domain.” McKintry, J. Pollard v. Hagan, 3 How. 223. “The right of eminent domain-is usually understood to be the ultimate right of the sovereign power to appropriate, not only the public property, but the private property of all citizens within the territorial sovereignty, to public purposes.” Story, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 641. Distinguished from Public Domain. “ However derived, this eminent domain exists in all governments, and is distin- guished from the public domain, as that con- sists of public lands, buildings, etc., owned in trust exclusively and entirely by the gov- ernment, while this consists only in the right to use the property of others, when needed, for certain public purposes.” Woopsury, J., concurring. West River Bridge Co. v. Dix, 6 How. 540. Condemnation and Purchase Distin- guished. “The words ‘to purchase’ might be con- strued as including the power to acquire by condemnation; for, technically, purchase in- cludes all modes of acquisition other than of descent. But generally, in statutes asin com- mon use, the word is employed in a sense not technical, only as meaning acquisition by contract between the parties, without govern- mental interference.” Stronc, J. Kohl v. VW. S., 91 U. S. 374. “Nor am I able to agree with the major- ity in their opinion or at least intimation, that the authority to purchase carries with it authority to acquire by condemnation. The one supposes an agreement upon valua- tion, and a voluntary conveyance of the property; the other implies a compulsory taking and a contestation as to the value.” Fretp, J., dissenting. Kohl v. U. S., 91 U. S. 379, 2. NATURE AND EXTENT oF Power. a. In General. Private Property May Be Taken for Pub- lic Use. “By the common law of Virginia, if not by the universal law of all free governments, private property may be taken for public use, upon making to the individual a just com- pensation. The admission of this principle — never has been imagined by any person as rendering his right to property less valid and 648 EMINENT DOMAIN. secure, than it would be were it excluded.” Wasurncton, J. Green v. Biddle, 8 Wheat. 89. “That a state may take private property for public use, is controverted by no one. It is a principle, which, from the foundation of our government, has been sanctioned by the practice of the states, respectively; and has never been considered as coming in con- flict with the federal Constitution.” McLeran, J. Charles River Bridge v. Warren Bridge, 11 Pet. 578. “TI am not aware of any limitations in the Constitution of the United States upon a state’s power to condemn land within its borders, except the requirements as to com- pensation.” Hotmes, J., dissenting. Trac- tion Co. v. Mining Co., 196 U. S. 260. “The spirit of internal improvement per- vades the whole country. There is perhaps no state in the Union, where important public works, such as turnpike roads, canals, rail- roads, bridges, etc., are not either contem- plated, or in a state of rapid progression. -These cannot be carried on without the fre- quent exercise of the power to appropriate private property for public use. Vested rights are daily divested by this exercise of the eminent domain.” McLean, J. Charles River Bridge v. Warren Bridge, 11 Pet. 583. “Tn my opinion, all property in a state is derived from, or protected by, its govern- ment, and hence is held subject to its wants in taxation, and to certain important public uses, both in war and peace.” Woopsury, J., concurring. West River Bridge Co. v. Dix, 6. How. 539. “That property which a man has honestly acquired he retains full control of, subject to these limitations: whenever the public needs require, the public may take it upon payment of due compensation.” Brew- ER, J., dissenting. Budd v. New York, 143 U. S. 550. State Fixes Limits of Power. “Tt seems to me plain that the exercise of that power [eminent domain] depends wholly on the state, may be limited as the state chooses, and cannot be carried further than the state has authorized in terms.” Houimes, J., dissenting. Traction Co. v. Min- ing Co., 196 U. S. 258, Sovereign Power. “This right is a part of the empire, or sovereign power.” McKIntey, J. Pollard v. Hagan, 3 How. 223. “The power of eminent domain [is] a power which this court has said was the off- spring of political necessity, and inseparable from sovereignty unless denied to it by the fundamental law.” Hartan, J. Norwood v. Baker, 172 U. S. 277. “The power of appropriating private prop- erty to public purposes is an incident of sovereignty. And it may be, that by the ex- ercise of this power, under extraordinary emergencies, property which had been dedi- cated to public use, but the enjoyment of which was principally limited to a local community, might be taken for higher and national purposes, and disposed of on the same principles which subject private prop- erty to be taken. In a government of limited anc specified powers like ours, such a power can be exercised only in the mode provided by law; but in an arbitrary government, the will of the sovereign supersedes all rule on the subject.” McLrean, J. New Orleans v. U. S., 10 Pet. 723. “That a state may appropriate private property to public use is universally admitted. This power is incident. to sovereignty, and there are no restrictions on its exercise, ex- cept such as may be imposed by the sover- eignty itself. It may tax at its discretion, and adapt its policy to the wants of its citizens; and use their means for the pro- motion of its objects under its own laws.” McLean, J. Charles River Bridge v. War- ren Bridge, 11 Pet. 577. “The right of eminent domain, that is, the right to take private propert, for public uses, , appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty.” Fretp, J. Mississippi, etc., Boom Co. v. Patterson, 98 U. S. 406. Prerogative of the State. “Eminent domain is a prerogative of the state, which on the one hand may be exer- cised in any way that the state thinks fit, and on the other may not be exercised ex- cept by an authority which the state confers.” Hotmes, J., dissenting. Traction Co. vw. Mining Co., 196 U. S. 257. — Does Not Include All Sovereign Power. “The eminent domain, although a sover- eign power, does not include all sovereign power.” McKintey, J. Pollard v. Hagan, 3 How. 223. 644 EMINENT DOMAIN. “The right of eminent domain does not comprehend all, but only is atnong the prerogatives of majesty.” Story, J., dis- senting. Charles River Bridge v. Warren Bridge, 11 Pet. 642. Inherent in All Governments, “The right to take private property for public use is inherent in all governments. It requires no constitutional declaration for its recognition; it appertains to sovereignty. The conditions upon which it shall be exer- cised are the only matters requiring constitu- tional guarantees, and those conditions are that just compensation shall be made to the owner of the property, and that this com- pensation shall be ascertained by an impartial tribunal.” Frexp, J., dissenting. Spring Val- ley Water Works v. Schottler, 110 U. S. 377. Impairment of Obligation of Contract. “The power of appropriation by a state has never been held by any judicial tribunal as impairing the obligation of a contract, in the sense of the Constitution. And this power has been frequently exercised by all the states since the adoption of the Constitu- tion.” McLean, J., concurring. West River Bridge Co. v. Dix, 6 How. 538. “Tn the fifth article of the amendments to the Constitution itis declared, ‘Nor shall private property be taken for public use without just compensation.’ This refers to the action of the federal government, but a similar provision is contained in all the state constitutions. Now the Constitution does not prohibit a state from impairing the obli- gation of a contract unless compensation be made, but the inhibition is absolute. So that if such an act come within the prohibition, the act is unconstitutional. But this power has been exercised by the states, since the foundation of the government, and no one has supposed that it was prohibited by that clause in the Constitution which inhibits a state ‘from impairing the obligations of a contract.” McLegan, ‘J., concurring. West River Bridge Co. v. Dix, 6 How. 538. * The power in a state to take private prop- erty for public use. is undoubted. It is an incident to sovereignty, and its exercise is often essential to advance the public interests. This act is done under the regulations of the state. If those regulations have not been strictly observed, that is not a matter of inquiry for this court. The local tribunals have the exclusive power in such cases. This act by a state has never been held to impair the obligations of the contract by which the property appropriated was held. The power acts upon the property, and not on the contract. A state cannot annul or modify a grant of land fairly made. But it may take the land for public use. This is done by making compensation for the prop- erty taken, as provided by law. But if it be an appropriation of property to public use, it cannot be held to impair the obligation of the contract.” McLean, J., concurring. West River Bridge Co. v. Dix, 6 How. 536. “No state, it is declared, shall pass a law impairing the obligation of contracts; yet, with this concession constantly yielded, it cannot be justly disputed, that in every po- litical sovereign community there inheres necessarily the right and the duty of guard- ing its own existence, and of protecting and promoting the interests and welfare of the community at large. This power and this duty are to be exerted not only in the high- est acts of sovereignty and in the external relations of governments; they reach and comprehend likewise the interior polity and relations of social life, which should be regulated with reference to the advantage of the whole society. This power, denominated the eminent domain of the state, is, as its name imports, paramount to all private rights vested under the government, and these last are, by necessary implication, held in subor- dination to this power, and must yield in every instance to its proper exercise.” Dan- 1EL, J. West River Bridge Co. v. Dix, 6 How. 531. “In all cases where private property is taken by a state for public use, the action is on the property; and the power, if it exist in the state, must be above the contract. It does not act on the contract, but takes from under it vested rights. And this power, when exercised by a state, does not, in the sense of the federal Constitution, impair the obligation of the contract. Vested rights are disturbed, and compensation must be made; but this is a subject which belongs to the local jurisdiction. Does this view conflict with the established doctrine of this court? A reference to the points adjudged will show that it does not.” M’Lean, J. Charles River Bridge v. Warren Bridge, 11 Pet. 580. “Tf to take private property impairs the obligation of the contract under which it is held, this court may be called to determine in almost every case where the power is exer- cised; as well where compensation is made, as where it is not made. For, if this court can take jurisdiction on this ground, every individual whose property has been taken has 645 EMINENT DOMAIN. a constitutional right to the judgment of this court; whether compensation has been made in the mode required by the constitu- tion of the state.’ M’Lzean, J. Charles River Bridge v. Warren Bridge, 11 Pet. 583. “Tf an appropriation of private property to public use impairs the obligation of a con- tract within the meaning of the Constitution, then every exercise of this power by a state is unconstitutional. From this conclusion there is no escape; and whether compensation be made or not, cannot vary the result.” McLegan, J. Charles River Bridge v. War- ten Bridge, 11 Pet. 577. “No state shall impair the obligation of contracts. Now, if the act of a state, in appropriating private property to public use come within the meaning of this provision, is not the act inhibited, and consequently, void? This point would seem to be too plain for controversy. And is it not equally clear, that no provisions contained in the constitu- tion of a state, or in its legislative acts, which subject the obligation of a contract to an unconstitutional control of the state, can be obligatory upon the citizens of the state.” McLean, J. Charles River Bridge v. War- ren Bridge, 11 Pet. 578. Original and Delegated Exercise of Power. “The property may be appropriated by an act of the legislature, or the power of ap- propriating it may be delegated to private corporations, to be exercised by them in the execution of works in which the public is in- terested.” Fretp, J. Mississippi, etc. Boom Co. v. Patterson, 98 U. S. 406. “Wherever a purely public use is contem- plated the state may and generally does be- stow upon the party intending such use some of its governmental powers. It grants the right of eminent domain by which property can be taken, and taken not at the price fixed by the owner, but at the market value.” Brewer, J. Cotting v. Kansas City Stock Yards Co., etc., 183 U. S. 94. “Never has it been suggested that the United States could enable a corporation of one state to condemn property in another state, in order that it might transact its pri- vate business there.” Fre.p, J., dissenting. Pensacola Tel. Co. wv. Western Union Tel. Co., 96 U. S. 19. “The conclusions of this court have been repeatedly announced to the effect that though railroad corporations are private cor- porations as distinguished from those creat- ed for municipal and governmental purposes, their uses are public, and they are invested with the right of eminent domain, only to be exercised for public purposes.” FUuLuer, C. J. New York, etc. R. Co. v. Bristol, 151 U. S. 571. —— Corporation Must Show Its De Jure Character. “When a corporation seeks to divest title to private property and to take it for the pur- poses of its corporation, it must then show that it is a corporation de jure, for the law has only given the right to take private prop- erty to that kind of a corporation. But even in such case it may happen that a party would be precluded from setting up the defense by matters in pais amounting to an estoppel or an admission.” Precxuam, J. Tulare Irri- gation Dist. v. Shepard, 185 U. S. 17. As Between States and United States. “This right of eminent domain over the shores and the soils under the navigable waters, for all municipal purposes, belongs ex- clusively to the states within their respective territorial jurisdictions, and they, and they only, have the constitutional power to exer- cise it. To give to the United States the right to transfer to a citizen the title to the shores and the soils under the navigable waters, would be placing in their hands a weapon which might be wielded greatly to the injury of state sovereignty, and deprive the states of the power to exercise a numer- ous and important class of police powers. But in the hands of the state this power can never be used so as to affect the exercise of any national right of eminent domain or juris- diction with which the United States has been invested by the Constitution.” McKin- LEY, J. Pollard v. Hagan, 3 How. 230. “It is now well settled that whenever, in the execution of the powers granted to the United States by the Constitution, lands in any state are needed by the United States, for a fort, magazine, dock-yard, light-house, cus- tom-house, court-house, post-office, or any other public purpose, and cannot be acquired by agreement with the owners, the Congress of the United States, exercising the right of eminent domain, and making just compensa- tion to the owners, may authorize such lands to be taken, either by proceedings in the’ courts of the state with its consent, or by proceedings in the courts of the United States, with or without any consent or con- current act of the state, as Congress may direct or permit.” Gray, J. Chappell z. U. S., 160 U. S. 510. 648 EMINENT DOMAIN. “Tf the United States have the power [of eminent domain] it must be complete in itself. It can neither be enlarged nor diminished by a state. Nor can any state prescribe the manner in which it must be exercised. The consent of a state can never be a condition precedent to its enjoyment. Such consent is needed only, if at all, for the transfer of jurisdiction and of the right of exclusive legislation after the land shall have been acquired.” Stronc, J. Kohl v. U. S, 91 U. S. 374. “The United States, at the discretion of Congress, may acquire and hold real property in any state, whenever such property is needed for the use of the government in the execution of any of its powers, whether for arsenals, fortifications, light-houses, custom- houses, court-houses, barracks, or hospitals, or for any other of the many public pur- poses for which such property is used; and when the property cannot be acquired by vol- untary arrangement with the owners, it may be taken against their will, by the United States, in the exercise of the power of emi- nent domain, upon making just compensation, with or without a concurrent act of the state in which the land is situated.” Gray, J. Van Brocklin v. Tennessee, 117 U. S. 154. “Whenever it becomes necessary, for the accomplishment of any object within the authority of Congress, to exercise the right of eminent domain and take private lands, making just compensation to the owners, Congress may do this, with or without a con- current act of the state in which the lands lie.” Gray, J. Luxton v. N. River Bridge Co, 153 U. S. 529. “In some instances, the states, by virtue of their own right of eminent domain, have condemned lands for the use of the general government, and such condemnations have been sustained by their courts, without, how- ever, denying the right of the United States to act independently of the states.” Srrone, J. Kohl v. U. S., 91 U. S. 373, “Tt is undoubtedly true that the power of appropriating private property to public use vested in the general government . . . cannot be transferred to a state any more than its other sovereign attributes.” Frexp, J. U.S. uv. Jones, 109 U. S. 518. “It was for a long time a debated question whether the United States, in order to obtain property required for their own purposes, could exercise the right of eminent domain within a state. It has been de- cided, only within the past two years, that the government, if such property cannot be obtained by purchase, may appropriate it, upon making just compensation to the owner.” Fretp, J., dissenting. Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 18. “A distinction . . is attempted in behalf of the plaintiffs in error between the constitutional powers of a state and those of the United States, in respect to the exercise of the power of eminent domain, and this distinction is supposed to be found in a re- striction of such power in the United States to purposes of political administration; that it must be limited in its exercise to such objects as fall within the delegated and ex- pressed enumerated powers conferred by the Constitution upon the United States, such as are exemplified by the case of post-offices, custom-houses, court-houses, forts, dock- yards, etc. We are not called upon, by the duties of this investigation, to consider whether the alleged restriction on the power of eminent domain in the general govern- ment, when exercised within the territory of a state, does really exist, or the extent of such restriction.” Surras,:J. Shoemaker v. U. S., 147 U. S. 298. b: Requirement of Compensation Before Tak- ing. The Rule. “Private property cannot be taken for public use without just compensation.” Waite, C. J. Newport, etc. Bridge Co. v. U. S., 105 U. S. 481. “Private property, the Constitution pro- vided, shall not be taken for public use with- out just compensation; and it is clear that that provision is as applicable to the govern- ment as to individuals, except in cases of extreme necessity in time of war and of im- mediate and impending public danger.” CuiFrorD, J. Cammeyer v. Newton, 94 U. S. 234, “No government which rests upon the basis of fixed laws, whatever form it may have assumed, or wherever the sovereignty may reside, has asserted the right, or exer- cised the power of appropriating private property to public purposes, without making compensation.” M’Lean, J. arles River Bridge v. Warren, 11 Pet. 570. “Property may be appropriated for public purposes, but it must be paid for.” McLzan, J. State Bank of Ohio v. Knoop, 16 How. 391. 647 ‘EMINENT DOMAIN. “Tf, however, in exercising its rights in re- gard to the regulation and control of com- merce, private property must be taken, the government is obliged to make compensation to the owner.” PeckHam, J. U. S. v. Bil- lingham Bay Boom Co., 176 U. S. 216. “Private property cannot be taken from individuals by the state, except for public purposes, and then only upon compensation, or by way of taxation; and any enactments to that end would be regarded as an illegiti- mate and unwarranted exercise of legislative power.” FreLp, J. Tippecanoe County Com’rs v. Lucas, 93 U. S. 114. “Tf any one proposition can be considered as settled by the decisions of this court it is that, although in the discharge of its duties the government may appropriate property, it cannot do so without being liable to the obli- gation cast by the Fifth Amendment of pay- ing just compensation.” Brewer, J. U. S. v. Lynah, 188 U. S. 471. — No Due Process of Law Without Compensation. “Due process of law as applied to judicial proceedings instituted for the taking of pri- vate property for public use means, such process as recognizes the right or. the owner to be compensated if his property be wrested from him and transferred to the public. The mere form of the proceeding in- stituted against the owner, even if he be admitted to defend, cannot convert the proc- ess used into due process of law, if the necessary result be to deprive him of his property without compensation.” Hartan, J. Chicago, etc., R. Co., v. Chicago, 166 U. S. 236. “ TA] state cannot by any of its agencies, legislative, executive or judicial, withhold from the owners of private property just com- pensation for its use. That would be a dep- rivation of property without due process of law.” Hartan, J. San Diego Land Co. v. National City, 174 U. S. 754. “The legislature may prescribe a form of procedure to be observed in the taking of private property for public use, but it is not due process of law if provision be not made for compensation. Notice to the owner to appear in some judicial tribunal and show cause why his property shall not be taken for public use without compensation would be a mockery of justice.’ Hartan, J. Chicago, etc., R. Co. v. Chicago, 166 U. S. 236. “Tf, as this court has adjudged, a legis- lative enactment, assuming arbitrarily to take the property of one individual and give it to another individual, would not be due process of law as enjoined by the Fourteenth Amend- ment, it must be that the requirement of due process of law in that amendment is applicable to the direct appropriation by the state to public use and without compensation of the private property of the citizen.” Har- LAN, J. Chicago, etc. R. Co. v. Chicago, 166 U. S. 236. “In addition to the clause forbidding the deprivation of property ‘without due process of law,’ there is in the Fifth Amendment a clause specifically declaring ‘nor shall, pri- vate property be taken for public use without just compensation.’ The Fourteenth Amend- ment does not in terms refer to the taking of private property for public use, yet we have held that the requirement of ‘due process of law’ in that amendment forbids the taking of private property for public use without making or securing just compensation.” Haran, J., dissenting. Maxwell v. Dow, 176 U. S. 614. Mere Limitation on Right. “The clause found in the constitutions of the several states providing for just compen- sation for property taken is a mere limitation upon the exercise of the right [of eminent domain].” Fietp, J. Mississippi, etc., Boom Co. v. Patterson, 98 U. S. 406. Implied Promise to Pay. “ Whenever in the exercise of its govern- mental rights it [the government] takes property, the ownership of which it concedes to be in an individual, it impliedly promises to pay therefor.” Brewer, J. U. S. wv. Lynah, 188 U. S. 465. “We are not prepared to deny that when the government of the United States, by such formal proceedings as are necessary to bind it, takes for public use, as for an arsenal, custom-house, or fort, land to which it as- serts no claim of title, but admits the owner- ship to be private or individual, there arises an implied obligation to pay the owner its just value.” Murer, J. Langford v. U. S.,, 101 U. S. 343. Effect of Franchise from Federal Govern- ment. “No one would suppose that a franchise from the federal government to a corpora- tion, state or national, to construct interstate roads or lines of travel, transportation or communication, would authorize it to enter upon the private property of an individual, and appropriate it without compensation.” 648 ‘ EMINENT DOMAIN. Brewer, J. St. Louis v. Western Union Tel. Co., 148 U. S. 101. “Tt would not be claimed, for instance, that under a franchise from Congress to construct and operate an interstate railroad the grantee thereof could enter upon the state-house grounds of the state, and con- struct its depot there, without paying the value of the property thus appropriated. Al- though the state-house grounds be property devoted to public uses, it is property devoted to the public uses of the state, and property whose ownership and control are in the state, and it is not within the competency of the national government to dispossess the state of such control and use, or appropriate the same to its own benefit, or the benefit of any of its corporations or grantees, without suit- able compensation to the state.” Brewer, J. St. Louis v. Western Union Tel. Co., 148 U.S. 101. Appropriation of Streets and Highways. “While for purposes of travel and common use they [streets and highways] are open to the citizens of every state alike, and no state can by its legislation deprive the citizens of another state of such common use, yet when an appropriation of any part of this public property to an exclusive use is sought, whether by a citizen or corporation of the same or another state, or a corporation of the national government, it is within the competency of the state, representing the sovereignty of that local public, to exact for its benefit compensation for this exclusive appropriation. It matters not for what that exclusive appropriation is taken, whether for steam railroads or street railroads, telegraphs or telephones, the state may if it chooses ex- act from the party or corporation given such exclusive use pecuniary compensation to the general public for being deprived of the com- mon use of the portion thus appropriated.” Brewer, J. St. Louis v. Western Union Tel. Co., 148 U. S. 101. Effect of Commercial Power of General Government. “Undoubtedly compensation must be made or secured to the owner when that which is done is to be regarded as a taking of private property for public use within the meaning of the Fifth Amendment of the Constitution; and of course in its exercise of the power to regulate commerce, Congress may not over- ride the provision that just compensation must be made when private property is taken for public use.” Haran, J. Scranton v. Wheeler, 179 U. S. 153. “The proposition, frequently made, that the power of Congress to regulate interstate commerce, and therefore navigation, is para- mount, can properly be understood to mean only that, as between the authority of the states in such matters and that of the gen- eral government, the latter is superior. It has no just reference to questions concern- ing private property lying within the states. Much less can it be rightly used to signify that such power can be exercised by Con- gress without regard to the right of just compensation when private property is taken for public use.” Sutras, J., dissenting. Scranton v. Wheeler, 179 U. S. 189. “The intention of the framers is seen in the provisions of the Constitution, and in them the right to take private property for public uses is indissolubly connected with the duty to make just compensation. It can- not be supposed that a recognition of ‘such a duty would cripple the government in the just exercise of the power it incidentally possesses to regulate interstate navigation.” Suiras, J., dissenting. Scranton v. Wheeler, 179 U. S. 190. “The power to regulate commerce is not given in any broader terms than that to es- tablish post-offices and post-roads; but, if Congress wishes to take private property upon which to build a post-office, it must either agree upon the price with the owner, or in condemnation pay just compensation therefor.” Brewer, J. Monongahela Nav. Co. v. U. S., 148 U. S. 336. “Congress has supreme control over the regulation of commerce, but if, in exercising that supreme control, it deems it necessary to take private property, then it must pro- ceed subject to the limitations imposed by this Fifth Amendment, and can take only on payment of just compensation.” Brewer, J. Monongahela Nay. Co. v. U. S., 148 U. S, 336. Public Employment Wrongful Taking. “Public employment is no defense to the employee for having converted the private property of another to the public use with- out his consent and without just compensa- tion.” Crirrorp, J. Cammeyer v. Newton, 94 U. S. 234. No Defense to “Nothing but the emergency will warrant the taking [of private property in time of war, without due provision for compensa- tion]; and it is settled law in this court that the officer who makes the seizure cannot 649 EMINENT DOMAIN. justify his trespass merely by showing the orders of his superior, the rule being that an order to commit a trespass can afford no justification to the person by whom it is ex- ecuted.” C.iFrorD, J., dissenting. Dow vz. Johnson, 100 U. S. 171. “Public convenience authorizes the exer- cise of the right of eminent domain, subject to the condition that due provision is made for compensation; and public necessity, in time of war or impending public danger, may authorize the taking of private property with- out any such provision, to supply for the moment the public wants, to the extent of the public exigéncy, which cannot be sup- plied in any other way.” CuiFForp, J., dis- senting. Dow wv. Johnson, 100 U. S. 171. “Private property, in case of extreme ne- cessity, in time of war, or of immediate and impending public danger, may be impressed into the public service, or may be seized and appropriated to the public use, or may even be destroyed without the consent of the owner and without antecedent compensation. Extreme cases of the kind may doubtless arise, as where the property taken is impera- tively necessary in time of war to construct defenses for the preservation of a military post at the moment of an impending attack by the enemy, or to supply food or clothing to a suffering or famishing army destitute of such necessaries and without other means of such supplies. Such emergencies in the public service have and may hereafter occur in time of war, and in such cases no doubt is entertained that the power of the govern- ment is ample to supply for the moment the public wants in that way to the extent of the immediate public exigency; but the pub- lic danger must be imminent and impending, and the emergency in the public service must be extreme and imperative and such as will not admit of delay or a resort to any other source of supply. Exigencies of the kind do arise in time of war or impending public danger; but it is the emergency only that gives the right, and it is clear that the emer- gency must be shown to exist before the taking can be justified.’ Cur1Frorp, J., dis- senting. Dow v. Johnson, 100 U. S. 170. “A taking of private property by the gov- ernment, when the emergency of the public service in time of war or impending public danger is too urgent to admit of delay, is everywhere regarded as justified, if the ne- cessity for the use of the property is impera- tive and immediate, and the danger, as here- tofore described, is impending.” CxiFForp, J. U.S. v. Russell, 13 Wall. 629. “A justification may be shown [for taking private property for use of the government], and when shown the rule is well settled that the officer taking private property for such a purpose, if the emergency is fully proved, is not a trespasser, and that the government is bound to make full compensation to the owner.” Cxirrorp, J. U. S. uv. Russell, 13 Wall. 628, In Time of War or Impending Public Danger. “A. constitutional government, notwith- standing the right of eminent domain, cannot take physical and forcible possession of all that it may need to defend the country, and is reluctant to exercise such a power when it can be avoided. It must purchase, and by purchase command materials and supplies, products of manufacture, labor, service of every kind.” Brapitey, J. Legal Tender Cases, 12 Wall. 563. “The destruction of property complained of was during the war and in one of the states engaged in the rebellion, and the pre- sumption, in the absence of inconsistent alle- gations, is that it was by the military forces of the United States.” Cuasz, C. J. Pugh uv. U. S., 18 Wall, 635. “Pressing emergency in time of war may authorize the seizure of private property be- fore providing for compensation, but, to jus- tify the taking without the consent of the owner, the necessity must be apparent, leav- ing no available alternative.” Cirrorp, J., dissenting. Dow wv. Johnson, 100 U. S. 185. c. What Property Protected. No General Rule to Embrace Definition of Property. “What is private property within the meaning of that [the Fifth] amendment, or what is a taking of private property for public use, is not always easy to determine. No decision of this court has announced a rule that will embrace every case.” HARLAN, J. Scranton v. Wheeler, 179 U. S. 153. Water. “The supplying of pure water to a city and its inhabitants is a matter of public con- cern. The taking of water held by private parties for that purpose is an appropriation of it for a public use; and the same con- ditions for its lawful appropriation must be followed as when property of a different character is thus taken. There must be the just compensation for it to the owner, and the impartial tribunal to appraise its value 650 EMINENT and determine the amount of the _compen- sation.” Fre.p, J., dissenting. Spring Val- ley Water Works v. Schottler, 110 U. S. 378. “If water cannot be taken by the state for public purposes from a stream running through the land of a private party without just compensation to him, surely the water collected in reservoirs on the lands of the plaintiff as it descends from the heavens can- not be taken for public uses without like com- pensation.” Fretp, J., dissenting. Spring Valley Water Works v. Schottler, 110 U. S. 379. Private Property Submerged. “When the case does arise, I incline to think it can be shown, upon principle and authority, that private property in submerged lands cannot be taken and exclusively occu- pied for a public purpose without just com- pensation.” Surras, J., dissenting. Scran- ton v. Wheeler, 179 U. S. 169. Right of Access. “This distinction between the right of im- mediate access from the abutter’s property to and from a highway, whether a street or a navigable stream, and an injury arising after he reaches it and which is common to him and the rest of the public, is recognized by the courts of the states, and the former right is held to be a valuable one, which can- not be destroyed without compensation.” Surras, J., dissenting. Scranton v. Wheeler, 179 U. S. 172. . “The courts of New York, which formerly took another view, now hold that right of access is a valuable property right and en- titled to constitutional protection as such.” Surras, J., dissenting. Scranton v. Wheeler, 179 U. S. 175. —— Power of Federal Government. “Tf, then, by the law of the state in which the land is situated, the right of access to navigable streams is one of the incidents of abutting land, if such rights are held to be property and valuable as such, can the United States, under the incidental power arising out of their jurisdiction over interstate com- merce, destroy such right of access without making compensation? I think that this question may well be answered in the words of Gould in his work on Waters (2d ed.), sec. 151: ‘When it is conceded that riparian rights are property, the question as to the right to take then away without compensa- tion would appear to be at an end.” Surras, J. dissenting. Scranton v. Wheeler, 179 U. S. 183. DOMAIN. “Now, if it be held that Congress has power to take or destroy private property, lying under or adjacent to navigable streams, without compensating their owners, because it is done in the exercise of the power to regulate commerce, then it must follow that the same unlimited power can be exercised with respect to private property not in nor bounded by water.” Suuras, J., dissenting. Scranton v. Wheeler, 179 U. S. 185. “Tn the states which originally formed this Union, or in those admitted since, it has never been held that the United States, through any of their departments, could im- pose servitudes upon the lands owned by the states or by their grantees.” Sutras, J., dissenting. Scranton v. Wheeler, 179 U. S. 182. Franchise. “The franchise is a vested right. The state has power to grant it. It may retake it, as it may take other private property, for pub- lic uses, upon the payment of just compen- sation. A like, though a superior, power exists in the national government. It may take it for public purposes, and take it even against the will of the state; but it can no more take the franchise which the state has given than it can any private property belong- ing to an individual.” Brewer, J. Monon- gahela Nav. Co. v. U. S., 148 U. S. 341. “Because Congress has power to take the Property, it does not follow that it may destroy the franchise [to take tolls] without compensation.” Brewer, J. Monongahela Nav. Co. v. U. S., 148 U. S. 337. — State Cannot Resume Charter and Carry on Functions of Corporation. “No state can resume a charter, under the power of appropriation, and carry on the functions of the corporation. A bank charter could not be thus taken, and the business of the bank continued for public purposes.” McLean, J., concurring. West River Bridge Co. v. Dix, 6 How. 537. d. What Can Be Taken. Property and Franchise of Corporation. “The property of corporations, even in- cluding their franchises, when that is neces- sary, may be taken for public use under the power of eminent domain, on making due compensation.” Mitter, J. Greenwood v. Marginal Freight Co., 105 U. S. 22. “That a state may, in its exercise of eminent domain, condemn a franchise as it 651 EMINENT might lands, cannot now be disputed.” GRIER, J. dissenting. Bridge Proprietors v. Ho- boken Land, etc., Co., 1 Wall. 154. “The property owned by a banking or manufacturing corporation may, for instance, be condemned for highways, necessarily, where situated on a great line of travel; but why should their franchises be, if their con- tinued existence and use may be feasible and. profitable, and one not inconsistent with the taking and employment of their own prop- erty for a public highway?” Woopsury, J., concurring. West River Bridge Co. v. Dix, 6 How. 544. “No one doubts the power of the state to take a banking-house for public use, or any other real or personal property owned by the bank. In this respect, a corporation holds property subject to the eminent domain, the same as citizens. The great object of an act of incorporation is to enable a body of men to exercise the faculties of an individual. Peculiar privileges are sometimes vested in the body politic, with the view of advancing the convenience and interests of the public.” McLean, J., concurring. West River Bridge Co. v. Dix, 6 How. 537. “The franchise no more than a grant for land can be annulled by the state. These muniments of right are alike protected. But the property held under both is held subject to a public necessity,. to be determined by the state. In either case, the property being taken renders valueless the evidence of right. But this does not, in the sense of the Con- stitution, impair the contracts.” McLgan, J., concurring. West River Bridge Co. v. Dix, 6 How. 537. Property of Water Company. “There is probably no water company in the land which has not some subsisting con- tract with a municipality which it supplies, and within which its works are located, and . a ruling that all those properties are beyond the reach of the power of eminent domain during the existence of those contracts is one which, to say the least, would require careful consideration before receiving judicial sanction.” BREWER, L. I. Water Supply Co. v. Brooklyn, 166 U. S. 689. Water Supply. “ All private property is held subject to the demands of a public use. The constitutional guarantee of just compensation is not a lim- itation of the power to take, but only a con- dition of its exercise. Whenever public DOMAIN. uses require, the government may appropri- ate any private property on the payment of just compensation. That the supply of water to a city is a public purpose cannot be doubted, and hence the condemnation of a water supply must be recognized as within the unquestioned limits of the power of emi- nent domain. It matters not to whom the water supply system belongs, individual or corporation, or what franchises are connected with it—all may be taken for public uses upon payment of just compensation:” Brewer, J. L. I. Water Supply Co. v. Brook- lyn, 166 U. S. 689. Contract. “ A contract is property, and, like any other property, may be taken under condemnation proceedings for public use. Its con- demnation is of course subject to the rule of just compensation.” Brewer, J. L. I. Water Supply Co. v. Brooklyn, 166 U. S. 690. Property Devoted to Public Use. “Though land purchased within a state for ordinary purposes by the general government must yield to the local public demands, yet land, when held like this, at first by an orig- inal cession to that government, and after- wards appropriated for a_ specific public object, cannot easily be shown liable to be taken away for an ordinary local object, though public, and especially one under an- other government and by mere implication.” Woopzury, J. U.S. v. Chicago, 7 How. 195. Land Owned by Government Merely as Proprietor. “Tt is not questioned that land within a state purchased by the United States as a mere proprietor, and not reserved or appro- priated to any special purpose, may be liable to condemnation for streets or highways, like the land of other proprietors, under the rights of eminent domain.” Woopzury, J. U. S. v. Chicago, 7 How. 194. e. Necessity for Taking. Foundation of Right. “The proper view of the right of eminent domain seems to be, that it is a right belong- ing to a sovereignty to take private property for its own public uses, and not for those of another. Beyond that, there exists no necessity; which alone is the foundation of the right.” Srronc, J. Kohl v. U. S., 91 U.S. 347. “T am even disposed to go further, and say, that if any property of any kind is not 652 EMINENT DOMAIN. so situated as to be either in the direct path for a public highway, or to be really needed to build it, the inclination of my mind is, that it cannot be taken against the consent of the owner. Because, though the right of eminent domain exists in some cases, it does not exist in all, nor as to all property, but probably as to such property only as, from its locality and fitness, is necessary to the public use.” Woopsury, J., concurring. West River Bridge Co. v. Dix, 6 How. 545. “A custom-house is a public use for the general government, and a.court-house or jail for a state. But it would be difficult to find precedent or argument to justify tak- ing private property, without consent, to erect them on, though appropriate for the purpose. No necessity seems to exist, which is sufficient to justify so strong a measure. A particular locality as. to a few rods in respect to their site is usually of no conse-.- quence; while as to a light-house, or fort, or. wharf, or highway between certain termini, it may be very important and imperative. I am aware of no precedents, also, for such seizure of private property abroad, for ob- jects like the former, though some such doc- trines appear to have been advanced in this country.” Woopgury, J., concurring. West River Bridge Co. v. Dix, 6 How. 546. Necessity Not Judicial Question. “The question of necessity [for the con- demnation of private property for public use] is not one of a judicial character, but rather one for determination by the lawmaking branch of the government.” Brewer, J. Backus v. Fort Street Union Depot Co., 169 VU. S. 568. “When the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cogni- zance.” Fretp, J. Mississippi, etc., Boom Co. v. Patterson, 98 U. S. 406. “When the use to which the property taken is applied is public, the propriety or expedi- ency of the appropriation cannot be called in question by any other authority.” Frexp, J. U.S. uw. Jones, 109 U. S. 518. f. Taking Must Be for Public Use. The Rule in General. “The use for which private property is to be taken must be a public one, whether the taking be by the exercise of the right of eminent domain or by that of taxation.” PecxHam, J. Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 161. “There is no specific prohibition in the federal Constitution which acts upon the states in regard to their taking private prop- erty for any but a public use. The Fifth Amendment which provides, among other things, that such property shall not be taken for public use without just compensation, applies only to the federal government, as has many times been decided.” PrckHam, J. Fallbrook Irrigation Dist. v. Bradley, 164 “U.S. 158. “In the Fourteenth Amendment the pro- vision regarding the taking of private prop- erty is omitted, and the prohibition against the state is confined to its depriving any person of life, liberty or property, without due process of law. It is claimed, however, that the citizen is deprived of his property without due process of law, if it be taken by or under state authority for any other than a public use, either under the guise of taxa- tion or by the assumption of the right of eminent domain. In that way the question whether private property has been taken for any other than a public use becomes material in this court, even where the taking is under the authority of the state instead of the fed- eral government.” PreckHam, J. Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 158. “Although the sovereign power in free governments may appropriate all the prop- erty, public as well as private, for public purposes, making compensation therefor; yet it has never been understood, at least never in our republic, that the sovereign power can take the private property of A and give it to B, by the right of ‘eminent domain’; or, that it can take it all, except for public purposes, without the duty and responsibility of mak- ing compensation for the sacrifice of the private property of one, for the good of the whole.” Srory, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 642. “Private property can be taken for a pub- lic use only, and not for private gain or bene- fit. Upon no other ground than that the purpose is public can the exercise of the power of eminent domain in behalf of such corporations [railroads] be supported.” SwaynE, J. Pine Grove Tp. v. Talcott, 19 Wal. 676. “Tt is probably true that it is beyond the competency of the state to appropriate to itself the property of individuals for the sole purpose of creating a water power to be leased for manufacturing purposes.” Brown, J. Kaukauna Co. v. Green Bay, etc., Canal Co., 142 U. S, 273. 653 EMINENT DOMAIN. “This would be a case of taking the prop- erty of one man for the benefit of another, which is not a constitutional exercise of the right of eminent domain.” Brown, J. Kau- kauna Co. v. Green Bay, etc., Canal Co., 142 U. S. 273. — Public Purpose Must Be Real. “The public purpose for which the power [of eminent domain] is exerted must be real, not pretended. If in the course of time the property, by a change of circumstances, should no longer be required for public use, it may be otherwise disposed of. But this is a case not likely to occur. The legality of the act depends upon the facts and circum- stances under which it was done.” McLegan, J., concurring. West River Bridge Co. wv. Dix, 6 How. 537. —Use of Private Corporations. “The right of eminent domain nowhere justifies taking property for a private use. Yet it is a doctrine universally accepted that a state legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner.” Stronc, J. Olcott wv. Supervisors, 16 Wall. 694. “The responsibility of Congréss to the people will generally, if not always, result in a most conservative exercise of the right [to condemn land]. It is quite a different view of the question which courts will take when this power is delegated to a private corpora- tion. In that case the presumption that the intended use for which the corporation pro- poses to take the land is public, is not so strong as where the government intends to use the land itself.” PeckHam, J. U. S. v. Gettysburg Electric R. Co. 160 U. S. 680. What Is Public Use — Use Necessary or Proper in Execution of Powers. “The really important question to be de- termined in these proceedings is, whether the use to which the petitioner desires to put the land described in the petitions is of that kind of public use for which the government of the United States is authorized to con- demn land. It has authority to do so when- “ever it is necessary or appropriate to use the land in the execution of any of the powers granted to it by the Constitution.” Prcx- Ham, J. U.S. uv. Gettysburg Electric R. Co., 160 U. S. 679. : “The government may take real estate for a post-office, a court-house, a fortification or a highway; or in time of war it may take merchant vessels and make them part of its naval force.” 188 U. S. 465. Brewer, J. U. S. v. Lynah, “The legislatures of all the states, have often exercised the power of taking the prop- erty of its citizens for the use of the pub- lic, but they uniformly compensated the proprietors. The principle to maintain this right is for the public good, and to that the interest of individuals must yield. The in- stances are many; and among them are lands taken for forts, magazines, or arsenals; or for public roads, or canals; or to erect towns.” Cxace, J. Ware v. Hylton, 3 Dall. 235. ——Entire Community Need Not Enjoy Improvement. : “Tt is not essential that the entire com- munity or even any considerable portion thereof should directly enjoy or participate in an improvement in order to constitute a public use.” PrcxuHam, J. Fallbrook Irri- gation Dist. v. Bradley, 164 U. S. 161. — Depends upon Surrounding Circum- stances. “Tt is obvious . that what is a pub- lic use frequently and largely depends upon the facts and circumstances surrounding the particular subject-matter in regard to which the character of the use ‘is questioned.” PreckHaM, J. Fallbrook Irrigation Dist. w. Bradley, 164 U. S. 159. —— Decisions Not Harmonious. “The question, what constitutes a public use, has been before the courts of many of the states and their decisions have not been harmonious, the inclination of some of these courts being towards a narrower and more limited definition of such use than those of others.” Preckuam, J. Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 158. —— Railroad. “Land devoted to the use of a railroad is devoted to public use.” Brewer, J. Burling- ton Gas Light Co. v. Burlington, etc., R. Co., 165 U. S. 372. “Tt is because they [railroads] are such highways that the land upon which the rails are laid, and also that which may be neces- sary for other purposes of the corporation, is said to be used for a public use, and on that ground the power of eminent domain which is given them is held to be a constitutional exercise of legislative authority. The right of the legislature to tax in furtherance of such is founded upon the same considerations that the use is a public one, and therefore 654 EMINENT DOMAIN. taxation in support of such is valid.” PEcK- HAM, J. Wisconsin, etc. R. Co. v. Jacobson, 179 U. S. 297. — Mill Sites. “Lands belonging to individuals have often been condemned for such purposes, in the exercise of the right of eminent domain, in cases where, from the nature of the country, mill sites sufficient in number could not otherwise be obtained, and that right is, even more frequently, exercised to enable mill owners to flow the water back beyond their own limits, in order to create sufficient power or head and fall to operate their mills.” Currrorp, J. Holyoke Water-Power Co. v. Lyman, 15 Wall. 507. —— Effect upon Right of Fishery. “Concomitant with the authority to erect such dams for such purposes [operation of mills] over the beds of water-courses, as resulting from the title to the banks and bed of the stream, is also the exclusive right of fishery, which also has its source in the same ownership of the soil, and the better opinion is that it is not divested or extinguished by any legislative act condemning the land to the use of another for mill purposes, unless the words of the grant conferring the author- ity to construct the dam clearly indicate that such was the intention of the legislature.” Currrorp, J. Holyoke Water-Power Co. v. Lyman, 15 Wall. 507. —Grist Mill. “ A grist- mill which grinds for all comers, at tolls fixed by law, is for a public use.” Gray, J. Head v. Amoskeag Mfg. Co., 113 U.S. 19. —— Establishment of Dams. “Special acts of incorporation, granted by the legislature for the establishment of dams to increase and improve the water power of rivers and navigable waters, for mechanical and manufacturing purposes, are for a pub- lic use.” Gray, J. Head v. Amoskeag Mfg. Co., 113 U. S. 19. — Irrigation. “Tf land which can, to a certain extent, be beneficially used without artificial irriga- tion, may yet be so much improved by it that it will be thereby and for its original use substantially benefited, and, in addition to the former use, though not in exclusion of it, if it can then be put to other and more remunerative uses, we think it errone- ous to say that the furnishing of artificial irrigation to that kind of land cannot be, in a legal sense, a public improvement, or the use of the water a public use.” PECKHAM, J. Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 167. “The use [irrigation] must be regarded as a public use, or else it would seem to follow that no general scheme or irrigation can be formed or carried into effect. In general, the water to be used must be carried for some distance and over or through private prop- erty which cannot be taken in invitum if the use to which it is to be put be not public, and if there be no power to take property by condemnation it may be impossible to acquire it at all.’ Precxuam, J. Fallbrook Irriga- tion Dist. v. Bradley, 164 U. S. 160. “The Supreme Court of California has held in a number of cases that the use of water for irrigation purposes j is a publi- use.” PrckHaM, J. Fall- brook Irrigation Dist. v. Bradley, 164 U. Ss. 159, “Trrigation- is not so different from the reclamation of swamps as to require the application of other and different principles to the case. The fact that in draining swamp lands it is a necessity to drain the lands of all owners which are similarly situated, ,goes only to the extent of the peculiarity of the situation and the kind of land. Some of the swamp lands may not be nearly so wet and worthless as some others, and yet all may be so situated as to be benefited by the reclama- tion, and whether it is so situated or not must be a question of fact. The same rea- soning applies to land which is, to some extent, arid instead of wet.” PrcxHam, J. Fallbrook Irrigation Dist. v. Bradley, 164 Uz. S. 163. “We have no doubt that the irrigation of really arid lands is a public purpose, and the water thus used is put to a public use.” PeckHaM, J. Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 164. “It is not necessary, in order that the use should be public, that every resident in the district should have a right to the use of the water. The water is not used for general domestic or for drinking purposes, and it is plain from the scheme of the act that the water is intended for the use of those who will have occasion to use it on their lands. Nevertheless, if it should so happen that at any particular time the landowner should have more water than he wanted to use on his land, he has a right to sell or assign the surplus or the whole of the water as he 655 EMINENT DOMAIN. may choose. PrEckHAM, J. Fallbrook Irri- gation Dist. v. Bradley, 164 U. S. 162. “While the consideration that the work of irrigation must be abandoned if the use of the water may not be held to be or consti- tute a public use is not to be regarded as conclusive in favor of such use, yet that fact is in this case a most important considera- tion. Millions of acres of land otherwise cultivable must be left in their present arid and worthless condition, and an effectual obstacle will therefore remain in the way of the advance of a large portion of the state in material wealth and prosperity. To irri- gate and thus to bring into possible cultiva- tion these large masses of otherwise worth- less lands would seem to be a public purpose and a matter of public interest, not confined to the landowners, or even to any one sec- tion of the state. The fact that the use of the water is limited to the landowner is not therefore a fatal objection to this legisla- tion.” PrecKHAM, J. Fallbrook Irrigation Dist v. Bradley, 164 U. S. 161. “A private company or corporation with- out the power to acquire the land in invitum would be of no real benefit, and at any rate the cost of the undertaking would be so greatly enhanced by the knowledge that the land must be acquifed by purchase, that it would be practically impossible to build the works or obtain the water. Individual enter- pri = would be equally ineffectual; no one owner would find it possible to construct and maintain water works and canals any better than private corporations or companies, and unless they had the power of eminent domain they could accomplish nothing. If that power could be conferred upon them it could only be upon the ground that the property they took was to be taken for a public purpose.” PecxHaM, J. Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 161. “To provide for the irrigation of lands in states where there is no color of necessity therefor, within any fair meaning of the term, and simply for the purpose of gratify- ing the taste of the owner, or his desire to enter upon the cultivation of an entirely new kind of crop, not necessary for the purpose of rendering the ordinary cultivation of the land reasonably remunerative, might be regarded by courts as an improper exercise of legisla- tive will, and the use might not be held to be public in any constitutional sense, no matter how many owners were interested in the scheme. On the other hand, in a state like ‘ California, which confessedly embraces mil- lions of acres of arid lands, an act of the legislature providing for their irrigation might well be regarded as an act devoting the water to a public use, and therefore as a valid exercise of the legislative power. The people of California and the members of her legislature must in the nature of things be more familiar with the facts and circum- stances which surround the subject and with the necessities and the occasion for the irri- gation of the lands than can any one be who is a stranger to her soil. This knowledge and familiarity must have their due weight with the state courts which are to pass upon the question of public use in the light of the facts which surround the subject in their own state. For these reasons, while not regard- ing the matter as concluded by these various declarations and acts and decisions of the peo- ple and the legislature and courts of Califor- nia, we yet, in the consideration of the sub- ject, accord to and treat them with great respect, and we regard the decisions as em- bodying the deliberate judgment and matured thought of the courts of that state on this question.” PrckHaM, J. Fallbrook Irriga- tio. Dist. v. Bradley, 164 U. S. 160. Judicial Determination. “The adjudicated cases establish the proposition that while the courts have power to determine whether. the use for which private property is authorized by the legislature to be taken, is in fact a public use, yet, if this question is decided in the affirmative, the judicial function is ex- hausted ; that the extent to which such prop- erty shall be taken for such use rests wholly in the legislative discretion, subject only to the restraint that just compensation must be made.” Sutras, J. Shoemaker v. U. S, 147 U. S. 298. g. Distinction Between Taking and Conse- quential Damage. Necessity for Actual Taking — Decisions Not Uniform. “Whether, under the constitutional pro- visions of the United States and of the several states, which declare that private prop- erty shall not be taken for public use with- out just compensation, it is necessary that property should be absolutely taken in the narrowest sense of that word to bring the case within the protection of the provision, is a question that has often arisen, and upon which there has not been entire uniformity of decision.” Sutras, J. U, S. v. Alexander, 148 U. S. 187. 656 EMINENT DOMAIN. Consequential Damages Where No Prop- erty Taken. “In proceedings to condemn a property for public use on payment of ‘just compensa- tion,’ under the Constitution, we cannot think (in the absence of congressional action to that effect) that the government would be liable for consequential damages * sus- tained by a party, no portion of whose prop- erty was taken. PrckuHam, J. Sharp w. U.S. 191 U. S. 355. “To a certain and to an appreciable extent the legislature may alter the law of nuisance, although property .is affécted. To a certain and to an appreciable extent the use of par- ticular property may be limited without com- pensation. Not every such limitation, restric- tion or diminution of value amounts to a taking in a constitutional sense.’ Hotmes, J., dissenting. Muhlker v. Harlem R. Co., 197 Uz. S. 576. “The Gonstitution provides that private property shall not be taken without just com- pensation, but a distinction has been made between damage and taking, and that distinc- tion must be observed in applying the con- stitutional provision.” McKenna, J. Bed- ford v. U. S., 192 U. S. 225. “Acts done in the proper exercise of governmental powers, and not directly en- croaching upon private property, though their consequences may impair its use, are uni- versally held not to be a taking within the ‘meaning of the constitutional provision. They do not entitle the owner of such prop- erty to compensation from the state or its agents, or give him any right of action. Stronc, J. Northern Transp. Co. v. Chicago, 99 U. S. 642. “Tf the riparian owner cannot enjoy access to navigability because of the. improvement of navigation by the construction away from the shore line of works in a public navigable river or water, and if such right of access ceases alone for that reason to be of value, there is net, within the meaning of the Con- stitution, a taking of private property for public use, but only a consequential injury to a right which must be enjoyed, . . ‘in due subjection to the rights of the public’ _— an injury resulting incidentally from the exercise of a governmental power for the benefit of the general public, and from which no duty arises to make or secure compensa- tion to the riparian owner.” Harian, J. Scranton v. Wheeler, 179 U. S. 164. 1 Os. Dic.—42 “There have been many cases in which a distinction has been drawn between the tak- ing of property for public uses and a con- sequential injury to such property, by reason of some public work. In the one class the law implies a contract, a promise to pay for the property taken, which, if the taking was by the general government, will uphold an action in the Court of Claims; while in the other class there is a tortious act doing injury, over which the Court of Claims has no jurisdiction.” Brewer, J. U. S. w. Lynah, 188 U. S. 472. Beneficial Use Protected. “There are many ways of taking property other than by occupation or appropriation, which are within the constitutional inhibi- tion. If its beneficial use and enjoyment, are prevented under the sanction of the law, it is taken from him as effectually as though the title were condemned.” Fiexp, J., dis- senting. Newport, etc., Bridge Co. v. U. S., 105 U. S. 502. —— Where Land Actually Invaded. “Where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a tak- ing, within the meaning of the Constitution, and that this proposition is not in conflict with the weight of judicial authority in this country, and certainly not with sound princi- ple.” Mier, J. Pumpelly v. Green Bay Co., 13 Wall. 181. h. Just Compensation—Measure. Fair and Full Equivalent for Thing Taken. “The owner of private property taken under the right of eminent domain obtains just compensation if he is awarded such sum as, under all the circumstances, is a fair and full equivalent for the thing taken from him by the public.” Hartan, J. Chicago, etc., R. Co. v. Chicago, 166 U. S. 241. “There can, in view of the combination of those two words [‘just’ and ‘compensa- tion’ in the Fifth Amendment], be no doubt that the compensation must be a full and perfect equivalent for the property taken. And. this just compensation, it will be noticed, is for the property, and not to the owner. Every other clause in this Fifth Amendment is personal.” Brewer, J. Monongahela Nav. Co. v. U. S., 148 U. S. 326. “The language used in the Fifth Amend- ment in respect to this matter is happily 657 EMINENT DOMAIN. chosen. The entire amendment is a series of negations, denials of right or power in the government; the last, the one in point here, being, ‘Nor shall private property be taken for public use without just compensa- tion. The noun ‘compensation,’ standing by itself, carries the idea of an equivalent. Thus we speak of damages by way of compensa- tion, or compensatory damages, as distin-' guished from punitive or exemplary dam- ages, the former being the equivalent for the injury done, and the latter imposed by way of punishment. So that if the adjective ‘just’ had been omitted, and the provision was simply that property should not be taken without compensation, the natural import of the language would be that the compensation should be the equivalent of the property. And this is made emphatic by the adjective ‘just.’” Brewer, J. Monongahela Nav. Co. v. U. S., 148 U. S. 3285. — True Value. “Whatever be the true value of that which it [Congress] takes’ from the individual owner must be paid to him, before it can be said that just compensation for the prop- erty has been made. And that which is true in respect to a condemnation of property for a post-office is equally true when condemna- tion is sought for the purpose of improving a natural highway.” Brewer, J. Mononga- hela Nav. Co. v. U. S., 148 U. S. 337. “ Reasonable ” Compensation. “Reasonable compensation and just com- pensation mean the same thing.” Hartan, J. Sweet v. Rechel, 159 U. S. 400. Particular Circumstances Control Each Case. “So many and varied are the circum- stances to be taken into account in deter- mining the value of property condemned for public purposes, that it is perhaps impossible to formulate a rule to govern its appraise- ment in all cases. Exceptional circumstances will modify the most carefully guarded rule.” Fietp, J. Mississippi, etc.. Boom Co. v. Pat- terson, 98 U. S. 408. Property Not Worthless Because Not Used. “Property is not to be deemed worthless because the owner allows it to go to waste, or to be regarded as valueless because he is unable to put it to any use.” Fre.p, J. Mississippi, etc. Boom Co. v. Patterson, 98 Uz S. 408. Elements Generally. “The value of property, generally speak- ing, is determined by its productiveness — the profits which its use brings to the owner. Various elements enter into this matter of valiie. Among them we may notice these: Natural richness of the soil as between two neighboring tracts — one may be fertile, the other barren; the one so situated as to be susceptible of easy use, the other requiring much labor and large expense to make its fertility available. Neighborhood to the cen- tres of business and population largely affects values. For that property which is near the centre of a large city may command high rent, while property of the same character, remote therefrom, is wanted by but few, and commands but a small rental. Demand for the use is another factor.’ Brewer, J. Monongahela Nav. Co. v. U. S., 148 U. S. 328. “Suppose, in the improvement of a navi- gable stream, it was deemed essential to construct a canal with locks, in order to pass around rapids or falls. Of the power of Congress to condemn whatever land may be necessary for such canal, there can be no question; and of the equal necessity of pay- ing full compensation for all private prop- erty taken there can be as little doubt. If a man’s house must be taken, that must be paid for.” Brewer, J. Monongahela Nav. Co. v. U. S., 148 U. S. 337. — Franchise to Take Tolls. SE xs property be improved under authority of a charter granted by the state, with a franchise to take tolls for the use of the improvement; in order to determine the just compensation, such franchise must be taken into account.” Brewer, J. Monon- gahela Nav. Co. v. U. S., 148 U. S. 336. Damage at Date of Appropriation. “The damages assessed as of that date [the date of appropriation] constitute the en- tire compensation for such appropriation of land for a highway, including all injuries resulting from any change of the natural grade required in the actual construction of the highway, and also, it would seem, un- less expressly provided otherwise by the Constitution or statute, any which may be caused by a future change of the grade by the public authorities.” Gray, J. Bauman wv. Ross, 167 U. S. 587. Incidental Injury and Benefit. The just compensation required by the Constitution to be made to the owner is to 7 658 EMINENT DOMAIN. be measured by the loss caused to him by the appropriation. He is entitled to receive the value of what he has been deprived of, and no more. To award him less would be unjust to him; to award him more would be unjust to the public. Consequently, when part only of a parcel of land is taken for highway, the value of that part is not the sole measure by the compensation or damages to be paid to the owner; but the incidental injury or benefit to the part not taken is also to be considered. When the part not taken is left in such shape or condition, as to be in itself of less value than before, the owner is entitled to additional damages on that account. When, on the other hand, the part which he retains is specially and di- rectly increased in value by the public im- provement, the damages to the whole parcel by the appropriation of a part of it are lessened. If, for example, by widening of a street, the part which lies next the street, being the most valuable part of the land, is taken for the public use, and what was be- fore in the rear becomes the front part, and upon a wider street, and thereby of greater value than the whole was before, it is neither just in itself, nor required by the Constitu- tion, that the owner should be entitled both to receive the full value of the part taken, considered as front land, and to retain the increase in the value of the back land, which has been made front land by the same tak- ing.” Gray, J. Bauman v. Ross, 167 U. S. 574, “Tt has been uniformly held that when part of a parcel of land is taken, direct and special benefits to the rest of the same parcel, beyond the general increase in the value of property in the neighborhood, are to be de- ducted.” Gray, J. Bauman v. Ross, 167 U. S. 580. “The Constitution of the United States contains no express prohibition against con- sidering benefits in estimating the just com- pensation to be paid for private property taken for the public use.” Gray, J. Bau- man v. Ross, 167 U. S. 584. “Tt is . within the authority of Congress, in the exercise of the right of eminent domain, to direct that, when part of a parcel of land is appropriated to the public use for a highway in the District of Columbia, the tribunal vested by law with the duty of assessing the compensation or damages due to the owner, whether for the value of the part taken, or for any injury to the rest, shall take into consideration, by way of lessening the whole or either part of the sum due him, any special and direct bene- fits, capable of present estimate and reason- able computation, caused by the establish- ment of the highway to the part not taken.” Gray, J. Bauman v. Ross, 167 U. S. 584, II. PROCEEDINGS. Writ of Ad Quod Damnum in England. “Nor shall I stop to discuss whether it is on this principle of the eminent domain alone, that private property has always been taken for highways in England, on making com- pensation, so as to be a precedent for us. This was done there formerly, not as here, but by a writ of ad quod damnum, and it was for ages issued before the grant of any new franchise by the king, whether a road, ferry, or market; and the injury related to the damage by it, whether to the public or individuals.” Woopsury, J., concurring. West River Bridge Co, v. Dix, 6 How. 540. Nature of Proceeding as Suit at Law— Jurisdiction. “Tf, then, a proceeding to take land for public uses by condemnation may be a suit at common law, jurisdiction of it is vested in the Circuit Court. That it is a ‘suit’ admits of no question.” Srrone, J. Kohl v. U. S., 91 U. S. 375. “The right of eminent domain always was a right at common law. It was not a right in equity, nor was it even the creature of a statute. The time of its exercise may have been prescribed by statute; but the right itself was superior to any statute. That it was not enforced through the agency of a jury is immaterial; for many civil as well as criminal proceedings at common law were without a jury. It is difficult, then, to see why a proceeding to take land in virtue of the government’s eminent domain, and deter- mining the compensation to be made for it, is not, within the meaning of the statute, a suit at common law, when initiated in a court. It is an attempt to enforce a legal right. It is quite immaterial that Congress has not enacted that the compensation shall be ascertained in a judicial proceeding. That ascertainment is in its nature at least quasi judicial. Certainly no other mode than a judicial trial has been provided.” Srrone, J. Kohl v. U. S., 91 U. S. 376. “We do not doubt that a proceeding for an assessment of damages for the taking of private property for public use is one at law. It possesses: none of the essential ele- 659 EMINENT DOMAIN. ments ot a suit in equity, within the meaning of the statutes defining the jurisdiction of the courts’ of the United States.” HarLan, J. Cherokee Nation v. Southern Kansas R. Co., 185 U. S. 651. “T think that the decision of the majority of the court in including the proceeding in this case under the general designation of a suit at common law, with which the Cir- cuit Courts of the United States are invested by the eleventh section of the Judicial Act, goes beyond previous adjudications, and is in conflict with them.” Fuetp, J., dissenting. Kohl v. U. S., 91 U. S. 379. “The proceeding to ascertain the value of property which the government may deem necessary to the execution of its powers, and thus the compensation to be made for its appropriation, is not a suit at common law' or in equity, but an inquisition for the as- certainment of a particular fact as pre- liminary to the taking; and all that is re- quired is that the proceeding shall be conducted in some fair and just mode, to be provided by law, either with or without the intervention of a jury, opportunity being af- forded to parties interested to present evi- dence as to the value of the property and to be heard thereon.” Frietp, J., dissenting. Kohl v. U. S., 91 U.S. 378. “The proceeding by the states, in the ex- ercise of their right of eminent domain, is often had before commissioners of assess- ment or special boards appointed for that purpose. It can hardly be doubted that Con- gress might provide for inquisition as to the value of property to be taken by similar instrumentalities; and yet, if the proceeding be a suit at common law, the intervention of a jury would be required by the Seventh Amendment to the Constitution.” Frexp, J., dissenting. Kohl v. U. S., 91 U. S. 379. Opportunity to Owner to Be Heard. “There is no doubt that, when land is proposed to be taken and devoted to the public service, or any serious burden is. laid upon it, the owner of the land must be given an opportunity to be heard with respect to the necessity of the taking, and the com- pensation to be paid by the city.” Brown, J. Carson v. Brockton Sewerage Commission, 182 U. S. 401. “When the inquiry is whether a state en- actment under which property is proposed to be taken for a public purpose accords full opportunity to the owner, at some stage of the proceedings involving his property, to be heard as to their regularity or validity, we must assume that the inferior courts and tribunals of the state will give effect to such enactment as interpreted by the highest court of that state.” Hartan, J. Lent v. Tillson, 140 U. S. 328. Determination of Compensation — Jury or Commissioners. “When private property is taken for pub- lic use, the owner receives full compensation. The taking differs from a sale by him only in that the transfer of title may be com- pelled, and the amount of compensation be determined by a jury or officers of the gov- ernment appointed for that purpose.” FIE.p, J. Mobile County v. Kimball, 102 U. S. 703. “Whether the estimate of damages and the assessment of benefits shall be entrusted to the same or to different commissioners, is a matter wholly within the decision of the legislature, as justice and convenience may appear to it to require. And there are many precedents for entrusting the performance of both duties to the same persons.” Gray, J. Bauman v. Ross, 167 U. S. 593. ——Common-law Jury Not Matter of Right. “Tt has been held that, in the absence of express constitutional provisions on the sub- ject, the owner of private property taken for public use cannot claim, as of right, that his compensation shall be ascertained by a com- mon law jury. The reason for this rule is, that before the establishment of the govern- ment of the United States it had been the practice in this country and in England to ascertain by commissioners, special tribunals and other like agencies, the compensation to be made to owners of private property taken for public use, and it was not to be sup- posed that the general provisions in Ameri- can constitutions, national and state, pre- serving the right of trial by jury, superseded that practice.” Haran, J. Chicago, etc., R. Co, v. Chicago, 166 U. S. 244. , “The Constitution of the United States does not forbid a trial of the question of the amount of compensation before an ordi- nary common law jury, or require, on the other hand, that it must be before such a jury. It is within the power of the state to provide that the amount shall be deter- mined in the first instance by commissioners, subject to an appeal to the courts for trial in the ordinary way; or it may provide that the question shall be settled by a sheriff’s jury, as it was constituted at common law, 660 EMINENT DOMAIN. without the presence of a trial judge. These are questions of procedure which do not enter into or form the basis of fundamental right. All that is essential is that in some appropriate way, before some properly consti- tuted tribunal, inquiry shall be made as to the amount of compensation, and when this has been provided there is that due process of law which is required by the federal Constitution.” Brewer, J. Backus v. Fort Street Union Depot Co., 169 U. S. 569. — Legislation Cannot Fix. “The legislature may determine what pri- vate property is needed for public purposes; 8 ct that is a question of a political and legislative character ; but when the taking has been ordered, then the question of compensa- tion is judicial. It does not rest with the public, taking the property, through Con- gress or the legislature, its representatives, to say what compensation shall be paid, or even what shall be the rule of compensation. The Constitution has declared that just com- pensation shall be paid, and the ascertainment of that is a judicial inquiry.” Brewer, J. Monongahela Nav. Co. v. U. S, 148 U. S. 327, “Tt is within the competency of the legis- lature to determine when and what property shall be taken for public uses. That question is one of policy over which the courts have no supervision; but if after determining that certain property shall be taken for public uses the legislature proceeds further, and de- clares that only a certain price shall be paid for it, then the owner may challenge the validity of that part of the act, may contend that his property is taken without due com- pensation; and the legislative determination of value does not preclude an investigation in the proper judicial tribunals. The same principle applies when vested rights of prop- erty are distributed by a legislative enact- ment in respect to rates.” Brewer, J. Chi- cago, etc., R. Co. v. Tompkins, 176 U. S. 173. “A corporation which has the power to condemn cannot fix the compensation. It would thus become a purchaser at its own price, without regard to the estimate of others as to the value of the property taken. Nor can the corporation appoint the ap- praisers of the property, for they would, in that case, be its agents, and as such dis- qualified. Relationship to the parties whose property is to be appropriated, or interest in the property, would disqualify the members of the tribunal as it would jurors before a court.” Fret, J., dissenting. Spring Val- ley Water Works v. Schottler, 110 U. S. 381. “The intention expressed by Congress, not to go beyond a certain aggregate expenditure, cannot be deemed a direction to the apprais- ers to keep within any given limit in valuing any particular piece of property. It is not unusual for Congress, in making appropria- tions for the erection of public buildings, including the purchase of sites, to name a sum beyond which expenditures shall not be made, but nobody ever thought that such a limitation had anything to do with what the owners of property should have a right to receive in case proceedings to condemn had to be resorted to.” Sutras, J. Shoe- maker v. U. S., 147 U. S. 302. Order Appointing Commissioners Not Final Judgment. “[TThe Supreme Court of North Carolina] has repeatedly held that an order appointing commissioners in condemnation proceedings is not a final judgment, nor subject to review until after the confirmation of the award of the commissioners.” Brewer, J. Southern R. Co, v. Postal Tel. Co., 179 U. S. 644. Description in Inquest. “TIn condemnation proceedings] if from the use of this term [appurtenances], con- nected with and explained by the other parts of the inquest, it clearly appeared to have been the intention of the jury to include the streets, it might be considered a part of, and explanatory of the description, and be car- rying into effect the intention of the jury.” Tuompson, J. Harris v. Elliott, 10 Pet. 53. Objection to Report of Jury or Commis- sioners. “Nothing is more common than the ap- pointment of juries and commissioners to find the value of lands taken for public use, or to assess damages to them whose findings are deemed final. Yet the evidence on which they act is not preserved, nor do the courts go into any inquiry into the various sources and’ grounds of judgment upon which the appraisers have proceeded. If there are charges of fraud or corruption, the courts may consider them; but it has never been held that the finality of their findings made the action of the appraisers unconstitutional or void.” Suiras, J. Louisville, etc., R. Co. v. Kentucky, 183 U. S. 515. “Objections are often made in the courts of law to the reports of commissioners of appraisement, upon application to set them aside, on the ground that the members have been improperly influenced by others, and have allowed their judgment to be warped 661 EMOTIONAL INSANITY. by solicitations, or by prejudice or partisan- ship, and when such objections have been sustained by proper proofs the reports have been adjudged invalid.” Frexp, J., dissenting. Spring Valley Water Works v. Schottler, 110 U. S. 382. Proceedings After Unauthorized Occupa- tion. “Prior occupation without authority of law would not preclude the company from taking subsequent measures authorized by law to condemn the land for their use. If the company occupied the land before con- demnation without the consent of the owners, and without any law authorizing it, they are liable in trespass to the persons who owned the land at the time.” Davis, J. Secombe v. Milwaukee, etc., R. Co., 23 Wall. 118. Action by Owner. “A railroad company authorized to acquire a right of way by such exercise of the right of eminent domain as the law prescribes, which undertakes to and does seize upon and invade, by its officers and servants, the land of a citizen, makes no compensation, and takes no steps for the appropriation of it, is a naked trespasser, and can be made re- sponsible for the tort. It had no authority to take the man’s land or to invade his premises. But if the governing board had directed the act, the corporation could be sued for the tort, in an action of ejectment, or in trespass, or on an implied assumpsit for the value of the land. A plea of ultra vires, in this case, would be no defense.” Miter, J. Salt Lake City v. Hollister, 118 U. S. 260. “Tf the statutory remedy [for obtaining compensation for land condemned] be incom- plete or imperfect, the owner is not thereby debarred from his common-law remedy and may recover his damages in an action of trespass or ejectment.”: Brown, J. Kau- kauna Co. wv. Green Bay, etc., Canal Co., 142 U. S. 280. —— Estoppel by Failure to Act. “A landowner who, knowing that a rail- road company has entered upon his land and is engaged in constructing its road with- out having complied with the statute in re- spect to condemnation, is estopped from thereafter maintaining either trespass or ejectment, but is limited to a recovery of compensation.” Brewer, J. U. S. wv. Lynah, 188 U. S. 467. “There is abundant authority fer the proposition that, while no man can be de- ' prived of his property, even in the exercise of the right of eminent domain, unless he is compensated therefor, yet that the prop- erty holder, if cognizant of the facts, may, by permitting a railroad company, without objection, to take possession of land, con- struct its track, and operate its road, pre- clude himself from a remedy by an action of ejectment. His remedy must be sought either in a suit in equity, or in a proceeding under the statute, if one be provided, regu- lating the appropriation of private property for railroad purposes.” Sutras, J. North- ern Pac. R. Co. v. Smith, 171 U. S. 271. — Equitable Interference. “Whenever the power of eminent do- main is about to be exercised without the compliance with the conditions upon which the authority for its exercise depends, courts of equity are not curious in analyzing the grounds upon which they rest their interposi- tion.” Furrer, C. J. Osborne v. Missouri Pac. R. Co., 147 U. S. 258. “Equitable jurisdiction may be invoked in view of the inadequacy of the legal remedy where the injury is destructive or of a con- tinuous character or irreparable in its na- ture; and the appropriation of private prop- erty to public use, under color of law, but in fact without authority, is such an in- vasion of private rights as may be assumed to be essentially irremediable, if, indeed, re- lief may not be awarded ex debito justitic. But where there is no direct taking of the estate itself, in whole or in part, and the injury complained of is the infliction of dam- age in respect to the complete enjoyment thereof, a court of equity must be satisfied that the threatened damage is substantial and the remedy at law in fact inadequate before its restraint will be laid upon the progress of a public work. And if the case made dis- closes only a legal right to recover damages rather than to demand compensation the court will decline to interfere.” FULLER, C. J. Osborne v. Missouri Pac. R. Co., 147 U. S. 258. Court Looks to Substance, Not to Form. “A court always looks to substance and not to mere forms. Mere forms are not of vital consequence in cases of condemnation.” Haran, J. Traction Co. v. Mining Co., 196 U. S. 254. EMOTIONAL INSANITY. See INSANE PERSONS, “Tt may not be amiss to notice that the case does not present the point of what is 662 EQUITY. called emotional insanity, or mania transi- toria, that is, the case of one in the posses- sion of his ordinary reasoning faculties, who allows his passions to convert him into a temporary maniac, and while in this condi- tion, commits the act in question.” Hunt, J. Mutual L. Ins. Co. v. Terry, 15 Wall. 583. EMPLOY. See CARRIERS. EMPLOYED. “To be ‘employed’ in any thing, means not only the act of doing it, but also to be engaged to do it; to be under contract or orders to do it.’ Taney, C. J. U. S. wu. Morris, 14 Pet. 475. EMPLOYEES. See OFFICERS OF PRIVATE CORPORATIONS. ENACTING CLAUSE. See Purview. ENEMY — ENEMIES. See War. ENEMY PROPERTY. See Capture, RECAPTURE, CONFISCATION, AND PRIZE. ENTERPRISE. See Miritary ENTERPRISE — Military Ex- PEDITION. ENTRY. “The term entry, as applied to appropria- tions of lands, was probably borrowed from the state of Virginia, in which we find it used in that sense at a very remote period. : It means that act by which an individual acquires an inceptive right to a portion of the unappropriated soil of the country, by filing his claim in the office of an officer known in the legislation of several states by the epithet of an entry-taker, and corre- sponding very much in his functions with the registers of land offices, under the Acts of the United States.” Jounson, J. Cho- tard v. Pope, 12 Wheat. 588. And see Pus- Lic Lanps; RicHT or Entry. ENTRY, RIGHT OF. See Ricut oF Entry. ENTRY, WRIT OF. “A mere intruder cannot enter on a person actually seized, and eject him, and then ques- tion his title, or set up an outstanding title in another. The maxim that the plaintiff must recover on the strength of his own title, and not on the weakness of the defendant’s, is applicable to all actions for the recovery of property. But if the plaintiff had actual prior possession of the land, this is strong enough to enable him to recover it from a mere trespasser, who entered without any title. He may do so by a writ of entry, where that remedy is still practised.” Cur- tis, J. Christy v. Scott, 14 How. 292. EQUITABLE ASSETS. “Ordinarily and strictly, the term equita- ble assets applies only to property and funds belonging to the estate of a decedent, which by law are not subject to the payment of debts, in the course of administration by the personal representatives, but which the testa- tor has voluntarily charged with the pay- ment of debts generally, or which, being non- existent at law, have been created in equity, under circumstances which fasten upon them such a trust.’ MatrHews, J. Freedman’s Sav., etc, Co. v. Earle, 110 U. S. 717. “To constitute equitable assets, the trust imposed by the party, or by the court, must be for the benefit of creditors generally.” MarttHews, J. Freedman’s Sav., etc., Co. v. Earle, 110 U. S. 718. EQUITY. I. PrinciPLes AND RULES OF EQuITY. 1. In General. 2. Forms Not Controlling. 3. Party Seeking Equity Must Do Equity. 4. Forfeitures Abhorred. 5. Fraud. 6. Unconscionable and Oppressive Con- tracts. 7. Laches. 8. Equity Acts in Personam. II. JurispDIcTION AND POWERS OF Courts oF Equity. 1. In General. 2. Adequate Remedy at Law. 3. Multiplicity of Suits. 4. Criminal Matters. III. Equiry PLEADING AND PRACTICE. 1. General Principles. 2. Bills in Equity. a. Nature and Kinds in General. b. Form and Sufficiency. c. Multifariousness. 668 EQUITY 3. Pleas. a. In General. b. In Abatement. c. In Bar. . Answers. . Exceptions. . Demurrers. . Amendments. . Relief and Decrees. . Granting Issues. . Verdict of Jury. 11. Parties. 12. Variance. 13. Rehearing and New Trial. ay SOHO MONAT PE CROSS-REFERENCES. See Courts; Egurraste Assets; EQuity oF REDEMPTION ; ForEcLOSURE OF MorTGAGES; Fraup ann Deceit; Injunctions: LACHES; MARSHALING AssETS; Mercuanics’ LIENs; Mistake; Mortcaces; Nuisances; PAt- ENTS; REFERENCES AND REFEREES; SPECIFIC PERFORMANCES. I, PRINCIPLES AND RULES OF EQUITY. 1. In GENERAL. Rules Are Fixed. “The rules of equity are as fixed as those of law, and this court can no more depart from the former than the latter.” Swayne, J. Wright v. Ellison, 1 Wall. 22. “A court of equity cannot, by avowing that there is a right but no remedy known to the law, create a remedy in violation of law, or even without the authority of law. It acts upon established principles not only, but through established channels.” Hunt, J. Rees v. Watertown, 19 Wall. 122. Equity Courts Are Bound by Statutory and Constitutional Requirements. “Courts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law. They are bound by positive provisions of a statute equally with courts of law, and where the transaction, or the contract, is declared void because not in compliance ‘with express statutory or constitutional provision, a court of equity cannot interpose to give validity to such transaction or contract, or any part thereof.” Jackson, J. Hedges wv. Dixon County, 150 U. S. 192. Softening Rigor of Law. “Though a court of law must decide ac- cording to the legal construction of the con- dition and call on the party for a strict performance, yet a court of equity acting on more liberal principles will soften the rigor of law, and though the party cannot show a legal compliance with the condition, if he can do it cy prés they will protect and save him from a forfeiture.” Batpwin, J. U. S. v. Arredondo, 6 Pet. 745. What Is Meant by Rules of Equity. “This court has often decided that by” these rules [the rules of equity] are meant the ‘well settled and established usages and principles of the court of chancery as adopted and recognized in their decisions, which have been acted on here, under the provisions of the Constitution and the Acts of Congress.” Batpwin, J. U.S. v. Arredondo, 6 Pet. 709. “The Distinction Between Law and Equity is recognized everywhere in the jurisprudence of the United States, and pre- vails (as this court has repeatedly decided) in the state of Louisiana, as well as in other states. Taney, C. J. U.S. v. King, 7 How. 846. “The separation of cases in law from those in equity, is a necessary incident of the common law; one part of the system cannot be engrafted on the civil law without the other; of consequence the introduction of the equity part of the common law into a state which has adopted the civil law, neces- sarily displaces it; and introduces a system of jurisprudence wholly at variance there- with.” Batpwin, J., dissenting. Livingston v. Story, 111 Pet. 394. “By the Constitution of the United States, and by the Acts of Congress or- ganizing the federal courts, and defining and investing the jurisdiction of these tribunals, the distinction between common-law and equity jurisdiction has been explicitly de- clared and carefully defined and established.” Daniel, J. Fenn v. Holme, 21 How. 484. “The Constitution of the United States, in creating and defining the judicial power of the general government, establishes this dis- tinction between law and equity; and a party who claims a legal title must proceed at law, and may undoubtedly proceed accord- ing to the forms of practice in such cases in the state court. But if the claim is an equitable one, he must proceed according to rules which this court has prescribed (under the authority of the Act of August 28rd, 1842), regulating proceedings in equity in the courts of the United States.” Taney, C. J. Bennett v. Butterworth, 11 How. 674. 664 EQUITY. Separation Peculiar to Great Britain. “Tt is true that the separation of com- mon-law from equity jurisdiction is peculiar to Great Britain; no other of the states of the Old World having adopted it.” JoHNson, J. Livingston v. Moore, 7 Pet. 547. In Code of Civil Law. “Tt is admitted that in the code of the civil law, there is no discrimination between the law and equity jurisdiction of its courts, either in the principles, or mode of proceed- ing; the process and rules of judgment are the same, without regard to the nature of the right asserted, or the remedy sought. This contradistinction exists only in the jurisprudence of England, and the states which have adopted it; nor can it exist else- where, unless the common law prevails.” Bapwin, J., dissenting. Livingston v. Story, 11 Pet. 393. “In the States Where No Courts of Chancery Are Established, courts of law, in giving relief, of necessity, trench upon an equitable jurisdiction.” McLean, J. Wat- kins v. Holman, 16 Pet. 59. Enforcement of Equitable Rights and Remedies in Legal Proceedings. “In most cases it is difficult to see any good reason why an equitable right should not be enforced or an equitable remedy ad- ministered in the same proceeding by which the legal rights of the parties are ad- judicated.” Braptry, J. Hornbuckle v. Toombs, 18 Wall. 654. Courts of Law and Equity Are Independ- ent. “Each [court of law and court of equity] is independent of the other. They act on different principles, and, except where some recognized ground of equity jurisdiction is concerned, are each alike bound to recog- nize the validity and conclusiveness of the record of what the other has done. Equity in such cases does not contradict, but sup- plements.” Swayne, J. Tilton v. Cofield, 93 UL. S. 16%. Gratuitous Gifts and Moral Obligations Not Enforced. “Tt may be conceded to have been held many times that courts of equity will not enforce a merely gratuitous gift or mere moral obligation.” Hunt, J. Adams v. Adams, 21 Wall. 191. Rights of Bona Fide Creditors. “Whatever may be the defects in the rights of a bona fide creditor at law, equity will protect him in their enjoyment, till they are lost at law; if his conscience is not so affected as to bring him within the juris- diction of a court of conscience, which does not administer legal remedies for legal rights.” BaLtpwin, J. Brent v. The Bank of Washington, 10 Pet. 613. Perversion of Trust Funds. “The interposition of equity is not neces- sary where a trust fund is perverted.” Swayng, J. U. S. wv. Boston State Nat. Bank, 96 U. S. 35. “Where Money Has Been Misappropri- ated, the general rule of equity is, that those wronged may pursue it as far as it can be traced, and may elect to take the property in which it has been invested, or to recover the money.” Swayne, J. Smith v. Vodges, 92 U. S. 186. Assertion of Legal Right Contrary to Jus- tice. “Nor will it [a court of equity] give its aid in the assertion of a mere legal right contrary to the clear equity and justice of the case.” Swayne, J. Jones v. New York Guaranty; etc., Co., 101 U. S. 628. Technicalities. “Tt would not be tolerable for a court administering equity to seize upon a technicality for the purpose or with the re- sult of entrapping either of the parties be- fore it.” Brewer, J. Reagan wv. Farmers’ L. & T. Co., 154 U. S. 401. “The Holder of a Legal Title in Bad ‘Faith must always yield to a superior equity.” Watte, C. J. Widdicombe v. Chil- ders, 124 U. S. 405. Supplying Defects in Law. “Tt is the very office of the principle of equity to supply defects in the law, and it is not to be regarded as anomalous that the technical law should, in the course of its necessary development, incorporate into its own organization, improvements in proce- dure, first introduced as equitable remedies. It is this very capacity of parallel growth that constitutes and perpetuates the har- monious coexistence of the two departments of our jurisprudence. Its history furnishes many examples and illustrations of this tend- ency and of its results.” Mattruews, J. Ex p. Boyd, 105 U. S. 658. Expansion of Equitable Remedies. “In the increasing complexities of modern business relations equitable remedies have 665 EQUITY. necessarily and steadily been expanded, and no inflexible rule has been permitted to cir- eumscribe them.” FuLier, C. J. Union Pac. R. Co. v. Chicago, etc., R. Co., 163 U. S. 600. Fraud and Mistake. “Courts of equity grant relief in cases of fraud and mistake, which cannot be obtained in courts of law. In such cases, a court of equity may carry the intention of the par- ties into execution, where the written agree- ment fails to express that intention.” Mar- SHALL, C. J. Hunt v. Rousmanier, 8 Wheat. 211. Time as Essential Element of Contract. “Tt must affirmatively appear that the par- ties regarded time or place as an essential element in their agreement, or a court of equity will not so regard it.” CAMPBELL, J. Secombe v. Steele, 20 How. 104. “The Equities Being Equal the law must prevail.” Catron, J. Judson wv. Corcoran, 17 How. 614. That Considered as Done Which Should Be Done. “Courts of equity in proper cases consider that as done which should be. If there ex- ists an obligation to convey at once, such court will oftentimes proceed as if it had actually been made.” Warts, C. J. Little- field v. Perry, 21 Wall. 227. Relief Against Public Convenience. “A court of equity is never active in re- lief against public convenience.” Brewer, J. New York City v. Pine, 185 U. S. 99. 2. Forms Not CoNntTROLLING. “Equity Looks Through Forms to sub- stance.” CHasz, C. J. Texas uv. Harden- berg, 10 Wall. 89. “Equity regards substance and not form, and considers that as done which is re- quired to be done.” Swayne, J. Cropley v. Cooper, 19 Wall. 174. “Courts of equity are not to be misled by mere devices, nor baffled by mere forms.” Harwan, J. White v. Cotzhausen, 129 U. S. 344, “ Equity regards the substance and not the form. The rights of parties are not to be sacrificed to the mere letter, and whether the language used was reversed, modified, or affirmed in part and reversed in part, is im- material. Equity looks beyond these words of description to see what in fact was ordered to be done.” Brewer, J. Kneeland v. Amer- ican L. & T. Co., 188 U. S. 511. “A court of equity, regarding the sub- stance, and not the mere forms and circum- stances of agreements and other instruments, considers things directed or agreed to be done, as having been actually performed, where nothing has intervened which ought to prevent a performance. This qualification of the more concise and general rule, that equity considers that to be done which is agreed to be done, which comprehend the cases which come under this head of equity.” WasHincTon, J. Craig v. Leslie, 3 Wheat. 578. “The true and intrinsic character of pro- ceedings, as well in courts of law as im pais, is alike subject to the scrutiny of a court of equity, which will probe, and either sus- tain or annul them, according to their real character, and as the ends of justice may require.” Daniet, J. Byers v. Surget, 19 How. 308. Goes Behind Writings. “Tt is a peculiar excellence in chancery, on many occasions, that it goes behind writ- ings, and even sealed instruments and judg- ments, to ascertain how the original transac- tion stood, and what were its true obligations, in order to enforce them.” Woovsury, J., dissenting. U. S. wv. Price, 9 How. 102. : 8. Party SEEKING Eguiry Must Do Eguity. The General Rule. “He who seeks equity must do equity.” Brewer, J. New York City uv. Pine, 185 U. S. 107. Brown, J., dissenting. Schuyler Nat. Bank v. Gadsden, 191 U. S. 461. “He who seeks equity should do equity, is a maxim in equity jurisprudence.” CLiIF- ForD, J. Hager v. Thomson, 1 Black 93. “Qne who seeks equity must do equity.” Harzan, J. U.S. uv. Trinidad Coal Co., 137 U.S. 171. “Tt is a maxim in equity that he who seeks equity must do equity, and as applied to proceedings to restrain the collection of taxes, that the party invoking the aid of a court of equity must allege and prove pay- ment, or an offer to pay such portion of the taxes or assessment as is properly chargeable upon the property. This proposition has been iterated and reiterated in many cases.” Brewer, J., dissenting. Norwood v. Baker, 172 U. S. 300. 666 EQUITY. “The Doctrine of Election rests upon the principle that he who seeks equity must do it, and means, as the term is ordinarily used, that where two inconsistent or alterna- tive rights or claims are presented to the choice of a party, by a person who manifests the clear intention that he should not enjoy both, then he must accept or reject one or the other; and so, in other words, that one can- not take a benefit under an instrument and then repudiate it.” Bain, 133 U. S. 695. Good Faith. “Tt is a principle in chancery, that he who asks relief must have acted in good faith. The equitable powers of this court can never be exerted in behalf of one who has acted fraudulently, or who by deceit or any unfair means has gained an advantage. To aid a party in such a case would make this court the abettor of iniquity.” McLean, J. Bein v. Heath, 6 How. 247. “Generally, when a party obtains an ad- vantage by fraud, he is to be regarded as the trustee of the party defrauded, and com- pelled to account. But if a party seeks re- lief in equity, he must be able to show that in his part there has been honesty and fair dealing. If he has been engaged in an ille- gal business and been cheated, equity will not help him.” Davis, J. Wheeler v. Sage, 1 Wall. 529. 4, FoRFEITURES ABHORRED. “A court of equity abhors forfeitures, and will not lend its aid to enforce them.” Swayne, J. Jones v. New York Guaranty, etc., Co., 101 U. S. 628. “A court of equity is always reluctant in the last degree to make a decree which will effect a forfeiture.” Swayne, J. Union Nat. Bank v. Matthews, 98 U. S. 626. “Equity never, under any circumstances, lends its aid to enforce a forfeiture or pen- alty, or anything in the nature of either.” SwayneE, J. Marshall v. Vicksburg, 15 Wall. 149. “Penalties are not favored in equity, and seldom will a chancellor enforce penalties in favor of a party who does not ask for them.” Brewer, J. U. S. Trust Co. v. New Mex- ico, 183 U. S. 543. “Whether a particular stipulation to pay a sum of money is to be treated as a penalty, or as an agreed ascertainment of damages, is to be determined by the contract, fairly Futter, C. J. Peters v. construed, it being the duty of the court always, where the damages are uncertain and have been liquidated by an agreement, to en- force the contract.” Wuute, J. Sun Print- ing, etc., Assoc. v. Moore, 183 U, S. 662. “The courts in England con- sistently maintain the right of individuals, when contracting with each other, to estimate the value of property or otherwise determine the quantum of damages for a breach of an agreement, where the damage is of an uncer- tain nature.” Whur, J. Sun Printing, etc., Assoc. v. Moore, 183 U. S. 664. “The hardships of a particular case would not justify this tribunal in prostrating the fundamental rules of a court of chancery — rules which have been established for ages, on the soundest and clearest principles of general utility.” Marsuatt, C. J. Crocket v. Lee, 7 Wheat. 527. 5. FRAUD. “The rule in equity is very broad to pre- vent a fraud, which would exist if one was permitted ‘to derive a benefit from his own breach of duty and obligation.’” Woop- Bury, J. Carpenter v. Providence Wash- ington Ins. Co., 4 How. 223. “Parties are not only bound to act fairly in their dealings with each other, but they are not to expect the aid of a court of equity to enforce an agreement made with the intent that it shall operate as a fraud upon the private rights and interests of third persons.” CLIFFoRD, J. Selz uv. Unna, 6 Wall. 336. “A court administering justice upon prin- ciples of equity will not lend its aid to en- force the fulfilment of a contract in favor of a party to it, which is founded in fraud. 3 In such cases, the court leaves both parties where the law finds them, giving no relief or countenance to claims of this de- scription.” Netson, J. Carrington v. Pratt, 18 How. 66. 6. UNCONSCIONABLE AND OPPRESSIVE CoNnTRACTS. “To stay the arm of a court of equity from enforcing a contract it is by no means neces- sary to prove that it is invalid; from time to time immemorial it has been the recog- nized duty of such courts to exercise a discretion; to refuse their aid in the enforce- ment of unconscionable, oppressive or in- iquitous contracts; and to turn the party claiming the benefit of such contract over to 667 EQUITY. a court of law.” Brown, J. Pope M’f’g Co. v. Gormully, 144 U. S. 236. “A court of equity will not lend its aid to an illegal or unconscionable bargain.” Jounson, J. De Wolf v. Johnson, 10 Wheat. 392. “Equity declines to grant relief because of inadequacy of price, or any other inequality in the bargain; the bargain must be so un- conscionable as to warrant the presumption of fraud, imposition or undue influence.” Wuirte, J. Sun Printing, etc, Assoc. v. Moore, 183 U. S. 661. “The strong ground against enforcing a contract, where the consideration is so in- adequate as to render it a hard bargain, and an unequal and unreasonable bargain, is that, if a court of equity acts at all, it must act ex vigore, and carry the contract into ex- ecution with unmitigated severity; whereas, if the party be sent to law, to submit his case to a jury, relief can be afforded in damages, with a moderation agreeable to equity and good conscience, and when the claims and pretensions of each party can be duly attended to, and be permitted to govern the assessment.” NeEtson, J., dissenting. Erwin v. Parham, 12 How. 207. “Tnadequacy of consideration is not of’ itself a distinct principle of equity. The common law knows no such principle. The consideration, be it more or less, supports the contract. Common sense knows no such principle. The value of a thing is what it will produce, and it admits of no precise standard. One man, in the disposal of his property, may sell it for less than another would. If courts of equity were to unravel all these transactions, they would throw every thing into confusion, and set afloat the contracts of mankind.” Dawntet, J. Eyre v. Potter, 15 How. 60. %. LACHES. “Courts of equity do not assist those whose condition is attributable only to want of due diligence, nor lend their aid to par- ties, who, having had a plain, adequate, and complete remedy at law, have purposely omitted to avail themselves of it.” Curtis, J. Hendrickson v. Hinckley, 17 How. 446. “Unreasonable delay in bringing a suit is always a serious objection to relief in equity.” CzirrorD, J. McLean v. Fleming, 96 U. S. 251. “A court of equity will not undertake, any more than a court of law, to relieve a party from the consequences of his own inatten- tion and carelessness.” FieLp, J. Slaughter v. Gerson, 13 Wall. 383. 8. Equiry Acts IN PERSONAM. “The court of chancery ordinarily acts in personam.’ CAMPBELL, J. Secombe vw. Steele, 20 How. 106. “ Generally, if not universally, equity juris- diction is exercised i personam, and not in rem, and depends upon the control of the court over the parties, by reason of their presence or residence, and not upon the place where the land lies in regard to which relief is sought.” Gray, J. Hart v. Sansom, 110 U.S. 154. “A suit in equity is not a proceeding ta rem properly so-called. It does not pur- port to summon or invite, by notice or other- wise, all the world to come in, so far as there are any adverse interests. It is more personal even than the common law, and works out its decrees by orders to the de- fendants. Of course, the adjudication in such a suit does not conclude strangers.” Hotes, J. Pardee v. Aldridge, 189 U. S. 433. “Tt is here undoubtedly a recognized doc- trine that a court of equity, sitting in a state and having jurisdiction of the person, may decree a conveyance by him of land in an- other state, and may enforce the decree by process against the defendant. True, it can- not send its process into that other state, nor can it deliver possession of land in another jurisdiction, but it can command and en- force a transfer of the title. And there seems to be no reason why it cannot, in a proper case, effect the transfer by the agency of the trustees when they are complainants.” Srronc, J. Muller v. Dows, 94 U. S. 449. “The principles of equity give a court jurisdiction wherever the person may be found, ‘and the circumstance, that a question of title may be involved in the inquiry, and may even constitute the essential point on which the case depends, does not seem suf- ficient to arrest that jurisdiction.” Mar- SHALL, C. J. Massie v. Watts, 6 Cranch 158. “In a case of fraud, of trust, or of con- tract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of 668 EQUITY. that eourt may be affected by the decree.” Marsuatt, C. J. Massie wv. Watts, 6 Cranch 160. Il. JURISDICTION AND POWERS OF COURTS OF EQUITY. 1. In GENERAL. Necessary Part of Common Law. “ The jurisdiction of courts of equity, sepa- rately from those of common law, is a necessary part of the common law; though the forms of proceeding are borrowed from the civil law, yet the principles and rules of decision are those of the law of England, by which the judge is as much bound as in a court of law.” Batpwin, J., dissenting. Livingston v. Story, 11 Pet. 394. “The Great Advantage Possessed by the Court of Chancery is not so much in its en- larged jurisdiction as in the extent and adaptability of its remedial powers. Gener- ally its jurisdiction is as well defined and limited as is that of a court of law. It cannot exercise jurisdiction when there is an adequate and complete remedy at law. It cannot assume control over that large class of obligations called imperfect obligations, resting upon conscience and moral duty only, unconnected with legal obligations.” Hunt, J. Rees v. Watertown, 19 Wall. 121. Jurisdiction Depends on Legal Obliga- tions. “Generally its [a court of chancery’s] jurisdiction depends upon legal obligations, and its decrees can only enforce remedies to the extent and in the mode by law estab- lished. With the subjects of fraud, trust, or accident, when properly before it, it can deal more completely than can a court of law. These subjects, however, may arise in courts of law, and there be well disposed of.” Hunt, J. Rees v, Watertown, 19 Wall. 121. Inherent, Original, and Statutory Jurisdic- tion. “Jurisdiction in chancery is inherent and original, comprehending now almost every exigency of human disagreement, for which there is not an adequate remedy at law. Or it is statutory, meaning a new power from legislation for the court to act upon particu- lar subjects of a like kind, as occasions for doing so may occur. Examples. of this statutory jurisdiction are the 43d Elizabeth, called the Statute of Charities. The act known as Sir Samuel Romilly’s, giving a summary remedy in case of breach of trust 669 for charitable uses. And another is the trus- tee act of Sir Edward Sugden, for amend- ing the laws respecting conveyances and transfers of estates and ftinds vested in trus- tees and mortgagees, and for enabling the courts of equity to give full effect to their decrees and orders in certain cases. Or, the jurisdiction in equity extraordinary, as when a statute permits persons to present petitions to the chancellor for relief in private affairs, when the petitioner cannot get relief by the ordinary course of law, or from the in- herent power of a court of chancery.” Wayne, J. Williamson v. Berry, 8 How. 536. “The jurisdiction exercised by a court of chancery is not granted by statute; it is assumed by itself; and what can justify that assumption but the opinion that cases of this description come within the sphere of its general action?” MarsHaAtt, C. J. Bodley v. Taylor, 5 Cranch 222. Relation Between Debtors and Creditors. “The authorities are clear, that chancery will not interfere to prevent an insolvent debtor from alienating his property to avoid an existing or prospective debt, even where there is a suit pending to establish it.” CAMPBELL, J. Adler v. Fenton, 24 How. 410. “Unquestionably, the claims of morality and justice, as well as the legitimate interests of creditors, require there should be pro- tection against those acts of an insolvent or dishonest debtor that are contrary to the ‘prescriptions of law, and are unfaithful and injurious. But the legislature must deter- mine upon the remedies appropriate for this end; and the difficulty of the subject is evinced by the diversity in the systems of different states for adjusting the relations of creditor and debtor, consistently with equity and humanity. Bankrupt and insol- vent laws, laws allowing of attachment and sequestration of the debtor’s estate, and for the revocation of fraudulent conveyances, creditors’ bills, and criminal prosecutions for fraud or conspiracy, are some of the modes that have been adopted for the purpose.” CampseLt, J. Adler v. Fenton, 24 How. 412. Reasonable Diligence to Recover Debt. “Tt is the established rule, in a court of equity, that the creditor who claims its aid must show that he has used reasonable dili- gence to recover his debt, and that the diffi- culties in his way at law have not been occa- sioned by his own neglect. A delay of twenty years is considered an absolute bar EQUITY. in a court of equity, unless it is satisfactorily accounted for.” Taney, C. J. Maxwell v. Kennedy, 8 How. 221. Necessity for Putting Demand into Judg- ment. “Ordinarily, a creditor must put his de- mand into judgment against his debtor and exhaust his remedies at law before he can proceed in equity to subject choses in action to its payment. To this rule, however, there are some exceptions.” Waite, C. J. Terry v. Anderson, 95 U. S. 636. “Tn all cases where a court of equity in- terferes to aid the enforcement of a remedy at law, there must be an acknowledged debt, or one established by a judgment rendered, accompanied by a right to the appropriation of the property of the debtor for its pay- ment, or, to speak with greater accuracy, there must be, in addition to such acknowl- edged or established debt, an interest in the property or a lien thereon created by con- tract or by some distinct legal proceeding.” Fietp, J. Scott v. Neely, 140 U. S. 113. Judgment Creditors, “A court of equity exercises its jurisdic- tion in favor of a judgment creditor only when the remedy afforded him at law is in- effectual to reach the property of the debtor, or the enforcement of the legal remedy is obstructed by some incumbrance upon the debtor’s property, or some fraudulent trans- fer of it.” Fretp, J. Jones v. Green, 1 Wall. 332. “Tt is within the general jurisdiction of a court of chancery to assist a judgment cred- itor to reach and apply to the payment of his debt any property of the judgment debtor, which by reason of its nature only, and not by reason of any positive rule exempting it from liability for debt, cannot be taken on execution at law; as in the case of trust property in which the judgment debtor has the entire beneficial interest, of shares in a corporation, or of choses in action.” Gray, J. Ager v. Murray, 105 U. S. 129. Previous Intervention of Court of Law. “There are cases in which a court of equity will take jurisdiction and give a com- plete remedy without the previous interven- tion of a court of law.” Swayne, J. Par- ker v. Winnipiseogee Lake Cotton, etc., Co., 2 Black 553. Particular Instances of Equitable Jurisdic- tion. “TA court of equity] will give its aid to prevent oppressive and interminable litigation, or a multiplicity of suits, or where the injury is of such a nature that it cannot be adequately compensated by damages at law, or is such, as from its continuance or permanent mischief, must occasion a con- stantly recurring grievance, which cannot be prevented otherwise than by an injunction.” Swayne, J. Parker v. Winnipiseogee Lake Cotton, etc., Co., 2 Black 551. Accident and Mistake. “The power [of a court of equity] extends also to cases of accident and mistake. But such relief is never given upon any ground of which the complainant, with proper care and diligence, could have availed himself in the proceeding at law. In all such cases he must be without fault or negligence. If he be not within this category, the power invoked will refuse to interfere, and will leave the parties where it finds them.” Swayne, J. Brown v. Buena Vista County, 95 U. S. 159. Frauds. “The law is undoubted, that our jurisdic- tion in equity extends over frauds generally.” Woovsury, J. Davis v. Tileston, 6 How. 120. Irreparable Injury. “A court of equity will interfere when the injury by the wrongful act of the adverse party will be irreparable, as where the loss of health, the loss of trade, the destruction of the means of subsistence, or the ruin of the property must ensue.” Swayne, J. Parker v. Winnipiseogee Lake Cotton, etc., Co., 2 Black 551. Just, But Imperfect, Legal Title. “Equity may be invoked to aid in the com- pletion of a just but imperfect legal title, or to prevent the successful assertion of an unconscientious and incofnplete legal advan- tage; but to abrogate or to assail a perfect and independent legal right, it can have no pretension. In all such instances, equity must follow, or in other words, be subordi- nate to the law.” Danger, J. Magniac wv. Thomson, 15 How. 302. Enforcement of Part of Contract. “Tt is certain that equity will not inter- fere to enforce part of a contract, unless that part is clearly severable from the re- mainder.” Stronc, J. Rutland Marble Co. v. Ripley, 10 Wall. 359. Beneficial Interests, “{In cases of trusts] the legal title, in the eye of the law, carries with it, to the holder, absolute dominion; but behind it lie benefi- 670 EQUITY. \ cial rights and interests in the same property belonging to another. These rights, to the extent to which they exist, are a charge upon the property, and constitute an equity which a court of equity will protect and enforce whenever its aid for that purpose is properly invoked.” Swayne, J. Seymour wv. Freer, 8 Wall. 213. Preservation of Property Pending Legal Proceedings. “Tt is now a common practice in cases where irremediable mischief is being done or threatened, going to the destruction of the substance of the estate, such as the ex- tracting of ores from a mine, or the cutting down of timber, or the removal of coal, to issue an injunction, though the title to the premises be in litigation. The authority of the court is exercised in such cases, through its preventive writ, to preserve the property from destruction pending legal pro- ceedings for the determination of the title.” Fretp, J. Erhardt v. Boaro, 113 U. S. 539. are executed by mistake or inadvertence of Deeds Executed by Mistake or Inadvert- ence. “Relief, when deeds or other instruments agents, as well as upon false suggestions, is a common head of equity jurisdiction.” Fieip, J. Hughes v. U. S., 4 Wall. 236. May Compel Execution of Agreement, But Cannot Make Agreements. “Courts of equity may compel parties to execute their agreements, but have no power to make agreements for them.’ Woops, J. Baltzer v. Raleigh, etc., R. Co., 115 U. S. 647. “Courts of equity may compel parties to execute their agreements, but they have no power to make agreements or to alter those which have been understandingly made; and the same rule applies to judgments duly and regularly rendered and in full force.” Cx1F- ForD, J. U.S. v. Ames, 99 U. S. 46. “An Element of Trust always confers jurisdiction in equity.” Swayne, J. Oelrichs v. Spain, 15 Wall. 228. Enforcing Decrees. “Amongst the original and undoubted powers of a court of equity is that of enter- taining a bill filed for enforcing and carrying into effect a decree of the same, or of a dif- ferent court, as the exigencies of the case, or the interests of the parties may require.” DantEL, J. Shields v. Thomas, 18 How. 262. Where Contract Should Not in Conscience Bind Party. “Generally speaking, a court of law is competent to afford an adequate remedy to either party, for a breach of the contract by the other, from whatever cause it may have proceeded; and whenever this is the case, a resort to a court of equity is impropet. But if the contract ought not, in conscience, to bind one of the parties, as if he had acted under a mistake, or was imposed upon by the other party, or the like, a court of equity will interpose and afford a relief, which a court of common law cannot, by setting aside the contract; and having thus obtained juris- diction of the principal question, that court will proceed to make such other decree as the justice and equity of the case may re- quire.” Wasurncton, J. Hepburn v. Dun- lop & Co., 1 Wheat. 197. Prevention of Injury. “Tt is one of the most beneficial powers of a court of equity to interpose and prevent an injury, before any has actually been suf- fered; and this is done by a bill, which is sometimes called a bill quia timet.” Tomp- son, J., dissenting. Cherokee Nation vw. Georgia, 5 Pet. 78. Right Clearly Defined by Law. “Wherever the rights or the situation of parties are clearly defined and established by law, equity has no power to change or un- settle those rights or that situation, but in all such instances the maxim equitas sequitur legem is strictly applicable.” DanteEL, J. Magniac v. Thomson, 15 How. 299. “A Court of Equity Will Not Stop Half- way in the Investigation of a Fraud which is quite apparent, to give one of the parties to it affirmative relief at the expense of the other. In such cases better is the condition of the defendant.” Mitier, J. Walker vw. Reister, 102 U. S. 471. “Interests in Real Estate, Purely Con- tingent, may be made the subjects of con- tract and equitable cognizance, as between the proper parties.” Swayne, J. Seymour vw. Freer, 8 Wall. 214. Offensive Conduct of Plaintiff. “A court of equity acts only when and as conscience commands, and if the conduct of the plaintiff be offensive to the dictates of natural justice, then, whatever may be the rights he possesses and whatever use he may make of them in a court of law, he will be held remediless in a court of equity.” 671 EQUITY. Brewer, J. Deweese v. Reinhard, 165 U. S. 390. Former Doctrine as to Trespasses — Title in Dispute. “Tt was formerly the doctrine of equity, in cases of alleged trespass on land, not to restrain the use and enjoyment of the prem- ises by the defendant when the title was in dispute, but to leave the complaining party to his remedy at law. A controversy as to the title was deemed sufficient to exclude the jurisdiction of the court.” Fiep, J. Erhardt v. Boaro, 113 U. S. 538. Determining Jurisdiction — Test. “In determining whether a court of equity can take jurisdiction, one of the first ques- tions is what it can do to enforce any order that it may make.” Hotmes, J. Giles v. Harris, 189 U. S. 487. Political Wrongs. “The traditional limits of proceedings in equity have not embraced a remedy for po- litical wrongs.” Hotes, J. Giles v. Har- ris, 189 U. S. 486. Limitation Governing Equity. “Where there is a concurrent jurisdiction in the courts of common law and in courts of equity, the limitation prescribed by the court of law shall govern the court of equity.” Miter, J. Clarke v. Boorman, 18 Wall. 505. “In a Joint Loan or Other Transaction, if the obligation taken be in terms joint only, and not agreed in the writing or otherwise to be several, equity will still enforce it in many cases against the estate of either alone.” Woopsury, J., dissenting. U. S. v. Price, 9 How. 103. “Where the obligors acted as partners in business, and there, though the promise is in form only joint, a court of equity will charge the estate of the deceased partner in'a bill against the executor or administrator.” Woopzury, J., dissenting. U. S. v. Price, 9 How. 103. “Tt is placed beyond doubt, that courts of equity will give relief, though the contract produced is on its face joint, if it be proved that it was originally agreed to be joint and several, and by mistake or ignorance was written joint alone.” Woopsury, J., dissent- ing. U. S. v. Price, 9 How. 98. “When an obligee takes a joint and several obnd, he has nothing to ask of equity; his remedy is wholly at law. If he elects to take a joint judgment, he voluntarily repudiates the several contract, and is certainly in no better situation than if he had originally taken a joint security only; equity gives re- lief, not on the bond, for that is complete at law, but on the moral obligation antecedent to the bond, when the creditor could have had no remedy at law.” Grier, J. U.S. v. Price, 9 How. 95. Ejectment — Prevention of Litigation. “Although it is true that in the practice of the English courfs, and in those states of the Union where the fictitious action of ejectment is still in use, chancery will inter- fere where there have been repeated verdicts in favor of the same title to prevent further litigation, it is not true that chancery will interpose in favor of the unsuccessful party in the first trial, upon the sole ground that he has the legal title, and, therefore, ought to have succeeded in the action at law. It would be a novelty that a court of chancery, which in proper cases quiets a title which has been established by several verdicts and judg- ments at law, should reverse its course of action to quiet a title strictly legal, with no impediment to its assertion in a court of law, where it had been defeated in the only action in which it had been thus set up.” MuILteEr, J. Miles vw. Caldwell, 2 Wall. 39. “Something More than the Absence of Legal Title Is Necessary to call into action the processes of a court of equity. The right, whatever it may be and from whatever source derived, must be not only one not protected by legal title, but in and of itself appealing to the conscience of the chancellor.” BREWER, J. Deweese v. Reinhard, 165 U. S. 390. Line Between Equitable and Common-law Jurisdiction Must Be Maintained. “The well-established principle of the fed- eral courts [is] that the line between the equitable and the common-law jurisdiction must be maintained, and that a suit must be of the one character or the other, and be prosecuted by pleadings and processes be- longing to each class of jurisdiction.” Mu- LER, J. Heine v. Levee Com’rs, 19 Wall. 660. Concurrent Jurisdiction. “The law is well settled that where title to real property is concerned equity has con- current jurisdiction [in proceedings by a creditor to set aside a fraudulent convey- ance], because it may not only enjoin an action at law, but may alter a cancellation of the fraudulent conveyance, and prohibit the 672 EQUITY. bringing of further suits at law upon the fraudulent title, and thus afford a more com- plete relief than is possible in a court of law.” Brown, J. Wehrman wv. Conklin, 155 U. S. 328. “Where a court of equity, in a case of concurrent jurisdiction, to try a cause, al- ready tried at law, without the addition of any equitable circumstance to give jurisdic- tion, it would act as an appellate court, to affirm or reverse a judgment already ren- dered, on the same circumstances, by a com- petent tribunal. This is not the province of a court of chancery.” MarsHaut, C. J, Smith v. M’Iver, 9 Wheat. 535. Dispute About Title or Legal Rights. “The ordinary rule [is] that courts of equity will not act where there is a dispute about the title or the extent of the legal rights of the parties, until there has been a trial at law.” Sutras, J. Texas, etc, R. Co. v. Interstate Transp. Co., 155 U. S. 589. Exercise of Jurisdiction on Equitable Prin- ciples. “Tn all cases in which a court of equity takes jurisdiction, it will exercise that juris- diction upon its own principles. It is be- lieved that no exception to this rule is to be found in the books.” MarsHALL, C. J. Bod- ley v. Taylor, 5 Cranch 222, Character of Questions Involved. “Tt is not an objection to the jurisdiction of equity that legal questions are presented for consideration which might also arise in a court of law. If the controversy be one in which a court of equity only can afford the relief prayed for, its jurisdiction is un- affected by the character of the questions involved.” Friecp, J. Holland v. Challen, 110 U. S. 25. Forfeiture for Breach of Covenants. “Tt has been uniformly held, in cases too numerous for citation, that courts of equity will not interfere in cases of for- feiture for the breach of covenants and con- ditions where there cannot be any just com- pensation decreed for the breach.” Mar- THEws, J. Clark v. Barnard, 108 U. S. 456. “Where Any Penalty or Forfeiture Is Imposed by Statute upon the doing or omission of a certain act, there courts of equity will not interfere to mitigate the pen- alty or forfeiture if incurred, for it would be in contravention of the direct expression of the legislative will.” Matruews, J. Clark v. Barnard, 108 U. S. 457. 1 Os. Dic—43 673 Recovery of Possession, “Equity in such cases [to recover posses- sion} has no jurisdiction, unless its aid is required to remove obstacles which prevent a successful resort to an action of ejectment, or when, after repeated actions at law, its jurisdiction is invoked to prevent a multi- plicity of suits, or there are other specific equitable grounds for relief.” MatrHews, J. U. S. v. Wilson, 118 U. S. 89. Recovery of Money as Damages. “Tn cases of fraud or mistake, as under any other head of chancery jurisdiction, a court of the United States will not sustain a bill in equity to obtain only a decree for the payment of money by way of damages, when the like amount can be recovered at law in an action sounding in tort or for money had and received.” Gray, J. Buzard v. Hous- ton, 119 U. S. 352. Denying Due Process of Law. “Tt may be conceded that courts of equity are always open to afford a remedy where there is an attempt, under the guise of legal proceedings, to deprive a person of his life, liberty or property, without due process of law.” Sutras, J. French wv. Barber Asphalt Paving Co., 181 U. S. 345. Matters Purely Cognizable at Law. “The court, for its own protection, may prevent matters purely cognizable at law from being drawn into chancery, at the pleas- ure of the parties interested.” Futter, C. J. Reynes v. Dumont, 130 U. S. 395. Security in Admiralty Ineffectual. “ Relief in equity will not be granted mere- ly because a security in an admiralty suit becomes ineffectual, if it appears that it be- came so without fraud, misrepresentation, or accident, which might have been prevented by due diligence.” Ctirrorp, J. U. S. v. Ames, 99 U. S. 47. Defeat of Jurisdiction Once Attached. “Equitable jurisdiction having once right- fully attached, cannot be defeated by matter subsequently arising which does not go to the merits of the complainant’s case. The state of fact existing when the bill was filed must be looked to in determining the ques- tion of equitable jurisdiction.” Jackson, J. North Chicago Rolling Mill Co. v. St. Louis Ore, etc., Co., 152 U. S. 612. Inspections of Property. “Courts of equity have, in the exercise of their inherent powers, been in the habit of otdering inspections of property, as of re- EQUITY. quiring the production of books and papers; this power on the part of such courts has never been denied.” Brewer, J. Mon- tana Co. v. St. Louis Min., etc., Co., 152 U. S. 172. “Inspection orders . have been fre- quently made, sometimes under the authority of special statutes and sometimes by virtue of the general powers of a court of equity.” Brewer, J. Montana Co. v. St. Louis Min, etc., Co., 152 U. S. 165. Title and Possession of Real Estate. “It is undoubtedly true that a court of equity will not ordinarily entertain a bill solely for the purpose of establishing the title of a party to real estate, or for the re- covery of possession thereof, as these objects can generally be accomplished by an action of ejectment at law.” Jackson, J. Root v. Woolworth, 150 U. S. 410. “The determination of the title to real estate is within the scope of the general jurisdiction of a court of equity.” BREWER, J. Beyer v. LeFevre, 186 U. S. 118. Negligence and Folly. “Courts of equity are not established to relieve parties from the consequences of their own negligence or folly.” Woops, J. Dun- phy v. Ryan, 116 U. S. 498. Negligent Ignorance of Facts. “ Where there is neither accident nor mis- take, misrepresentation nor fraud, there is no jurisdiction in equity to afford relief to a party who has lost his remedy at law through mere ignorance of a fact, the knowl- edge of which might have been obtained by due diligence and inquiry, or by a bill of discovery.” CLiFForD, J. U. S. v. Ames, 99 U. S. 4%. Compelling Disclosures. “Tt is true that if certain facts, essential to the merits of a claim purely legal, be ex- clusively within the knowledge of the party against whom that claim is asserted, he may be required, in a court of chancery, to dis- close those facts, and the court, being thus rightly in possession of the cause, will pro- ceed to determine the whole matter in con- troversy. But this rule cannot be abused by being employed as a mere pretext for bring- ing causes, proper for a court of* law, into a court of equity.” MarsHaAL., C. J. Rus- sell v. Clark, 7 Cranch 89. Accounting. “The rule of the court is, that when a suit for the recovery of the possession [of land] can be properly brought in a court of equity, and a decree is given, that court will direct an account as an incident in the cause. But when a party has a right to a posses- sion, which he can enforce at law, his right to the rents and profits is also a legal right, and must be enforced in the same jurisdic- tion. The instances where bills for an ac- count of rents and profits have been main- tained are those in which special grounds have been stated, to show that courts of law could not give a plain, adequate, and com- plete remedy. No instances exist where a person who had been successful at law has been allowed to file a bill for an account of rents and profits during the tortious posses- sion held against him, or in which the com- plexity of the account has afforded a motive for the interposition of a court of chan- cery to decide the title and to adjust the account.” CAMPBELL, J. Hipp v. Babin, 19 How. 279. “There are precedents in which the right of an infant to treat a person who enters upon his estate with notice of his title, as a guardian or bailiff, and to exact an account in equity for the profits, for the whole period of his occupancy, is recognized. ‘ But in those cases the title must, if disputed, be established at law, or other grounds of jurisdiction must be shown.” CAMPBELL, J. Hipp v. Babin, 19 How. 279. Waiver of Objections to Jurisdiction. “Even an objection that an action should have been brought at law instead of in equity may be waived by failure to take ad- vantage of it at the proper time.” Brown, J. Insley vw. U. S., 150 U. S. 515. 2. ADEQUATE REMEDY aT Law. No Jurisdiction Where Legal Remedy Is Adequate. - “The authorities are too abundant to ad- mit a question, that there is no chancery jurisdiction where there is an adequate rem- edy at law.” Huwnt, J. Rees v. Watertown, 19 Wall. 124. s Whenever a court is competent to take cognizance of a right, and has power to pro- ceed to a judgment which affords a plain, adequate, and complete remedy, without’ the aid of a court of equity, the plaintiff must proceed at law, because the defendant has a constitutional right to a trial by jury.” CampseLt, J. Hipp v. Babin, 19 How. 278. ; “ Courts of equity unquestionably have jurisdiction of fraud, misrepresentation, and fraudulent suppression of material facts in 674 EQUITY. matters of contract, but where the cause of action is ‘a purely legal demand,’ and noth- ing appears to show that the defense at law may not be as perfect and complete as in equity, a suit in equity will not be sustained in a federal court.” CtirrorD, J. Phoenix Mut. L, Ins. Co. v. Bailey, 13 Wall. 623. “A suit in equity to enforce a legal right can be brought only when the court can give more complete and effectual relief, in kind or in degree, on the equity side than on the common-law side.” Gray, J. Buzard v. Houston, 119 U. S. 352. “Tt is the fundamental characteristic and limit of the jurisdiction in equity that it cannot give relief when there is a plain and adequate and complete remedy at law; and hence it had no original, independent, and inherent power to afford redress for breaches of contract or torts, by awarding damages; for to do that was the very office of pro- ceedings at law. When, however, relief was sought which equity alone could give, as by way of injunction to prevent a continuance of the wrong, in order to avoid multiplicity of suits and to do complete justice, the court assumed jurisdiction to award compensation for the past injury, not, however, by assess- ing damages, which was the peculiar office of a jury, but requiring an account of profits, on the ground that if any had been made, it was equitable to require the wrongdoer to refund them, as it would be inequitable that he should make a profit out of his own wrong.” MartHews, J. Root wv. Lake Shore, etc., R. Co., 105 U. S. 207. “Wherever there exists at law a complete and adequate power, either for the’ prosecu- tion of a right or the redressing of a wrong, courts of equity, with the exception of a few cases of concurrent authority, have no juris- diction or power to act.” Danret, J. Mag- niac v. Thomson, 15 How. 299. “Tt has been often adjudged that when- ever, respecting any right violated, a court of law is competent to render a judgment affording a plain, adequate and complete remedy, the party aggrieved must seek his remedy in such court, not only because the defendant has a constitutional right to a trial by jury, but because of the prohibition of the Act of Congress to pursue his remedy in such cases in a court of equity.” Frexp, J. Scott wv. Neely, 140 U. S. 110. “The equitable powers of the court can only be invoked by the presentation of a case of equitable cognizance. There can be 675 no such case, at least in the federal courts, where there is a plain and adequate remedy at law.” Fretp, J. Dows v. Chicago, 11 Wall. 112. —— Test of Equitable Jurisdiction. “The absence of a complete and adequate remedy at law, is the only test of equity ju- risdiction, and the application of this princi- ple to a particular case must depend on the character of the case, as disclosed in the pleadings.” Davis, J. Payne v. Hook, 7 Wall. 430. Remedy at Law Must Be Complete. “This court has repeatedly declared in affirmance of the generally accepted proposi- tion that the remedy at law, in order to ex- clude a concurrent remedy at equity, must be as complete, as practical and as efficient to the ends of justice and its prompt ad- ministration, as the remedy in equity.” Brown, J. Walla Walla v. Walla Walla Water Co., 12 U. S. 12. “It is true that the remedy or defense which will oust an equity court of jurisdic- tion must be as complete and as adequate, as sufficient and as final, as the remedy in equity, or else the latter court retains juris- diction, and it must be a remedy which may be resorted to without impediment created otherwise than by the act of the party, and the remedy or defense must be capable of being asserted without rendering the party asserting it liable to the imposition of heavy penalties or forfeitures, arising other than by reason of its own act.” PrckHam, J. Cable vw. U. S. Life Ins. Co., 191 U. S. 303. “To bar equitable relief the legal remedy must be equally effectual with the equitable remedy, as to all the rights of the complain- ant. Where the remedy at law is not ‘as practical and efficient to the ends of justice and its prompt administration,’ the aid of equity may be invoked, but if, on the other hand, ‘it is plain, adequate, and complete,’ it must be pursued.” Swayne, J. Lewis v. Cocks, 23 Wall. 470. “ Jurisdiction to a partial extent [of cases of accident, fraud, or mistake] may exist at law; but, if the remedy there is not ade- quate — that is, if the party cannot attain at law the full justice of the case—he may, if he sees fit, pursue his remedy in equity. Nor is the court of equity closed to the party unless the remedy at law is complete, and will secure to the party the whole right EQUITY. involved, in a manner as just and perfect as would be attained in a suit of equity.” Cuirrorp, J. Clements v. Macheboeuf, 92 UL S. 418. “The objection that there is a remedy at law is only available where such remedy is as plain, adequate, and effectual as the rem- edy in equity.” Swayne, J. Sullivan v. Portland, etc., R. Co., 94 U. S, 811. Remedy at Law Doubtful. “Equity exercises jurisdiction in cases of accident, mistake, or fraud, where the party has not a plain, adequate, and complete rem- edy at law. Where the remedy at law is plain, equity will not interfere if the remedy is also adequate and complete; but, if the remedy at law is doubtful, the court of equity will retain the case, and, if the proofs are satisfactory, will grant relief.” Czirrorp, J. Clements v, Macheboeuf, 92 U. S, 418, It is a settled principle of equity juris- prudence that, if the remedy at law be doubt- ful, a court of equity will not decline cog- nizance of the suit. . Where equity can give relief plaintiff ought not to be com- pelled to speculate upon the chance of his obtaining relief at Jaw.” Brown, J. Davis uw. Wakelee, 156 U. S. 688. Cancellation of Deed. “Tt is evident that, where a sale has cul- minated in the execution and delivery of a deed to the purchaser, which is not void upon its face, or a mortgage has been put upon the property, as in this case, no remedy is complete, which does not go to the can- cellation of such deed, and the complete re- investment of title in the plaintiff,” Brown, J. Schroeder v. Young, 161 U. S, 345, Preventive Relief. : “Tnadequacy of remedy at law exists where the case made demands preventive relief, as for instance, the prevention of multiplicity of suits, or the prevention of irreparable injury.” Futier, C. J. Cruickshank v. Bid- well, 176 U. S. 81. “Where Irreparable Injury Is Threat- ened, or the damage be of such a nature that it cannot be adequately compensated by an action at law, or is such as, from its con- tinuance, to occasion a constantly recurring grievance, the party is not ousted of his remedy by injunction.” Brown, J. Walla Walla v. Walla Walla Water Co., 172 U. S. 12. Lack of Remedy and Inability to Obtain Fruits. “The want of a remedy and the inability to obtain the fruits of a remedy are quite distinct.” Hunt, J. Rees v. Watertown, 19 Wall, 124, When Objection to Equitable Jurisdiction Should Be Taken. “Ordinarily, where it is competent for the court [of equity] to grant the relief sought, and it has jurisdiction of the subject-matter, the objection of the adequacy of the remedy at law should be taken at the earliest oppor- tunity and before the defendant enters upon a full defense,” Fuuzer, C. J. Allen v. Pull- man’s Palace Car Co., 139 U. S, 662. Question Not Raised by Pleadings Nor Suggested. “This court has denied relief in cases of equity where the remedy at law has been plain, adequate, and complete, though the question was not raised by the defendants in their pleadings, nor suggested by the counsel in their arguments.” CAMPBELL, J, Hipp v. Babin, 19 How. 278. 3. Muttipricity oF Suits. In General, “Tt is easy to say it [equitable jurisdiction] rests upon the prevention of a multiplicity of suits, but to say whether a particular case comes within the principle is sometimes a much more difficult task.” PrcxHam, J. Hale v. Allison, 188 U, S, 2%. “The single fact that a multiplicity of suits may be prevented by this assumption of jurisdiction is not in all cases enough to sustain it.” Preckuam, J. Hale v. Alli- son, 188 U, S. 77. Community of Interest. “We are not disposed to deny that juris- diction on the ground of preventing a multi- plicity of suits may be exercised in many cases in behalf of a single complainant against a number of defendants, although there is no common title or community of right or interest in the subject-matter among such defendants, but where there is a com- munity of interest among ‘them in the ques- tions of law and fact involved in the general controversy.” PeckHam, J. Halle v, Alli- son, 188 U. S. 78. 4. CRIMINAL MArTTERs, “The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of 676 EQUITY. property. It has no jurisdiction over the prosecution, the punishment or the pardon of crimes or misdemeanors, or over the ap- pointment and removal of public officers. To assume such a jurisdiction, or to sustain a bill in equity to restrain or relieve against proceedings for the punishment of offenses, or for the removal of public officers, is to invade the domain of the courts of common law, or of the executive and administrative department of the government.” Gray, J. In re Sawyer, 124 U. S. 210. “Any jurisdiction over criminal matters, that the English Court of Chancery ever had, became obsolete long ago, except as inci- dental to its peculiar jurisdiction for the protection of infants, or under its authority to issue writs of habeas corpus for the dis- charge of persons unlawfully imprisoned.” ‘Gray, J. In re Sawyer, 124 U. S. 210. “From long before the Declaration of In- dependence, it has been settled in England, that a bill to stay criminal proceedings is not within the jurisdiction of the court of chancery, whether those proceedings are by indictment or by summary process.” Gray, J. In re Sawyer, 124 U. S. 210. “ The modern decisions in England, by emi- nent equity judges, concur in holding that a court of chancery has no power to restrain criminal proceedings, unless they are insti- tuted by a party to a suit already pending before it, and to try the same right that is in issue there. . . . Mr. Justice Story, in his Commentaries on Equity Jurisprudence, af- firms the same doctrine. And in the American courts, so far as we are informed, it has been strictly and uniformly upheld, and has been applied alike whether the prose- cutions or arrests sought to be restrained arose under statutes of the state, or under municipal ordinances.” Gray, J. In re Saw- yer, 124 U. S. 211. III. EQUITY PLEADING AND PRACTICE. 1. GENERAL PRINCIPLES. “Equity Pleading Is a Science; its set- tled rules form an admirable system; but an innovation upon them would produce the most crying injustice.” Barpwin, J., dissent- ing. Livingston v. Story, 11 Pet. 417. Modification of Equitable Remedies. “Tf legal remedies are sometimes modified to suit the changes in the laws of the states, and the practice of their courts, it is not so with equitable.” 7 Wall. 430. Davis, J. Payne v. Hook, “A Party May Disclaim What He likes, in Advance of the Evidence, and is not bound to give reasons for his course.” Hoitmes, J. Pardee v, Aldridge, 189 U. S. 433. “The Practice of the Courts of the United States corresponds with that of the chancery of Great Britain, except where it has been changed by rule, or is modified by local circumstances or local convenience.” CAMPBELL, J. Hipp v. Babin, 19 How. 278. Following English Practice. “In cases of original jurisdiction it has been determined that this court will frame its proceedings according to those which had been adopted in the English courts in analo- gous cases, and that the rules of court in chancery should govern in conducting the case to a final issue, . although the court is not bound to follow this practice when it would embarrass the case by unneces- sary technicalities to defeat the purposes of justice.” Furier, C. J. California v. South- ern Pac. Co., 157 U. S. 249. “The provision authorizing courts of equity to proceed according to the rules, usage and practice of courts of chancery, had reference to the rules and practice which obtained in the English courts of chancery.” Haran, J. Bryan v. Kennett, 113 U. S. 196. “The Decree of a Court of Equity upon Oral Allegations, without written plead- ings, would be an idle act, of no force be- yond that of an advisory proceeding of the chancellor. And the reason is, that the courts are not authorized to exert their power in that way. Fretp, J. Windsor v. McVeigh, 93 U. S. 283. Filing Papers. “Tn many states the statutory provision in respect to suits is that the defendant, on receiving service of summons, must within a certain time file his answer in the office of the clerk of the court. It cannot be doubted that if, before he is thus called upon to file his answer, the office is burned, and the clerk dies, and there is no place or individual at which or with whom his answer can be filed, such accident or omission will not defeat his right to make a defense, or give to the plaintiff a right to take judgment by default.” Brewer, J. Tarpey v. Madsen, 178 U. S. 219. 677 EQUITY. Pleading as Evidence. “When a bill or answer in equity or a pleading in an action at law is sworn to by the party, it is competent evidence against him in another suit as a solemn admission by him of the truth of the facts stated.” Woops, J. Pope v. Allis, 115 U. S. 370. 2. BILts IN Equity. a. Nature and kinds in general. “A Bill in Equity Implies a Suit in Equity, with process and parties. The prayer for process is one of the component parts of the structure of a bill, and its pur- pose is to compel the defendant to appear and abide the determination of the court on the subject-matter of the proceeding.” Ware, C. J. Butterworth v. Hill, 114 U. S. 132. “A Chancellor Will Not Maintain a Bill Merely to Declare Future Rights. The Scotch tribunals pass on such questions by ‘declarator,’ but the English courts have never assumed such power.” Grier, J. Cross v. De Valle, 1 Wall. 14. “A Cross-bill is brought by a defendant in a suit against the plaintiff in the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill. It is brought either to obtain a discovery of facts, in aid of the defense to the original bill, or to obtain full and complete relief to all parties, as to the matters charged in the original bill. It should not introduce new and distinct mat- ters not embraced in the original bill, as they cannot be properly examined in that suit, but constitute the subject-matter of an orig- inal, independent suit. The cross-bill is aux- iliary to the proceeding in the original suit, and a dependency upon it.” Netson, J. Ayres v. Carver, 17 How. 595. “ A cross-bill must grow out of the matters alleged in the original bill, and is used to bring the whole dispute before the court, so that there may be a complete decree touch- ing the subject-matter of the action.” WalrE, C.J. Ex p. R. Co, 95 U. S. 225. “The original bill and cross-bill consti- tute one suit.” Warre, C. J. Ayers v. Chi- cago, 101 U. S. 187. “A cross-bill . . must grow out of the original suit. It cannot bring in new and distinct matters.” Warte, C. J. Ayers v. Chicago, 101 U. S. 187. 678 “A cross-bill cannot be used to bring in new and distinct matters.” Waste, C. J. Nashville, etc., R. Co. v. U. S., 101 U. S. 641. “The general rule is that the original bill and the cross-bill should be heard together and disposed of by one decree, although, where the cross-bill asks affirmative relief, and is therefore not a pure cross-bill, the dis- ‘missal of the original bill may not dispose of the cross-bill, which may be retained for a complete determination of the cause.” Futuer, C. J. Bowker v. U. S., 186 U.S. 141, “Tt is settled that one defendant cannot have a decree against a codefendant without a cross-bill, with proper prayer, and process or answer, as in an original suit.” Woops, J. Smith v. Woolfolk, 115 U. S. 149. “An Amended or Supplemental Bill is: rather an alternative than an only remedy, and a failure to pursue this course ought not to debar him from resorting to another bill.” Brown, J. Johns v. Wilson, 180 U. S. 451. “The supplemental bill is a mere adjunct to the original bill, and, where the parties -have already been served, no further sub- peena for them is required.” Fre.p, J. Shaw v. Bill, 95 U. S. 14. “Ancillary Bills are ordinarily main- tained in the same court as the original bill is filed, with a view to protecting the rights adjudicated by the court in reference to the subject-matter of the litigation, and in aid of the jurisdiction of the court, with a purpose of carrying out a decree and rendering effectual rights to be secured or already ad- judicated.” Day, J. Raphael v. Trask, 194 U. S. 278. b. Form and Sufficiency. Showing Equity on Face of Bill. “Certainly there must be sufficient equity apparent on the face of a bill to warrant the court in granting the relief prayed; and the material facts on which the complainant relies must be so distinctly alleged as to put them in issue.” Furter, C. J. St. Louis, etc., R. Co. v. Johnson, 133 U. S. 577. “Whether a bill in equity contains any ground for relief, or, what is called in the language of its courts, ‘equity,’ is not a question of jurisdiction, but of merits; the inquiry is, has the petitioner set forth a cause of action in his complaint; has he averred any matter which, if true, entitles him to the relief praved for. or any relief, or set it forth in the manner required by the rules of EQUITY. equity? If he has, the respondent must plead some new matter in avoidance; or in his answer give some reason why he does not do, or ought not to be decreed to do, the thing required of him. If the complainant’s petition contains no equity, or sets it out defectively, it is good cause for demurrer generally, or for cause; or the respondent may object in his answer, or at the hearing, to the want of equity in the bill; and it is a good ground for the reversal of a decree on appeal. So, if a question arises whether the allegations of the bill are made out by the proofs in the cause, it is a proper subject of consideration before rendering a decree in the court below, as well as review in the appellate court; not as a question of juris- diction, but one which arises in its exercise.” Batpwin, J., dissenting. Harrison v. Nixon, 9 Pet. 512. Alternative Prayer. “Tt is a well-settled rule that the com- plainant, if not certain as to the specific relief to which he is entitled, may frame his prayer in the alternative, so that if one kind of relief is denied another may be granted; the relief, of each kind, being consistent with the case made by the bill.” Haran, J. Hardin v. Boyd, 113 U. S. 763. : Bill Grounded on Legal Title. “Tt is the universal practice of courts of equity to dismiss the bill if it be grounded upon a merely legal title. In such case the adverse party has a constitutional right to a trial by jury.” Swayne, J. Lewis uv. Cocks, 23 Wall. 470. ‘ “The established and universal practice of courts of equity is to dismiss the plaintiff’s bill, if it appears to be grounded on a title merely legal, and not cognizable by them, notwithstanding the defendant has answered the bill, and insisted on matter of title.” CAMPBELL, J. Hipp v. Babin, 19 How. 278. Absence of Legal Remedy. | “Every practical lawyer knows that to give jurisdiction to a court of equity, or to distinguish a case of equity jurisdiction from one of common law under the British prac- tice, the averment is indispensable that the complainant is remediless at law.” JoHNsoN, J. Livingston v. Moore, 7 Pet. 547. Allegations of Mixed Law and Fact. “There are often in pleadings general allegations of mixed law and fact, such as of the ownership of property and the like, which standing alone are held to be sufficient to sustain judgments and decrees, and yet are 679 always regarded as qualified, limited or even controlled by particular facts stated therein.” Brewer, J. Reagan v. Farmers’ L. & T. Co, 154 U. S. 401. Right to Equitable Relief. “Unless the complainant has shown a right to relief in equity, however clear his rights at law, he can have no redress.” SWAYNE, J. Wright v. Ellison, 1 Wall. 22. Averments of Mistake of Law. “ Averments in a Dill of complaint that the parties to a judicial proceeding understood that the legal effect would be different from what it really is, amounts merely to an aver- ment of a mistake of law against which there can be no relief in a court of equity.” CLiF- ForD, J. U. S. v. Ames, 99 U. S. 46. Ignorance of Facts. “Ignorance of the facts is often a material allegation, but it is never sufficient to consti- tute a ground of relief, if it appears that the requisite knowledge might have been ob- tained by reasonable diligence.” CxiFForp, J. U. S. v. Ames, 99 U. S. 47. Allegations of Fraud, Etc. “The words ‘fraud’ and ‘conspiracy’ alone, no matter how often repeated in a pleading, cannot make a case for the inter- ference of a court of equity. Until connected with some specific acts for which one person is in law responsible to another, they have no more effect than other words of unpleas- ant signification.” Watts, C. J. Ambler v. Choteau, 107 U. S. 591. “It is a mistake to suppose that in stating the facts which constitute a fraud, where relief is sought in a bill in equity, all the evi- dence which may be adduced to prove that fraud must be recited in the bill. It is suffi- cient if the main facts or incidents which constitute the fraud against which relief is desired shall be fairly stated, so as to put the defendant upon his guard and apprise him of what answer may be required of him.” Miter, J. U.S. uv. Bell Telephone Co., 128 Uz. S. 356. Minuteness of Averment. “The defendant should not be subjected to being taken. by surprise, and enough should be stated to justify the conclusion of law, though without undue minuteness.” FULLER, C. J. St. Louis, etc., R. Co. v. Johnson, 133 U.S. 577. Defendant’s Objections. “Tt is . . . a settled point, that an objection to the sufficiency of the averments EQUITY. of the bill, must be considered by the ap- pellate court as one directly involving the merits of the case; it is the statement of the complainant’s cause of action, to which the defendant must demur, if he relies on the want of form, manner, or circumstance, or he loses the benefit of the objection. If he lies on an objection to the substance of the aver- ment, or its variance from the proofs in the case, he must make it appear to the satis- faction of the court, that the bill contains no equity on its face, that no cause of action is set forth, nor any circumstances from which the conclusion of an averment of one, could be. drawn conformably to the evidence adduced.” Batpwin, J., dissenting. Harri- son v. Nixon, 9 Pet. 514. c. Multifariousness. In General. “The principle of multifariousness is one very largely of convenience, and is more often applied where two parties are attempted to be brought together by a bill in chancery, who have no common interest in the litiga- tion, whereby one party is compelled to join in the expense and trouble of a suit in which he and his codefendant have no common interest, or in which one party is joined as complainant with another party with whom in like manner he has no interest at all, or no such interest as requires the de- fendant to litigate it in the same action.” Murr, J. U. S. w. Bell Telephone Co., 128 Uz S. 352. : “A bill cannot be said to be multifarious unless it embraces distinct matters, which do not affect all the defendants alike.” Davis, J. Payne v. Hook, 7 Wall. 433. Form and Manner of Objecting. “ Multifariousness as to subjects or parties, within the jurisdiction of a court of equity, cannot be taken advantage of by a defendant, except by demurrer, plea or answer to the Lill, although the court in its discretion may take the objection at the hearing, or on appeal, and order the bill to be amended or dismissed. A fortiori, it does not render a decree void, so that it can be treated as a nullity in a collateral action.” Gray, J. Heffner v. Northwestern L. Ins. Co., 123 U. S. 751. “The wbjection of multifariousness is one of which it is said by the authorities a de- fendant can avail himself by demurrer or exception taken to the pleading only.” Dante, J. Nelson v. Hill, 5 How. 132. “Although at the hearing the court may sponte sua, make an objection for multifari- ousness, it is no longer in the power of a party, after answer, to do so.” DanikL, J. Nelson v. Hill, 5 How. 132. Illustrations of Multifariousness. “Tn general terms a bill is said to be multi- farious, which seeks to enforce against differ- ent individuals, demands which are wholly disconnected. In illustration of this, it is said, if an estate be sold in lots to different persons, the purchasers could not join in exhibiting one bill against the vendor for a specific performance. Nor could the vendor file a bill for a specific performance against all the purchasers. The contracts of purchase being distinct, in no way connected with each other, a bill for a specific execution, whether filed by the vendor or vendees, must be limited to one contract.” McLean, J. Gaines v. Chew, 2 How. 642. Difficulty of Applying Rules. “There is, perhaps, no rule established for the conducting of equity pleadings, with refer- ence to which (whilst as a rule it is univer- sally admitted) there has existed less of cer- tainty and uniformity in application, than has attended this relating to multifariousness. This effect, flowing, perhaps inevitably, from the variety of modes and degrees of right and interest entering into the transactions of life, seems to have led to a conclusion rendering the rule almost as much an exception as a rule, and that conclusion is, that each case must be determined by its peculiar features.” DaniEL, J. Shields v. Thomas, 18 How. 259. 3. PLEAS. a. In General. 5 “A Plea Is a Special Answer to the Bill, and generally sets up matter in bar, which does not appear in the bill; but this is not always the case.” M’Lean, J., dissenting. Rhode Island v. Massachusetts, 14 Pet. 269. “For myself, I am utterly unable to com- prehend, that the denial of an averment of a fact in a bill can be deemed a plea of any kind, unless it is the general issue, or a special issue on that fact.” BaLpwin, J., dis- senting. Livingston vw. Story, 11 Pet. 417. Office of Plea, The office of a plea is to reduce the cause to a single point, and thus prevent the ex- pense and trouble of an examination at large. But the matters stated in the bill, which are not denied by the plea, are admitted to be 680 EQUITY. true.” M’Lean, J., dissenting. Rhode Island uv. Massachusetts, 14 Pet. 272. “The proper office of a plea is not, like an answer, to meet all the allegations, to deny the equity of the bill; but it is to present some distinct fact, which of itself creates a bar to the suit, or to the part to which the plea applies, and thus to avoid the necessity of making the discovery asked for, and the expense of going into the evidence at large.” Gray, J. Farley v. Kittson, 120 U. S. 314. “The rules which govern a special plea at law, are substantially the same as apply to a plea in chancery. It must be single, and not double. Its office is, to bring forward a fact, which may be the result of a combina- tion of circumstances; and which, if true, bars the relief prayed for in the Dill.” M’Lean, J., dissenting. Rhode Island vw. Massachusetts, 14 Pet. 269. “A Chancellor Will Not Permit a Party to Plead His Own Fraud to defeat the equity of the complainant.” Grrer, J. Loutis- iana Union Bank v. Stafford, 12 How. 341. “Tf the Plea Is Found to Be False, it would seem to be just and equitable that the case should stand as if the defendant had ad- mitted the allegations of the plaintiff.” Brapiey, J. Kennedy v. Crewswell, 101 U.S. 644. “If a defendant plead a false plea, and it be so found, what is next to be done? Is it to be merely overruled, and an order made that he answer further, as in case of overruling a demurrer, or of overruling a plea for insuff- ciency? This is not the usual course. Hav- ing put the plaintiff to the trouble and delay of an issue, the defendant cannot, after it is found against him, claim the right to file an answer; although, if the complainant de- sires a discovery, which the plea sought to avoid, he may undoubtedly insist upon it. But that is the complainant’s right, not the defendant’s.” Braptey, J. Kennedy v. Creswell, 101 U. S. 644. “Tf the Plea Goes Only to a Part of the Bill, and prays the judgment of the court whether he shall be compelled to answer the other part; and the answer goes to the whole bill, the answer being broader than the plea, overrules it. For the answer is to the part of the bill which it is the object of the plea not to answer.” M’Lean, J., dissenting. Rhode Island v. Massachusetts, 14 Pet. 271. 681 “Tt Is Not Necessary in the Plea to Notice Every Allegation in the bill which does not involve the facts that constitute the bar.” M’LEan, J., dissenting. Rhode Island v. Massachusetts, 14 Pet. 271. “Where the Plea Does Not Cover the Whole Bill, as where it only sets upon a matter in bar to a part of the relief sought in the bill, the other part of the bill must be an- swered.” M’Lean, J., dissenting. Rhode Is- land v. Massachusetts, 14 Pet. 271. Plea Presupposes Equitable Matter in Bill. “A plea, in general, presupposes that the bill contains equitable matter, which the defendant by his plea seeks to displace.” Taney, C. J. Rhode Island v. Massachusetts, 14 Pet. 262. “Various Facts May Be Pleaded [in Chancery] if they conduce to a single point, on which the defendant means to rest his defense.” M’LeEan, J., dissenting. Rhode Island v. Massachusetts, 14 Pet. 270. “Facts Inconsistent with Each Other cannot be pleaded [in chancery], for this would set up two defenses. But where the facts, however numerous, all conduce to es- tablish one point, . . . it is not multi- farious.” McLean, J., dissenting. Rhode Island v. Massachusetts, 14 Pet. 270. “A Plea Must Set up Matter Not in the Bill; some new fact as a reason why the bill should be delayed, dismissed, or not an- swered; or the plea will be overruled.” Batpwin, J., dissenting. Livingston v. Story, 11 Pet. 415. Sufficiency. “A plea [in chancery], in order to be good, must be either an allegation or a denial of some leading fact, or of matters which, taken collectively, make out some general fact, which is a complete defense.” M’Lean, J., dissenting. Rhode Island v. Massachusetts, 14 Pet. 269. “Although a defense offered by way of plea should consist of a great variety of cir- cumstances, yet, if they all tend to a single point, the plea may be good.” M’Lgan, J., dissenting. Rhode Island v. Massachusetts, 14 Pet. 269. “The defense, in the form of an incongru- . ous plea, must set up matter in bar, which, if true, renders immaterial every other fact alleged in the bill; be these as they may, EQUITY. the defense must be conclusive of the con- troversy; and every necessary averment to sustain the matter pleaded in bar, must also be made in an answer covering the plea, which cannot be permitted to stand unsup- ported by an answer. This is the familiar and settled practice of the High Court of Chancery in England; and adopted in the courts of the United States.” Catron, J. Rhode Island v. Massachusetts, 14 Pet. 279. “The facts pleaded [in chancery] must be conducive to a single point of defense.” Catron, J. Rhode Island v. Massachusetts, 14 Pet. 280. “A Plea Somewhat Narrows the Ground of Controversy. Whilst it must contain all the facts material to a complete defense, it need not be extended to all the allegations of the bill. And the plaintiff may either take issue on the plea, or admit the truth of it, by setting down for hearing.” M’LeEav, J., dissenting. Rhode Island v. Massachusetts, 14 Pet. 272. Defense Must Be Presented by Plea or Demurrer. “In equity, the defense must ‘be presented by plea or demurrer, and not by answer.” SwaynE, J. De Sobry v. Nicholson, 3 Wall. 423. b. In Abatement. General Principles. “Pleas in abatement in the court of chan- cery are governed by the same rules as in a court of law.” Batpwin, J., dissenting. Liv- ingston v. Story, 11 Pet. 416. “To be a plea in abatement, or in bar, every rule of pleading in law or equity re- quires that it should set up some matter not in the bill”? Batpwin, J., dissenting. Livingston v. Story, 11 Pet. 417. “T can imagine no greater departure from the practice and principles of equity, than to deprive a defendant of the right of denying a fact stated in the bill, unless by exposing himself to the perils, and incurring the con- sequences of a plea in abatement.” Ba.Lpwin, J., dissenting. Livingston v. Story, 11 Pet. 417. Plea to the Jurisdiction. “TA plea to the jurisdiction of a court of equity] does not deny the plaintiff’s right to relief, or that the bill does not con- tain matter proper the cognizance of a court of equity; but it is made on the ground that the court of chancery is not the proper one to decide it; it admits the jurisdiction of equity, but asserts that some other court can afford the remedy. This must be done by matter set up in the plea; because the court of chancery, being one of general jurisdiction in equity, an exception must be made out by the party who claims an exemp- tion, in order to arrest its jurisdiction. cs This objection must be by plea, and cannot be taken by demurrer; it must show what court has cognizance of the case: that it is a court of equity, and can give the plaintiff a remedy: if no circumstance can give jurisdiction to the court of chancery, then no plea is neces- sary; a demurrer is good.” Ba.pwin, J., dissenting. Livingston v. Story, 11 Pet. 415. c. In Bar. Plea or Demurrer. “A plea in bar may embrace matters stated in the bill) Where the matters in defense are fully stated in the bill, and it contains no allegations which it is necessary to deny by a plea, and by an answer, in support of the plea, a demurrer should be filed.” McLean, J., dissenting. Rhode Island v. Massachu- setts, 14 Pet. 269. Hearing and Determination. “In chancery proceedings a plea in bar may be set down for hearing by the com- plainant upon its sufficiency, or it may be replied to and put in issue. If the latter course is pursued, and the plea is sustained, then, according to the English chancery prac- tice, which formerly prevailed in this court, the bill must be dismissed, without reference to the equity arising from other facts stated in the bill.” Jacxson, J. Horn wv. Detroit Dry Dock Co., 150 U. S. 625. Pleading Decree. “Tf a bill be brought to impeach a decree, on the ground of fraud used in obtaining it, the decree may be pleaded in bar of the suit.” McLean, J., dissenting. Rhode Is- land v. Massachusetts, 14 Pet. 269. Pleading Release. “Tf the plaintiff, or a person under whom he claims, has released the subject of his demand, the defendants may plead the release in bar of the bill; and this will apply to a bill praying that the release may be set aside.” McLean, J., dissenting. Rhode Is- land v. Massachusetts, 14 Pet. 269. Complainant Stating Matter in Bill. “On general principles, it would seem to be unreasonable that the complainant, by stat- 682 EQUITY. ing the matter in bar in his bill, should prevent the respondents from pleading it. And such is not the established rule in chan- cery pleading.” McLean, J., dissenting. Rhode Island v. Massachusetts, 14 Pet. 269. 4. ANSWERS. General Principles. “The answer goes to the whole bill, and it denies all fraud, misrepresentation, or un- fairness; and every allegation in the bill which goes to show that the agreements set forth in the plea should not be binding and conclusive on the parties.” M’Leran, J., dis- senting. Rhode Island v. Massachusetts, 14 Pet. 271. “The answer, when filed in support of the plea, forms no part of the defense. It is evidence which the plaintiff has a right to require.” M’LEAN, J., dissenting. Rhode Is- land v. Massachusetts, 14 Pet. 271. “ An answer in chancery, put in under oath, is receivable against the party who swears it; but that the narrative part of a bill in equity, or a declaration at common law can be used in another suit against the plaintiff in the first, has never been decided. The reverse has repeatedly been.” Catron, J. Gaines v, Relf, 12 How. 580. “Chancery courts invariably hold, where the answer is responsive to the bill and posi- tively denies, the matters charged, and the denial has respect to a transaction within the knowledge of the respondent, the answer is evidence in his favor; and unless it is over- come by the testimony of two credible wit- nesses, or of one witness corroborated by other facts and circumstances which give it greater weight than the answer, it is con- clusive, so that the court will neither make a decree nor send the case to trial, but will simply dismiss the bill.” CziFForp, J. God- den v. Kimmel, 99 U. S. 207. “Tf the answer of the defendant discloses nothing and the plaintiff supports his claim by evidence in his own possession unaided by the confessions of the defendant, the estab- lished rules, limiting the jurisdiction of courts, require that he should be dismissed from the court of chancery, and permitted to assert his rights in a court of law.” Mar- SHALL, C. J. Russell v. Clark, 7 Cranch 89. “Material allegations in the bill of com- plaint ought to be answered and admitted, or denied, if the facts are within the knowledge 683 of the respondent; and if not, he ought to state what his belief is upon the subject, if he has any, and if he has none, and cannot form any, he ought to say so, and call on the complainant for proof of the alleged facts, or waive that branch of the contro- versy; but the clear weight of authority is, that a mere statement by the respondent in his answer that he has no knowledge that the fact is as stated, without any answer as to his belief concerning it, is not such an admission as is to be received as full evi- dence of the fact. Such an answer does not make it necessary for the complainant to in- troduce more than one witness to overcome the defense, and the well-known omissions and defects of such an answer may have some tendency to prove the allegations of the bill of complaint, but they are not such an admission of the same as will constitute a sufficient foundation for a decree upon the merits. Proper remedy for a complaint, in such a case, is to except to the answer for insufficiency within the period prescribed by the sixty-first rule; but if he does not avail himself of the right, the answer is deemed sufficient to prevent the bill from being taken pro confesso, as it may be if no answer is filed.” CiirForp, J. Brown wv. Pierce, 7 Wall. 211. “Now, although the answer of one defend- ant be no evidence against another, yet, in the absence of all proof to the contrary, and where a party observes a profound silence on a subject to which his attention could not but be excited, such answer, not varying from any allegation on his part, furnishes some evidence that -he could not make the assertion, because the fact was, in reality, otherwise.” Livincsron, J. Spring v. South Carolina Ins. Co., 8 Wheat. 284. “The rule [in chancery] is, that the answer must not be broader than the plea; but must, in support of the plea, deny fraud and all equitable circumstances alleged in the bill, which are also by a general averment denied by the plea.” M’Lean, J., dissenting. Rhode Island v. Massachusetts, 14 Pet. 271. “ The defendant has filed an answer in sup- port of his plea [in chancery], and this is necessary where there are equitable circum- stances stated in the bill, in favor of the plaintiff’s case, against the matter pleaded. These allegations in the bill must be denied by way of answer, as well as by averments in the plea. In such case, the answer must be full and clear, or it will not be effectual to support the plea; for the court EQUITY. will intend the matters so charged against the pleader, unless they are fully and clearly denied. But if they are, in substance, fully and clearly denied, it may be sufficient to support the plea; although all the circum- stances charged in the bill may not be pre- cisely answered.” M’LeEan, J., dissenting. Rhode Island v. Massachusetts, 14 Pet. 270. “The general rule that either two wit- nesses or one witness with probable circum- stances will be required to outweigh an answer asserting a fact responsively to a bill, is admitted. The reason upon which the rule stands, is this. The plaintiff calls upon the defendant to answer an allegation he makes, and thereby admits the answer to be evidence. If it is testimony, it is equal to the testimony of any other witness; and as the plaintiff cannot prevail if the balance of proof be not in his favor, he must have circumstances in addition to his single wit- ness, in order to turn the balance. But cer- tainly there may be evidence arising from circumstances stronger than the testimony of any single witness.” MarsHaur, C. J. Clark v. Van Riemsdyk, 9 Cranch 160. “The rule that an answer must prevail unless contradicted by one witness as well as by circumstances, is said to be so inflex- ible that the strongest circumstances will not themselves be sufficient to outweigh an an- swer.” MarsHart, .C. J. Clark v. Van Riemsdyk, 9 Cranch 160. “Where the denial [in the answer] is dis- tinct the rule is universal that the com- plainant under such circumstances must have two witnesses, or one witness and corrobora- tive circumstances, or he is not entitled to relief, as he cannot prevail if the balance of proof be not in his favor, and he must have circumstances in hig favor in addition to his single witness in order to turn the balance.” C.iFForD, J. Voorhees v. Bonesteel, 16 Wall. 30. “An answer in all cases, according to the course and practice of courts of chancery, must be sworn to; unless dispensed with by order of the court under special circum- stances.” TuHompson, J. Georgetown Union Bank v. Geary, 5 Pet. 111. “Tt does not lie in the mouth of a de- fendant in equity to complain that the court assumed his answer made under oath to be true and decreed accordingly.” Woops, J. Cavender wv. Cavender, 114 U. S. 471. “Courts of equity are frequently required to act on the admissions of the answer with- out other proof. Thus, when a cause is heard upon bill and answer, the decree is based entirely on the admissions of the an- swer without other testimony.” Woops, J. Cavender v. Cavender, 114 U. S. 471. “Matters alleged in the bill of complaint, and denied in the answer, must be proved before such matters can be assumed as true by the court.” Cxirrorp, J. Scammon vw. Kimball, 92 U. S. 368. “A defendant [in equity], who answers and submits to the jurisdiction of the court, and enters into his defense at large, is precluded from raising such an objection [that the com- plaint should have been dismissed because of an adequate remedy at law] on appeal for the first time.” Futier, C. J. Perego wv. Dodge, 163 U. S. 164. “The Weight of an Answer must from the nature of evidence, depend, in some degree, on the fact stated. If a defendant asserts a fact which is not and cannot be within his own knowledge, the nature of his testimony cannot be changed by the positive- ness of his assertion. The strength of his belief may have betrayed him into a mode of expression of which he was not fully ap- prized. When he intended to utter only a strong conviction of the existence of a par- ticular fact, or what he deemed an infallible deduction from facts which were known to him, he may assert that belief or that de- duction in terms which convey the idea of his knowing the fact itself.” Marsa, C. J. Clark v. Van Riemsdyk, 9 Cranch 160. 5. EXcEprions. “For the purpose of the hearing upon ex- ceptions to an answer, the facts alleged in the bill and in the answer must indeed be considered as admitted, and only matter of law is presented for decision, as in a case set down for hearing upon bill and answer. But the difference between the two cases is this: When a case in equity is set down for hearing on bill and answer, the whole case is presented for final decree in favor of either party. But when the matter set down for hearing is the plaintiff’s exceptions to the answer, the case is not ripe for a final decree; the only question to be decided is the suf- ficiency of the answer; and no final decree can be entered against either party, unless it declines or omits to plead further.” Gray, J. In re Sanford Fork & Tool Co., 160 U. S. 257. 6. DEMURRERS. To the Bill. “The question whether the bill contains any equity, may be raised by a demurrer. 684 EQUITY. If the defendant answer, this question can not be raised until the hearing.” Curtis, J. Betts v. Lewis, 19 How. 73. “The distinction between a demurrer and a plea dates as far back as the time of Lord Bacon,” Gray, J. Farley v. Kittson, 120 Uz. S. 315. “In such cases [cases in which there is an apparent want of equity, on the face of the bills, admitting all the facts stated to be true; or in which it is apparent, on the face of the bill, that a court of equity could have no jurisdiction of the matters charged], al- though a demurrer will be to the bill, yet none is necessary; inasmuch as there is either an absolute want of equity, or of juris- diction.” Trimsie, J. Findlay v. Hinde, 1 Pet. 244, “That a bill which is multifarious may be demurred to for that cause is a general principle.” McLean, J. Gaines v. Chew, 2 How. 642. “A Demurrer to the Answer is unknown in equity practice. But the plaintiff may set down the case for hearing upon bill and answer; whereupon all the facts alleged in the bill and not denied in the answer, as well as all new facts alleged in the answer, are deemed admitted, as upon a demurrer to an answer in an action at law.” Gray, J. In re Sanford Fork & Tool Co., 160 U. S. 257. Y, AMENDMENTS. New Bill Cannot Be Made. “Under the privilege of amending, a party is not to be permitted to make a new bill. Amendments can only be allowed when the bill is found defective in proper parties, in its prayer for relief, or in the omission or mistake of some fact or circumstance con- nected with the substance of the case, but not forming the substance itself, or for put- ting in issue new matter to meet allegations in the answer.” Curtis, J, Shields v, Bar- row, 17 How. 144. “To strike out the entire substance and prayer of a bill, and insert a new case by way of amendment, leaves the record un- necessarily incumbered with the original pro- ceedings, increases expenses, and complicates the suit; it is far better to require the com- plainant to begin anew.” Curtis, J. Shields v. Barrow, 17 How. 144, ° Changing Substance of Case. “An amendment [of equity pleadings] should rarely, if ever, be permitted where 685 it would materially change the very sub- stance of the case made by the bill, and to which the parties have directed their proofs.” Haran, J. Hardin v. Boyd, 118 U. S. 761. “Tt would be highly inequitable to permit a litigant to press with the greatest perti- nacity for years unfounded demands for specific and general relief, however much confidence he may have had in such charges, necessitating large expenditures by the de- fendants to make a proper defense thereto, and then, after the submission of the cause, when the grounds of relief actually asserted were found to be wholly without merit, to allow averment to be made by way of amend- ment, constituting a new and _ substantive ground of relief, This is especially appli- cable when the facts upon which such amendment rest were known at the incipiency of the litigation and ‘the character of the relief was such as called for promptness in asserting a right thereto.” Waurtr, J. War- ner v. Godfrey, 186 U. S, 378. “An amendment which changes the char- acter of the bill ought not generally to be allowed after a case has been set for a hear- ing, and still less after it has been heard. The reason is that the answer may become inapplicable if such an amendment be per- mitted. Srrone, J. Thremolo Patent, 23 Wall. 527. “A Bill May Be Originally Framed with a Double Aspect, or may be so amended as to be of that character. But the alternative case stated must be the founda- tion for precisely the same relief.” Curris, J. Shields v. Barrow, 17 How. 144. “A Mistaken View of One’s Rights or Remedies should not be permitted wholly to defeat a claim founded upon principles of equity and justice, and if the pleadings can be so amended as to admit proof of such claim, though it may set up a new measure of damages or work a real hardship to the party defendant, it is within the discretion even of the appellate court to permit such amendment to be made.” Brown, J. Wig- gins Ferry Co. v. Ohio, etc, R. Co., 142 U.S. 415. Right of Defendant to Answer, “The general rule is that an amendment of the bill gives a defendant the right to answer as if he had not answered before.” Swayne, J. French v. Hay, 22 Wall. 246. Discretion of Court, “Rulings in respect to the amendments of pleadings are largely within the discretion EQUITY. of the trial court, and unless a gross abuse of that discretion is shawn there is no ground for reversal.” Brewer, J. Sawyer v. Piper, 189 U. S. 157. Serving Copy of Amendment. “In the English practice the complainant is required to serve a copy of the amendment upon the solicitor of the defendant, but this, it is believed, is rarely ever done in the courts of the states, unless required by an established rule of practice or a special order in the case.’ Swayne, J. French v. Hay, 22 Wall. 247. 8. RELIEF AND DECREES. Ending Litigation. “Tt [a court of equity] disposes of a case so as to end litigation, not to foster it; to diminish suits, not to multiply them.” Davis, J. Payne v. Hook, 7 Wall. 432. Adapting Decree to Necessities of Case. “A court of equity adapts its decree to the necessities of each case.” Davis, J. Payne v. Hook, 7 Wall. 432. Decrees Pro Confesso. “Tt is thus seen that by our practice, a decree pro confesso is not a decree as of course according to the prayer of the bill, nor merely such as the complainant chooses to take it; but is made (or should be made) by the court, according to what is proper to be decreed upon the statements of the bill, assumed to be true.” Brap.ey, J. Thomson v. Wooster, 114 U. S. 113. “We may properly say that to take a bill pro confesso is to order it to stand as if its statements were confessed to be true; and that a decree‘ pro confesso is a decree based on such statements, assumed to be true; and such a decree is as binding and conclusive as any decree rendered in the most solemn manner.” Bravtey, J. Thomson v. Wooster, 114 U. S. 111. “The original practice of the English Court of Chancery was in accordance with the later Roman law. But for at least two centuries past bills have been taken bro confesso for contumacy.” Brapey, J. Thomson v. Wooster, 114 U. S. 110. “Tn the English practice, . . . as it ex- isted at the time of the adoption of our pres- ent rules (in 1842), the defendant, after a decree pro confesso and a reference for an account, was entitled to appear before the master and to have notice of, and take part in, the pro¢eedings, provided he obtained an order of the court for that purpose, which would be granted on terms.” Braptey, J. Thomson v. Wooster, 114 U. S. 119. Character and Effect of Decrees. “With respect to the character and effects of decrees in chancery, although they now rank in dignity upon an equality with judg-’ ments at law, it is well known that they were once regarded as not being matters of record; and that the final process incident to judgments at law was unknown to and not permitted in courts of equity; that where such process has been permitted to them, it has been the result of statutory enactments. But the extension to a court of equity of the power to avail itself of common-law process, cannot be regarded as implying any abridgment of the original constitutional powers or practice of the former; but as cumulative and ancillary, or as leaving those powers and that practice as they formerly existed, except as they should have been expressly restricted.” DanteL, J. Shields v. Thomas, 18 How. 262. “Although in cases of trust, of contract: and of fraud, the jurisdiction of a court of chancery may be sustained over the per- _-son, notwithstanding lands not within the jurisdiction may be affected by the decree, yet it does not follow. that such a decree is in itself necessarily binding upon the courts of the state where the land is situated.” Futter, C. J. Carpenter v. Strange, 141 U. S. 106. “It was long ago held that a decree dis- missing a cross-bill in equity could not be considered, standing alone, as a final decree in the suit.” Futter, C. J. Bowker v. U. S., 186 U. S. 138: Inability to Give Particular Relief. “A court of equity, when its aid is in- voked to give particular relief, if it finds that it is unable to do it, ought not, whilst denying such relief, to enter a decree which confers no substantial relief, but, on the con- trary, can only serve as a fruitful source of future litigation, injurious to the rights of the very parties or class of persons in -whose favor the decree is rendered.” Wuire, J., dissenting. South Dakota v. North Carolina, 192 U. S. 353. 9. GRANTING ISSUES. Discretion of Court. “The practice of granting issues is lim- ited to cases in which the court, in the fair 686 EQUITY. exercise of its discretion, considers that jus- tice will best be obtained by that course. Discretion, we mean, as it is guided by what has been the practice of courts of chancery.” Wayne, J. Patterson v. Gaines, 6 How. 584. “In the English chancery, except in the case of an heir at law, or of a rector or vicar, it [granting issues] is not a matter of right. In the American courts of equity we know of no practice establishing an issue as a matter of right. In Virginia and others of our states, the heir’s right to an issue is given by statute.” Wayne, J. Patterson v. Gaines, 6 How. 584. “Tt is not consistent with the equity prac- tice to order it [an issue quantum damni- ficatus] in any case in which the court can lay hold of a simple, equitable, and precise rule to ascertain the amount which it ought to decree.” Jounson, J. Pratt v. Law, 9 Cranch 494. Object of Issues. “ Issues are directed to be had at law, to inform the conscience of the chancellor as to doubtful facts in contro- versy.” CuiFForD, J., concurring. Johnson v. Harmon, 94 U. S. 378. Certification of Exceptions. “Where exceptions are taken on the trial of an issue out of chancery, and made part of the record, the certificate to the verdict by the court of law is a certificate to the whole record, and the exceptions, though not expressly certified, become a part of the chancery record.” C.iFForD, J., concurring. Johnson wv. Harmon, 94 U. S. 378. 10. Verpict oF Jury. “A jury is often called to try matters of fact in a chancery case, and in the admission of evidence, the rules of the common law are observed. But does this make the prin- cipal proceeding an action at law? Surely not.” M’LEAN, J., dissenting. Parsons wv. Bedford, 3 Pet. 455. “Equity courts may decide both fact and law, but they may, if they see fit, refer doubt- ful questions of fact to a jury. Findings of the kind, however, are not conclusive, and, if not satisfactory, they may be set aside or overruled; but if the finding is satisfactory to the chancellor, the practice is to regard it as the proper foundation for a decree.” CuiFForD, J. Garsed v. Beall, 92 U. S. 694. “The courts of the United States, sitting as courts of equity in patent cases, are much respect to less disposed than the English courts are to send parties to a jury before assuming to de- cide upon the merits.” Brapiey, J. Coch- rane v. Deener, 94 U. S. 783. “TA court of equity] may direct a ver- dict by a jury upon any single fact, or upon all the matters in dispute; but such verdict is not binding upon the judgment of the court. It is advisory simply, and the court may disregard it entirely or adopt it either partially or im toto.’ Brewer, J. Kohn v. McNulta, 147 U. S. 240. “The verdict [of a jury in chancery] has never been so considered [conclusive on the chancellor], and especially in the appellate courts of chancery.” M’L«zan, J., dissenting. Parsons v. Bedford, 3 Pet. 455. 11. Parties. “When, in the progress of a suit in equity, th. proceedings are suspended from the want of proper parties, it is necessary to file a bill of revivor. A supplemental bill is filed on leave, and for matter happening after the filing of the bill, and is designed to supply some defect in the structure of the original bill.” McLean, J. Kennedy wv. Georgia State Bank, 8 How. 610. “Now, the principle is well settled, in proceedings in chancery for the distribution of a common fund among the several parties interested, either on the application of the trustee of the fund, the executor or administrator, legatee, or next of kin, or on the application of any party in interest, that an absent party, who had no notice of the proceedings, and not guilty of wilful laches or unreasonable neglect, will not be concluded by the decree of distribution from the assertion of his right by bill or petition against the trustee, executor, or ad- ministrator; or, in case they have distributed the fund in pursuance of an order of the court, against the distributees.” Ne son, J. Williams v. Gibbes, 17 How. 254. “Tt may be admitted, that two persons cannot unite two distinct titles in an original bill, although against the same person. Such a proceeding, if allowed, might be ex- tended indefinitely, and might give such a. complexity to chancery proceedings as would render them almost interminable. But we know of no principle which shall prevent a person claiming the same property by differ- ent titles, from asserting all his titles in the same Dill.’ MarsHatzt, C. J. Stephens v. M’Cargo, 9 Wheat. 504, 687 EQUITY. “Whilst parties should not be subjected to expense and inconvenience in litigating mat- ters in which they have no interest, multi- plicity of suits should be avoided by uniting in one bill all who have an interest in the principal matter in controversy, though the interests may have arisen under distinct contracts.” McLean, J. Fitch v, Creighton, 24 U. S. 164. “Whilst parties should not be subjected to expense and inconvenience, in litigating mat- ters in which they have no interest, multi- plicity of suits should be avoided, by unit- ing in one bill all who have an interest in the principal matter in controversy, though the interests may have arisen under distinct contracts.” McLean, J. Gaines v. Chew, 2 How. 642. “Tt has been decided that an author can- not file a joint bill against several booksellers for selling the same spurious edition of his work, as there is no privity between them. But it has been ruled that a bill may be sus- tained by the owner of a sole fishery against several persons who claimed under distinct rights. The only difference between’ these cases would seem to be, that the right of fishery was necessarily more limited than that of authorship. And how this should cause any difference of principle between the cases is not easily perceived.” Gaines v. Chew, 2 How. 642. 12. VARIANCE. “Tt is undoubtedly the rule in equity, as well as at law, that the proofs must corre- spond with the allegations, and that evidence irrelevant or inapplicable to the latter will be regarded as immaterial.” Danie. J. Byers v. Surget, 19 How. 309. “In equity proceedings the proofs and allegations must agree.” Swayne, J. Fos- ter v. Goddard, 1 Black 518. “Tt seems to be an established doctrine of a court of equity, that when the bill sets up a case of actual fraud, and makes that the ground of the prayer for relief, the plaintiff will not be entitled to a decree, by establish- ing some of the facts quite independent of fraud, but which might of themselves create a case under a totally distinct head of equity from that which would be applicable to the case of fraud originally stated.” Dantet, J. Eyre v. Potter, 15 How. 56. “The general rule is that where fraud is charged in the bill or set up in the answer, McLean, J.- ‘applied for before the enrolment. the party making the charge, if it is denied in a proper pleading, will be confined to that issue.” CiiFForD, J. French v. Shoemaker, 14 Wall. 335. “Tt is hardly necessary to repeat the axioms in the equity law of procedure, that the allegations and proofs must agree, that the court can consider only what is put in issue by the pleadings, that averments with- out proofs and proofs without averments are alike unavailing, and that she decree must conform to the scope and object of the prayer, and cannot go beyond them.” Swayne, J. Washington, etc, R. v. Brad- leys, 10 Wall. 303. “Tt is true that where a party alleges equitable ground for relief, and the allega- tions are not sustained, as where a bill is founded on an allegation of fraud, which is not maintained by the proofs, the bill will be dismissed im toto, both as to the relief sought against the alleged fraud, and that which is sought as incidental thereto.” Brantey, J. Clark v. Wooster, 119 U. S. 325. 13. REHEARING AND NEw TRIAL. “In the House of Lords, in England, to which the appeal lies from the Court of Chancery, a rehearing is altogether unknown. A reargument, indeed, may be ordered, if the house desires it, for its own satisfaction. But the chancery rules in relation to rehear- ings, in the technical sense of the word, are altogether inapplicable to the proceedings on the appeal.” Tanry, C. J. Brown vw. Aspden, 14 How. 26. “By the established rules of chancery practice, a rehearing, in the sense in which that term is used in proceedings in equity, cannot be allowed after the decree is en- rolled. If the party desires it, it must be But no appeal will lie to the proper appellate tri- bunal, until after it is enrolled, either actually or by construction of law. And, conse- quently the time for a rehearing must have gone by before an appeal could be taken.” Taney, C. J. Brown v. Aspden, 14 How. 26, “The application for new trial must be made to the chancellor; nor will the chan- cellor grant a new trial for every error of the judge presiding at the trial of the issues, if, on the whole facts, he is satisfied that the result is correct.” Cxrrrorp, J., concur- ring. Johnson v. Harmon, 94 U. S. 379. 688 EQUITY OF REDEMPTION. “Applications for new trial in an issue sent out of chancery must be made to the court of chancery, after the proceedings are certified back from the court of law.” CuiF- ForD, J., concurring. Johnson v. Harmon, 94 U. S. 378. “Power to grant a new trial of the issue is unquestionably vested in the chancellor; but, in determining that matter, the practice is to consider the whole of the evidence given at or before the trial and what has since become known to the court; and the rule is, that if the court is satisfied that full and complete justice has been done between the parties, the motion for new trial will be denied.” CuirrorpD, J., cancurring. Johnson v. Harmon, 94 U. S. 378. “Technically, there can be no ‘new trial’ in a suit in equity; as our mandates are to be interpreted according to the subject-matter of the proceeding here, and, if possible, so as not to cause injustice, . . . it is proper to inquire what must have been in- tended by the use of that term in the decree, since it cannot have its ordinary meaning.” Waite, C. J. Supervisors v. Kennicott, 94 U.S. 498. EQUITY OF REDEMPTION. See ForecLosurE oF MortcGacEs; GAGES; RECEIVERS. Mort- Equitable Right to Redeem. “By the common law, when the condition of the mortgage was broken, the estate of the mortgagee became indefeasible. At an early period equity interposed and permitted the mortgagor, within a reasonable time, to redeem upon the payment of the amount found to be due.” Swayne, J. Clark wv. Reyburn, 8 Wall. 322. Statutes Securing Right to Redeem. “The authority of the legislature to frame rules by which the right of redemption may be rendered effectual cannot be questioned.” Mier, J. Curtis v. Whitney, 13 Wall. 71. “Tn many of the states the right to redeem within a prescribed time after sale under a decree of foreclosure is given, in certain cases by statute.” Hartan, J. Parker v. Dacres, 130 U.S, 48. Right to Redeem Favored in Equity. “The right to redeem is a favorite equity, and will not be taken away, except upon'a strict compliance with the steps necessary to 1 Os. Dic.—44 689 divest it.” Matruews, J. Chicago, etc, R. Co. v. Fosdick, 106 U. S. 71 “Tt is true that this right of redemption is a favored right.” Brewer, J. Romig v. Gillett, 187 U. S. 117. Release or Sale of Equity of Redemption Closely Scrutinized. “A mortgagee in possessior may take a release of the equity of redemption. But such a transaction is to be schitinized, to see whether any undue advantage has been taken of the mortgagor. Especially is thi, necessary when the mortgagee, in the inception and throughout the whole conduct of the business, has shown himself ready and skilful to take advantage of the necessities of the borrower.” Curtis, J. Russell wv. Southard, 12 How. 154. “We think that, inasmuch as the mortga- gee in possession may exercise an undue influence over the mortgagor, especially, if the latter be in needy circumstances, the purchase by the former of the equity of re- demption, is to be carefully scrutinized, when fraud is charged; and that only con- structive fraud, or an wnconscientious ad- vantage which ought not to be retained, need be shown, to avoid such a purchase. But we are unwilling to lay down a rule which would be likely to prevent any prudent mort- gagee in possession, however fair his inten- tions may be, from purchasing the property, by making the validity of the purchase de- pend on his ability afterwards to show that he paid for the property, all that any one else would have been willing to give. We do not deem it for the benefit of mortgagors that such a rule should exist.” Curris, J. Russell v. Southard, 12 How. 154. “The law upon the subject of the right to redeem where the mortgagor has conveyed to the mortgagee the equity of redemption, is well settled. It is characterized by a jealous and salutary policy. Principles almost as stern are applied as those which govern where a sale by a cestui que trust to his trus- tee is drawn in question. To give validity to such a sale by a mortgagor it must be shown that the conduct of the mortgagee was, in all things, fair and rank, and that he paid for the property what it was worth.” Swayne, J. Villa v. Rodriguez, 12 Wall. 339. -—— Release Must Appear Clearly. “A release to the mortgagee will not be in- ferred from equivocal circumstances and EQUITY OF REDEMPTION. loose expressions.” Davis, 96 U. S. 337. Time Within Which Redemption May Be Made. “After the practice grew up of applying to the chancellor to foreclose the right to redeem upon default in the payment of the debt at maturity, it was always an incident of the remedy that the mortgagor should be al- lowed a specified time for the payment of the debt.” Swayne, J. Clark v. Reyburn, 8 Wall. 322. — Right May Be Barred by Limitation. “A mortgagee in possession, if satisfied with the mortgage security, need have no anxiety about the statute of limitations. That is the concern of the mortgagor. Un- less he redeems in proper time, he will lose his equity of redemption.” Braptey, J. Clay v. Freeman, 118 U. S. 106. Fretp, J. Peugh vw. Laches Barring Right to Redeem. “A mortgagor can not redeem after a lapse of twenty years, after forfeiture and posses- sion, no interest having been paid in the mean- time, and no circumstances appearing to ac- count for the neglect.” McLean, J. Slicer v. Pittsburgh Bank, 16 How. 580. “The possession of a trustee is the pos- session of a cestui que trust, so long as the trust is acknowledged; but from the time of known disavowal it becomes adverse. So of a mortgagee, while he admits himself to be in as mortgagee, and therefore liable to redemption. . . . But if the right of re- demption is not foreclosed within twenty years, the statute may be pleaded; and so in every case of an equitable title, not being the case of a trustee, whose possession is con- sistent with the title of the claimant.” Batp- wINn, J. Willison v. Watkins, 3 Pet. 52. “As a general rule,‘a mortgagor, after his mortgagee has been in possession twenty years, cannot be heard in advancing a claim to redeem. As was said in the court below, it is presumed he has released his equity. A chancellor will not entertain stale claims. It is true that'in most cases where this doc- trine has been avowed the mortgagee had been in continued actual occupancy, having not merely a right, but a pedis possessionem. But the cases are not ground, nor is it easy to see how that can make any difference in the rule when the mortgagor is out of possession, and knows or is bound to know that a right is asserted against him. The refusal of a court of. rested upon that ° equity to interfere is because of the laches of the holder of the equitable right, and a sleep of forty years, such as there was in this case, may well raise every presumption against a claim merely equitable. All such rights are imperfect, and hence they must be asserted with vigilance.” Srtronc, J. Brobst v. Brock, 10 Wall. 534. Liability of Mortgagee in Possession to Account for Rents and Profits, “An account of the rents and profits is ordinarily an incident to a decree for re- demption against a mortgagee in possession. But it is not an inseparable incident. This right to an account may be extinguished by a release, or an accord and satisfaction, or it may be barred by such neglect of the mort- gagor to assert his claim, as renders it un- fair for him to insist on an account extending over the whole period of possession, and un- just towards the mortgagee to order such an account. A mortgagee in possession is deemed by a court of equity a trustee; but there is no other than a constructive trust, raised by implication, for the purpose of a remedy, to prevent injustice, . and it would be contrary to the fundamental principles of equity, to imply a trust, the execution of which might work injustice.” Curtis, J. Russell v. Southard, 12 How. 155. Equity Terminated by Deed Actually Transferring Title. “But as in cases of strict foreclosure, so in cases of sale, the equity of the mortgagor as against the mortgagee is not exhausted until sale actually confirmed; for if at any time prior he should bring into court, for the mortgagee, the amount of his debt, in- terest and cost, he will not be allowed to redeem. It is the deed made to the pur- chaser, actually transferring the title of the parties to the suit, that terminates the mort- gagor’s equity of redemption.” MatTrHews, J. Chicago, etc, R. Co. v. Fosdick, 106 U.S. 71. —— Effect of Mortgagee’s Failure to Take Deed After Foreclosure. “Tf the right of redemption is determined by efflux of time, which must be before a deed can issue, failure to take out the deed either has no effect so far as the mortgagor is concerned because he is not injured, or the right of redemption still remains and all the mortgagor can claim is that the relation be- tween the parties is unchanged.” Futter, C. J. Bradley v. Lightcap, 195 U. S. 22. 690 ESCHEAT. ESCAPE. Liability of Sheriff. “The sheriff is, in law, the keeper of the county jail, and the jailer is his deputy ap- pointed and removable at his pleasure. He has the supervision and control of all the prisoners within the jail; and, therefore, is justly made responsible by law for all escapes occasioned by the negligence or wilful mis- conduct of his under keeper.” Story, J. Randolph v. Donaldson, 9 Cranch 86. % “The principle of the sheriff’s liability here asserted originated undoubtedly in cases of suit for an escape. Imprisonment of the debtor was then the chief if not the only mode of enforcing satisfaction of a judgment for money. It was a very simple, a very. speedy, and a very effectual mode. The debtor being arrested on a capias, which was his first notice of the action, was held a prisoner, unless he could give bail, until the action was tried. If he gave bail, and judgment went against him, his bail must pay the debt, or he could be re- arrested on a capias ad satisfaciendum; and, if he had given no bail, he was holden under this second writ until the money was paid. To permit him to escape was in effect to lose the debt; for his body had been taken in satisfaction of the judgment. Inasmuch as the object of keeping the defendant in prison was to compel the payment of the debt through his desire to be released, the plaintiff was entitled to have him in custody every hour until the debt was paid. It is also to be considered, that, for every day’s service in keeping the prisoner, the sheriff was en- titled to compensation by law at the hands of the creditor.” Miter, J. Dow v. Hum- bert, 91 U. S. 300. Escape Caused by Act of God or Pub- lic Enemy. “In the case of a sheriff, in reference to prisoners held by him in custody, ‘ the law puts the whole power of the county at his disposal, and makes him liable for an escape in all cases, except where it is caused by an act of God or the public enemy.” Brav.ey, J. U.S. v. Thomas, 15 Wall. 344. ESCHEAT. Escheat for Crime. “Tn all cases at common law where lands are forfeited for the personal offense of the party, I take the rule to be universally true, that until the offense is ascertained, by con- viction and attainder, no title vests in the sovereign.” Story, J. U.S, v. 1,960 Bags of Coffee, 8 Cranch 409. Escheat for Failure of Heirs and Devisees. “In this country, when the title to land fails for want of heirs and devisees, it escheats to the state as part of its common ownership, either by mere operation of law, or upon an inquest of office, according to the law of the particular state.” Gray, J. Hamilton v. Brown, 161 U. S. 263. Proceedings to Determine Succession. “When a man dies, the legislature may provide for promptly ascertaining, by appropriate judicial proceedings, who has succeeded to his estate. If such proceedings are had, after actual notice by service of summons to all known claimants, and con- structive notice by publication to all possible claimants who are unknown, the final deter- mination of the right of succession, either among private persons, as in the ordinary administration of estates, or between all persons and the state, as by inquest of office or similar process to determine whether the estate has escheated to the public, is due process of law; and a statute providing for such proceedings and determination does not impair the obligation of any contract con- tained in the grant under which the former owner held, whether that grant was from the state or from a private person.” Gray, J. Hamilton v. Brown, 161 U. S.. 275. See also ProBATE AND ADMINISTRATION. “ By the law of England, before the Decla- ration of Independence, the lands of a man dying intestate and without lawful heirs, re- verted by escheat to the king as the sover- eign lord; but the king’s title was not com- plete without an actual entry upon the land, or judicial proceedings to ascertain the want of heirs and devisees. . The usual form of proceeding for this purpose was by an inquisition or inquest of office before a jury, which was had upon a commission out of the Court of Chancery, but was really a proceeding at common law; and, if it resulted in favor of the king, then, by virtue of an- cient statutes, any one claiming title in the lands might, by leave of that court, file a traverse, in the: nature of a plea or defense to the king’s claim, and not in the nature of an original suit. . . The inquest of office was a proceeding in rem; when there was a proper office found for the king, that was notice to all persons who had claims to come in and assert them; and, until so tray- 691 ESTATES. ersed, it was conclusive in the king’s favor.” Gray, J. Hamilton v. Brown, 161 U. S. 263. Escheats Not Favored in Equity. “As a general principle, too, in all cases, a court of chancery will not raise a use ‘by implication,’ in an alien, so as to endanger the estate, but will rather pass a title to the executors in trust. . . So it has been held that, if it can be avoided, a court will not vest the estate in an alien by construction, in order to have it escheat, when otherwise it would not.” Woopsury, J. Taylor v. Ben- ham, 5 How. 270. ESCROWS. Uncertainty as to Law. “The law in reference to escrows seems to be involved in some _ uncertainty.” Lamar, J. Young v. Clarendon Tp., 132 U. S. 353. Necessity for Performance of Condition. “Tt is a principle of the common law, too well settled to be controverted, that where an instrument is delivered as an escrow or where one surety has signed it on condition that it shall be signed by another before its delivery, no obligation is incurred until the condition shall happen.” McLgan, J. Dun- can v. U. S., 7 Pet. 448. “What the effect is of a performance of the conditions by the grantee, the instrument remaining in the hands of the depositary — whether, in such cases the second delivery by the depositary is or is not necessary to give effect to the deed—are questions about which the courts yet differ.” Lamar, J. Young v. Clarendon Tp., 132 U. S. 353. “Even in the cases of an ordinary escrow, nothing passes by the deed until the con- dition is performed.” Lamar, J. Young v. Clarendon Tp., 132 U. S. 353. Relation Back of Title. “Cases may be found where it is held that a deed delivered as an escrow, when the condition is performed, relates back to the time of its execution; and that proposition may be correct under certain circumstances, where the ends of justice require its appli- cation.” Currrorp, J. Calhoun County, etc., v. American Emigrant Co., 93 U. S. 127. “While ordinarily in case of an escrow title passes at the date of the second delivery, yet often, for the prevention of injustice, the deed will relate back to the first delivery so as to pass title at that time.” Brewer, J. Lykins v. McGrath, 184 U. S. 172. Parol Evidence. “Tt is not to be doubted, that obligees would be much more secure against fraud, if the evidence that the writing was delivered as an escrow appeared upon its face, than by admitting parol testimony of that fact. But the law is settled otherwise, and is not to be disturbed by this court.” MarsHALt, C. J. Pawling v. U. S., 4 Cranch 222. ESPECIALLY. See EXprEssLy. ESTABLISH. “The word ‘establish’ [does not] convey the idea of permanency.” McKenna, J. Osborne v. San Diego Co., 178 U. S. 38. ESTATES. See Conpitions PRECEDENT AND SUBSE- QUENT; CONVEYED; Curtesy; Dower; For- FEITURE; INTEREST; LANDLORD AND TENANT; Lanps AND TENEMENTS; Livery oF SEIZIN; MarriacE AND MarrieD Women; Mort- GAGES; PURCHASER; REMAINDERS, REVERSIONS, AND Executory INTERESTS; RiGHT oF EN- TRY; TENANCY IN CoMMON. Definitions and General Principles. “Estate is a comprehensive term, including all real and personal estate.” Wayne, J. Weatherhead v. Baskerville, 11 How. 358. “The word estate, in testamentary cases, is sufficiently descriptive both of the subject and the interest existing in it. It is un- questionably true, that its meaning may be restricted by circumstances or expressions indicative of its being used in a limited or particular sense, so as to confine it to the subject alone; but certainly in its general use, it is understood to apply more perti- nently to the interest in the subject.” Joun- son, J. Lambert v. Paine, 3 Cranch 128. “A power to dispose of land in the seizin of a third person, is in no just sense an es- tate in the land itself.” Story, J. Carver v. Jackson, 4 Pet. 92. “A Right to Land essentially implies a right to the profits accruing from it, since, without the latter, the former can be of no value. Thus, a devise of the profits of land, 692 ESTATES. or even a grant of them, will pass a right to the land itself.’ Wasuincton, J. Green v. Biddle, 8 Wheat. 76, Fee Simple Estates. “These words, propiedad y senorio, carry the idea of complete ownership, and seem to be practically the same as the words ‘fee simple’ under the common law.” Brown, J. Zia v. U. S., 168 U. S. 205. “‘Propiedad y usufructo, ‘plena propie- dad, ‘pleno dominio, ‘dominio directo y° util, etc., are descriptive in the Spanish law of the highest estate or right of property in land which the subject can acquire.” Wayne, J., dissenting. U. S. uv. Castillero, 2 Black 227. we Presumption. “The prima facie presumption must -be that they [the owners of the fee] held the title of the buildings by the same fee-simple title, in the absence of any evidence in the case to controvert that conclusion.” C.rF- ForD, J. Lycoming Fire Ins. Co. v. Haven, 95 U. S. 245. Highest Tenure Known to Law. “ Authorities to prove that a fee-simple estate is the highest tenure known to the law are quite unnecessary, as the principle is elementary and needs no support.” CLIFFoRD, J. Lycoming Fire Ins. Co. v. Haven, 95 U. S. 245, Incidents of Fee Simple Estates — Right of Alienation. ; “The power of free alienation is incident to an estate in fee simple, but a condition in a grant preventing alienation to a limited ex- tent or for a certain and reasonable time may be valid, and the grantee forfeit his estate by violating it.” Furier, C. J. Taylor v. Brown, 147 U. S. 646. “The right of alienation: is an inherent and inseparable quality of an estate in fee simple. In a devise of land in fee simple, therefore, a condition against all alienation is void, because repugnant to the estate de- vised. For the same reason, a limitation over, in case the devisee shall alien, is equally void, whether the estate be legal or equitable. And on prin- ciple, and according to the weight of author- ity (notwithstanding opposing dicta in Cowell v. Springs Co., 100 U. S. 55, 57, and in other books), a restriction, whether by way of condition or of devise over, on any and all alienation, although for a limited time, of 693 an estate in fee, is likewise void, as repug- nant to the estate devised to the first taker, by depriving him during that time of the inherent power of alienation.” Gray, J. Potter v. Couch, 141 U. S. 315. “ Repugnant Conditions are those which tend to the utter subversion of the estate, such as prohibit entirely the alienation or use of the property. Conditions which pro- hibit its alienation to particular persons or for a limited period, or its subjection to par- ticular uses, are not subversive of the estate: they do not destroy or limit its alienable or inheritable character.” Fretp, J. Cowell v. Colorado Springs Co., 100 U. S. 57. Void Conditions. “Tf a deed for land is to be made void, by the happening of a subsequent condition, the performance of which is impossible at the time the deed is made, the condition only is void, and the estate of the grantee becomes absolute.” Wasuincton, J. Hughes v. Ed- wards, 9 Wheat. 494. Restrictions on Use of Property. “The reports are full of cases where con- ditions imposing restrictions upon the uses to which property conveyed in fee may be subjected have been upheld. In this way slaughter-houses, soap-factories, distilleries, livery-stables, tanneries, and machine-shops have, in a multitude of instances, been ex- cluded from particular localities, which, thus freed from unpleasant sights, noxious vapors, or disturbing noises, have become desirable as places for residences of families. To hold that conditions for their exclusion from premises conveyed are inoperative, would de- feat numerous arrangements in our large cities for the health and comfort of whole neighborhoods.” Fietp, J. Cowell v. Colo- rado Springs Co., 100 U. S. 57. Fee Cannot Be in Abeyance. “ The theory of the common law, that the fee can never be abeyance, but must reside somewhere, though seemingly somewhat fan- ciful, is founded upon a consideration of good sense, that there shall always be some one in existence to represent it in actions brought for its recovery, and to protect the interest of the heirs.” Brown, J. U. S. v. Dunnington, 146 U. S. 349. “A Fee-simple Interest May Be Held in Reversion, but our law will not admit . the idea of its being limited after a fee sim- ple.” Jounson, J., dissenting. Fletcher v. Peck, 6 Cranch 147. ESTATES. Beneficial Interest in Land. “ As according to the feudal law, the whole beneficial interest in the land consisted in the right to take the rents and profits.” FULLER, C. J. Pollock v. Farmers’ L. & T. Co., 157 U. S. 580. “Life Tenants regarded simply as per- sons, may be in legal contemplation the same; estates for life regarded simply as es- tates with their attributes also in legal con- templation, may be said to be the same.” McKenna, J. Billings v. Illinois, 188 U. S. 104, “A tenant for life has all the rights of oc- cupancy in the lands of a remainderman. The Indians have the same right in the lands of their reservations. What a tenant for life may do upon the lands of a remainderman the Indians may do upon their reservations, but no more.” Waite, C. J. U. S. wu. Cook, 19 Wall. 594. “A Tenancy at Will must be the result of contract, express or implied; but a free- hold, granted on condition, is not converted by forfeiture into a tenancy at will.” Mar- SHALL, C. J. Kirk v. Smith, 9 Wheat. 324. Equitable Interests. “Equity considers that as done which is agreed to be done. Money which, according to a will or agreement, is to be invested in land, is regarded, in equity, as real estate; and land which is to be converted into money, is regarded as money, and treated accordingly.” Swayne, J. Seymour vw. Freer, 8 Wall. 214. “The same rules generally apply to legal and to equitable estates. They are alike descendible, devisable, and alienable.” Swayne, J. Ould v. Washington Hospital, etc, 95 U. S. 312. “Generally, the rules which apply to legal apply also to equitable estates.” Swayne, J. New Orleans, etc., Co. v. Montgomery, 95 U.S. 18. “Generally, whatever is true at law of the legal estate, is true in equity of the trust estate.” Swayne, J. Croxall v. Shererd, 5 Wall. 281. : “Tn the consideration of a court of equity, the cestut que trust is actually seized of the freehold. He may alien it, and any legal conveyance by him will have the same oper- ation in equity upon the trust, as it would have had at law upon the legal estate.” Swayneg, J. Croxall v. Shererd, 5 Wall. 281. “The trust like the legal estate is descend- ible, devisable, alienable, and barrable by the act of the parties, and by the matter of record.” Swayne, J. Croxall v. Shererd, 5 Wall. 281. Termination of Equitable Interests. “No mode of terminating an equitable in terest can be more perfect than a voluntary relinquishment, by the vendee, of all rights under the contract, and a voluntary surren- der of the possession to the vendor.” Hunt, J. Jennsions v. Leonard, 21 Wall. 310. “ Estates Tail, under the statute de donis, were, before the passage of the statute, known in the common law as conditional fees. Like estates tail, they were limited to particular heirs to the exclusion of others. The condition was, that if the donee died, without leaving such heirs as were specified, the estate should revert to the grantor. Ac- cording to the common law, upon the birth of such issue, the estate became absolute for three purposes: 1. The donee could alien, and thus bar his own issue and the rever- sioner. 2. He could forfeit the estate in fee simple for treason. Before he could only forfeit his life estate. 3. He could charge it with incumbrances.” Swayne, J. Crox- all v. Shererd, 5 Wall. 283. “ By the statute de donis, Westm. 2, 13 Ed. 1, a fee-simple conditional estate at common law, in certain cases, was converted into a fee tail which, by alienation, the ancestor could not change.” McLegan, J. Shriver v. Lynn, 2 How. 55. “The Power to Suffer a Common Re- covery has been invariably held to be a privilege inseparably incident to an estate tail, and which cannot be restrained by condition, limitation, custom, recognizance, or cove- nant.” Swayne, J. Croxall v. Shererd, 5 Wall. 285. Seizin. “By the common law, actual seizin, or seizen in deed, is indispensable to the inher- itable quality of estates. If the ancestor were not seized, however clear his right: of property, the heir cannot inherit.” Swayne, J. Bates v. Brown, 5 Wall. 714. “Seizin was originally the completion of the feudal investiture. In American juris- prudence it means, generally, ownership. 694 ESTATES. The covenant of seizin and the covenant of right to convey are synonymous.” SWAYNE, J. McNitt v. Turner, 16 Wall. 361. Forfeitures, “Every estate held by feudal tenure was subject to forfeiture for breach of the con- ditions on which it was granted. Nor were these conditions always expressed in the grant; for every act of the vassal which amounted to a breach of his allegiance, or the tie which bound him to his lord, operated a forfeiture of the land.” Wayne, J., dis- senting. U. S. v. Castillero, 2 Black 228. “A Conditional Limitation is comprised among executory devises, and therefore can be created by will alone; but estates on con- dition may be created by deed or will. As to the estate to be created or carried over, as well as in those instances in which it anticipates or prevents an estate from vest- ing, it is obvious that conditional limitations must be assimilated to conditions precedent. But as the contingency may also operate to divest an estate taken presently, it is equally obvious that it then approximates to a con- dition subsequent in one of its effects. In either case, however, it is regarded as a contingency, and the law of conditions is not applied to it, to any purpose that would defeat the estate of the second taker. It is, on the contrary, so moulded and applied as may give effect to the devise over.” Joun- son, J., dissenting. Finlay v. King, 3 Pet. 391, “Cases of conditional limitation partake of the nature of conditions; but they are cases of contingency, and to be adjudged upon the principles applicable to contingent estates. Their distinguishing characteristics are, that they contain a condition either to divest an estate vested, or to prevent the vest- ing of an estate contemplated, and to carry over the interest to another party, or to some other purpose, not to the heir. Whereas it is indispensable to the legal idea of a con- dition that it should enure to the benefit of the heir, that he should enter, and that the fact of entry should be the restoration of the original estate, not the creation of a new estate.” JoHNSON, J., dissenting. Fin- lay v. King, 3 Pet. 390, “The rule of the law which converts words of condition into words of limita- tion in certain cases proceeds upon inten- tion, and cannot be affected by the occurrence of incidents which defeat the execution of that intention.” JoHNson, J., dissenting. Finlay v. King, 3 Pet. 392. “Tt seems incontrovertible that when a limitation over is made to depend upon the failure of a certain event, the limitation ought to take effect whenever it is ascer- tained that the event must fail, as when it has become impossible; and equally so, that when a previous interest, although pass- ing presently into possession, awaits its confirmation from the happening of a certain event, that there is no reason for con- tinuing that estate, when it is definitely es- tablished that the event on which it de- pends for confirmation can never happen.” Jounson, J., dissenting. Finlay v. King, 3 Pet. 394, Conveyances—~ What May Be Conveyed. “At the common law a right of entry is clearly not grantable or assignable. The party has, in the sense of the common law, no estate in lands of which he is disseized; but his estate is said to be turned to a right, and can be recoverable only by an entry or an action. In the meantime he has not any estate in the lands, but he has merely the right to the estate.” Story, J., dissenting. Inglis v. Sailor’s Snug Harbour, 3 Pet. 176. Grantee Can Convey No More Than He Possesses. “On general principles, it is incontestable, that a grantee can convey no more than he possesses. Hence, those who came in under the holder of a void grant can acquire noth- ing.” Jounson, J. Polk v. Wendell, 5 Wheat. 308. Bargain and Sale and Quitclaim Distin- guished. “In one case, that of bargain and sale, he [the grantor] impliedly asserts the possession of a claim to or interest in the property, for it is the property itself which he sells and undertakes to convey. In the other case, that of quitclaim, the grantor affirms noth- ing as to the ownership, and undertakes only a release of any claim to or interest in the premises which he may possess without as- serting the ownership of either. If in either case the grantee takes the deed with notice of,an outstanding conveyance and obligation, and cannot claim protection against them as a bona fide purchaser.” Fietp, J. Moelle v. Sherwood, 148 U. S. 29. Title by Operation of Law. “The law devolves title by its own oper- ation on an executor, an administrator, an 695 ESTATES. heir, a universal legatee or a receiver.” Fut- LER, C. J. Glass v. Concordia Parish Police Jury, 176 U. S. 210. Bona Fide Purchasers, “Where a party contracts specifically for property, pays money, acquires a legal title without notice of an equity, a court of chan- cery will not disturb his legal position.” CAMPBELL, J. Wanzer v. Truly, 17 How. 587. “A purchaser of land, for value, and with- out notice of a prior deed, holds and can con- vey an indefeasible title; and therefore the title, either of one who, without notice, pur- chases from one who purchased with notice, or of a purchaser with notice from a pur- chaser without notice, is good.” Gray, J. Stanley v. Schwalby, 162 U. S. 276. “A purchaser of land for valuable consid- eration may doubtless be affected by knowl- edge which an attorney, solicitor or convey- ancer, employed by him in the purchase, acquires or has while so employed, because it is the duty of the agent to communicate such knowledge to his principal, and there is a pre- sumption that he will perform ‘that duty.” Gray, J. Stanley v. Schwalby, 162 U. S. 276, “A bona fide purchaser for value of prop- erty, subject to an equitable mortgage, with- out notice of such mortgage, takes the prop- erty free of the equitable mortgage.” WHITE, J. Lynch v, Murphy, 161 U. S. 255. “A party may have notice of conflicting claims and still in the exercise of an honest judgment as to the rightful owner, buy prop- erty and pay for it, and be acting in good faith.” Brewer, J. U. S. v. Southern Pac. R. Co., 184 U. S. 54. “ The character of bona fide purchaser must depend upon attending circumstances or proof as to the transaction, and does not arise, as often, though, we think, inadvertently, said, either from the form of the conveyance or the presence or the absence of any accom- panying warranty. Whether the grantee is to be treated as taking a mere speculative chance in the property, or a clear title, must depend upon the character of the title of the grantor, when he made the conveyance; and the oppor- tunities afforded the grantee of ascertaining this fact and the diligence with which he has prosecuted them, will, besides the payment of a reasonable consideration, determine the bona fide nature of the transaction on his part.” Fiztp, J. Moelle v. Sherwood, 148 U. S. 30. “Even in those courts in which the rule was announced, that one who takes under a quitclaim deed cannet be a bona fide pur- chaser, it was sometimes limited to the gran- tee in such a deed, and not extended to those cases in which a quitclaim was only a prior ccnveyance in the chain of title.’ Brewer, J. U.S. v, California, etc., Land Co. 148 UL S. 47. “A party who receives a quitclaim deed may act in the utmost good faith, and in fact be ignorant of any defect in the title, and ‘this, although he has made the most com- plete and painstaking investigation, and only takes the quitclaim deed because the grantor, for expressed and satisfactory reasons, de- clines to give a warranty. It would be un- fortunate, in view of the fact that in so many chains of title there are found quitclaim deeds, to extend a purely arbitrary rule so as to make the fact of such a deed notice of any prior defect in the title.’ Brewer, J. U. S. v. California, etc., Land Co., 148 U. S. AT. “When a purchaser cannot make out his title but through a deed which leads to a fact, he will be affected with notice of that fact.” M’Lean, J. Brush v. Ware, 15 Pet. 114. “Nothing is clearer than that a purchaser for a valuable consideration, without notice of prior equitable right, obtaining the legal estate at the time of his purchase, is entitled to priority in equity as well as at law, ac- cording to the well-known maxim that when equities are equal the law shall prevail.” Woops, J. Townsend v. Little, 109 U. S. 511. “The term ‘ bona fide purchaser’ has a well settled meaning in the law. It does not re- quire settlement or occupancy. Any one is a bona fide purchaser who buys in good faith and pays value. To limit the term as here used to settlers is to interpolate into the statute a restriction which neither the lan- guage nor the surrounding circumstances justify.” Brewer, J. U. S. v. Des Moines, etc. R. Co., 142 U. S. 530. “Tf a Patent from the Government be presented, surely a purchaser from the paten- tee is not derelict, and does not fail in such diligence and care as are required to make him a bona fide purchaser, because he relies upon the determination made by the land officers of the government in executing the patent, and does not institute a personal inquiry into all the anterior transactions upon which the pat- ent rested.” Brewer, J. U.S. v. California, etc, Co.,148 U. S. 45. 696 ESTOPPEL. “Of course, buying with actual notice of a previous title, or under circumstances which make it a duty to take notice, is a fraud, and deprives the purchaser of the immunity arising from the fact that such title is not recorded nor deposited in the land-office.” Brapbtey, J. Airhart v. Massieu. 98 U. S. 505. Legal Incapacity of Vendor. “When the want of just title is the result of a legal incapacity on the part of the seller, such a cause not only operates to render the title not just in legal intendment, but de- prives the contract of the essential ingredi- ents of legal good faith.” Wauurr, J. Hayes v. U.S. 170 U. S. 652. “Where the State Claims Title under the deed, or other solemn acts of third per- sons, it takes it cum onere, and subject to all the estoppels running with the title and es- tate, in the same way as other privies in estate.” Story, J. Carver v. Jackson, 4 Pet. 87. ESTOPPEL. See Lacues; LANpiorD AND TENANT; MarrIAGE AND MarrieD WomEN; NATIONAL Banxs; REMOVAL OF CLOUD AND QUIETING TitLe; Res JUDICATA. Definition and Nature. “An estoppel has sometimes been quaintly defined, the stopping a man’s mouth from speaking the truth; and would seem in some measure, to partake of severity, if not of in- justice. But it is in reality founded upon the soundest principles, as a rule of evidence;, that a party has, by his own voluntary act, placed himself in a situation as to some mat- ter of fact, that he is precluded from deny- ing it.’ Tompson, J. Sprigg v. The Bank of Mount Pleasant, 10 Pet. 265. “Estoppels which run with the land and work thereon are not mere conclusions; they pass estates, and constitute titles; they are muniments of title, assuring it to the pur- chaser. Their operation is highly beneficial, tending to produce security of titles.” Curtis, J. Bush v. Cooper, 18 How. 85. “Estoppels ate mutual. They run with the land, into whose hands soever the land comes; by which the parties and all claiming under them, as well as the courts are bound; were it otherwise, litigation would be endless. Such is the established rule.” Catron, J. Porterfield v. Clark, 2 How. 109. Estoppel Is Common-law Doctrine. “The passage of a title by inurement and estoppel is its [the common law’s work without the help of legislation.” Swayne, J. Dickerson v. Colgrove, 100 U. S. 584. Estoppel by Judicial Record. “Tt may be laid down as a general prop- osition that, where a party assumes a cer- tain position in a legal proceeding, and suc- ceeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, es- pecially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.” Brown, J. Davis v. Wake- lee, 156 U. S. 689. “Tt is contrary to the first principles of justice that a man should obtain an advan- tage over his adversary by asserting and re- lying upon the validity of a judgment against himself, and in a subsequent proceeding upon such judgment, claim that it was ren- dered without personal service upon him.” Brown, J. Davis v. Wakelee, 156 U. S. 691. “The wise and salutary doctrine which binds a party to his judicial declarations, and forbids him from subsequently contradicting his statements thus made [is not contro- verted].” Jackson, J. Sturm v. Boker, 150 U.S. 334. “The essence of estoppel by judgment is that there has been a judicial determination of a fact, and the question always is, has there been such determination, and not upon what evidence or by what means was it reached. A failure to answer is taken as an admission of the truth of the facts stated in the complaint and the court may properly base its determination on such admission.” Brewer, J. Last Chance Min. Co, v. Tyler Min. Co., 157 U. S. 691. Estoppel by Deed —In General. “On ordinary principles, an individual is estopped from denying a fact which he has admitted in a sealed instrument.” McLean, J. Bein v. Heath, 6 How. 241. —— Necessity of Certainty. “An estoppel, it is said, should be certain to every intent, and therefore, if a thing be not directly and precisely alleged, it shall not be estopped.” Dantet, J. Gilmer v. Poin- dexter, 10 How. 268. “There is not that certainty to every in- tent, which Lord Coke held necessary to con- 697 ESTOPPEL. stitute an estoppel.” Brown, J. McCarty v. Lehigh Valley R. Co., 160 U. S. 120. — Truth Must Not Appear on Face of Deed. “To the success of an estoppel it is ob- viously necessary that the grantor’s want of a present vested estate should not appear on the deed itself, which would else contain internal evidence of its invalidity.” DawNrEL, J. Gilmer v. Poindexter, 10 How. 268. — Recitals. “A mere recital of a fact in a deed is as effectual an estoppel as a covenant.” CuRTIs, J. Bush v. Cooper, 18 How. 85. “The rule of law is, that a deed contain- ing a recital of another deed, is evidence of the recited deed against the grantor, and call persons claiming by title derived from him subsequently. The reason of the rule is, that the recital amounts to the confession of the ‘party; and that confession is evidence against himself, and those who stand in his place. But such confession can be of no evidence against strangers.” Story, J. Carver v. Jackson, 4 Pet. 87. “Tf there be the recital of a lease in a deed of release, and in a suit against a stranger the title under the release comes in question, there the recital of the lease in such release is not per se evidence of the existence of the lease. But, if the existence and loss of the lease be established by other evidence, there the recital is admissible as secondary proof in the absence of more per- fect evidence, to establish the contents of the lease; and if the transaction be an ancient one, and the possession has been long held under such release, and is not otherwise to be accounted for, there the recital will of itself under such circumstances materially fortify the presumption from lapse of time and length of possession of the original ex- istence of the lease.” Story, J. Carver v. Jackson, 4 Pet. 83. “Whatever may be the form or nature of the conveyance used to pass real property, if the grantor sets forth on the face of the in- strument, by way of recital or averment, that he is seized or possessed of a particular es- tate in the premises, and which estate the deed purports to convey; or, what is the same thing, if the seizin or possession of .a par- ticular estate is affirmed in the deed, either in express terms or by necessary implication, the grantor and all persons in privity with him shall be estopped from ever afterwards denying that he was so seized and possessed at the time he made the conveyance. The es- toppel works upon the estate, and binds an after-acquired title as between parties and privies.” Netson, J. Van Rensselaer vw, Kearney, 11 How. 325. “The rule has always been, that where there was a warranty or covenant for title, that would cause circuity of action if the vendee was evicted by the vendor, then the deed worked an estoppel. But the rule has been carried further, and is now established, that where the grantor sets forth on the face of his conveyance, by averment or re- cital, that he is seized of a particular es- tate in the premises, and which estate the deed purports to convey, the grantor and all persons in privity with him shall be estopped from ever afterwards denying that he was seized and possessed at the time he made the conveyance. The estoppel works upon the estate, and binds an after-acquired title, as between parties and privies.’ Catron, J. French v. Spencer, 21 How. 240. — Recitals Not Conclusive. “Facts recited in an instrument may be controverted by the other party in an action not founded on the same instrument, but wholly collateral to it. Recitals of the same kind may be evidence for the party instituting the suit, but they are not conclusive.” Cx1F- ForD, J. Bank of America v. Banks, 101 Uz S. 247. —— Persons Affected by Estoppel. “Privies are divided by Lord Coke into three classes — 1st, privies in blood; 2d, priv- ies in law; and 3d, privies by estate. The doctrine of estoppel, however, so far as it applies to persons falling under these denom- inations, applies to them under one and the same principle, namely, that a party claiming through another is estopped by that which estopped that other respecting the same sub- ject-matter. Thus, an heir who is privy in blood would be estopped by a verdict against his ancestor, through whom he claims. An executor or administrator, suing or sued as such, would be bound by a verdict against his testator or intestate, to whom he is privy in law. With regard to privies in estate, a verdict against feoffer would estop feoffee, and lessor, the lessee, etc.” Grier, J. Stacy v. Thrasher, 6 How. 59. “Estoppels bind, not only parties, but priv- ies in blood and estate, though not person- ally liable on the covenants creating the estoppel. Indeed, it is the settled doctrine of this court, not only that no exist- 698 ESTOPPEL. : ing personal liability is necessary to work an estoppel, but that none need have existed at any time.” Curtis, J. Bush v. Cooper, 18 How. 85. “The warranty estops the grantee, and all persons in privity with him, from denying that he [the grantor] was seized.” NELSON, J. Crews v. Burcham, 1 Black 357. “The vendee cannot dispute the title of his vendor any more than the lessee can dispute that of his lessor. Any other person coming into possession under the ven- dee, either with his consent or as an intruder, is bound by a like estoppel.” Swayne, J. Lewis v. Hawkins, 23 Wall. 125, “Where both parties assert title from a common grantor, and no other source, neither can deny that such grantor had a valid title when he executed his conveyance.” Brown, J. Bybee v. Oregon, etc., R. Co., 139 U. S. 682. “In a number of cases it has been held that where one takes by descent as a coheir or tenant in common, he cannot show, in an action of ejectment by his coheir, that his ancestor had no title.” Brown, J. Bybee v. Oregon, etc., R. Co., 139 U. S. 683. — Necessity of Existence of Obligation to Restore Possession. “Tt may be said in general that the doc- trine of estoppel exists only where there is an obligation to restore, the possession of the land, upon certain contingencies, such, for instance, as exist between landlord and tenant, or mortgagor and mortgagee. In such cases the occupant is considered to have pledged his faith to return the possession of the land which he occupies, and will not be permitted to do anything to impair the title of him from whom he has received it.” Brown, J. Bybee v. Oregon, etc. R. Co., 139 U. S. 684. —Estoppel to Set Up After-acquired Title. “Conceding that a covenant of general warranty operates by way of rebutter to pre- clude the grantor and his heirs from setting up an after-acquired title rather than to actually transfer the new estate itself, the subsequent acquisition creates an equity for a conveyance in order to make the prior deed effectual.” FuLier, C. J. Moore v. Craw- ford, 130 U. S. 131. — Estoppel in Equity. “Equitable title cannot be estopped by a verdict at law, for there is no such thing as an estoppel in equity.” Daniev, J. Gilmer v. Poindexter, 10 How. 268. —— Enlargement of Estoppel. “A person entitled to the benefit of an estoppel may transfer it by transferring the estate, but he cannot change or enlarge it.” Brab.ey, J. Branson v. Wirth, 17 Wall. 41. —Estoppel Against Estoppel. “No one can set up an estoppel against his own grant.” Brapizy, J. Branson v. Wirth, 17 Wall. 42. — Waiver of Estoppel. “With regard to the mode of using an estoppel, it is said that it must be pleaded if there be an opportunity; otherwise, the party omitting to plead it waives the estop- pel.” Dantet, J. Gilmer v. Poindexter, 10 How. 268. “Tf a party has opportunity to plead an estoppel and voluntarily omits to do so, and tenders or takes issue on the fact, he thus waives the estoppel and commits the matter to the jury, who are to find the truth. . . But if he have not opportunity to show the estoppel by pleading, he may exhibit the matter thereof in evidence, on the trial, un- der any issue which involves the fact, and both the court and the jury are bound thereby.” Curtis, J. Philadelphia, etc, R. Co. v. Howard, 13 How. 335. “The plaintiff cannot be said to have op~ portunity to plead an estoppel, and volun- tarily to omit to do so, when the previous pleadings are such that if he did plead it, it would be demurrable.” Curtis, J. Philadel- phia, etc., R. Co. v. Howard, 13 How. 336, Estoppel in Pais—In General. “Estoppel in pats presupposes an error or a fault and implies an act in itself invalid. The rule proceeds upon the consideration that the author of the misfortune shall not himself escape the consequences and cast the burden upon another.” Swayne, J. Mer- chants’ Nat. Bank v. State Nat. Bank, 10 Wall. 645. “Tt is a familiar rule 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.” Futter, C. J. Fried- lander v. Texas, etc, R. Co, 130 U. S. 425. “Whenever an act is done or statement made by a party, which cannot be con- 699 ESTOPPEL. tradicted without fraud on his part and injury to others, whose conduct has been influenced by the act or omission, the char- acter of an estoppel will attach to what otherwise would be mere matter of evidence.” Davis, J. Dair v. U. S., 16 Wall. 4 “The doctrine of estoppel by conduct has been applied under a great diversity of cir- cumstances.” Haran, J. Leather Manu- facturers’ Bank v. Morgan, 117 U. S. 108. Nature and Ground of Doctrine. “An estoppel in pais is sometimes said to be a moral question. Certain it is that to the enforcement of an estoppel of this char- acter, such as will prevent a party from as- serting his legal rights to property, there must generally be some degree of turpitude in his conduct which has misled others to their injury. Conduct or declarations found- ed upon ignorance of one’s rights have no such ingredient, and seldom work any such result.” Frecp, J. Henshaw v. Bissell, 18 Wall. 271. “ Parties must take the consequences of the position they assume. They are estopped to deny the reality of the state of things which they have made appear to exist, and upon which others have been led to rely. Sound ethics require that the apparent, in its ef- fects and consequences, should be as if it were real, and the law properly so regards it.’ Swayne, J. Casey v. Galli, 94 U. S. 680. “The principle [of equitable estoppel] is that where one party has by his representa- tions or his conduct induced the other party to a transaction to give him an advantage which it would be against equity and good conscience for him to assert, he would not in a court of justice be permitted to avail himself of that advantage.” Muter, J. Union Mut. Ins. Co. v. Wilkinson, 13 Wall. 233. — Misrepresentation of Facts. “The doctrine of estoppel is applied with respect to representations of a party, to pre- vent their operating as a fraud upon one who has been led to rely upon them.” Fievp, J. Union Mut. L, Ins. Co. v. Mowry, 96 U. 5S. 547, —— Misleading Declarations or Conduct. “Tf one, aware of the situation, believes he has certain legal rights, and desires to in- sist upon them, he should do so promptly. If by his declarations or conduct he leads the other party to believe that he does not propose to rest upon such rights, but is will- ing to waive them for a just compensation, and the other party proceeds to great ex- pense ih the expectation that payment of a fair compensation will be accepted and the right waived — especially if it is in respect to a matter which will largely affect the pub- lic convenience and welfare—a court of equity may properly refuse to enforce those rights, and, in the absence of an agreement for compensation, compel him to submit the determination of the amount thereof to an impartial tribunal.” Brewer, J. New York City v. Pine, 185 U. S. 103. —— Taking Benefit of Contract with Knowledge of Facts. “To take the benefit of a contract with full knowledge of all the facts and attempt after- wards to defeat it, when called upon to per- form, by asserting conditions relating to those facts, would be to claim that no contract was made, and thus operate as a fraud upon the other party.” Sutras, J. Northern Assur. Co. v. Grand View Bldg. Assoc., 183 U. S. 827. —— Omission to Assert Right. “One should be estopped from asserting a right to property, upon which he has, by his conduct, misled another, who supposed him- self to be the owner, to make expendi-. tures.” Frecp, J. Steel v. St. Louis Smelt- ing, etc., Co., 106 U. S. 456. “Tf an individual witness a sale and transfer of real estate, under certain circum~- stances, in which he has an equitable lien or interest, and does not make known this in- terest, he shall not be afterwards permitted to assert it.” McLean, J. Shaw wv. Cooper, 7 Pet. 321. “TIn a court of equity, at least, the owner of land, who stands by and sees it conveyed as belonging to another, cannot afterwards set up his own title against the grantee.” Gray, J. Close v. Glenwood Cemetery, 107 U.S. 477. “One who, having an inchoate right to property, abandons it for fourteen years, per- mits others to acquire apparent title, and deal with it as theirs, and as though he had no right, does not appeal to the favorable consideration of a court of equity.” Brewer, J. Moran v, Horsky, 178 U. S. 208, —— Silence or Concealment of Facts. _ The courts, to promote the ends of justice, have sustained the general principle 700 EVICTION. that, where a duty is cast upon a person by the usages of business or otherwise, to dis- close the truth— which he has the means, by ordinary diligence, of ascertaining — and he neglects or omits to discharge that duty, whereby another is misled in the very trans- action to which the duty relates, he will not be permitted, to the injury of the one misled, to question the construction rationally placed by the latter upon his conduct. This prin- ciple commends itself to our judgment as both just and beneficent.” Harian, J. Leather Manufacturers’ Bank v. Morgan, 117 U.S. 112. “The authorities recognize a dis- tinction between mere silence and deceptive silence accompanied by an intention to de- fraud, which amounts to a positive beguile- ment. For instance, if a mortgagee stood by while a mortgagor was selling a piece of property to a person whom the mortgagee knew was purchasing the property upon the supposition that it was unencum- bered, he might be estopped by his silence, even though his mortgage were of record. But upon the other hand, if he were merely informed that the mortgagor was endeavor- ing to sell the property as unencumbered, he would clearly be under no obligation to look up the purchaser, or to inform the public _ generally of the existence of the mortgage. In such case he might safely rely upon the record.” Brown, J. Wiser v. Lawler, 189 Uz S. 271. “No duty to speak arises from the mere fact that a man is aware that another may take an action prejudicial to himself if the real facts are not disclosed.” Brown, J. Wiser v. Lawler, 189 U. S. 271. “We know of no case holding that a man is estopped by silence as against the public, or any particular person with whom he has no fiduciary relation.” Brown, J. Wiser v. Lawler, 189 U. S. 272. —— Explanation by Person Sought to Be Estopped. “Tf one person is induced to do an act prejudicial to himself in consequence of the acts or declarations of another, on which he had a right to rely, equity will enjoin the latter from asserting his legal rights against the tenor of such acts or declarations. But, then, the person charged has an opportunity of explaining, and equity will decree accord- ing to the justice of the entire case.” Brap- LEY, J. Branson %, Wirth, 17 Wall. 42. —— Doctrine Applied by Courts of Law. “The general doctrine [of estoppel in pais] is well understood and is applied by courts of law as well as equity where the technical ad- vantage thus obtained is set up and relied on to defeat the ends of justice or establish a dishonest claim.” Mutter, J. Union Mut, Ins. Co. v. Wilkinson, 13 Wali. 233. —— Estoppel of Minors. “Whatever effect the facts that the other devisees knew that the executor was acting as such, and made no objection, might have against those of full age, the minor devisees could not be thereby estopped to assert their rights.” Gray, J. Wall v. Bissell, 125 U. S. 389, Estoppel to Assert Existence of a Law. “There can be no estoppel in the way of ascertaining the existence of a law.” Brap- LEY, J. South Ottawa v. Perkins, 94 U. S. 267. ETHICS. “It is the province of ethics to consider of actions in their relation to motives, but jurisprudence deals with actions in their re- lation to law, and for the most part inde- pendently of the motive.” CAMPBELL, J. Adler v. Fenton, 24 How. 410. EVICTION. Adverse Possession under Title. “Where at the time of the conveyance with warranty there is adverse possession under a paramount title, such possession is regarded as eviction, and involves a breach of this covenant.” SwAyNE, J. Peters v. Bowman, 98 U. S. 59. Paramount Tortious Adverse Possession. “Where . . the paramount title is in the warrantor and the. adverse possession tortious, it is no eviction either actual or con- structive, and no action will lie upon the covenant.” SwayNr, J. Noonan v. Lee, 2 Black 507. , Change of Ownership by Process of Em- inent Domain. “A change of the ownership and posses- sion of real estate by the process of eminent domain is not a violation of the covenant for quiet enjoyment. Nor is it such an evic- tion as will support an action for a breach of the covenant of general warranty.” SwAYNE, J. Osborn v. Nicholson, 13 Wall. 657, 701 EVIDENCE. EVIDENCE. I. BEst AND SECONDARY EVIDENCE. II. Hearsay EvipENcE. TIT. CrrcuMstantiaAL EVIDENCE. IV. DocuMENTARY EVIDENCE. V. RuLEs oF EvIDENCE. VI. WEIGHT AND SUFFICIENCY. VII. Procepure. VIII. MiscELLANEOUS. As to passports as evidence of citizenship, see PASSPORTS. admissibility of offer to compromise, see COMPROMISE AND SETTLEMENT. See also AGENCY; CONFESSIONS; CoNn- SPIRACY; DEPOSITIONS; EXPERT AND OPIN- Ion EvmwENcE; HANDWRITING; INSPECTIONS AND PuHysicaL ExAMINATIONS; Lost PAPERS AND Recorps; Parot EvipENCE; Powers oF ATTORNEY; PRIVILEGED COMMUNICATIONS; RECEIPTS; RECEIVING STOLEN Property; REc- oRDS; VALUE; WITNESSES. I. BEST AND SECONDARY EVIDENCE. Best Evidence Must Be Produced. “ The best evidence which the nature of the case admits of ought to be required.” Mar- SHALL, C. J. Brooks v. Marbury, 11 Wheat. 82. “The best evidence in the power of the parties must always be furnished.” Davts, J. Simpson & Co. v. Dall, 3 Wall. 474. “The best evidence, of which the case in its nature is susceptible, must always be produced.” CutFForD, J., dissenting. Trav- ellers Ins. Co. v. Mosley, 8 Wall. 410. “The principles, that the best evidence the nature of the case admits of must always be produced, and that a person shall not be af- fected by that which is res inter alios acta, are too familiar to require authorities to sup- port them.” Danugt, J. Fresh v. Gilson, 16 Pet. 331. “The general rule of evidence is, that the best evidence must be produced which the nature of the case admits, and which is in the power of the party. In consequence of that rule, the testimony of the subscribing witness must be had if possible. But if it appear that the testimony of the subscribing witness cannot be had, the next best evi- dence is proof of his handwriting.” Mar- SHALL, C. J. Cooke v. Woodrow, 5 Cranch 14, “ The principle that the best testimony shall be required which the nature of the thing admits of, or, in other words, that no testi- mony shall be received which presupposes better testimony attainable, by the party who offers it, applies to foreign laws as it does to all other facts.” MarsHaty, C.J. Church v. Hubbart, 2 Cranch 236. —— Reason for Rule. “One of the general rules of evidence, of universal application, is, that the best evi- dence of disputed facts must be produced of which the nature of the case will admit. This rule, speaking technically, applies only to the distinction between primary and sec- ondary evidence; but the reason assigned for the application of the rule in a technical sense is equally applicable, and is frequently applied, to the distinction between the higher and inferior degree of proof, speaking in a more general and enlarged sense of the terms, when tendered as evidence of a fact. The meaning of the rule is, not that courts re- quire the strongest possible assurance of the matters in question; but that no evidence shall be admitted, which, from the nature of the case, supposes still greater evidence behind in the party’s possession or power; because the absence of the primary evidence raises a presumption, that, if produced, it would give a complexion to the case at least unfavorable, if not directly adverse, to the interest of the party. This is the reason given for exacting in all cases the primary evidence, unless satisfactorily ac- counted for. . . For a like reason, even in cases where the higher and inferior testi- mony cannot be resolved into primary and secondary evidence, technically, so as to com- pel the production of the higher, and the inferior is, therefore, admissible and com- petent without first accounting for the other, the same presumption exists in full force and | effect against the party withholding the bet- ter evidence, especially when it appears, or has been shown, to be in his possession or power, and must and should, in all cases, ex- ercise no inconsiderable influence in assigning to the inferior proof the degree of credit to which it is rightfully entitled.” Netson, J. Clifton v7. U. S., 4 How. 247. “The production of weaker evidence, when stronger might have been produced, lays the producer open to the suspicion that the stronger evidence would have been to his 702 EVIDENCE. prejudice.” Wuurte, J. Runkle v. Burnham, 153 U. S. 225. “Every case of this kind [admission of secondary evidence] must depend, in a great measure, upon its own circumstances. This rule of evidence must be so applied as to promote the ends of justice, and guard against fraud or imposition. If the circum- stances will justify a well-grounded belief, that the original paper is kept back by de- sign, no secondary evidence ought to be ad- mitted; but when no such suspicion attaches, and the paper is of that description that no doubt can arise as to the proof of its con- tents, there can be no danger in admitting the secondary evidence.” THomrson, J. Renner v. Bank of Columbia, 9 Wheat. 596. Introduction of Copies. “To introduce into a cause the copy of any paper, the truth of that copy must be estab- lished, and sufficient reasons for the nonpro- duction of the original must be shown.” MarsHAaLt, C. J. Smith wv. Carrington, 4 Cranch 70. “ A copy cannot be given in evidence, if the original be in the possession of the adverse party; unless timely previous notice has been given him, to produce it at the trial. This is certainly true, as a general rule.” Trim- BLE, J. Carroll v. Peake, 1 Pet. 21. “No proof was offered to-show that the original notes were impounded, or that they were not within the possession of the party, or within the reach of the process of the ccurt. Without such proof, the principles of the common law repudiate the introduction of copies.” Story, J. Sebree v. Dorr, 9 Wheat. 563. Secondary Evidence of Books in Hands of Third Person. “Tt is well settled that if books or papers necessary as evidence in a court in one state be in the possession of a person living in another state, secondary evidence, without further showing, may be given to prove the contents of such papers, and notice to pro- duce them is unnecessary.” Swayne, J. Burton v. Driggs, 20 Wall. 134. “When it is necessary to prove the re- sults of voluminous facts or of the examina- tion of many books and papers, and the ex- amination cannot be conveniently made in court, the results may be proved by the per- son who made the examination.” Swayne, J. Burton v, Driggs, 20 Wall. 136. Presumptions from Failure to Testify or to Produce Best Evidence. “A party can not infer from the refusal to produce books which have been called for, that if produced they would establish the fact which he alleges they would prove. The party in such a case may give secondary evi- dence of the contents of such books or papers; and if such secondary evidence is vague, imperfect, and uncertain as to dates, sums, boundaries, etc., every intendment and presumption as to such particulars shall be against the party who might remove all doubt by producing the higher evidence. . . . All inferences shall be taken from the inferior evidence most strongly against the party re- fusing to produce; but the refusal itself raises no presumption of suspicion or im- putation to the discredit of the party, except in a case of spoliation or equivalent suppres- sion. There the rule is that omnia presu- muntur contra spoliatorem. In other words, with the exception just mentioned, the re- fusal to produce books or papers upon notice is not an independent element from which any- thing can be inferred as to the point which is sought to be proved by the books or papers. Nor can any views of policy growing out of the refusal be associated with the secondary evidence to enlarge the province of the jury, to infer or presume the existence of the fact to which that evidence relates. For consider- ations of policy, being the source, origin, and support of artificial presumptions, having no application to conclusions as to actual matter of fact, the finding of a jury in conformity with such considerations, and not according to their actual conviction of the truth, re- solves itself into a rule or presumption of law.” Wayne, J. Hanson v. Eustace, 2 How. 708. “When an act takes place, which in itself, and unexplained, is a violation of law, and the inducements to such infraction are great, it will not be thought unreasonable in a court to expect from a party who seeks relief against its consequences, the most satisfac- tory proofs of innocence, especially, as such proofs will generally be within his reach.” Livincston, J. The New York, 3 Wheat. 65." “Tt has always been held that the omis- sion of a party to testify as to facts in his knowledge in explanation of, or to contradict, adverse testimony is a proper subject for con- sideration both at law and in equity.” Brown, J., dissenting. U. S. v. Budd, 144 U.S. 171. 703 EVIDENCE. “Tt is suggested that there is a presump- tion of law that, where it appears that a transaction is wholly within the knowledge of one party to a suit, and he fails to disclose fully the facts concerning such transactions, it was of the character claimed by the ad- verse party. But that proposition has no ap- plication here.” Brewer, J. U. S. v. Budd, 144 U. S. 165. “A man of affairs, as the plaintiff was, would not be likely in a matter of such mag- nitude, to rely upon a merely verbal agree- ment, and, as the transactions occupied a con- siderable time, we would expect, if such a contract really existed, to find letters or memoranda relating to it; but such are not produced.” Suiras, J. Farley v. Hill, 150 U.S. 576. II, HEARSAY EVIDENCE. Hearsay Evidence Generally Inadmissible. “Tn order to authorize the admission of hearsay evidence (except in cases of pedi- gree), three things must generally concur; first, that the fact to which the reputation or tradition applies must be of a public nature; secondly, if the reputation or tradition relate to the exercise of a right of privilege, it must be supported by acts of enjoyment or- privilege within the period of living memory; thirdly, that it must not be reputation or tra- ditionary declarations to a particular . fact.” Srory, J. Ellicott v. Pearl, 10 Pet. 437. “The danger of admitting hearsay evidence is sufficient to admonish courts of justice against lightly yielding to the introduction of fresh exceptions to an old and well estab- lished rule: the value of which is felt and acknowledged by all.” Marsuatt, C. J. Mima Queen v. Hepburn, 7 Cranch 296. “One of these rules [of evidence] is that ‘hearsay’ evidence is in its own nature in- admissible. That this species of testimony supposes some better testimony which might be adduced in the particular case, is not the sole ground of its exclusion. Its intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover, combine to support the rule that hear- say evidence is totally inadmissible. To this rule there are some exceptions which are said to be as old as the rule itself. These are cases of pedigree, of prescription, of custom, and in some cases of boundary. There are also matters of general and public history which may be received without that full proof which is necessary for the establishment of a private fact.” MarsHatr, C. J. Mima Queen v. Hepburn, 7 Cranch 295. “Tf the circumstance that the eye wit- nesses of any fact be dead should justify the introduction of testimony to establish the fact from hearsay, no man could feel safe in any property a claim to which might be supported by proof so easily obtained.” MarsHaAtu, C. J. Mima Queen v. Hepburn, 7 Cranch 296. “Tt appears to me that the reason for ad- mitting hearsay evidence upon a question of freedom is much stronger than in cases of pedigree or in controversies relative to the boundaries of land. It will be universally admitted than the right to freedom is more important than the right of property.” Mar- SHALL, C. J. Mima Queen v. Hepburn, 7 Cranch 298, 299, “And people of color from their helpless condition under the uncontrolled authority of a master, are entitled to all reasonable protection. A decision that hearsay evidence in such cases shall be admitted, cuts up by the roots all claims of the kind, and puts a final end to them, unless the claim shall arise from a fact of recent date, and such case will seldom, perhaps never, occur.” Marswat1, C. J. Mima Queen v. Hepburn, 7 Cranch 299. Declarations Against Interest. “Tf a person have peculiar means of know- ing a fact, and make a declaration of that fact which is against his interest, it is clearly evidence after his death, if he could have been examined to it in his life-time.” Joun- son, J. Drummond v. Ex’rs of Prestman, 12 Wheat. 522. “The written declarations of deceased per- sons, and entries in their books, have been for a long time admitted as evidence, upon the general ground that they were made against the interest of the parties.” Story, J. Nicholls v. Webb, 8 Wheat. 334. “A declaration enanating from the claim- ant of any right or estate, which afterwards comes to the parties on the record by the descent or purchase, affecting adversely the estate acquired, may be given in evidence against the party to the record who claims the estate.” Catron, J. Gaines v. Relf, 12 How. 531. “Where the issue is not one in regard to the mental capacity of the alleged testator 704 EVIDENCE. to make a will, his declarations upon the sub- ject cannot be said to be declarations made against interest, such as declarations made by an individual while in possession of prop- erty, in disparagement of his absolute owner- ship. Such evidence has been admitted as declarations against interest or as character- izing possession, but the same declaration made after conveyance of the land would be inadmissible, as mere hearsay and in no de- gree as declarations against interest.” PEcK- HAM, J. Throckmorton v. Holt, 180 U. S. 578. “Tn all cases, the testimony of admissions or loose conversations should be cautiously received, if received at all. They are in- capable of contradiction. They are seldom anything more than the vague impressions of a witness of what he thinks he has heard an- other say — stated in his own language, with- out the qualifications or restrictions, the tone, manner, or circumstances, which attended their original expression.” Grier, J. Dal- ton wv. U. S., 22 How. 442. — Explanation of Admissions. “ Admissions by a party or by authorized agent, either in the court or out, may in general be given evidence; but the circum- stances surrounding the admission, the pur- poses for which it was made, and the con- ditions attached to it, may be fully shown. It may not infrequently happen that the party making the admission is not bound by it, and will not be stopped from denying its truth, and in view of the showing on both sides, allowing each to prove the whole truth, it will be for the jury to determine how the proof stands on the facts in contro- versy on which the admission is claimed to bear.” Currrorp, J. West v. Smith, 101 U. S. 270. Declarations in Favor of Party. “The declarations of a patty may be evi- dence against him; but, except under circum- stances which had no existence in this case, they cannot be received in his favor.” Swayne, J. Nudd v. Burrows, 91 U. S. 439. Declarations as to Pedigree. “The proof to show pedigree forms a well settled exception to the rule which excludes hearsay evidence. This exception has been recognized on the ground of necessity; for, as in inquiries. respecting relationship or descent, facts must often be proved which occurred many years before the trial, and 1 Os, Dic.—45 were known to but few persons, it is obvious that the strict enforcement in such cases of the rules against hearsay evidence would frequently occasion a failure of justice.” Woops, J. Fulkerson v. Holmes, 117 U. S. 397. “The rule is that declarations of deceased persons who were de jure related by blood or marriage to the family in question may be given in evidence in matters of pedigree.” Woops, J. Fulkerson v. Holmes, 117 U. S. 397. “Before a declaration [as to pedigree] can be admitted in evidence, the relationship of the declarant with the family must be established by some proof independent of the declaration itself. But it is evident that but slight proof of the relationship will be required, since the relationship of the de- clarant with the family might be as difficult to prove as the very fact in controversy.” Woops, J. Fulkerson v. Holmes, 117 U. S. 397. “In matters of pedigree, declarations by members of the family are admitted, because the question in such cases is generally one concerning the parentage or descent of the individual, and in order to ascertain that fact it is material to know how he was acknowl- edged and treated by those who were inter- ested in him or sustained towards him any relations of blood or affinity.” Prcxnam, J. Throckmorton v. Holt, 180 U. S. 580. “The age of a person may become material in questions of pedigree; but even then the hearsay of strangers, persons not related by blood or marriage, are inadmissible to prove it.” Stronc, J. Connecticut Mut. Life Ins. Co. v. Schwenk, 94 U. S. 598. Res Geste. “Declarations of a party to a transaction, though he was not under oath, if they were made at the time any act was done which is material as evidence in the issue before the court, and if they were made to explain the act, or to unfold its nature and quality, and were of a character to have that effect, are treated, in the law of evidence, as verbal acts, and as such, are not hearsay, but may be in- troduced with the principal act which they accompany, and to which they relate, as orig- inal evidence, because they are regarded as a part of the principal act, and their intro- duction in evidence is deemed necessary to define that act, and unfold its true nature and quality. But such declarations cannot prop- 705 EVIDENCE. erly be received as evidence, unless the prin- cipal act which they accompany and to which they relate, is, itself, material to the issue to be submitted to the jury, nor unless the declarations were made at the time the prin- cipal act was done, nor unless they were of a character to explain that act, or to unfold its true nature and quality, as they are only ad- missible as incident to the principal act, and because they are a part of it, and are neces- sary to explain and define its true character.” CuiFForD, J., dissenting. Travellers Ins. Co. v. Mosley, 8 Wall. 411. “Whenever evidence of an act done by a party is admissible, the declarations he made, at the time the act was done, are also admis- sible, if they were of a character to elucidate and unfold the act, because they derive a degree of credit from the act itself, and do not rest entirely upon a statement not made under oath. Unless, however, they were made at the time the act was done, or during the continuance of the transaction consti- tuting the principal fact, they are not admis- sible, as in that state of the case, they can not derive any credit from the principal fact, which alone renders them admissible in evidence.” CzrFForD, J., dissenting. Travel- lers’ Ins. Co. v. Mosley, 8 Wall. 412. “Proof of reputation is open to rebuttal by witnesses. Not so with declarations of a particular fact respecting a private boundary. They are, therefore, receivable only when made coincidently with pointing out the boundaries and generally as part of the res geste.” Strone, J. Hunnicutt v. Peyton, 102 U. S. 363. “The modern doctrine has relaxed the ancient rule, that declarations, to be admis- sible as part of the res geste, must be strictly contemporaneous with the main trans- action. It now allows evidence of them, when they appear to have been made under the immediate influence of the principal transaction, and are so connected with it as to characterize or explain it.” Fretp, J., dissenting. Vicksburg, ete, R. Co. w O’Brien, 119 U. S. 108. Declarations as to Bodily or Mental Feel- ings —In General. “Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are original and competent evidence.” Swayne, J. Travellers’ Ins. Co. v. Mosley, 8 Wall. 404. “Where the bodily or mental feelings of a party are to be proved, the usual and natural expressions of such feelings are considered competent and original evidence in his favor.” CuirForD, J., dissenting. Travellers’ Ins. Co. v. Mosley, 8 Wall. 415. “The existence of a particular intention in a certain person at a certain time being a ma- terial fact to be proved, evidence that he expressed that intention at that time is as direct evidence of the fact, as his own testi- mony that he then had that intention would be. After his death there can hardly be any other way of providing it; and while he is still alive, his own memory of his state of mind at a former time is no more likely to be clear and true than a bystander’s recol- lection of what he then said, and is less trust- worthy than letters written by him at the very time and under circumstances preclud- ing a suspicion of misrepresentation.” Gray, J. Mutual L. Ins. Co. v. Hillmon, 145 U. S. 295, —To Show Mental Capacity of De- ceased Person. “Declarations of the deceased are properly received upon the question of his state of mind, whether mentally strong and capable or weak and incapable, and from all the testimony, including his declarations, his mental capacity can probably be determined wit.. considerable accuracy. Whether the ut- terances are true or ‘false cannot be de- termined from their mere statement, and they are without value as proof of their truth, whether made by the sane or insane, because they are in either case unsworn declarations.” PecxHaM, J. Throckmorton v. Holt, 180 UL S. 574, There is no ground for an exception in favor of the admissibility of declarations of a deceased person as to the state of his affec- tions, when the mental or testamentary ca- pacity of the deceased is not in issue. When such an issue is made, it is one which relates to a state of mind which was involuntary and over which the deceased had not the control of the sane individual, and his decla- rations are admitted, not as any evidence of their truth, but only because he made them, and that is an original fact from which, among others, light is sought to be reflected upon the main issue of testamentary ca- pacity.” Precxuam, J. Throckmorton v. Holt, 180 U. S. 574. “As indicative of mental capacity they [declarations of persons since deceased] are 706 EVIDENCE. original evidence, sworn to by the witness, but as evidence of the truth of the state- ment declared they are simply unsworn decla- rations, and should be excluded accordingly.” PeckHAM, J. Throckmorton v. Holt, 180 U. S. 576. “The declarations of the sane man are under his control, and they may or may not reflect his true feelings, while the utterances of the man whose mind is impaired from disease or old age are not the result of re- flection and judgment, but spontaneous out- pourings arising from mental weakness or derangement. The difference between the two, both as to the manner and subject of the declarations, might be obvious.” PEcK- HAM, J. Throckmorton v. Holt, 180 U. S. 574, As — State of Feelings Existing Between Husband and Wife. “In actions for criminal conversation, let- ters by the wife to her husband or to third persons are competent to show her affection towards her husband and her reasons for liv- ing apart from him, if written before any misconduct on her part, and if there is no ground to suspect collusion. So let- ters from a husband to a third person, show- ing his state of feeling, affection and sym- pathy for-his wife, have been held by this court to be competent evidence, bearing on the validity of the marriage, when the legi- timacy of their children is in issue.” Gray, J. Mutual L. Ins. Co. v. Hillmon, 145 U. S. 297. —— Not Admissible to Prove Past Oc- currence. “Whenever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings, made at the time in question, are admissible for that purpose, but they are not admissible to prove a past occurrence.” CLIFFORD, J., dis- senting. Travellers Ins. Co. v. Mosley, 8 Wall. 419. III. CIRCUMSTANTIAL EVIDENCE. In General. “From the establishment of some facts, it is possible that others may be presumed, and less than positive testimony may estab- lish facts.” MarsHatt, C. J. Stead’s ex- ecutors v. Course, 4 Cranch 413. “It is well settled that if the evidence offered conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should go to the jury. It would be a narrow rule, and not conducive to the ends of justice, to exclude it on the ground that it did not afford full proof of the nonexistence of the disputed fact. Besides presumptive evidence proceeds on the theory that the jury can infer the existence of a fact from another fact that is proved, and most unusually accom- panies it. Many of the affairs of human life are determined in courts of justice in this way, and experience has proved that juries, under the direction of a wise judge, do not often err in the reasoning which leads them to a proper conclusion on such evidence. And if they should happen to reach a wrong conclusion, the court has in its own hands the mode and measure of re- dress. Davis, J. Home Ins. Co. v. Weide, 11 Wall. 440. “There are certain departments of scien- tific knowledge where an entire series of facts or forms may always be inferred from the existence of any one, according to the maxim ex pede Herculem. The conclusion in such cases is deduced from the observed uniformity of physical nature, which by a necessity of our own minds we believe to be invariable. But this mode of reasoning has but a very limited application in the law of evidence as judicially applied to ascertain the facts and motives of human conduct.” Martruews, J. Sabariego v. Maverick, 124 UL S. 295. Degree of Certainty Necessary. “Although presumptive evidence is clearly admissible, and may of itself be sufficient to support, in many instances, even a criminal prosecution, yet the circumstances proved ought not only to harmonize with each other, but they ought in themselves to be so strong as fully to justify the mind of the fact they are intended to establish.” Wasuincrton, J. Schooner Jane v. U. S., 7 Cranch 365. “Mere speculative inferences are never al- lowable, and cannot be regarded as evidence.” CuirForD, J. Goodman v. Simonds, 20 How. 360. “No inference of fact or of law is reliable drawn from premises which are uncertain.” Strone, J. U.S. v. Ross, 92 U. S. 283. “The law requires an open visible con- nection between the principal and evidentiary facts and the deductions from them, and does not permit a decision to be made on remote inferences.” Stronc, J. U. S. v. Ross, 92 UL S. 284, 707 EVIDENCE. -“Qne thing or condition cannot be any cer- tain evidence of another thing or condition unless they invariably co-exist.” McKenna, J. Baltimore, etc., R. Co. v. Landrigan, 191 U. S. 475. | Value of Circumstantial Evidence. “Circumstantial evidence is often as con- vincing to the mind as direct testimony, and often more so. A number of concurrent facts, like the rays of the sun, all converg- ing to the same centre, may throw not only a clear light, but a burning conviction; a conviction of truth more infallible than the testimony even of two witnesses directly to a fact. A cord of sufficient strength to suspend a man may be formed of threads, not one of which, alone, would support the weight of a pound or even of an ounce. When it be- comes necessary for the purpose of justice to have resort to circumstantial evidence, it is the usual course of counsel to object to each thread because it will not support the whole weight of the case.” Gnrrer, J., dissent- ing. Thompson v. Bowie, 4 Wall. 473. “TInferences from circumstantial facts may frequently amount to full proof of a given theory, and may even be strong enough to overcome the force and effect of direct testi- mony to the contrary.” Cuirrorp, J. The Wenona, 19 Wall. 58. Latitude Allowed in Admission. “As has been frequently said, great lati- tude is allowed in the reception of circum- stantial evidence, the aid of which is con- stantly required, and, therefore, where direct evidence of the fact is wanting, the more the jury can see of the surrounding facts and circumstances the more correct their judg- ment is likely to be.” Swtras, J. Holmes v. Goldsmith, 147 U. S. 164. “Whenever the necessity arises for a re- sort to circumstantial evidence, either from the nature of the inquiry or the failure of direct proof, objections to testimony on the ground of irrelevancy are not favored, for the reason that the force and effect of cir- cumstantial facts usually and almost neces- sarily depend upon their connection with each other. Circumstances altogether incon- clusive, if separately considered, may, by their number and joint operation, especially when corroborated by moral coincidences, be stfficient to constitute conclusive proof.” Cuirrorp, J. Castle v. Bullard, 23 How. 187. Force May Be Weakened by Explanation. “Facts proved by way of circumstantial evidence may always be explained by the party against whom they are adduced.” Brapviey, J. National Bank of Metropolis v. Kennedy, 17 Wall. 27. Admissibility in Equity Suits. “ Knowledge of a given fact may be proved by circumstance , even in an ordinary equity suit, where, from the nature of the pleadings, the testimony of a single witness without corroboration would not be sufficient to es- tablish the alleged fact.’ CuirForp, J. Wager v. Hall, 16 Wall. 602. Circumstances Must Be Proved. “Whenever circumstantial evidence is re- lied upon to prove a fact, the circumstances must be proved, and not themselves pre- sumed.” Stronc, J. U. S. v. Ross, 92 U. S. 284, To Prove Intent with Which an Act Was Done. “The intent with which an act was done may be proved by the declarations of the party concerned, or by facts and circum- stances from which the existence of the in- tent may be reasonably inferred.” Haran, J. Stuart v. Hayden, 169 U. S. 9. “Tf the declarations of a man when doing an act may be proved in his behalf to show the purpose and intent with which it was done, as numerous authorities show, it must be competent for a party to the transaction, cognizant of all the circumstances, and a witness of the act, to state its purpose, being subject, of course, to cross-examination. The manner and form in which an act is done, being one of the several acts concur- ring to one purpose or transaction, indicate to the mere observer, by shades of circum- stance often difficult to analyze, what was the character of the act, or the intent and pur- pose with which it was done.” Brantey, J. National Bank of Metropolis v. Kennedy, 17 Wall. 26. To Prove Commission of Fraud. “Experience shows that positive proof of fraudulent acts is not generally to be ex- pected, and for that reason, among others, the law allows a resort to circumstances, as the means of ascertaining the truth.” CuirrorD, J. Castle v. Bullard, 23 How. 187. “Decided cases have established the doc- trine that cases of fraud are among the well recognized exceptions to the general rule, that other wrongful acts of the de- 708 EVIDENCE. fendant are not admissible in evidence on the trial of the particular charge immediately involved in the issue. Similar fraudulent’ acts are admissible in case of this descrip- tion, if committed at or about the same time, and when the same motive may reasonably be supposed to exist, with a view to establish the intent of the defendant with respect to the matters charged against him in the decla- ration. Some of the decided cases go further, and hold that such evidence is admissible, as affording a ground of presump- tion to prove the main charge, but, whether so or not, it is clearly competent, as tending to show the intent of the actor in respect to the matters immediately involved in the is- sue on trial.” CtirForp, J. Castle v. Bul- lard, 23 How. 186. “ All experience shows that positive proof of fraudulent acts, between debtor and cred- itor, is not generally to be expected, and it is for that reason, among others, that the law allows in such controversies a resort to cir- cumstances as the means of ascertaining the truth, and the rule of evidence is well settled that circumstances altogether inconclusive, if sepdrately considered, may by their number and joint operation, especially when cor- roborated by moral coincidences, be sufficient to constitute conclusive proof, which is a rule clearly applicable to the facts and cir- cumstances disclosed in this record.” CL1F- ForD, J. Wager v. Hall, 16 Wall. 601. “While it is true that from the fact that a person has been guilty of fraud in one trans- action, it is not necessarily implied that he has been guilty of it in another, the proba- bility of a fraudulent intent is very greatly increased by the multiplication of transac- tions of a similar nature.” Brown, J., dis- senting, U.S. v. Budd, 144 U. S. 172. “Parties contemplating a fraud frequently pursue such devious courses to conceal their designs, and resort to such subtle practices to mislead their unsecured creditors, that the fraud becomes impossible to detect, unless the door be swung wide open for the ad- mission of all testimony having any possible bearing upon the question. Facts which to the court might seem of no pertinence and be rejected as having no legal tendency to show knowledge of the fraud, might be considered by the jury as significant and indicative of a guilty participation. Even negative evidence may sometimes have a positive value.” Brown, J. Sonnentheil v. Moerlein Brewing Co., 172 U. S. 410. To Prove the Payment of Debts. “The insolvency and pecuniary embarrass- ment of a person may be shown as evidence that he has not paid all his debts; but they do not tend to show that he has not ‘paid a par- ticular debt.” Woops, J. Xenia Bank vw. Stewart, 114 U. S. 231. “Proof of the insolvency of a debtor is no more competent to show non-payment than proof of his solvency is competent to show the payment of his debts. These two kinds of proof stand on the same footing. The latter kind has been held to be incom- petent.” Woops, J. Xenia Bank v. Stewart, 114 U. S, 231. IV. DOCUMENTARY EVIDENCE. Deeds. “The most ordinary deed cannot be re- ceived in evidence until proved according to the rules of evidence; and the operation of individual acts, in producing transfers of property, must ever be subject to such mod- ifications as may be made by positive law.” Jounson, J., dissenting. Pierce v. Turner, 5 Cranch 171. Account Books. “This is an account taken from the original entries made at the time of delivery, and is, therefore, admissible.” Marsuatt, C. J. M’Coul v. Lekamp, 2 Wheat. 117. “More than a century ago it was decided that the entries in the books of a tradesman, were admissible as evidence of the delivery of the goods, and other matters there stated within his own knowledge.” Story, J. Nicholls v. Webb, 8 Wheat. 334. “The account books of a deceased party, in many of the states of the Union, iden- tified and the handwriting proved, are re- ceived as legal evidence of the demand in the courts of justice, and afford full author- ity, upon legal principles, for the admission of the books before the board, in support of the application.” Netson, J. Wilson vw. Rousseau, 4 How. 676. “Entries in books are always explainable, and the truth of the transaction can be shown independent of them.” Davis, J. The Pa- tapsco, 13 Wall. 334. Evidence of Date of Writing Offered in Evidence. “Many authorities are cited to show that, while the date found in an instrument may 709 EVIDENCE. be disputed or disproved by other evidence, it is prima facie to be taken as the true date. All these cases, however, have reference to the case of an instrument which has been admitted in evidence on other and sufficient ground, and where the true date has become important on some other issue than the ad- mission of the letter. It is a most vicious example of reasoning in a circle, to admit the letter to prove the time when it was writ- ten, and assume this to be the real date for the purpose of admitting the letter.” MuLLER, J. Smiths v. Shoemaker, 17 Wall. 637. V. RULES OF EVIDENCE. Purpose. “ The object of rules as to the competency of evidence is to prevent trials from being unduly prolonged, and the consideration and decision of the merits of the real issue on trial obscured, embarrassed or prejudiced by the introduction of irrelevant matter. The question whether particular evidence shall be admitted or not is one to be decided before the evidence can be submitted to the jury at all, and must be, as it always is, decided by the court; and this is so, whether the admis- sibility of the evidence depends largely or wholly upon a question of fact, as whether dying declarations were made under imme- diate apprehension of death, or whether a confession of a defendant was voluntary, or whether sufficient foundation has been paid for the introduction of secondary evi- dence, or for permitting a witness ‘to testify as an expert. To infer, because the court must decide questions of law upon which the admissibility of evidence depends, that the jury have no right to determine the mat- ter of law involved in the general issue, would be as unwarranted as to infer, be- cause the court must decide questions of fact, upon which the admissibility of evidence depends, that the jury have no right to de- cide the matter of fact involved in that is- sue.” Gray, J., dissenting. Sparf v. U. S., 156 U. S. 171. Establishment and Modification. “There can be no doubt that it is com- petent for Congress to declare the rules of evidence which shall prevail in the courts of the United States, not affecting rights of property; and where Congress has de- clared the rule, the state law is silent.” Brabiey, J. Connecticut Mut. Life Ins. Co. v. Schaefer, 94 U. S. 458. “In prescribing the evidence which shall be received in its courts, and the effect of that evidence, the state is exercising its ac- knowledged powers.” Marsua.t, C.J. Og- den v. Saunders, 12 Wheat. 349. “While courts, in the administration of the law of evidence, should be careful not to open the door to falsehood, they should be equally careful not to shut out truth. They should not encumber the law with rules which will involve labor and expense to the parties, and delay the progress of the remedy — itself a serious evil — without giving an additional safeguard to the interest of justice.” Swayne, J. Cliquot’s Cham- pagne, 3 Wall. 141. “The rules of evidence are of great im- portance, and cannot be departed from with- out endangering private as well as public rights. Courts of law are therefore ex- | tremely cautious in the introduction of any new doctrines of evidence which trench upon old and established principles. Still, how- ever, it is obvious that as the rules of evi- dence are founded upon general interest and convenience, they must, from time to time, admit of modifications to adapt them to the actual condition and business of men, or they would work manifest injustice.” Story, J. Nicholls v. Webb, 8 Wheat. 332. “Rules of Evidence Are Rules of Law, applicable to the rights of persons as well as to the rights of property; and parties are entitled to have their rights tested and de- cided by such rules, as much in one case as the other.” Tompson, J., dissenting. U. S. v. Wood, 14 Pet. 445. Must Be General in Application. “The difficulty in regard to a rule of evi- dence is that it cannot be the subject of enforcement, or non-enforcement according to the exigencies of the particular case. The tule must be general in its application. It cannot depend upon the opinion of the judge in each case whether the declarations are or are not to be relied upon. The rule must either permit or refuse to permit the evi- dence.” Prckuam, J. Throckmorton vw. Holt, 180 U. S. 580. * State Rules Followed by United States Courts. “The rules of evidence prescribed by the statute of a state are always followed by the courts of the United States, when sitting in the state, in commercial cases as well as in others.” Taney, C. J. Sims v. Hundley, 6 How. 6. 710 EVIDENCE. . Rules Same in Civil and Criminal Cases. “Tn general, the rules of evidence in crim- inal and civil cases are the same.” Story, J. U. S. v. Gooding, 12 Wheat. 469. For sub- stantially the same language, see Thompson v. Bowie, 4 Wall. 472, per Grisr, J., dissent- ing. Nudd v. Burrows, 91 U. S. 438, per Swayne, J. VI. WEIGHT AND SUFFICIENCY. Weight Not Always with Numbers. “The weight of testimony is not always with numbers.” GriEr, J. The Water Witch, 1 Black 500. Positive and Uncontradicted Testimony. “Undoubtedly, as a general rule, positive testimony as to a particular fact, uncontra- dicted by any one, should control the decision of the court; but that rule admits of many exceptions. There may be such an inherent improbability in the statements of a witness as to induce the court or jury to disregard his evidence, even in the absence of any direct conflicting testimony. He may be con- tradicted by the facts he states as completely as by direct adverse testimony; and there may be so many omissions in his account of particular transactions, or of his own conduct, as to discredit his whole story. His manner, too, of testifying may give rise to doubts of his sincerity, and create the im- pression that he is giving a wrong coloring to material facts. All these things may prop- erly be considered in determining the weight which should be given to his statements, although there be no adverse verbal testi- mony adduced.” Frevp, J. Quock Ting v. U. S., 140 U. S. 420. “Our daily experience apprises us that events are constantly occurring which would, a priori, be pronounced in the highest degree improbable. That which is true does not always present the appearance of truth, and it is not usually safe to discredit positive testimony to a fact on an estimate of what would be likely to have happened.” Wayne, J., dissenting. U. S. v. Castillero, 2 Black 276. Evidence of Interested Witness. “No man is an absolutely disinterested witness where his testimony relates to the question of the performance or non-perform- ance of a duty which he owed on account of the position which he occupied.” Prcx- HAM, J. Texas, etc, R. Co. v. Carlin, 189 U. S. 361. “Witnesses whose memories are prodded by the eagerness of interested parties to elicit testimony favorable to themselves are not usually to be depended upon for accurate information. The very fact, which courts as well as the public have not failed to recog- nize, that almost every important patent, from the cotton gin of Whitney to the one under consideration, has been attacked by the testimony of witnesses who imagined they had made similar discoveries long be- fore the patentee had claimed to have in- vented his device, has tended to throw a certain amount of discredit upon all that class of evidence.” Brown, J. The Barbed Wire Patent, 143 U. S. 284. “A witness, who at different times gives different versions of the same transaction, and blows hot or cold as his interest in the particular litigation may require, can scarcely complain, if the court fail to give his testimony the weight to which it would otherwise be entitled.” Brown, J. Rich- mond Nervine Co. v. Richmond, 159 U. S. 302. ”In deciding disputes between litigant par- ties, where witnesses are naturally apt to state facts strongly in favor of their re- spective principals, the jury well may, and, in fact, must, use their own knowledge and experience in the ordinary affairs of life to enable them to see where is the truth.” Surras, J. Jacksonville, etc, R. Co. v. Hooper, 160 U. S. 530. Consideration of Witness’s Conduct on on Stand. “There are many things sometimes in the conduct of a witness upon the stand, and sometimes in the mode in which his answers are drawn from him through the question- ing of counsel, by which a jury are to be guided in determining the weight and credi- bility of his testimony.” Lamar, J. Etna L. Ins. Co. v. Ward, 140 U. S. 88. Testimony of Women. “The distinguished Sherlock says, with- out any satirical intention or meaning to say that women are inferior to men. ‘ Whilst she trusts her instinct she is scarcely ever de- ceived, and she is generally lost when she begins to reason.’ And I need not tell my brethren, as evidence rests upon our faith in human testimony, as sanctioned by ex- perience, that the conclusion of the great divine is that of the law, and that the testimony of women is weighed with cau- 711 EVIDENCE. tion and allowances for them differently from that of men, but never with the slightest suspicion that they are not as truthful.” Catron, J. Gaines v. Relf, 1 How. 551. Calculations of Time and Distance. “Calculations of time and distance, rest- ing on the loose recollections of witnesses, can seldom be relied upon with much con- fidence.” Grier, J. The Ship Marcellus, 1 Black 418. Legal Principles Control in Weighing Evidence. “Judicial inquiries are into the rights of the parties; and although high and honor- able character has, and ought to have, great influence in weighing testimony in which that character is in any manner involved, yet, when the inferences from that testimony are drawn by others, and a court is required to pronounce the law arising upon them, char- acter is excluded from the view of the judge, and legal principles alone can be acknowl- edged as his guide.” MarsHatt, C. J. Etting v. Bank of U. S., 11 Wheat. 73. “Tt would be in vain to administer justice in such courts, if mere statements of inten- tion would outweigh the legal effects of the acts of the parties.” The Nereide, 9 Cranch 444. Falsus in Uno, Falsus in Omnibus. “Tt has been said, that if witnesses con- cur in proof of a material fact, they ought to be believed in respect to that fact, what- ever may be the other contradictions in their testimony. That position may be true under circumstances; but it is a doctrine which can be received only under many qualifications, and with great caution. If the circumstances respecting which the testimony is discordant be immaterial, and of such a nature, that mistakes may easily exist, and be accounted for in a manner consistent with the utmost faith and probability, there is much reason for indulging the belief that the discrepancies arise from the infirmity of the human mind, rather than from deliberate error. But where a party speaks to a fact in respect to which he cannot be presumed liable to mistake, as in relation to the country of his birth, or his being in a vessel on a particular voyage, or living in a particular place, if the fact turn out otherwise, it is extremely difficult to exempt him from the charge of deliberate falsehood; and courts of justice, under such circumstances, are bound, upon principles of law and morality and justice, to apply the Story, C. J., dissenting.” maxim falsus in uno, falsus in omnibus.” Story, J. The Santissima Trinidad, 7 Wheat. 338. Sufficiency. “When words are to be proved by wit- nesses who depend on their memory alone, the precise terms employed by the parties will seldom be recollected, and courts and juries must form their opinions upon the substance and upon all the circumstances.” MarsHALL, C. J. Pawling v. U. S., 4 Cranch 223. “Tt would be unreasonable, after a great length of time, to require exact proof of all the minute circumstances of any transaction, or to expect a satisfactory explanation of every difficulty, real or apparent, with which it may be incumbered. The most that can fairly be expected in such cases, if the par- ties are living, from the frailty of memory, and human infirmity is, that the material facts can be given with certainty to a com- mon intent; and, if the parties are dead, and the cases rest in confidence, and in parol agreements, the most that we can hope is to arrive at probable conjectures, and to substi- tute general presumptions of law, for exact knowledge.” Story, J. Prevost v. Gratz, 6 Wheat. 498. “TIthas . . . mever been held that repu- tation or. notoriety could be established by a single witness.” Topp, J. Watts v. Lindsey, 7 Wheat. 162. “Where a stenographer has not been em- ployed, it can rarely happen that any one can testify to more than the substance of what was testified by the deceased [witness], es- pecially if the examination was protracted, embracing several topics, and was followed by a searching cross-examination. It has been well said that if a witness in such case, from mere memory, professes to be able to give the exact language, it is a reason for doubting his good faith and veracity. Usu- ally there is some one present who can give clearly the substance, and that is all the law demands. To require more would, in effect, abrogate the rule that lets in the reproduc- tion of the testimony of a deceased wit- ness.” Swayne, J. Ruch v. Rock Island, 97 Uz. S. 694. VII. PROCEDURE. Necessity for Making Evidence Part of Record. “Evidence, whether written or oral, and whether given to the court or to the jury, 712 EXCEPTIONS, BILLS OF. does not become a part of the record, unless made so by some regular proceeding at the time of the trial and before the rendition of the judgment.” CuiFrorp, J. Suydam v. Williamson, 20 How. 433. Evidence Admitted Against One of Sev- eral Defendants. “Tn many cases against several defendants it frequently happens that evidence is com- petent and is admitted as against one of the defendants only, and the court, on its own motion or on the request of the other de- fendants, would charge the jury that such evidence could not be taken into considera- tion as against the defendants to whom it did not apply.” Prckuam, J. Washington Gas Light Co. v. Lansden, 172 U. S, 553. Evidence Considered Only for Purpose Offered. “Tt may well be questioned, whether, when the purpose for which the evidence is offered is. specifically avowed, the court will look at it in any other point of view, or inquire whether it might not be proper for some other purpose.” THompson, J. Hinde v. Longworth, 11 Wheat. 209. Evidence Considered True in Determining Admissibility. “Evidence when offered at the trial, must be assumed to exist, and to be true, for the purpose of determining the question of its admissibility.” Cxirrorp, J. Barreda v. Sils- bee, 21 How. 167. Exclusion of Competent Evidence Is Er- roneous, “Tf a question is asked of a witness on the stand, the answer to which is pertinent and legal testimony, and the court refuses to permit the witness to answer, this is error which a revising court will correct, because the injury to the party consists in the refusal of the court to permit the answer to be given, and he can do nothing more to prove the wrong done than to show that he asked a legal question, the answer to which, by the action of the court, was denied him.” Miter, J. Nailor v. Williams, 8 Wall. 109. Exceptions Not Favored by Courts. “Tt has been the inclination of the court of law in modern times, generally, to lean against exceptions to testimony.” Srory, J. Evans v. Eaton, 7 Wheat. 426. Waiver of Objection to Incompetent Evi- dence. “Conceding that as a piece of independent testimony, a mere affidavit was not admissi- ble, it was competent for the defendant to waive this objection and to treat it as other testimony in the case offered by the plaintiff.” Brown, J. Connecticut Mut. L. Ins. Co. v. Hillmon, 188 U. S. 214. VIII. MISCELLANEOUS. “Legal Claims Must Be Supported by Legal Proof. The abstract rights of par- ties become immaterial, if not susceptible of substantiation by evidence.” JoHNson, J., dissenting. Pierce v. Turner, 5 Cranch 171. Theories Must Be Supported by Evidence. “Mere theories are not entitled to consid- eration, unless they find some support in the evidence.” C1iFForD, J., dissenting. Wiggins v. People, 93 U. S. 480. “Rebutting Evidence is evidence in de- nial of some affirmative case or fact which defendant has attempted to prove.” FULLER, C. J. Carver v. U. S., 160 U. S. 555. “Testimony Merely Confirmatory of a Proposition, wholly unsupported by other evidence, is not admissible as substantive evi- dence.” C.iFForD, J., dissenting. Wiggins v. People, 93 U. S. 480. Proof of Negative. “Tt is sometimes said that a nega- tive is incapable of proof, but this is not a maxim of the law.” Martruews, J. Colo- rado Coal, etc., Co. v. U. S., 123 U. S. 317, EXCEPTION. “The use of the word ‘exception’ indi- cates that something is taken out from the principal matter provided for in the clause or paragraph in which the word is found, and not that something is taken out of or changed from other provisions in other clauses of the entire contract.” Brewer, J. Anvil Min. Co. v. Humble, 153 U. S. 548. EXCEPTIONS, BILLS OF. Function. “The object of a bill of exceptions is to put on record rulings and instructions in the matter of law which could not otherwise be a subject of revision in a court of error.” Gray, J. Hanna v. Maas, 122 U. S. 26. “The single function of a bill of excep- tions is to bring upon the record so much of the proceedings as will disclose the pre- cise question which the party desires to have 7138 EXCEPTIONS, BILLS OF. ruled upon, and, when prepared by counsel and presented to the court, if it states the facts truly, the judge ought to sign it; and it is necessary for it to set forth affirmatively that there was no other error in the proceed- ings, or to state all the facts of the case in order to disclose that there was no other error.” Brewer, J., dissenting. Lewis v. U. S., 146 U. S. 384. “Redress here by writ of error can only be had when a party is aggrieved by some error in the foundation, proceedings, judg- ment, or execution of a suit in a court of record; and it is for that reason that the bill of exceptions is allowed, in order that certain matters resting in parol may be in- corporated into the record for the inspection of the proper appellate tribunal.” CLIFForD, J., dissenting. Etna Fire Ins. Co. v. Boon, 95 U. S, 139. “The authority of this court to review the judgments of the Circuit Court by bill of exceptions and writ of error is regulated ex- clusively by the acts of Congress and the practice of the courts of the United States, without regard to the statutes of the state or the practice of its courts. The right of review is limited to questions of law ap- pearing on the face of the record, and does not extend to matters of fact or of discre- tion; questions of law arising upon the trial of an issue of fact cannot be made part of the record by bill of exceptions, unless the trial is by jury, or by the court after due waiver in writing of a jury trial; and when the trial is by rule of court and consent of parties before a referee or arbitrator, no question of law can be reviewed on error, except whether the facts found by him sup- port the judgment below.” Gray, J. Andes v. Slauson, 130 U. S. 438. “The theory of a bill of exceptions is that it states what occurred while the trial was going on.” Warts, C. J. Railway Co. wv. Heck, 102 U. S. 120. Necessity —In General. “Settled practice in this court is that the rulings of the court in admitting or reject- ing evidence, or in giving or refusing in- structions can be brought here for revision in any other mode than by a regular bill of ex- ceptions. Final judgment in a Circuit Court may be re-examined in this court and re- versed or affirmed upon a writ of error, founded upon an agreed statement of facts, a special verdict, a demurrer to a material pleading, or a demurrer to evidence, as well as by a bill of exceptions; but none of the other modes will enable the appellate court to revise the rulings of the court in refus- ing to instruct the jury as requested, or the instructions as given, or the rulings of the court in admitting or rejecting evidence. Such rulings rest in parol and can only be incorporated into the record of a bill of exceptions, and of course cannot be re-ex- amined any other way.” CuiFrorp, J. Thompson v. Riggs, 5 Wall. 675. “Where the verdict is general the court may enter judgment on the verdict, or may set it aside and grant a new trial, but the rulings of the court during the trial cannot be revised on writ of error save by a regular bill of exceptions. Judgment also may be rendered on the verdict in a special case, or a new trial may be granted because the verdict is general and is for plaintiff or de- fendant.” Cuirrorp, J. Mumford v. Ward- well, 6 Wall. 433. “Only rulings upon-matters of law, when properly presented in a bill of exceptions, can be considered here, in addition to the question, when the findings are special, whether the facts found are sufficient to sus- tain the judgment rendered. This limitation upon our revisory. power on a writ of error in such cases is by express statutory enact- ment.” Fretp, J. Stanley v. Albany County, 121 U. S. 547. “By the uniform course of decision, no exceptions to rulings at a trial can be con- sidered by this court, unless. they were taken at the trial, and were also embodied in a formal bill of exceptions presented to the judge at the same term, or within a further time allowed by order entered at that term, or by standing rule of court, or by consent of parties; and, save under very extraordi- nary circumstances, they must be allowed by the judge and filed with the clerk during the same term.” Gray, J. Michigan Ins, Bank v. Eldred, 143 U. S. 298. — As to Rulings on Instructions. “Instructions requested or given rest in parol and do not, in the practice of this court, or in any other court, where the common law prevails, become a part of the record, unless made so by a regular bill of excep- tions, sealed by the judge who presided at the trial; and it is the well-settled practice in this court that an entry of the ruling in the minutes cannot be of any benefit to the 714 EXCEPTIONS, BILLS OF. party unless he seasonably reduces the same to form and causes it to be sealed by the judge.” CuirFrorD, J. Thompson v. Riggs, 5 Wall. 675. — As to Rulings on Admission or Ex- clusion of Evidence. “Tn the absence of any apparent informal- ity, if the objection made by the defendant to the admission of the deposition was made on the ground of an informality, that ground, to avail him there, should appear in the bill of exceptions, with a sufficient statement to enable this court to see that the ground was a valid one; and. the informality on which the deposition was ruled out should, to avail him, be stated in the bill of exceptions, with sufficient other matter to enable this court to say that the identical informality on which the ruling of the court proceeded existed, and was good ground for the ruling.” BrtarcHrorp, J. Spaids v. Cooley, 113 U. S. 286. “As the defendant made the objection to the admissibility of the deposition, and it was excluded, it was incumbent on him to make it appear by the bill of exceptions, what the ground of objection was, and that it was a valid ground.” BviatcHrForp, J. Spaids wv. Cooley, 113 U. S. 286. —— Jurisdictional Defects. “Certain errors in judicial proceeding can only be examined in an appellate court when they are shown by a bill of exceptions,— as where proper testimony is rejected or where improper testimony is admitted,— but there may be error in the proceedings of a subordinate court apparent in the record for which the judgment will be reversed in an appellate tribunal, although they are not shown by a bill of exceptions and do not appear in an agreed statement of facts or by demurrer or in a special verdict,—as where the original process was unauthorized by law, or where the defendant was not served with process, or where the proceed- ings under the process were irregular and void. Such were the rules of the common law, and they have been adopted and applied in this court in repeated cases.” CLIFFORD, J. New Orleans R. Co. v. Morgan. 10 Wall. 261. ——In Trials Without Jury. “When the case is submitted to the judge, to find the facts without the intervention of a jury, he acts as a referee, by consent of the parties, and no bill of exceptions will lie in his reception or rejection of testimony, nor to his judgment on the law.” Grier, J. Weems v. George, 13 How. 197. “Where a case is tried by the court with- out a jury, the bill of exceptions brings up nothing for revision except what it would have done had there been a jury trial.” CuirForD, J. New York Mercantile Mut. Ins. Co. v. Folsom, 18 Wall. 250. — When Error Is Apparent of Record. “The object of a bill of exceptions is to make matter of record what would not otherwise appear as such, and . . . no bill is neces-ary where the error alleged is apparent upon the record.” Frietp, J. Young v. Martin, 8 Wall. 357, “Errors apparent in the record, it is true, are open to revision, whether the error be made to appear by bill of exceptions, or in any other legal manner.” C1iFForD, J. Baltimore, etc., R. Co. v. Sixth Presbyterian Church, 91 U. S. 130. “Tf the special finding of facts was prop- erly there, or was rightfully supplied, the judgment of the court is subject to review independently of any bill of exceptions, the only office of which is to bring upon the record rulings that without it would not ap- pear.” Strone, J. Aetna Fire Ins. Co. v. Boon, 95 U. S. 125. “Tf the finding [of the court on the facts] be special, it takes the place of a special verdict ; and, when judgment is entered upon it, no bill of exceptions is needed to bring the sufficiency of the finding up for review. But there must be a finding of facts, either general or special, in order to authorize a judgment; and that finding must appear on the record.” Strone, J. Aetna Fire Ins. Co. v. Boon, 95 U. S. 124. “Special verdicts having a conditional or alternative finding are the proper foundation of a judgment for either party, as the law of the case on the facts may require, and consequently the judgment of the subordi- nate court on such a verdict, whether for plaintiff or defendant, may be re-examined in the appellate tribunal without any bill of exceptions.” CiiFForD, J. Mumford wv. Wardwell, 6 Wall. 433. Substitutes for Bills of Exceptions. “The judge’s notes do not constitute a bill of exceptions. They are but memoranda from which a formal bill may afterwards be drawn up and sealed.” Strone, J. Insur- ance Co. v. Lanier, 95 U. S. 172, 715 EXCEPTIONS, BILLS OF. “This statement [of errors] is only another name for a bill of exceptions, and is sub- ject to similar rules. It will often embody substantially the same matters which are pre- sented on a motion. for a new trial, and it is not uncommon for counsel to stipulate that the statement on the motion shall be treated as a statement or bill of exceptions on appeal from the judgment. But, unless it is so stipulated, the statement intended for the motion cannot be used on appeal from the judgment, or considered here.” Fiexp, J. Kerr v. Clampitt, 95 U. S. 190. : “Minutes of the judge or clerk, or notes of a stenographer, cannot take the place of a bill of exceptions, but are only memoranda by the aid of which one may afterwards be drawn up.” Gray, J. Hanna v. Maas, 122 U. S. 26, Form. “Authority was conferred, by the seven- teenth section of the Judiciary Act, upon all the courts of the United States, to make and establish all the necessary rules for the ordi- nary conducting of business in the said courts, provided such rules were not repug- nant to the laws of the United States. Pur- suant to that authority the several Circuit Courts, immediately after the judicial sys- tem of the United States was organized, adopted the form for bills of exceptions as known at common law, and the practice has been uniformly followed to the present time, without question or any material variation. Bills of exceptions, therefore, in the federal courts, are required to be drawn as at com- mon law, under the statute of Westminster 2 (13 Edw. I, chap. 31), passed in the year 1285, and of course they must be sealed by the judge, as therein required.” CLIFForD, J. Pomeroy wv. Indiana State Bank, 1 Wall. 599. “The office of a bill of exceptions is evi- dently the same under the Montana Code as at common law, and whatever brings upon the record, properly verified by the attesta- tion of the judge, the matters of fact occur- ring at the trial, on which the point of law arises, which enters into the ruling and de- cision of the court excepted to, answers suffi- ciently the description of a proper bill of exceptions.” Matruews, J. Kleinschmidt v. McAndrews, 117 U. S. 286. Contents — In General. ' “Ordinarily a bill of exceptions lies only upon some point arising either upon the ad- mission or rejection of evidence, or is a mat- ter of law arising from a fact found, or not denied, and which has been overruled by the court.” Sutras, J. Wetmore v. Rymer, 169 Uz S. 119. “The person who offers a bill of excep- tions ought to present such a one as the judge can sign. The course to be pursued is, either to endeavor to draw up a bill, by agreement, which the judge can sign; or to prepare a bill to which there will be no objection, and present to the judge.” Mar- SHALL, C. J. Ex p. Bradstreet, 4 Pet. 106. —— Evidence. “Bill of exceptions ought to state that evidence was offered of the facts upon which the opinion of the court was prayed, else the court is under no obligation to give the instruction.” CiirForD, J. Merchants’ Mut. Ins. Co. v. Baring Bros. & Co., 20 Wall. 162. “Tf either party, in an action at law, is desirous of preserving the evidence, either at the trial or on a preliminary motion, in order to raise a question of law upon it, he must ask to have it incorporated in a bill of exceptions. This is the only way in which it can be done, unless the parties choose to make an agreed statement of facts.” Davis, J. Knapp v. Western Vermont R. Co., 20 Wall. 121. “When this court is asked to reverse a judgment entered upon a verdict of a jury, upon a writ of error, upon the ground that there is absolutely no evidence to sustain it, and the court should have directed a verdict, the bill of exceptions must embody a statement or there must be a stipulation of counsel declaring that the bill contains all the evidence given upon the trial so that the record shall affirmatively show the fact.” PeckHam, J. U. S. v. Copper Queen Min. Co., 185 U. S. 497. — Substance of the Evidence. “In the absence of a bill of exceptions, disclosing at least the substance of the evi- dence [complained of], and of an assign- ment of error, we are permitted to suppose that the evidence was trivial, and that it did no injury to the defendant.” Szrras, J. Murray v. Louisiana, 163 U. S. 108. —— Only Evidence Pertinent to Rulings Should Be Included. “A Dill of exceptions should contain only so much of the evidence as may be necessary to explain the bearing of the rulings of the court upon matters of law, in reference to 716 EXCEPTIONS, BILLS OF. the questions in dispute between the parties to the case, and which may relate to excep- tions noted at the trial.” Lamar, J. Grand Trunk R. Co. v. Ives, 144 U. S. 414. “A bill of.exceptions should not include, nor as a rule, does it include, all the evidence given on the trial upon questions about which there is no controversy, but which it is necessary to introduce as proof of the plaintiff's right to bring the action, or of other matters of like nature. If such evi- dence be admitted without objection, and no point be made at the trial with respect to the matter it was intended to prove, we know of no rule of law which would require that even the substance of it should be embodied in a bill of exceptions subsequently taken. On the contrary, to encumber the record with the matter not material to any issue involved has been repeatedly condenined by this court as useless and improper.” Lamar, J. Grand Trunk R. Co. v. Ives, 144 U. S. 414, “A bill of exceptions is prepared by the party, and being prepared by him, he may state, and ought to state, only those facts which present the very question he desires to raise. If the objection is to a ruling on the admission of testimony, he should state only- that testimony and enough of the case to show its relevancy. It would be absurd to require him to set out all the testimony, or to state in terms that there was no objection to the balance.” Brewer, J., dissenting. Lewis v. U. S., 146 U. S. 383. “Only so much of the testimony, or the proceedings, as is necessary to present clearly the matters at law excepted to should be preserved in a bill of exceptions. If counsel would pay more attention to this, they would often save this court much unnecessary labor, and their clients much needless ex- pense.” Brewer, J. Lees v. U. S., 150 U. S. 483. — Facts. Should Be Stated Briefly. “Tf the facts on which the rulings were made are admitted, the bill [of exceptions] should state them briefly, as the result of the testimony if the facts are disputed, it will be sufficient if the bill allege that testi- mony was produced tending to prove them. If a defect in the proofs is the ground of the exception, such defect should be men- tioned without a detail of the testimony. Indeed, it can seldom be necessary for the just determination of any question raised at the trial to set forth the entire evidence given; and the practice in some districts — quite common of late—of sending up to this court bills made up in this way — filled with superfluous and irrelevant matter — must be condemned. It only serves to throw increased labor upon us, and un- necessary expense upon parties. If coun- sel will not heed the admonitions upon this subject, so frequently expressed by us, the judges of the court below, to whom the bills are presented, should withhold their Signatures until the bills are prepared in proper form, freed from all matter not essen- tial to explain and point the exceptions.” Frexp, J. Lincoln v. Claflin, 7 Wall. 136. “To bring all the testimony offered at the trial of a cause at common law, instead of facts, into this court, by a bill of excep- tions, or otherwise, is a practice which, to say the least, is extremely inconvenient. Its tendency is to convert this court from a tribunal for the decision of points of law, into one for the investigation of facts, and for weighing evidence.” Marswait, C. J. Armstrong v. Toler, 11 Wheat. 276. —— Opinion of Trial Court. “Matters resting in parol, like the opinion of the court, are not a part of the recofd, and nothing therein contained can be as- signed for error.” CLIFFoRD, J., dissenting. Aetna Fire Ins. Co. v. Boon, 95 U. S. 140. Time for Making, Presenting, and Signing — At the Trial. “The law requires that a bill of exceptions should be tendered at the trial. But the usual practice is to request the judge to note down in writing the exceptions, and afterwards, during the session of the court, to hand him the bill of exceptions and submit it to his correction from his notes. If he is to resort to his memory, it should be handed to him immediately, or in a reasonable time after the trial. It would be dangerous to allow a bill of exceptions of matters dependent on memory, at a distant period, when he may not accurately recollect them. And the judge ought not to allow it.’ MarsHat, C.J. Ex p. Bradstreet, 4 Pet. 107. “Tf the party intends to take a bill of ex- ceptions, he should give notice to the judge at the trial; and if he does not file it at the trial, he should move the judge to assign a reasonable time within which he may file it. A practice to sign it after the term must be understood to be a matter of consent between the parties, unless the judge has 717 EXCEPTIONS, BILLS OF. made an express order in the term, allow- ing such a period to prepare it.” Srory, J. Ex p. Bradstreet, 4 Pet. 107. —— After the Trial. “Tt is well settled that bills of exception are restricted to matter which occurred dur- ing the progress of the trial; but it is not necessary, neither is it the practice, to reduce to form every exception as it is taken, and before the trial is at an end. It will do for the judge to note them as they occur, and after the trial is over, if it is desirable to preserve them, they can be properly embodied in a bill of exceptions.” Davis, J. Simpson & Co. v. Dall, 3 Wall. 473. “Beyond doubt, the record must show ex- pressly or impliedly that the exception was taken and reserved by the party at the trial, but it is a mistake to suppose that it has ever been decided by this court that it must be drawn out and signed or sealed by the judge before the jury retire from the bar. Manifest inconvenience would result from such a requirement; and, in point of fact, there is no such rule.” CuiiFForp, J. Stanton v. Embrey, 93 U. S. 555. “It is always allowable, if the exception is seasonably taken and reserved, that it may afterwards be put in form and filed in the case, pursuant to the order and direction of the judge who presided at the trial.” Cuirrorp, J. Stanton v. Embrey, 93 U. S. 556. “Exceptions are prepared by the complain- ing party. Special findings are prepared by the court. Where the exception is duly taken and reserved at the trial, it may, in the dis- cretion of the judge, be drawn out, and be signed or sealed by the judge afterwards.” CurrrorpD, J., dissenting. Aetna Fire Ins. Co. v. Boon, 95 U. S. 142. “Tt is true a judge cannot be permitted to make up a statement of facts, after the writ of error is issued, upon which the case shall be heard.” Stronc, J. Hunnicutt wv. Peyton, 102 U. S. 354. — Discretion of Trial Judge. “The rule requiring the presentation of bills for the signature of the judge within five days is not a rule which controls his action. He may depart from it in order to effectuate justice.” Srtrone, J. Hunnicutt v. Peyton, 102 U. S. 353. Seal or Signature of Trial Judge. “We have held that a bill of exceptions must be under the seal of the judge.” MILER, J. Aetna Ins. Co. v. Hallock, 6 Wall. 559. “Tn respect to a bill of exceptions, it must always be signed and sealed by the judge, or else it would be a nullity.” Cxiirrorp, J. Suy- dam v. Williamson, 20 How. 438. “ Anciently the bill of exceptions was re- quired to be sealed; but it is sufficient, in the practice of this court, if it be signed by the judge.” CxiFForpD, J. Stanton v. Embrey, 93 U.S. 555. “Generally an exception is only noted by the judge at the time claimed, and it is subsequently drawn up; but it is not a bill of exceptions until it has been sealed, or, as is now sufficient, signed. The sealing or sig- nature of the judge is essential for its authen- . tication.” Stronc, J. Insurance Co. w. Lanier, 95 U. S. 170. “Tf the exceptions so drawn up by the party in writing are found to be true, they are sealed, or often, in the practice of the federal courts, merely signed by the presiding judge. Gray, J. Hanna vw. Maas, 122 U. S. 26. Amendment. “The exceptions must be drawn up and settled in proper form in the court below, and cannot be amended or redrafted in this court.” Gray, J. Hanna v. Maas, 122 U. S. 26. “Any fault or omission in framing or tendering a bill of exceptions, being the act of the party and not of the court, cannot be amended at a subsequent term, as a mis- prision of the clerk in recording inaccurately or omitting to record an order of the court might be.” Gray, J. Michigan Ins. Bank v. Eldred, 143 U. S. 299. Respective Duties of Court and Party. “The duty of seasonably drawing up and tendering a bill of exceptions, stating dis- tinctly the rulings complained of and the exceptions taken to them, belongs to the ex- cepting party, and not to the court: the trial court has only to consider whether the bill tendered by the party is in due time, in legal form, and conformable to the truth: and the duty of the court of error is limited to determining the validity of exceptions duly tendered and allowed.” Gray, J. Michigan Ins. Bank v. Eldred, 148 U. S. 298, 718 EXECUTIONS. EXCHANGES. See Factors AND BROKERS. EXCISE. As Inland Imposition on Consumption of Commodity. “Excise is defined to be an inland imposi- tion, sometimes upon the consumption of the commodity, and sometimes upon the retail sale; sometimes upon the manufacturer, and sometimes upon the vendor.” Swayne, J. Pacific Ins. Co. v. Soule, 7 Wall. 445. As Privilege Tax or License. “The designation [excise tax] does not always indicate merely an inland imposition or duty on the consumption of commodities, but often denotes an impost for a license to pursue certain callings, or to deal in special commodities, or to exercise particular franchises. It is used more frequently, in this country, in the latter sense than in any other.” Fretp, J. Maine v. Grand Trunk R. Co., 142 U. S. 227. EXECUTIONS. I. Nature anp Necesstty or Ex- ECUTION. 1. In General. 2. Power to Legislate in Respect to Exe- cutions. 3. Authority to Issue Execution. 4. Necessity for Judgment. 5. Court’s Control over Executions. II. Levy oF Execution. 1, In General. 2. Property Subject to Execution. a. In General. b. Public Property. III. QuasHinG ExeEcuTIon. IV. Sates UNDER EXxEcuTION. V. Stratus AND LiaBILITy OF OFFICER LEVYING, CROSS-REFERENCES. See APPEAL AND Error; JUDGMENTS AND Decrees; Liens; Municipal CorpPoRaTIONS ; SUPERSEDEAS. I, NATURE AND NECESSITY OF EXECUTION. 1. In GENERAL. “ An execution is the fruit and end of the suit, and is very aptly called the life of the law. The suit does not terminate with the judgment; and all proceedings on the execu- tion, are proceedings in the suit.” THomp- son, J. Bank of U. S. v. Halstead, 10 Wheat. 64, “A judgment is given that an execution may follow thereon. An execution is the only mode by which the benefit of the judg- ment can be obtained.” Hunt, J., dissent- ing. Watson v. Taylor, 21 Wall. 384. “The execution follows the nature of judgment, and its precept is to carry into effect the rights of the plaintiff as declared by the judgment, with that mode and meas- ure of redress which in such cases the law gives.” Marruews, J. Harshman v. Knox County, 122 U. S. 319. “The mandate of a writ of fieri facias as originally formed, is that the officer have the money in court on the return day, there to be paid to the creditor.” MarsHALt, C. J. Turner v. Fendall, 1 Cranch 136. “At common law, the writ of fieri facias had relation to its teste, though in fact issued subsequently, and bound the goods of the defendant from that date. The Act of 29 Car. II. (re-enacted in most of the states) took away this relation as respected the rights of bona fide purchasers, and confined its bind- ing effect upon the goods as to them to the time of the delivery of the writ to the sheriff; but as between the parties, it re- mained as it stood at common law.” NEL- son, J. Erwin v. Dundas, 4 How. 75. “The death of a defendant, before the test of an execution, compels the plaintiff to sue out a writ of scire facias, ‘for the alteration of the person altereth the process.’ The heirs, devisees, and terre-tenants of the de- ceased must have notice before an execution can regularly issue, for they are the parties in interest and shauld have an opportunity to interpose a defense, if any they have, to the enforcement of the judgment.” Davis, J. Mitchell v. St. Maxtent, 4 Wall. 242. 2. Power To LEGISLATE IN RESPECT TO EXECUTIONS. “Congress, it is conceded, possesses the uncontrolled power to legislate in respect both to the form and effect of executions and other final process to be issued in the federal courts.” CuiFForp, J. Riggs v. John- son County, 6 Wall. 187. “Tt cannot certainly be contended, with the least color of plausibility, that Congress 719 EXECUTIONS. does not possess the uncontrolled power to legislate with respect both to the form and effect of executions issued upon judgments recovered in the courts of the United States.” Tuompson, J. Bank of U. S. v. Halstead, 10 Wheat. 53. “The right of Congress . . to regu- late the proceedings on executions, and di- rect the mode, and manner, and out of what property of the debtor satisfaction may be obtained, is not to be questioned.” THomp- son, J. Bank of U. S. v. Halstead, 10 Wheat. 54, “Tt is the settled doctrine of this court, as established and explained by these author- ities, that the power of Congress, under the Constitution, as well as that of the courts of the several states, not only as to the na- thority, extends to the adoption of the laws of the several states, not only as to the na- ture and form of writs of execution for the enforcement of judgments, but also as to all proceedings thereupon.” Matrnews, J. Ex p. Boyd, 105 U. S. 652. 3. AuTHority To IssuE ExEcuTION. “The right of a court to issue execution depends upon its own powers and organiza- tion. Its judgments may be complete and perfect and have full effect independent of the right to issue execution.” Srory, J. Mills v. Duryee, 7 Cranch 485. “The United States cannot enforce the collection of a debt from an unwilling debtor, except by judicial process. They must bring a suit and obtain a judgment. To reap the fruit of that judgment they must cause an execution to issue. The courts have no in- herent authority to take any one of these steps, except as it may have been conferred by the legislative department; for they can exercise no jurisdiction except as the law confers and limits it.’ Matraews, J. Fink v. O'Neil, 106 U. S. 280. “The authority to carry into complete ef- fect the judgments of the courts, necessarily results, by implication, from the power to ordain and establish such courts.” THomp- son, J. Bank of U. S. v. Halstead, 10 Wheat. 53. “The judicial power would be incomplete, and entirely inadequate to the purposes for which it was intended, if, after judgment, it could be arrested in its progress, and denied the right of enforcing satisfaction in any manner which shall be prescribed by the laws of the United States.” THompson, J. Bank of U. S. v. Halstead, 10 Wheat. 53. “ Were it even true, that jurisdiction could technically be said to terminate with the judg- ment, an execution would be a writ necessary for the perfection of that which was pre- viously done; and would, consequently, be necessary to the beneficial exercise of juris- diction.” MarsHatt, -C. J. Wayman? v. Southard, 10 Wheat. 23. “Process subsequent to judgment is as essential to jurisdiction as process antecedent to judgment, else the judicial power would be incomplete and entirely inadequate to the purposes for which it was conferred by the Constitution.” CiirForp, J. Riggs v. John- son County, 6 Wall. 187. “Tf the power is conferred to render’ the judgment or enter the decree, it also includes the power to issue proper process to enforce such judgment or decree.” Cuirrorp, J. Riggs v. Johnson County, 6 Wall. 187. “Executions, it is admitted, may be issued by the Circuit Court, but the power of such courts to issue the other writs necessary to the exercise of jurisdiction, is equally clear, with the single restriction that the writ, and the mode of process, must be agreeable to the principles and usages of law. Usages of law, and not of the common law, it will be observed, are the words of the provision [Act of May 8, 1792, 1 U. S. Stat. at L. 276; c. 36, §2] which, doubtless, refers to the principles and usages of law as known and understood in the state courts at the date of that enactment.” Ctirrorp, J. Riggs wv. Johnson County, 6 Wall. 190. “One court never awards execution on the judgment of another.” Marsuatt, C. J. Ex p. Bollman, 4 Cranch 98. 4, NECESSITY FOR JUDGMENT. “ An execution can be of no validity which has not a judgment to support it.” McLean, J. Clements v. Berry, 11 How. 410. “Tf the judgment was void, an execution, or order of sale, founded upon it, was equal- ly so.” Wasuincton, J. Walker v. Turner, 9 Wheat. 549. 5. Court’s ConTROL OVER EXECUTION. “Nobody heretofore has ever questioned the power of a court to control its own final process.” Stronc, J. Memphis v. Brown, 97 U. S. 302. “The execution orders the officer to make the sum mentioned in the writ out of the goods and chattels of the debtor. This is 720 EXECUTIONS. completely a legislative provision, which leaves. the officer to exercise his discretion respecting the notice. That the legislature may transfer this discretion to the courts, and enable them to make rules for its regula- tion, will not, we presume, be questioned.” MarsHatt, C. J. Wayman v. Southard, 10 Wheat. 44. II, LEVY QF EXECUTION. 1. In GENERAL. As to effect of supersedeas, see APPEAL, AND Error. “ Seizure may be either’ actual or construc- tive. It does not always involve taking into manual possession. Even in case of chattels movable, taking part of the goods in a house, under a fi. fa., in the name of the whole, is a good seizure of all. An assertion of con- trol, with a present power and intent to ex- ercise it, is sufficient. Srrone, J. Miller v. U.S, 11 Wall. 296. “To say that an execution may be taken out, but shall not be executed upon the party, is a mere mockery of justice.” THOMPSON, J. dissenting. Beers v. Haughton, 9 Pet. 363. “Tt is a well-settled principle of law, that if an execution come into the hands of the sheriff to be executed, and his term of office expire before he executes it, he is bound nevertheless to complete the execution.” Mc- Kintey, J. McFarland v. Gwin, 3 How. 720. “The levy of an execution takes effect from the time when it is made by seiz- ing the property.” Gray, J. Freeman v. Dawson, 110 U. S, 270. “On all sides apparently the endeavor has been to assimilate the proceedings in the fed- eral courts for the levying of executions issued on judgments and decrees for the pay- ment of money to those prevailing in the courts of the states.” CLirrorp, J. Ward ». Chamberlain, 2 Black 443. 2. Property SUBJECT TO’ EXECUTION. a. In General. “The general rule of law is that all chat- tels, the property of the debtor, may be taken in execution.” Marsuatz, C. J. Turner v, Fendall, 1 Cranch 134. “ By the common law, a leasehold interest in land is personal property. Trade fixtures put up by the lessee, although real estate as 1 Os. Dic.—46 between the lessor and himself, while an- nexed to the land, yet may, during the term of the lease, be severed by the lessee, or by one deriving title from him, and thus re- converted to their original condition of chat- tels. At any time before the expiration of the term, therefore, both the leasehold and the fixtures may be taken on execution against the lessee, like other personal prop- erty.” Gray, J. Freeman wv. Dawson, 110 U. S. 270. “By the common law, the body, lands, and goods of the king’s debtor were liable to be levied on to obtain payment,” Curtis, J. Murray v. Hoboken Land, etc. Co., 18 How. 277. “A right to specific pieces of money can only be acquired by obtaining the legal or actual possession of them, and until this is done there can be no such absolute owner- ship as that an execution may be levied on them. A right to a sum of money in the hands of a sheriff can no more be seized than a right to a sum of money in the hands of any other person, and however wise or just it may be to give such a remedy, the law does not appear yet to have given it.” MarsHaLt, C, J. Turner wm Fendall, 1 Cranch, 134. “In the absence of statute, bills and notes are treated as choses in action and are not subject to levy and sale on execution, but by the statutes of many states they are made so subject to seizure and sale, as any tangible personal property.” Brewer, J. New Or- leans vw. Stempel, 175 U. S. 321. “A deed of trust does not protect goods from sale by execution. The owner has still an interest, or equity of redemption in them, which is subject to sale; and a pur- chaser at an execution sale would be entitled to redeem the goods from the deed of trust by paying the debt secured thereby.” Brap- LEY, J. Webb v. Sharp, 13 Wall. 16. “Tt was well settled in the English juris- prudence, that according to the common law, no equitable interest in property of any kind was liable to execution.” Swayne, J. Mor- sell v, Washington First Nat. Bank, 91 U. S. 359. “At common law executions upon judg- ments could not be levied upon estates merely equitable, because courts of law did not rec- ognize any such titles and could not deal with them.” Matrnews, J. Freedman’s Sav., etc., Co. v. Earle, 110 U. S. 712. 721 ’ EXECUTIONS. “The property of a railroad corporation, used for necessary railroad purposes, cannot be seized and sold under an execution at law.” Hartan, J. Hammock v. Farmers’ L. & T. Co., 105 U. S. 91. “It has been held by many courts that a mortgagee cannot, upon a judgment recov- ered for a debt secured by his mortgage, levy the execution upon the mortgaged property.” Woops, J. Pugh v. Fairmount Min. Co., 112 U.S. 248. “The interest of the mortgagor, according to the common law, is not liable to execution as real estate.” Barsour, J. Bank of Me- tropolis v. Guttschlick, 14 Pet. 28. b. Public Property. “True it is, that under the general law, growing out of the public nature of their duties, where judgments or decrees are en- tered against municipal corporations, such judgments or decrees may not, as a matter of public policy, be enforced by the levy on property held by the corporation for public uses.” Wuite, J. Workman v. New York City, 179 U. S. 565. “The city holds all property which it owns, as trustee for the public, although certain classes or kinds of property, such as the pub- lic streets, the public squares, the court-house and the jail, cannot be taken on execution against it, for reasons which are plain to be seen. Such property is so necessary for the present and daily use of the city as the rep- resentative of the public, as well as for the use of the public itself, that to allow it to be taken on execution against the city would interfere so substantially with the immediate wants and rights of the public whose trustee the city is, and also with the due perform- ance of the duties which are imposed upon the city by virtue of its incorporation, that it ought not to be tolerated.” Prcxuam, J. Werlein v. New Orleans, 177 U. S. 401. III. QUASHING EXECUTION. “In modern times, courts of law will often interfere by summary proceedings on mo- tion, and quash an execution erroneously awarded, where a writ of error or other rem- edy, such as a writ of audita querela, would clearly lie. But, because a ‘court may, it does not follow that it is bound thus to act in a summary manner; for in such cases the motion is not granted ex debito justitia, but in the exercise of a sound discretion by the court.” Story, J. Boyle v. Zacharie, 6 Pet. 656. “The refusal to quash an execution, is not in the sense of the common law, a judgment; much less a final judgment. It is a mere in- terlocutory order.” Ba.pwin, J. Holmes v. Jennison, 14 Pet. 627. IV. SALES UNDER EXECUTION. y “A sale of the land under an execution issued on the judgment, or on the bond, would relate back to the judgment for its force and effect.” BrapLey, J. Evans v. Pike, 118 U. S. 246. “An execution levied on land, is begun to be executed, and is an election of the remedy by sale of it; and the mere delay of the sale, if not fraudulent, injures no one and cannot postpone the rights of the creditor who has first seized the land and taken it into the custody of the law for the purpose of obtain- ing satisfaction of his judgment. If he has obtained a priority over those whose liens are of equal date, by levying his execution, he is not bound to commence a new race of dili- gence with those whose rights are postponed to his own.” Grier, J. Rockhill v. Hanna, 15 How. 195. “Although there is no general rule that an attorney may not purchase at an execution sale, provided it be not done to the preju- dice of his own clients, such pur- chase in itself is calculated to throw a doubt. upon the fairness of the sale.” Brown, J. Schroeder v. Young, 161 U. S. 340. “In a great many of the states of the Union a period is allowed of from twelve to fifteen months to redeem real estate from sale under execution, by payment of the amount for which it was sold, and interest on that amount. In nearly all these states this right of redemption attaches in sales made under chancery decrees as well as judgments at law.” Muir, J., dissenting. Graffam v. Burgess, 117 U. S. 196. “Tn the ordinary case of a title to land, set up by virtue of a sale under a judgment and execution, the party is bound to give evidence of the judgment and execution to support this title. Without these, the sheriff’s or marshal’s deed would be a nullity.” NeEL- son, J. Little v. Herndon, 10 Wall. 31. “The estate of the defendant in execution is not divested by a seizure and sale of his lands, but only by a payment of the pur- chase money and delivery of a deed. The sheriff’s certificate is necessary as written evidence to satisfy the statute of frauds and to identify the holder as the person ulti- 722 EXECUTIONS. mately entitled to the deed, but it does not pass the title to the land nor constitute the purchaser the owner theréof.” Brown, J. Turner v. Sawyer, 150 U. S. 585. “Tt is not essential that the execution, or judgment under which he [the sheriff] acted, should be set out in full [in his deed], or that his proceedings on the sale should be detailed at length. It is sufficient if they be referred to with convenient certainty, and any misdescription not actually misleading the grantee would undoubtedly be considered immaterial.” Frievp, J. French v. Edwards, 13 Wall. 515. “The vendee, by accepting the conveyance with this solemn declaration of the officer as to the manner in which his power was exercised, would be estopped from denying that the fact was as recited.” Fretp, J. French v. Edwards, 13 Wall. 516. “Tt is true that, if a sheriff levies on a whole tract of land, and describes it accu- rately in his levy and deed, parol testimony cannot be received to show that he intended to sell less than his deed describes, or that he excepted a part of the premises at the time of the sale.” Grier, J. Atkinson’s Les- see v. Cummins, 9 How. 485. “That the ordinary writ of fieri facias is the authority of the sheriff to levy on prop- erty and sell it is undoubted, and needs no reference to authorities to support it; and if the supposed writ is void, then the levy and sale are also void, and not merely voida- ble because they are made without any au- thority on the part of the officer.” MILLER, J. Aetna Ins. Co. v. Hallock, 6 Wall. 559. “By the common-law process, whether of mesne attachment or execution, property is reached only through a personal defendant, and then only to the extent of his title, Under a sale, therefore, upon a judgment in a common-law proceeding the title acquired can never be better than that possessed by the personal defendant.” Frerp, J. The Moses Taylor, 4 Wall. 427. “Tf the judgment debtor died after the elegit was executed upon his lands, and be- fore the judgment was satisfied, a court of equity, upon being applied to, would decree a sale of the land upon which it had been executed, and payment of the judgment out of the proceeds.” Swayne, J. Morsell wv: Washington First Nat. Bank, 91 U. S. 360. “The right of a judgment creditor to pro- ceed by action against those who rescue the person of his debtor arrested on mesne or final process, or interfere with the goods of his debtor so as to prevent a levy or sale by the sheriff to satisfy his judgment, is well recognized at common law.” Woops, J. Findlay v. McAllister, 113 U. S. 111. Fieri Facias. “At common law the fee in lands by a fieri facias is not subject to sale; the sher- iff’s authority to sell in this country is in the nature of a naked power conferred by statute; he takes no title in the land by the levy, as he does in goods, and can confer none on the purchaser, his power to sell is wanting.” Catron, J. Gantly v. Ewing, 3 How. 714. V. STATUS AND LIABILITY OF OFFICER LEVYING. “Tn many particulars, and where it is not in violation of his legal duty, the sheriff is deemed the agent of the plaintiff in the exe- cution. The directions of the plaintiff will not only excuse the sheriff from his general duty, but ordinarily he is bound to obey such directions.” Hunt, J. O’Brien v. Weld, 92 U.S. 84. “The attorney is the agent of his client to conduct his suit to judgment, ard to su- perintend the execution of final process. It is true that he cannot discharge the defend- ant from execution without the money is paid to him; but his authority is complete to control the remedy which the law gives him to secure or collect the debt of his cli- ent. And if the client suffers by the igno- rance or indiscretion of the attorney, the officer shall not be prejudiced, for the attor- ney may give such directions to the officer as will excuse him from his general duty. The attorney can give such general instruc- tions to the officer as he may deem best cal- culated to advance the interests of his client, and if followed (erroneous though they be) they will bind his client and exonerate the officer.” Davis, J. Rogers v. Fuller, 1 Wall. 651. “Whenever an officer has it in his power to satisfy an execution in his hands, it is his duty to do so, and if he omits to per- form his duty he must be accountable to those who may be injured by the omission.” MarsHautt, C. J. Turner v. Fendall, 1 Cranch 134. “The court will not entertain inquiries as to the diligence of the officer in endeavoring to find property upon which to levy. If the 723 EXECUTORS AND ADMINISTRATORS. return be false, the law furnishes to the in- jured party ample remedy.” Fiezp, J. Jones v. Green, 1 Wall. 332. EXECUTORS AND ADMINIS- TRATORS. J. DEFINITIONS AND GENERAL PRIN- CIPLES. II. APPOINTMENT. IIT. Powers. 1. In General. 2. Foreign Executors and Administra- tors. IV. Ricuts. V. Duties. VI. LiaBieities. VII. AccounTING. CROSS-REFERENCES. See Descent anp DistrisuTiIon; HEeEtrs AND NExtT oF Kin; LEGAcIEs AND DEVISES; PROBATE AND ADMINISTRATION; REPRESENTA- TIVES; WILLS. I, DEFINITIONS AND GENERAL PRINCIPLES. “An Executor or Administrator Is in Equity a Trustee for heirs, legatees and creditors.” Wayne, J. Michoud wv. Girod, 4 How. 553. “Tn the court of chancery, executors and administrators are considered as trustees, and that court exercises original jurisdiction over them, in favor of creditors, legatees and heirs, in reference to the proper execution of their trust.” Camppett, J. Green v. Creighton, 23 How. 106. “Letters of Administration Are a Trust. They are granted by the probate court or ordinary because of confidence reposed in the grantee. They require him to take ex- clusive charge of the personal property of his intestate and to bring to its administra- tion his own personal attention and judg- ment. He has no right to allow others to control it or to share in its administration. Tf he does, he exposes it to unnecessary haz- ards and subjects it to the disposition of persons in whom the officer of the law has reposed no confidence.” Srronc, J. For- syth v. Woods, 11 Wall. 487. “In Theory of Law the Executor Contin- ues the Persona of the Testator, and there- fore is a different person from the natural man who fills the office.” Hotmes, J. U.S. v. California, etc., Land Co., 192 U..S. 358. General Considerations. “Executors and administrators are es the actors in suits brought by them; the personal property of the decedent is vested in them; the persons to whom they are ac- countable, for whose benefit they act, can bring no suit to assert their rights against third persons, be the cause of action what it may; nor can they interfere with the com ducting of the suit to assert their rights to the property of the decedent, which do not vest in them, The personal representative is, therefore, the real party in interest before the court, . . . and succeeds to all the rights of those they represent by operation of law; and no other persons are capable, as representatives of the personalty, of suing or being sued. They are contradistinguished, therefore, from assignees who claim by the act of the parties, and may sue in the federal courts in cases where the decedent could not.” Batpwin, J. McNutt v. Bland, 2 How. 15, “When a will has been once admitted to probate, the estate, so long as the probate remains unrevoked, can only be administered by the executor or by an administrator with the will annexed. The executor is the prin- cipal and the necessary representative of the estate vested in him, and of all those inter- ested in it.” Gray, J. McArthur v. Scott, 113 U. S. 396. “The United States have no pretense [as a preferred creditor of a decedent] of a legal right to a transfer of the stock to them- selves or to recover damages for refusing it: the right to hold the stock devolves on the executors, to whose hands it must come for sale and distribution: the proceeds, not the stock, go to the United States in virtue of their priority.’ Batpwin, J. Brent wv. The Bank of Washington, 10 Pet. 614. “It has been held, that if two are bound jointly and severally, and one of them makes the obligee his executor, the obligee may, notwithstanding, maintain an action against the other obligor.” Netson, J. Bradford wv. Williams, 4 How. 587. “In cases in personam, where there are adverse parties, the court must have power over the subject-matter and the parties; but on a proceeding to sell the real estate of an indebted intestate, there are no adversary parties, the proceeding is in rem, the ad- 724 EXECUTORS AND ADMINISTRATORS. ministrator. fepresents the land, : they are analogous to proceedings in the admiralty, where the only question of juris- diction is the power of the court over the thing, the subject-matter before them, with- out regard to the persons who may have an interest in it; all the world are parties.” Batpwin, J. Grignon v. Astor, 2 How. 338. Purchaser’s Title at Executor’s Sale. “The purchaser at the sale, upon receiving a deed from the executor or administrator, has a complete title, and is in immediately under the deceased, and may enter afd re- cover possession of the estate, notwithstand- ing any intermediate descents, sales, dis- seizins, or other transfers of title or seizin, If therefore the whole real estate be neces- sary for the payment of debts, and the whole is sold, the title of the heirs or devisees is, ‘by the general operations of the law, di- vested and superseded; and so, pro tanto, in case of a partial sale.” Srory, J. Wil- kinson v7. Leland, 2 Pet. 659. Jurisdiction of Equity. “The jurisdiction of a court of equity to enforce the [administrator’s] bond arises from its jurisdiction over administrators, its disposition to prevent multiplicity of suits, and its power to adapt its decrees to the substantial justice of the case.” CAMPBELL, J. Green wv. Creighton, 23 How. 108. “The Title of an Executor in the per- sonal property of his testator, being derived from the will, doubtless vests in him from the moment of the testator’s death.” Gray, j. Wall wv. Bissell, 125 U. S. 38%. “The executor, though holding the title to personal assets, is not absolute owner of them. They are not liable for his debts, nor can he dispose of them by will. He holds them in trust to pay the debts of the deceased, and then to discharge his legacies; and, as in all other cases of trust, he is per- sonally responsible for any breach of duty.” Fretp, J. Smith v. Ayer, 101 U. S. 327. “The title of an administrator is proven by the production of the letters of adminis- tration.” Wayne, J. Kane v. Paul, 14 Pet. 42, . “Terms of years belonging to a testator or intestate vest in his executor or adminis- trator without any entry, for the reason that in contemplation of law such interests are chattels.” ‘Cuirrorp, J. Lycoming Fire Ins. Co. v. Haven, 95 U. S. 251. “The executot’s interest in the testator’s estate is derived from the will, and vests from the latter’s death, whatever may be the form which the law requires to be observed before an executor enters upon the discharge of his functions.” Wayne, J. Hill wv. Tucker, 13 How. 466. “The executor’s interest in the testator’s estate is what the testator gives him. That of an administrator is only that which the law of his appointment enjoins.” Wayne, J. Hill v. Tacker, 13 How. 466. Personal Property Primary Fund for Debts. “In the ordinary course of administration, the personal property is . the primary fund for the payment of debts.” McLean, J. M’Learn v. M’Lellan, 10 Pet. 639. “T£ the contract be personal, although a mortgage be given, the mortgage is consid- ered in aid of the personal contract; and, on the decease of the mortgagor, his personal estate will be considered the primary fund, because the contract was personal; but if the estate descend to the grandson of the mort- gagor, then the charge would be upon the Jand, as the debt was not the personal debt of the immediate ancestor.” McLean, J. M’Learn v. M’Leilan, 10 Pet. 644. “In England the rule which requires the personal property to be first applied in the payment of debts, is deviated from where the justice of the case and the rights of par- ties interested, require it.’ McLean, J. M’Learn v. M’Lellan, 10 Pet. 643. “Tt has long been settled, . . . that upon a loan of money, the party meaning to mortgage, in aid of the bond, covenant, or simple contract debt, if there is neither bond nor covenant; his personal estate, if he dies, must pay the debt for the benefit of the heir. But suppose a second descent cast; and the question arises, the personal estate of theson, and his real estate, descended to the grand- son; then the personal estate of the son shall not pay it, as it never was the per- sonal contract of the son.” McLzan, J. M’Learn v. M’Lellan, 10 Pet. 644. “An Administrator De Bonis Non de- tives his title from the deceased, and not from the former executor or administrator. To him is committed only the administra- tion of the goods, chattels, and credits of the deceased which have not been administered. He is entitled to all the goods and personal estate which remain in specie. Money re 725 EXECUTORS AND ADMINISTRATORS. ceived by the former executor or administra- tor, in his character as such, and kept by itself, will be so regarded, but if mixed with the administrator’s own money it is consid- ered as connected [converted], or as, tech- nically speaking, ‘administered.’” Woops, J. U. S. v. Walker, 109 U. S. 261. “It is well settled at common law that ‘the title of an administrator de bonis non extends only to the goods and personal es- tate, such as leases for years, household goods, etc., which remain in specie and were not administered by the first executor or ad- ministrator, as also to all debts due and owing to the testator or intestate.’” Woops, J. U.S. v. Walker, 109 U. S. 260. “Trrespective of statutory regulation, an administrator de bonis non could only ad- minister upon the assets remaining .unadmin- istered in specie.” Futter, C. J. Veach v. Rice, 131 U. S. 316. “Every administrator after the first is an administrator de bonis non, and it is not important it should so appear of record.” Futter, C. J. Veach v. Rice, 131 U. S. 315. Unadministered Assets. “Tt may be conceded that the words un- administered assets, as used in statutes, have sometimes been construed to include the pro- ceeds of assets sold or collected and not accounted for or paid over; and that an ad- ministrator de bonis non might call a re- moved administrator to account for such proceeds.” Woops, J. U. S. v. Walker, 109 U. S. 263. Privity. ““Between administrators deriving their commissions to act from different political jurisdictions, there is no privity.” Wayne, J. Hill v. Tucker, 13 How. 466. II. APPOINTMENT. Effect of Appointment. “The appointment of an executor, and his acceptance of the office, constitute a com- plete legal owner of the personal estate of the deceased.” MarsHait, C. J. Griffith v. Frazier, 8 Cranch 21. “The appointment of an executor vests the whole personal estate in the person so appointed. He holds as trustee for the pur- poses of the will, but he holds the legal title in all the chattels of the testator. He is, for the purpose of administering them, as much the legal proprietor of those chattels as was the testator himself while alive.” MarsHatt, C. J. Griffith v. Frazier, 8 Cranch 24, Invalid Appointment. “The appointment by the probate court of an administrator of the estate of a living person, without notice to him, being with- out jurisdiction, and wholly void as against him, all acts of the administrator, whether approved by that court or not, are equally void; the receipt of money by the adminis- trator is no discharge of a debt; and a con- veyance of property by the administrator passes no title.” Gray, J. Scott v. McNeal, 154 U. S. 49. “The fact that a person has been absent and not heard from for seven years may create such a presumption of his death as, if not overcome by other proof, if such prima facie evidence of his death, that the probate court may assume him to be dead and ap- point an administrator of his estate, and that such administrator may sue upon a debt due to him. But proof, under proper pleadings, even in a collateral debt, that he was alive at the time of the appointment of the ad- ministrator, controls and overthrows the prima facie evidence of his death, and estab- lishes that the court had no jurisdiction, and the administrator no authority; and he is not bound, either by the order appointing the administrator, or by a judgment in any suit brought by the administrator against a third person, because he was not a party to and had no notice of either.” Gray, J. Scott v. McNeal, 154 U. S. 49. Letters as Evidence. “The letters issued to an executor or an administrator by a probate court are, as a general rule, evidence only of their own ex- istence. They prove, that is to say, that the authority incident to that offense or duty has been devolved upon the person therein named, that he has been appointed, and that he is executor or administrator of the party therein assumed to have departed this life.” Hunt, J. Mutual Benefit L. Ins. Co. v. Tisdale, 91 U. 8. 243. Who May Be Appointed. “Different states have different provisions as to who may be executor or administrator, excluding some persons and preferring oth- ers, in the order and manner in their statutes specified. Thus persons convicted of infa- mous crime are excluded from this office, and persons of notoriously evil lives may be passed by in the discretion of the probate court. Sons or daughters or widows are 726 EXECUTORS AND ADMINISTRATORS. entitled to take in preference to others: un- married women are entitled in preference to married women.” Hunt, J. Mutual Benefit L. Ins. Co. uv. Tisdale, 91 U. S. 243. Notice of Application for Letters. “Certain notices may be, and usually are, required to be given of the proceed- ings to obtain letters [of administration], and the letters are the evidence that the pro- ceedings have been regularly taken, and that the person or persons therein named are those by law entitled to the office. Upon these points the court has adjudicated. No proof to the contrary can be admitted in an action brought by the executor as such. Parties wishing to contest that point must do it before the probate court at the time application is made for the letters, or upon subsequent application, as the case may re- quire.” CuiirrorD, J. Mutual Benefit L. Ins. Co. v. Tisdale, 91 U. S. 2438. Relation Back of Letters. “Letters testamentary issued to an execu- tor, upon his qualifying according to law, may relate back and legalize his previous tortious acts.” Gray, J. Wall v. Bissell, 125 U. S. 390. Acceptance of Trust. “Proving the will is an acceptance of the trust.” Swayne, J. McBurney v. Carson, 99 U. S. 572. Policy of Testamentary Law Cannot Be Defeated. “Tt is not within the power of the testator to defeat the provisions and the policy of the testamentary law of the state, by be- queathing personal property to a trustee, without the intervention of an executor.” Gray, J. Wall v. Bissell, 125 U. S. 390. Special Administrators. “Tn the cases in which bills in equity, with- out an executor or administrator being made a party, have been maintained while the pro- bate or the administration was being con- tested in the ecclesiastical court, the court of chancery exercised a jurisdiction, concurrent with that of the ecclesiastical courts in ap- pointing special administrators, for the sim- ple purpose of preserving the property until there was some person entitled to receive it.” Gray, J. McArthur v. Scott, 113 U. S. 402. III. POWERS. 1. In GENERAL. Inclination of Court. “Courts, in carrying out the wishes of tes- tators, the pole-star in wills, are much in- clined, especially in equity, to vest all the power or interest in executor which are necessary to effectuate those wishes, if the language can fairly admit it.” Woopsury, J. Taylor v. Benham, 5 How. 268. Disposing of General Effects and Com- pounding Debts. “An administrator has general power to dispose of the general effects of his intestate, and to compound a debt, if it is for the benefit of the trust estate.” BLATCHFoRD, J. Jeffries v. New York Mut. L. Ins. Co., 110 U. S. 310. “There is no doubt that, unless restrained by statute, an executor can dispose of the personal assets of his testator by sale or pledge for all purposes connected with the discharge of his duties under the will. And even where the sale or pledge is made for other purposes, of which the purchaser or pledgee has no knowledge or notice, but takes the property in good faith, the trans- action will be sustained; for the purchaser or pledgee is not bound to see to the dispo- sition of the proceeds received.” Fie, J. Smith v. Ayer, 101 U. S. 326. “The administrator, by virtue of his ap- pointment and authority as such, obtains the title in promissory notes or other written evidences of debt, held by the intestate at the time of his death, and coming to posses- sion of the administrator; and may sell, transfer and indorse the same; and the pur- chasers or indorsees may maintain actions in their own names against the debtors in another state, if the debts are negotiable promissory notes, or if the law of the state in which the action is brought permits the assignee of a chose in action to sue in his own name.” Gray, J. Wilkins v. Ellett, 108 U. S. 259. : ‘ “ At common law, he [the executor] might, before proving the will in the probate court, not only take possession of the property, but sell or dispose of it, pay debts of the estate, receive or release debts owing to it, bring actions for property which was in the testator’s actual possession, and do almost any other acts incident to his office, except that he could not maintain any other actions without producing a copy of the probate and letters testamentary at the trial.” Gray, J. Wall v. Bissell, 125 U. S. 387. Power to Sell Real Estate. “Executors have no authority to sell real estate, unless the power to sell, and the pur- pose of the sale, are expressed in the will. 727 EXECUTORS AND ADMINISTRATORS. Therefore the court cannot infer, from a power expressly granted to sell the estate for one purpose, a power to sell it for an- other purpose not granted.” McKinuey, J. dissenting. Lane v. Vick, 3 How. 480. “Tt is well settled, that executors have power to sell the real estate, where such is given to them or necessarily to be implied from the produce being to pass through their hands in the execution of their office.” Wayne, J. Fenwick v. Chapman, 9 Pet. 477. “Tf the authority to sell is given to execu- tors, virtue officit a surviving executor may sell; and that the authority given by the will, in that case, to the executors to sell, was to them in their character of executors, and for the purpose of paying debts, an object which is highly favored in the law.” THomp- son, J. Peter v. Beverly, 10 Pet. 565. “Creditors May, for Cause, Enjoin the Executor from Selling [land], or, upon his application to sell, in a case where the intervention of a court of equity is asked to permit or direct a sale, creditors may be allowed to make themselves parties; but the difference between these last positions, and the executor’s right to sell, and having sold, is all that there is between the action of the executor being restrained by a court of equi- ty, and where his power to sell has not been restrained, and is executed.” Wayne, J. Fenwick v. Chapman, 9 Pet. 478. “In Regard to Controversies with Debt- ors and Creditors, the executor, if there be a will, or the administrator, if one has been appointed, represents the rights and the obligations which had been those of the de- ceased. The right of the administrator or executor to sue in the ordinary courts of the country to enforce the payinent of debts owing the decedent in his lifetime, and un- paid at his death, has always been recog- nized; and it is believed that no system of administering the estates of decedents has changed this principle. The courts of the United States have always been open to such actions when the requisite citizenship exists, and for this purpose the citizenship of the administrator or executor controls, and not that of the decedent.” Mutter, J. Hess wv. Reynolds, 113 U. S. 76. Maintaining Suit. “Tf an executor derived from the will of his testator, a power to maintain a suit, and obtain a judgment for a debt due to his tes- tator, it would seem reasonable that he should exercise that power, wherever the au- thority of the will was acknowledged; but if he maintains the suit by virtue of his let- ters testamentary, he can only sue in courts to which the power of those letters extends.” MarsuaLt, C. J. Dixon v. Ramsay, 3 Cranch 323. 2. Foreign Executors AND ADMINIS- TRATORS. “Tt has been solemnly adjudged in this court, and is the general principle in perhaps every state in the Union, that one adminis- tering in one state cannot bring suit in the courts of another state. This necessity of administering, where the debt is to be re- covered effectually places the application of the proceeds under the control of the laws of the state of the administration. And if, in any instance, the rule is deviated from, it forms, pro hac, an exception ; a voluntary relinquishment of a right, countenanced by universal practice; and is of the character of the treaty stipulations by which foreign nations surrender virtually a right, which locality certainly puts in their power. Whether it would or would not be politic to establish a different rule by convention of the states, under constitutional sanction, is not a question for our consideration. But such an arrangement could only be carried into effect by a reciprocal relinquishment of the right of granting administration to the country of the domicil of the deceased ex- clusively, and the mutual concession of the right to the administrator, so constituted, to prosecute suits everywhere, in virtue of the power so locally granted him; both of which concessions would most materially interfere with the exercise of sovereign right, as at present generally asserted and exercised.” Jounson, J. Smith vw. Georgetown Union Bank, 5 Pet. 527, “The genetal rule [is] that an adminis- tratot’s power to act, as well as his duty to account, is limited to the state from whose coutts he derives his authority, and that thereafter he cannot sue or be stied in an- other state in which he has not been ap- pointed administrator.” Gray, J. Lawrence v. Nelson, 143 U. S. 222. “Tt is true, if any portion of the estate is situated in another country, he [the admin- istrator] cannot recover possession by suit without taking out letters of administration from the proper tribunal in that country, as the original letters can. confer upon him no extraterritorial authority.” Neson, J. Wil- kins v, Ellett, 9 Wall. 742. 728 EXECUTORS AND ADMINISTRATORS. “An administrator under grant of admin- istration im one state stands in none of these relations [of privity] to an administrator in another, Each is privy to the testator, and would be estopped by a judgment against him; but they have no privity with each other, in law or in estate. They receive their authority from different sovereignties, and over different property. The authority of each is paramount to the other. Each is accountable to the ordinary from whom he receives his authority. Nor does the one come by succession to the other into the trust of the same property, encumbered by the same debts, as in the case of an administrator do bowis non, who may be truly said to have an official privity with his predecessor in the same trust, and therefore liable to the same duties.” ‘Grier, J. Stacy v. Thrasher, 6 How. 59. ‘ “It has been decided in this court that letters testamentary give to the executor no authority to sue for the petsonal estate of the testator out of the jurisdiction of the power by which those letters are granted. But this decision has never been understood to extend to a suit for lands devised to an executor. In such a case the executor sues as -devisee. His right is derived from the will, and the letters testamentary do not give the title. The executors are trustees for the pur- poses of the will.” MarsHatz, C. J. Doe.v. M’Farland, 9 Cranch 152. “On a note made to the intestate, payable to bearer, an administrator appointed in one state may sue in his own name in another state.” Gray, J. Wilkins v. Ellett, 108 U. S. 259. “We are aware that, except by virtue of some statutory authority, an administrator appointed in one state cannot generally sue in another, and that a receiver appointed in one state cannot generally sue in another and that a receiver appointed by a state court has no extraterritorial power; but a corporation is the creature of legislation, and may be en- dowed with such powers as its creator sees fit to give. Necessarily it must act through agents, and the state which creates it may say who those agents shall be. One may be its representative when in active opera- tion, and in full possession of all its powers, and another if it has forfeited its charter and has no lawful existence except to wind tip its affairs. No state need allow the corporations of other states to do business within its jurisdiction unless it chooses, with perhaps the exception of commercial corpo- rations; but if it does, without limitation, express or implied, the corporation comes in as it has been created. Every corpora- tion necessarily carries its charter wherever it goes, for that is the law of its existence. it may be restricted in the use of some of its powers while doing business away from its corporate home, but every person who deals with it everywhere is bound to take notice of the provisions which have been made in its charter for the management and control of its affairs both in life and after dissolution.” Warts, C. J. Relfe v. Run- dle, 103 U. S. 225. “Although an executor or administrator cannot sue in a foreign court, in virtue of his original letters of administration, yet he may lawfully, under that administration, receive a debt voluntarily paid in any other state.” McLean, J. Mackey wv. Coxe, 18 How. 104. IV. RIGHTS. In General. “Tt must be conceded that, as a general rule of equity jurisprudence, a trustee or per- son acting in a fiduciaty character for the benefit of others cannot become a purchaser at his own sale, or acquire any interest therein without the express consent, or under a special permission given by a court of cempetent jurisdiction. It applies to executors and administrators who are not pet- mitted to derive a personal benefit from the manner in which they transact the business or manage the assets of the estates intrusted to them; but whatever advantage is de- rived by them from a purchaser at any un- deravlue is for the common benefit of the estate.” Lamar, J. Allen v. Gillette, 127 U.S. 593. “We are aware that cases may be found in the reports of some of the chancery courts in the United States, in which it has been held that an executor may purchase, if it be without fraud, any property of his testator, at open and public sale, for a fair ptice, and that such purchase is only voidable, and not void, as we hold it to be. But with all due respect for the learned judges who have so decided, we say that an executor or ad- ministrator is, in equity, a trustee for the next of kin, legatees, and creditors, and that we have been unable to find any one well considered decision, with other cases, or any one case in the books, to sustain the right of an executor to become the pur- chaser of the property which he represents, or any portion of it, though he has done so 729 EXECUTORS AND ADMINISTRATORS. for a fair price, without fraud, at a public sale.” Wayne, J. Michoud v. Girod, 4 How. 557. “An administrator has been held, by relation, to have such constructive right of possession in the goods of the intestate before grant of letters as to be entitled to maintain an action of trespass.” WHITE, J., dissenting. U. S. v. Loughrey, 172 U. S. 227. Right of Retainer. “That an administrator or executor may retain the amount of his debt out of the assets in his hands, is a principle which grew out of the necessity of the case. If such a right did not exist, the executor or administrator would be, in many cases, with- out remedy. The principle was intended for his benefit, and not to mislead or entrap him. It is a right which he may postpone, if in doing so he does no injury to the estate; and such a question can only be made by the devisees or their heirs. If he shall pay debts, not on interest, and permit his own to run on interest, it may become a question whether he be entitled to interest. But his right to pay himself, so long as assets shall remain in his hands, is clear.” M’Lean, J. Page wv. Patton, 5 Pet. 316. “The Executor Cannot Sue Himself, and for this reason he is authorized to re- tain the amount of his debts out of the as- sets in his hands. The right of action, being once extinguished, cannot be revived either by the executor or his legal representatives. On this point the authorities are decisive: and, although some difference of opinion seems to have been entertained as to the ex- tinguishment of the debt, yet it is in ef- fect extinguished as the legal right to enforce the payment of it is gone.” M’Lean, J. Page v. Patton, 5 Pet. 313. “The Law Presumes His Own Debt to Be Satisfied when assets come to his hands to the amount of it, there being no other debts of higher degree.” M’LeEan, J. Page vy, Patton, 5 Pet. 314. V. DUTIES. Good Faith. “Tt is undoubtedly true that an executor is chargeable with the utmost good faith in dealing with the estate intrusted to him.” Fretp, J. Glasgow wv. Lipse, 117 U. S. 333. “He [an executor] cannot wantonly neglect the property or squander it by useless expenditures, or suffer it to go to waste without incurring personal liability for the consequent depreciation. Nor can he call in good investments when the money is not needed, nor accept the payment of debts for less than their face when the full amount can be recovered without unnecessary delay and expense, nor in depreciated currency when better currency can ,be had, unless it can be advantageously used in meeting ex- penses, discharging debts, paying legacies, and the like. He may, however, take pay- ment of a debt, when not secured, in the best money he can get when its safety requires its collection. Under these limitations he must do what, under the circumstances and situation, prudent men, managing their own estates, would do; and, when doubting, seek the authority and direction of the proper court.” Fretp, J. Glasgow wv. Lipse, 117 UL. S. 333. Execution of Trust. “Provisions in wills, that the executors should retain the property devised until the devisee is of lawful age, and postponements to later periods, are of common occurrence ; the executors having assumed the trust, are held to its execution — on their responsibil- ity and prudence the testator relied, and not on future husbands that young and orphan daughters might marry; nor on guardians se- lected by indiscreet and incompetent minors.” CaTRON, J. Price v. Sessions, 3 How. 635. Application of Personal Estate. “The whole of the personal estate of the testator devolves upon the executor; and it is his duty to apply it, in the first place, to the payment of the debts of the deceased; and he is responsible to the creditors for the satisfaction of their demands to the extent of the whole estate, without regard to the testator’s having, by the will, directed that a portion of it shall be applied to other pur- poses.” Netson, J. McClanahan wv. Davis, 8 How. 178. “The Duty of the Administrator Arises to Pay the Debts when their existence is discovered; and the [administrator’s] bond is forfeited when that duty is disregarded.” CAMPBELL, J. Green v. Creighton, 23 How. 108. Demanding Payment. “An administrator is of course obliged to demand payment at the place where the bill or note is payable; and he may find dif- ficulty unless it is payable to bearer, in suing upon it in a place in which he has not taken 730 EXECUTORS AND ADMINISTRATORS. out administration. But payment to the ad- ministrator appointed in the state in which the intestate had his domicil at the time of his death, whether made within or without that state, is good against any administrator appointed elsewhere.” Gray, J. Wyman v. Halstead, 109 U. S. 656. VI. LIABILITIES. In General. “If he [an executor] fail in the dis- charge of his trust he is liable to parties in- jured thereby, as all trustees are liable in such cases. And parties combining and con- federating with him to despoil the estate in any way may be held as participants in the devastavit and breach of trust.” FUIexp, J. Glasgow v. Lipse, 117 U. S. 334. Devastavit. “ At common law an executor or adminis- trator is not chargeable ona devastavit, until a judgment shall be obtained against him. He is bound to defend himself by legal plead- ing, and can have no relief in equity. If he suffer judgment by default it is an ad- mission of assets, and also if he file a plea in bar which he knows to be false. So if he pleads only the general issue, and has a ver- dict against him. If he plead plene admin- istravit, and on this plea assets are found to be in his hands, he is liable only to the amount of such assets.” McLean, J. Mc- Gill v. Armour, 11 How. 152. “The payment by the executor of his own private debt with assets of the testator is a devastavit; that is, a wasting of the estate. There are, indeed, some exceptions of this kind, such a use of the assets is considered entirely indefensible, and the party receiving them, will not be permitted to retain them, on the ground that the transaction itself gives him notice of their misapplication, and thus necessarily involves him as a participa- tor in the fraud.” Fiexp, J. Smith v. Ayer, 101 U. S. 327. “An executor guilty of devastavit, where- by assets are diverted from their proper ap- plication, and a trustee guilty of a breach of trust, and their accomplices, if they have any, are held liable upon the same principle and to the same extent.” Swayne, J. Mc- Burney v. Carson, 99 U. S. 572. “Plene administravit is doubtless a good plea, and, if sustained by sufficient evidence, it is a good defense; but the rule is, that the jury, under such a plea, if no devastavit is averred, must find the amount of the assets, if any, before any judgment can be ren- dered.” CuiFForp, J. Smith v. Chapman, 93 U.S. 43. “When an administrator pleads plene ad- ministravit, the plaintiff may admit the plea, and take judgment of assets, quando accider- int.’ GRIER, J. Peck v. Jenness, 7 How. 623. “Tt is well settled that a plea of plene ad- ministravit is not necessarily a false plea, and that the judgment in such a case, even if the plea is not sustained, should be a judgment de bonis testatoris.”’ C.tFForD, J. Smith v. Chapman, 93 U. S. 42. Collusion with Fraudulent Claimant. “No doubt when an executor or adminis- trator colludes with a fraudulent claimant against a decedent’s estate, and refuses to take steps to resist the claim, any person interested in the estate may maintain an ac- tion against such fraudulent claimant and the executor or administrator for the purpose of contesting the claim. Bills in equity of this nature have been maintained.” Srrone, J. Troy First Nat. Bank v. Cooper, etc., Co., 20 all. 174. Discovery of Assets. : “That a single creditor may maintain a bill against an administrator of a deceased debtor, for a discovery of assets, and the payment of his debt, there can be no doubt. That, in some cases, he may join with the administrator a third person, who is in pos- session of property which is amenable to the payment of the debt, is also clear. The in- stances in which it has been actually held that such third person might be joined, are chiefly cases of collusion between the ad- ministrator and the third person possessed of assets, insolvency of the administrator, and where the third person was the surviving partner of the deceased. But it will be found that the equitable right of the cred- itor to join a third person, and have a dis- covery and an appropriation of assets held by him, has never been limited to these par- ticular cases.” Curtis, J. Hagan v. Walker, 14 How. 33. Liability to Suit. “When within the same political jurisdic- tion, however many executors the testator may appoint, all of them may be sued as one executor for the debts of the testator, and they may unite in a suit to recover debts due to their testator, or to recover property out of possession.” Wayne, J. Hill. v. Tucker, 13 How. 466. 731 EXECUTORS AND ADMINISTRATORS. “Until recent times, the administrator or executor was liable to be sued in the or- dinary courts, whether state or national, on obligations contracted by the decedent, and such is probably the law of most of the states of the Union at this day. To such a suit the administrator could, at common law, have pleaded that there were no as- sets in his hands unadministered, or he could have denied the cause of action set up by plaintiff. How far a denial of assets would be a good plea now, depends on the statutes of the various states and the various modes of obtaining equality of distribution among creditors, where there is not enough to pay all.” Mmter, J. Hess v. Reynolds, 113 U.S. 76. ' “No Action Will Lie Against an Execu- tor for a Personal Wrong by the Testator. . . Nor does it lie against the executor of a jailer for an escape. . . Waste does not lie against an executor or admin- istrator; nor an action upon a penal statute. So trover is said not to lie against an ex- ecutor upon a trover and conversion by his testator, though a different form of action will lie for the same cause.” McLean, J. U. S. uv. Daniel, 6 How. 13. “Tf an Executor Shall Have Distributed the Estate of His Testator, the creditor has an action at law against him, and he has his remedy against the legatees. Yet it has never been understeod that the cred- itor is compelled to resort to his legal rem- edy. He may bring the executor and legatees both before a court of chancery, which court will decree immediate payment from those who are ultimately bound.” MarsHatt, C. J. Riddle v. Mandeville, 5 Cranch 330. Judgment by Default. “Tt is well settled that a judgment by default against an executor, or administrator, is an admission of assets to the extent charged in the proceedings against him, whether it be by action on the original judgment or by scire facias.” McKiniey, J. Dickson v. Wilkinson, 3 How. 61. Judgment Against Several Executors. “Notwithstanding the privity that there is between executors to a testator, we do not think that a judgment obtained against one of several executors would be conclusive as to the demand against another executor, qual- ified in a different ‘state from that in which the judgment was rendered. But such a judgment may be admissible in evidence in a suit against an executor in another juris+ diction, for the purpose of showing that the demand had been carried into judgment in another jurisdiction, against one of the testa- tor’s executors, and that the others were precluded by it from pleading Prescription or the statute of limitations upon the orig- inal cause of action.” Wayne, J. Hill v, Tucker, 13 How, 467. Two Distinct Judgments Against Execu- tor. “In common-law actions, it is not unusual to render two distinct judgments against an executor — one directing money to be levied of the goods of the deceased in his hands to be administered, and the other (if he has made himself personally liable, and there are not sufficient goods of the testator) di- recting the same money to be levied of his own proper goods. This is always the case with regard to the costs of the suit.” Brap- Ley, J. Kittredge v. Race, 92 U. S. 119. Judgments Against Deceased, “An executor is charged sometimes where a judgment has been recovered against the deceased, when he would not be if there had been no such judgment, as the cause of ac- tion at times does not survive.” Woopsury, J., dissenting. U. S. v. Price, 9 How. 101. Foreign Judgments, “The laws and courts of a state can only affect persons and things within their ju- risdiction. Consequently, both as to the ad- ministrator and the property confided to him, a judgment in another state is res inter alios acta. It cannot be even prima facie evidence of a debt; for if it have any effect at all, it must be as a judgment, and operate by way of estoppel.” Grier, J. Stacy v. Thrasher, 6 How. 61. “A plaintiff may be fairly presumed al- ways to have the evidence of ‘his demand in his possession, and the ability to establish it in any court. But if a judgment against an administrator in one state, raised up, perhaps, for the very purpose of giving the plain- tiff a judgment, should be conclusive on the administrator in another state, the estates of decedents would be subjected to innumer- able frauds.” Grier, J. Stacy v. Thrasher, 6 How. 61. VII. ACCOUNTING. In General. “It is . . . well settled that a court of chancery, as an incident to its power to en- force trusts, and make those holding a fiduci- ‘ i EXEMPTIONS. ary relation account, has jurisdiction to compel executors and administrators to ac- count and distribute the assets in their hands.” Davis, J. Payne v. Hook, 7 Wall. 431, “By the English law, as administered in the ecclesiastical courts, the administrator who is displaced, or the representatives of a deceased administrator or executor intestate, are required to account directly to the per- sons beneficially interested in the estate, dis- tributees, next to kin, or creditors; and the accounting may be had or enforced in the probate court, which is the proper court to supervise the conduct of administrators and executors.” Brapiey, J. Beall v. New Mexico, 16 Wall. 540. “When Assets Have Been Turned into Money by an executor or administrator, he is bound to account, not for the identical money received, but for an equal amount; and if he fails to account for and pay over this equal amount he is liable in damages, which are measured by the proceeds of the assets ‘so turned into money.” Woops, J. U. S. v. Walker, 109 U. S. 265. “When a Debt Due the Deceased Is Collected or a Chattel of His Estate Is Sold, the money received becomes the property of the administrator, and he is ac- countable therefor to those beneficially in- terested in the estate, and, under the acts referred to, the removed executor or admin- istrator was not bound to turn it over to his successor.” Woops, J. U. S. uv. Walker, 109 U. S, 263. Omission of Property by Mistake. “Tf the property be omitted [in settling an administrator’s account] by mistake, or be subsequently discovered, a court of equity may exercise its jurisdiction in the prem- ises, and take such action as justice to the heirs of the deceased or to the creditors of the estate may require, even if the probate court might, in such case, open its decree and administer upon the omitted property.” Fietp, J. Griffith v. Godey, 113 U. S. 93. “Final Settlements of administrators and executors, when adjudicated, have the force and effect of judgments as between the parties to such settlements.” Waits, C. J. Butterfield v. Smith, 101 U.S. 572. “When an executor or administrator with the will annexed proposes to make a final settlement of his own accounts, he is re- quired to give notice to creditors and dis- tributees; for there are no other represent- atives of the estate.” Haran, J. RoBards v. Lamb, 127 U. S. 62. EXEMPLARY DAMAGES. See Carriers; Damaces; Punitive DAaM- AGES, EXEMPTIONS, See Lanpiorp AND TENANT. Exemptions Are Part of Remedy. “Exemption laws are not a part of the contract; they are part of the remedy and subject to the law of the forum.” Mc- Kenna, J. Chicago, ete, R. Co. v. Sturm, 174 U.S. 717. Power of State to Create Exemptions. “The doctrine has been long settled that statutes limiting the right of the creditor to enforce his claims against the property of the debtor, which are in existence at the time the contracts are made, are not void, but are within the legislative power of the states where the property and the debtor are to be found. The courts of the country abound in decisions of this class, exempting property from execution and attachment, no limit having been fixed on the amount — providing for a valuation at which alone, or generally two-thirds of which, the property can be bought at a forced sale to discharge the debt-— granting stays of execution after judgment, and in numerous ways holding that, as to contracts made after the passage of such laws, the legislative enactments reg- ulating the rights of the creditors in the en- forcement of their claims are valid. These statutes, exempting the homestead of the debtor, perhaps with many acres of land ad- joining it, the books and library of the pro- fessional man, the horse and the buggy and surgical implements of the physician, or the household furniture, horses, cows, and other articles belonging to the debtor, have all been held to be valid, without reference to the residence of the creditor, as applied to contracts made after their passage.” Mu- LER, J. Denny v. Bennett, 128 U. S. 494. Exemptions Valid as to Future Contracts. “Tt is believed that every state in the Union has passed statutes by which a part of the property of the debtor is exempt from seizure on execution or other process of the courts; in short, is not by law liable to the payment of his debts. This exemption varies in its extent and nature in the different 733 EXPERT AND OPINION EVIDENCE, states. In some it extends only to the merest implements of household necessity; in others it includes the library of the professional man, however extensive, and the tools of the mechanic; and in many it embraces the homestead in which the family reside. This has come to be considered in this country as a wise, as it certainly may be called a set- tled, policy in all the states. To property so exempted the creditor has no right to look, and does not look, as a means of payment when his debt is created; and while this court has repeatedly held, under the con- stitutional provision against impairing the ob- ligations of contracts by state laws, that such exemption laws, when first enacted, were in- valid as to’ debts then in existence, it has al- ways held, that, as to contracts made there- after, the exemptions were valid.” MULLER, J. Nichols v. Eaton, 91 U. S. 726. Construction of Exemptions. “Exemptions must be strictly construed, and that doubt must be resolved against the one asserting the exemption.” Wuuts, J. U.S. v. Allen, 163 U. S. 504. EXEMPTIONS FROM TAXATION. See TAxaTION. EXPATRIATION. See ALIENS; CITIZENS AND CITIZENSHIP; NATURALIZATION. “ Expatriation included not simply the leav- ing of one’s native country, but the becoming naturalized in the country adopted as a future residence.” FULLER, C. J., dissenting. U. S. v. Wong Kim Ark, 169 U. S. 712. EXPECTATION. See W1powHoop. EXPEDITION. See Mizirary EnrTerprist — Mivitary Ex- PEDITION. EXPERT AND OPINION EVIDENCE. See Evipence; HanpwriTING; VALUE. Belief of Witness Is Not Evidence. “The belief of a witness is a conclusion from facts. The witness should state facts, and the conclusion to be drawn from them, 734 rests with the jury.” THompson, J. Ven- tress v. Smith, 10 Pet. 171. “A witness ought never to swear to in- ferences without stating the train of reason- ing by which his mind has been conducted to them.” MarsHatt, C. J. The Nereide, 9 Cranch 417. Matters to Which an Ordinary Witness Could Not Testify. “The witness was an expert, and was called and testified as such. His knowl- edge and experience fairly entitled him to that position. It is permitted to ask ques- tions of a witness of this class which cannot be put to ordinary witnesses. It is not an objection, as is assumed, that he was asked a question involving the point to be decided by the jury. As an expert, he could properly aid the jury by such. evidence, although it would not be competent to be given by an ordinary witness.” Hunt, J. Transporta- tion Line v. Hope, 95 U. S. 298. Value of Expert Evidence. “ Experience has shown that opposite opin- ions of persons professing to be experts may be obtained to any amount; and it often oc- curs that not only many days, but even weeks, are consumed in cross-examinations, to test the skill or knowledge of such wit- nesses and the correctness of their opinions, wasting the time and wearying the patience of both court and jury, and perplexing in- stead of elucidating the questions involved in the issue.” Grier, J. Winans v. New York, etc, R. Co, 21 How. 101. “In such cases [involving the opinion of witnesses] the court must be governed, in a great measure; by the character and in- telligence of the witnesses, and the oppor- tunities they have had of becoming acquainted with the subject upon which they are called upon to express an opinion; and the weight of the opinion of a witness, and the influence it is to have upon the tribunal, whether court or jury, which is to decide upon it, will depend very much upon seeing and hearing the witness give his testimony.” THompson, J. U.S. v. 112 Casks of Sugar, 8 Pet. 278. “The opinions of witnesses are constantly taken as to the result of their observations on a great variety of subjects. All that is required in such cases is that the witnesses should be able to properly make the observa- tions, the result of which they give: and the confidence bestowed on their conclusions will depend upon the extent and complete- ness of their examination, and the ability EXPERT AND OPINION EVIDENCE. ‘ with which it is made.” Fretp, J. Hopt v. Utah, 120 U. S. 437. “Where witnesses of proper skill and ex- perience have formed their judgment from a personal examination of the subject of the controversy, their opinions are generally more worthy of confidence than those elicited by hypothetical questions, which may, or may not state all the accidents and circumstances necessary to form a correct conclusion.” Grier, J. Morewood v. Enequist, 23 How. 495, Discretion of Court as to Admission. “How much knowledge a witness must possess before a party is entitled to his opinion as an expert is a matter which, in the nature of things, must be left largely to the discretion of the trial court, and its rul- ing thereon will not be disturbed unless clearly erroneous.” Brewer, J. Chateaugay Ore., etc., Co. v. Blake, 144 U. S. 484. Purposes for Which Evidence Is Received —In General. “Tt is upon subjects on which the jury are not as well able to judge for them- selves as is the witness that an expert as such is expected to testify. Evidence of this character is often given upon subjects re- quiring medical knowledge and science, but it is by no means limited to that class of cases.” Hunt, J. Transportation Line wv. Hope, 95 U. S. 298. “The general rule undoubtedly is, that witnesses are restricted to proof of facts within their personal knowledge, and may not express their opinion or judgment as to matters which the jury or the court are re- quired to determine, or which must constitute elements in such determination. To this rule there is a well-established exception in the case of witnesses having special knowledge or skill in the business, art, or science, the principles of which are involved in the is- sue to be tried.” Hartan, J. Connecticut Mut. L. Ins. Co. v. Lathrop, 111 U. S. 618. — Elucidation of Scientific Questions. “In questions of science their [experts,] opinions are received, for in such questions scientific men have superior knowledge, and generally think alike. Not so in matters of common knowledge.” Stronc, J. Mil- waukee, etc, R. Co. v. Kellogg, 94 U. S. 473. — Construction of Written Instruments. “Experts may be examined as to the mean- ing of terms of art on the principle of cuique in sua arte credendum, but not as to the construction of written instruments.” Grizr, J. Corning v. Burden, 15 How. 270. “Experts may be examined to explain terms of art, and the state of the art, at any given time. They may explain to the court and jury the machines, models, or drawings, exhibited. They may point out the difference or identity of the mechanical devices in- volved in their construction. The maxim of cuique in sua arte credendum permits them to be examined to questions of art or science peculiar to their trade or profession; but professors or mechanics cannot be received to prove to the court or jury what is the proper or legal construction of any instru- ment of writing. A judge may obtain in- formation from them, if he desire it, on mat- ters which he does not clearly comprehend, but cannot be compelled to receive their opin- ions as matters of evidence.” Grier, J. Winans v. New York, etc., R. Co., 21 How. 100. “Cases arise undoubtedly in which the tes- timony of expert witnesses is admissible to explain terms of art and technical words or phrases, and it may be admitted that a writ- ten instrument may be so interspersed with such technical terms that it would be error in the court to exclude the testimony of persons skilled in such matters, if duly of- fered by the proper party in the litigation.” CuirForD, J. Moran v. Prather, 23 Wall. 499, —— Investigations as to Sanity. “The opinions of medical men are admis- sible in evidence as to the sanity or insan- ity of a person at a particular time, because they are supposed to have become, by study and experience, familiar with the symptoms of mental disease, and, therefore qualified to assist the court or jury in reaching a cor- rect conclusion.” Hartan, J. Connecticut Mut. L. Ins. Co. v. Lathrop, 111 U. S. 618. “While the mere opinion of a non-profes.~ sional witness, predicated upon facts de- tailed by others, is incompetent as evidence upon an issue of insanity, his judgment, based upon personal knowledge of the circum- stances involved in such an inquiry, certainly is of value.” Haran, J. Connecticut Mut. L. Ins. Co. v. Lathrop, 111 U. S. 619. “Whether an individual is insane, is not always best solved by abstruse metaphysical speculations, expressed in the technical lan- guage of medical science. The common- sense, and, we may add, the natural instincts 735 EX POST FACTO LAWS. of mankind, reject the supposition that only experts can approximate certainty upon such a subject. There are matters of which all men have more or less knowledge, according to their mental capacity and habits of obser- vation — matter about which they may and do form opinions, sufficiently satisfactory to constitute the basis of action.” Haran, J. Connecticut Mut. L. Ins. Co. v. Lathrop, 11 U.S. 619. “The statement of a non-professional wit- ness as to the sanity or insanity, at a par- ticular time, of an individual, whose appear- ance, manner, habits, and conduct came under his personal observation, is not the expression of mere opinion.” Harvan, J. Connecticut Mut. L. Ins. Co, v. Lathrop, 111 U. S. 620. EXPORTATION. , “Exportation is defined to be the act of carrying or sending merchandise abroad.” Brown, J. Thompson v, U. S., 142 U. S. 477. And see Imports, Exports, AND Cus- toms Dutigs. EX POST FACTO LAWS. As to laws affecting the competency of wit- nesses, see WITNESSES. Definition. “An ex post facto law is one which renders an act punishable in a manner in which it was: not punishable when it was committed.” MarsHALt, C. J. Fletcher v. Peck, 6 Cranch 138. “An ex post facto law is defined, when, after an action, indifferent in itself, or law- ful, is committed, the legislature then, for the first time declares it to have been a crime and inflicts punishment upon the person who committed it.” NeELson, J., dissenting. Prize Cases, 2 Black 698. “An ex post facto law is one which im- poses a punishment for an act which was not punishable at the time it was committed, or a punishment in addition to that then pre- scribed.” Hunt, J. Burgess v. Salmon, 97 U.S. 384. For substantially the same defini- tion, see Lapeyre v. U. S., 17 Wall. 206, per Hunt, J., dissenting. Passage by States Prohibited. “The state legislatures can pass no er post facto law.” MarsHatt, C. J. Fletcher v. Peck, 6 Cranch 138. Term Applies Only to Penal Statutes. “Ex post facto laws have an appropriate signification; they extend to penal statutes, and no further; they are restricted in legal estimation to the creation, and, perhaps, en- hancement of crimes, pains and penalties. The enhancement of a crime or penalty, seems to come within the same mischief as the creation of a crime or penalty; and there- fore they may be classed together.” Parer- son, J., concurring. Calder v. Bull, 3 Dall. 397. “The debates in the federal convention upon the Constitution show that the terms “ex post facto laws’ were understood in a restricted sense, relating to criminal cases only, and that the description of Blackstone of such laws was referred to for their mean- ing. This signification was adopted in this court shortly after its organization, in opin- ions carefully prepared, and has been repeat- edly announced since that time. The same words are used in the constitutions of many of the states, and in the opinions of their courts, and by writers upon public law, and are uniformly understood in this restricted sense.” CAMPBELL, J. Carpenter v. Pennsyl- vania, 17 How. 463. “All the cases agree that the term [er post facto law] is to be applied to criminal alone, and not to civil, proceedings.” MuLtEr, J., dissenting. Ex p. Garland, 4 Wall. 390, “That provision of the Constitution, which prohibits any state to pass ex post facto laws, applies only to legislation concerning crimes.” Gray, J. In re Sawyer, 124 U.S. 219, | Law Must Operate Retrospectively, “Tt is the essential characteristic of an ex post facto law that it should operate retrospectively, so as to change the law in tespect to an act or transaction already complete and past.” Marruews, J., dissent- ing. Kring v. Missouri, 107 U. S. 240, “This term [ex post facto} necessarily im- plies a fact or act done, after which the law in question is passed. Whether it is ex post facto or not relates, in criminal cases, to which alone the phrase applies, to the time at which the offense charged was committed. If the law complained of was passed before the commission of the act with which the prisoner is charged, it cannot, as to that offense, be an ex post facto law. If passed after the commission of the offerise, it is as to that ex post facto, though whether of the elass forbidden by the Constitution may de- 736 EXPRESS COMPANIES. pend on other matters. But so far as this depends on the time of its enactment, it has reference solely to the date at which the offense was committed to which the new law is sought to be applied. No other time or transaction but this has been in any adjudged case held to govern its ex post facto charac- ter.” Mitten, J. Kring v. Missouri, 107 Uz. S. 225. “The injustice and tyranny which charac- terizes ex post facto laws, consists altogether in their retrospective operation, which applies with equal force, although not exclusively, to bills of attainder.” Wasuincton, J., dis- senting. Ogden v. Saunders, 12 Wheat. 266. Test as to Whether Law Is Ex Post Facto. “Tn respect to criminal offenses it is un- doubtedly a maxim of natural justice, em- bodied in constitutional provisions, that the quality and consequences of an act shall be determined by the law in force when it is _ committed, and of which, theretofore, the ac- - cused may be presumed to have knowledge, so that the definition of the offense, the character and degree of its punishment, and the amount and kind of evidence necessary to prove it, cannot be changed to the disad- vantage of the party charged, ex post facto. And this equally applies to, because it in- cludes, the matters which, existing at the time and constituting part of the transaction, affect its character, and thus form grounds of mitigation or defense; for the accused is entitled to the benefit of all the circumstances that attended his conduct, according to their legal significance, as determined at the time. All these are incidents that belong to the substance of the thing charged as a crime, and therefore come within the saving which preserves the legal character of the principal fact. But matters of possible defense, which accrue under provisions of positive law, which are arbitrary and technical, introduced for public convenience or from motives of policy, which do not affect the substance of the accusation or defense, and form no part of the res geste, are continually subject to the legislative will, unless, in the meantime, by an actual application to the particular case, the legal condition of the accused has been actually changed. His right to maintain that status, when it has become once vested, is beyond the reach of subsequent law.” MattuHews, J., dissenting. Kring v. Mis- souri, 107 U. S. 250. “Tt is not necessary to review the numer- ous cases in which the courts have deter- mined whether particular statutes come with- in the constitutional prohibition of ex post facto laws. It is sufficient now to say that a statute belongs to that class which by its necessary operation and ‘in its relation to the offense, or ‘its consequences, alters “the situation of the accused to his disadvantage.’ Of course, a statute is not of that class unless it materially impairs the right of the accused to have the question of his guilt determined according to the law as it was when the offense was committed. And, therefore, it is well settled that the accused is not entitled of right to be tried in the exact mode, in all respects, that may be pre- scribed for the trial of criminal cases at the time of the commission of the offense charged against him.” Hartan, J. Thomp- son v. Utah, 170 U. S. 351. “The difficulty is not so much as to the soundness of the general rule that an accused has no vested right in particular modes of procedure, as in determining whether par- ticular statutes by their operation take from an accused any right that was regarded, at the time of the adoptién of the Constitution, as vital for the protection of life and liberty, and which he enjoyed at the time of the commission of the offense charged against him.” Harian, J. Thompson v. Utah, 170 U. S. 352. Declaratory Statute May Be Ex Post Facto Law. “The construction or interpretation of a statute, would seem to be, ordinarily, a judi- cial rather than a legislative function. I know that acts declaratory of the meaning of the former acts are not uncommon. They are always to be regarded with respect, as expressive of legislative opinion, and, so far as they can operate upon subsequent transac- tions, they are of binding force. But it is well settled they cannot operate to disturb rights vested or acquired before their enact- ment, or to impose penalties for acts done before their passage, acts lawful when they were done.” Srrone, J., dissenting. Stock- dale v. Insurance Cos., 20 Wall. 340. EXPRESS COMPANIES. As Carriers. “Among these instrumentalities [of rail- roads for accommodating the public as com- mon carriers] express companies, by the mode in which their business is conducted, are the most important and useful.” Fuiexp, J., dissenting. Express Cases, 117 U. S. 34. 1 Os, Dig —47 ' "37 « EXPRESSLY. Right to Exclusive Railroad Facilities. “ As the things carried are to be kept in the personal custody of the messenger or other employee of the express company, it is im- portant that a certain amount of car space should be specially set apart for the busi- ness, and that this should, as far as prac- ticable, be put in the exclusive possession of the express man in charge. As the business to be done is ‘express,’ it implies access to the train for loading at the latest, and for unloading at the earliest, convenient moment. All this is entirely inconsistent with the idea of an express business on passenger trains free to all express carriers.” Warts, C. J. Express Cases, 117 U. S. 23. “Tt by no means follows that, because a railroad company can serve one express com- pany in one way, it can as well serve another company in the same way, and still perform its other obligations to the public in a sat- isfactory manner. The car space that car be given to the express business on a passen- ger train is, to a certain extent, limited, and . that which is allotted to a par- ticular carrier must be, in a measure, under his exclusive control.” Wartre, C. J. Ex- press Cases, 117 U. S. 24. “ The inconvenience that would come from allowing more than one express company on a railroad at the same time was apparently so well understood both by the express com- panies and the railroad companies that the three principal express companies, the Ad- ams, the American, and the United States, almost immediately on their organization, now more than thirty years ago, by agree- ment divided the territory in the United States traversed by railroads among them- selves, and since that time each has con- fined its own operations to the particular roads which, under this division, have been set apart for its special use.” Warts, C. J. Express Cases, 117 U. S. 25. Power of Courts to Fix Railroads’ Cam- pensation for Express Facilities. “The legislature may impose a duty [to carry the business of all express companies at a fixed compensation] and when imposed it will, if necessary, be enforced by the courts, but unless a duty has been created, either by usage or. by contract, or by statute, the courts cannot be called on to give it effect.” Waite, C. J. Express Cases, 117 U. S. 29. “That the legislature may, in proper case, fix the rule or rate of compensation, I do a “not deny. But until this is done the court must decide it, when it becomes matter of controversy.” Mutter, J., dissenting. Ex- press Cases, 117 U. S. 33. Duty of Railroads as to Express Business — To Passengers. “The express business on passenger trains is in a degree subordinate to the passenger business, and it is consequently the duty of a railroad company in arranging for the. ex- press to see that there is as little interference as possible with the wants of passengers. This implies a special understanding and agreement as to the amount of car space that will be afforded, and the conditions on which it is to be occupied, the particular trains that can be used, the places at which they shall stop, the price to be paid, and all the varying details of a business which is to be adjusted between two public servants, so that each can perform in the best manner its own particular duties. All this must necessarily be a matter of bargain.” Watte, “C. J. Express Cases, 117 U. S. 24. —— To the Public Generally. “No express company can do a successful business unless it is at all times reasonably sure of the means it requires for trans- portation. On important lines one company will at times fill all the space the railroad company can well allow for the business. If this space had to be divided among sev- eral companies, there might be occasions when the public would be put to incon- venience by delays which could otherwise be avoided. So long as the public are served to their reasonable satisfaction, it is a mat- ter of no importance who serves them. The railroad company performs its whole duty to the public at large and to each individual when it affords the public all reasonable ex- press accommodations. If this is done the railroad company owes no duty to the public as to the particular agencies it shall select for that purpose. The public require the carriage, but the company may choose its own appropriate means of carriage, always pro- vided they are such as to insure reasonable promptness and security.” Warts, C. J. Express Cases, 117 U. S. 24, EXPRESSLY. “While the adverb ‘expressly,’ in its pri- mary meaning, denotes precision of state- ment, as opposed to ambiguity, implication, or inference, and is equivalent to ‘in an express manner,’ or ‘in direct terms,’ it is also commonly used to designate purpose, 738 EXTRADITION. and as equivalent to ‘especially,’ or ‘par- ticularly,’ or ‘for a distinct purpose or ob- ject.” Gray, J. Magone v. Heller, 150 U. S. 74, EXTEND TO. “That which extends to does not neces- sarily include in.’ JoHNson, J., concurring. Martin v. Hunter, 1 Wheat. 374. EXTENT. “The word ‘extent,’ in common parlance, varies somewhat in meaning, according to the subject to which it is applied, and as that changes, it may as well refer to time as to space, or proportion; and more es- pecially so, when applied to interests, as in patents, for a particular term of years.” Woopsgury, J., dissenting. Wilson wv. Ros- seau, 4 How. 698. EXTORTION. “The offense of extortion by threats to accuse a person of a violation of any part of the internal revenue law is made a crime by virtue of the federal statute.” PrEckHAM, J. Sexton v. California, 189 U. S. 323. EXTRADITION. I. DEFINITION AND GENERAL PRIN- CIPLES. II. INTERSTATE REQUISITION — FuGI- TIVES FROM JUSTICE. TI. ProcEEDINGS. CROSS-REFERENCES. See DeEporTATION ; TREATIES. I. DEFINITION AND GENERAL PRINCIPLES. “Extradition May Be Sufficiently De- fined to be the surrender by one nation to another of an individual accused or con- victed of an offense outside of its own ter- ritory, and within the territorial jurisdiction of the other, which, being competent to try and to punish him, demands the surrender.” Futter, C. J. Terlinden v. Ames, 184 U. S. 289. Future Protection of Surrendering Nation. “In an extradition the nation surrendering relies for future protection of the alleged of- fender upon the good faith of the nation to which the surrender is made.” Brewer, J. Beavers v. Henkel, 194 U. S. 83. Province of Courts. “Tt is out of the question that a citizen of one of the German states, charged with being a fugitive from its justice, should be permitted to call on the courts of this coun- try to adjudicate the correctness of the con- clusions of the empire as to its powers: and the powers of its members, and especially as the executive department of our govern- ment has accepted these conclusions and proceeded accordingly.” Futter, C. J. Ter- linden v. Ames, 184 U. S. 286. Executory Order of Surrender Is National Act. “That an executive order of surrender to a foreign government is purely a national act, is not open to controversy.” CaTRON, J. In re Kaine, 14 How. 110. “Extradition Depends upon Treaty Con- tract or stipulation, which rests upon good faith, and in respect to which the sovereign upon whom the demand is made can exercise discretion, as well as investigate the charge on which the surrender is demanded, there being no rule of comity under and by virtue of which independent nations are required or expected to withhold from fugitives within their jurisdiction the right of asylum. In the matter of interstate rendition, how- ever, there is the binding force and obli- gation, not of contract, but of the supreme law of the land, which imposes no conditions or limitations upon the jurisdiction and authority of the state to which thé fugitive is returned.” Jackson, J. Lascelles vw. Georgia, 148 U. S. 545. “Tt may, I think, be assurned, at this day, as an undoubted principle of this govern- ment, that its judicial tribunals possess no power to arrest, and surrender to a foreign country, fugitives from justice, except as authorized by treaty stipulations, and Acts of Congress passed in pursuance thereof. Whether Congress could confer the power independently of a treaty, is a question not necessarily involved in this case, and need not be examined. If it was, as at present advised, I am free to say that I have found no such power in any article or clause of the Constitution, delegated to that body by the people of the states. It belongs to the treaty-making power, and to that alone, and its exercise is dependent upon the executive department, with the concurrence of two- thirds of the senators, and such I think has been the practical construction given to the Constitution since the foundation of the gov- ernment.” Netson, J. dissenting. In re Kaine, 14 How. 135. 739 EXTRADITION. “We are not prepared, however, to yield our assent to the suggestion that treaties of extradition are invasions of the right of political habitation within our territory, or that every intendment in proceedings to carry out these treaties shall be in favor of the party accused. Such treaties are rather ex- ceptions to the general right of political asylum, and an extension of immigration laws prohibiting the introduction of persons convicted of crime, 18 Stat. 477, by provid- ing for their deportation and return to their own country, even before conviction, when their surrender is demanded in the interest of public justice. There is such a general acknowledgment of the necessity of such treaties that of late, and since the facilities for the escape of criminals have so greatly increased, most civilized powers have entered into conventions for the mutual surrender of persons charged with the most serious crimes.” Brown, J. Grin v. Shine, 187 UL S. 184. “The treaties made by the United States with foreign countries, for the extradition of persons accused of crime, make no distinc- tion between crimes against one of the states of the Union and crimes against the United States.” Gray, J. Streep v. U. S,, 160 U. S. 135. “Treaties of extradition are executory in their character.” Futter, C. J. Terlinden v. Ames, 184 U. S. 288. Necessity for Conventional or Legislative Provision. “In the United States, the general opinion and practice have been that extradition should be declined in the absence of a con- ventional or legislative provision.” FULLER, C. J. Terlinden v. Ames, 184 U. S. 289. “The surrender of fugitives from justice is a matter of conventional arrangement be- tween states, as no such obligation is im- posed by the laws of nations.” McLean, J. In the matter of Metzger, 5 How. 188. Power of United States to Make Treaties. “T am ready to admit that the President and Senate can make treaties, which are not themselves repugnant to the Constitution. I further admit that, as by the usages of nations, as well as by the practice of the United States, the surrender of fugitives is deemed to be a proper subject for treaty; therefore it is competent for them to make treaties in relation to that subject.” Bar- Bour, J. Holmes v. Jennison, 14 Pet. 589. “That the treaty-making power of the Constitution, is competent to bind the states by a stipulation to surrender fugitives from justice, is not denied by any; nor that where stich power is executed by a treaty, a state is under an obligation to surrender: but that while such power remains dormant or con- tingent, the obligation does not. exist, and that Congress have no power to impose it, has been too clearly established by my brethren, to leave it in my power to add to the weight of their reasoning.” BALpwin, J. Holmes v. Jennison, 14 Pet. 614. “While I admit the competency of the treaty-making power to compel, I utterly deny its power to prevent, the expulsion of a fugitive from justice from the territory of a state, pursuant to its laws, or the general authority vested in its executive or other appropriate officers, to administer and en- force its regulations of internal police.” Butpwin, J. Holmes v. Jennison, 14 Pet. 614, Power of Congress. “Notwithstanding such treaty, Congress has a perfect right to provide for the ex- tradition of criminals in its own way, with or without a treaty to that effect, and to declare that foreign criminals shall be sur- rendered upon such proofs of criminality as it may judge sufficient.” Brown, J. Grin v. Shine, 187 U. S. 191. Right of Asylum. “A fugitive from justice has no absolute right of asylum in a country to which he flees, and if he can be got back within the jurisdiction of the country whose laws he has violated, he may be proceeded with pre- cisely the same as if he had not fled, unless there is something in the laws of the coun- try where he is to be tried, or in the way in which he has got back, to prevent.” Warte, C. J. United States v. Rauscher, 119 U.S. 434. II. INTERSTATE REQUISITION — FUGITIVES FROM JUSTICE. Constitutional Provisions. “The only clause in that instrument [the Constitution], upon the subject of the sur- render of fugitives from justice, is found in the second section of the fourth article, and is in these words: ‘A person charged in any state, with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from 740 EXTRADITION. which he fled, be delivered up, to be removed to the state having jurisdiction of the crime. This provision, by the obvious import of its terms, has no relation whatsoever to foreign nations, but is confined in its operation to the states of the Union.” Barsour, J. Holmes, v. Jennison, 14 Pet. 587. “The Constitution provides a peaceable remedy for procuring the surrender of per- sons charged with crime and fleeing into another state.” BrapLey, J., dissenting. Mahon v. Justice, 127 U.S. 716. Necessity of Demand on Executive. “Tf a felon escape out of the state in which the act has been committed, the government cannot pursue him into another state, and apprehend him there, but must demand him from the executive power of that other state.” Marsuatt, C. J. Cohen uv. Virginia, 6 Wheat. 428. “A Merely Constructive Presence in the demanding state at the time of the alleged commission of the offense was not sufficient to render the person a fugitive from justice.” Pecxuam, J. Hyatt v. Corkran, 188 U. S. 718. Fleeing from Justice. “A person fleeing from the justice of his country is not supposed to have in mind the object of avoiding the process of a particular court, or the question whether he is amenable to the justice of the nation or of the state, or of both. Proof of a specific intent to avoid either could seldom be had; and to make it an essential req- uisite would often defeat the whole object of the provision in question.” Gray, J. Streep v. U. S., 160 U. S. 134. “The exercise of jurisdiction by a state to make an act committed outside its borders a crime against the state is one thing, but to assert that the party committing such act comes under the federal statute, and is to be delivered up as a fugitive from the jus- tice of that state, is quite a different proposi- tion.” PrcxHam, J. Hyatt v. Corkran, 188 U. S. 712. “In order to constitute a fleeing from justice, it is not necessary that the course of justice should have been put in operation by the presentment of an indictment by a grand jury, or by the filing of an information by the attorney for the government, or by the making of a complaint before a magis- trate.” Gray, J. Streep v. U. S., 160 U. S. 133. “In the Constitution, laws and treaties of the United States, the words ‘fleeing from justice, or ‘fugitive from justice,’ have not been used as of themselves implying a flight from the justice of the nation only.” Gray, J. Streep v. U. S., 160 U. S. 134. — Determination Whether Party Is Fu- gitive from Justice. “We have no doubt that the governor upon whom the demand is made must determine for himself, in the first instance, at least, whether the party charged is in fact a fugi- tive from justice, but whether his decision thereon be final is a question proper to be determined by the courts of that state.” Brown, J. Cook v. Hart, 146 U. S. 193. III. PROCEEDINGS. General Considerations. “A proceeding which may have the effect of relieving the country from the presence of one who is likely to threaten the peace and good order of the community, is rather to be welcomed than discouraged.” Brown, J. Grin v. Shine, 187 U. S. 185. “Good faith toward foreign powers, with which we have entered into treaties of ex- tradition, does not require us to surrender persons charged with crime in violation of those well-settled principles of criminal pro- cedure which from time immemorial have characterized Anglo-Saxon jurisprudence.” Brown, J. Grin v. Shine, 187 U. S. 184. “Tt can hardly be expected of us that we should become conversant with the criminal laws of Russia, or with the forms of war- rants of arrest used for the apprehension of criminals.” Brown, J. Grin v. Shine, 187. Uz. S. 190. “Care should doubtless be taken that the treaty be not made a pretext for collecting private debts, wreaking individual malice, or forcing the surrender of political offenders; but where the proceeding is manifestly taken in good faith, a technical non-compliance with some formality of criminal procedure should not be allowed in the way of a faith- ful discharge of our obligations. Brown, J. Grin v. Shine, 187 U. S. 185. “An extradited defendant is not put on trial upon any writ which is issued for the purposes of extradition, any more than he is upon the warrant which is issued by the justice of the peace directing his arrest.” Brewer, J. Matter of Strauss, 197 U. S. 331. 741 EXTRADITION. When Party Is Charged with Crime. “Tn the strictest sense of the term a party is charged with crime when an affidavit is filed, alleging the commission of the offense and a warrant is issued for his arrest, and this is true whether a final trial may or may not be had upon such charge.” Brewer, J. Matter of Strauss, 197 U. S. 331. “Whether the Crime Charged Is Suf- ficiently Proved, and comes within treaty, are matters for judicial decision.” McLean, J. In the matter of Metzger, 5 How. 188. Oath by Persons Having Actual Knowl- edge of Offense. “We do not wish . to be under- stood as holding that, in extradition . pro- ceedings, the complaint must be sworn to by persons having actual knowledge of the offense charged. This would defeat the whole object of the treaty, as we are bound to assume that no foreign government pos- sesses greater power than our own to order its citizens to go to another country to in- stitute legal proceedings. This is obviously impossible.” Brown, J. Rice v. Ames, 180 U. S. 375. “The Only Qualification Required of a Commissioner to Act in extradition cases is that suggested by Rev. Stat. section 5270, that he shall be ‘authorized so to do by any of the courts of the United States.’ We know of no authority holding that Congress may not vest the courts with this power, and we are reluctant to create one.” Brown, J. Rice v. Ames, 180 U. S. 378. Technicalities. “Tn the construction and carrying out of such treaties [extradition treaties] the ordi- nary technicalities of criminal proceedings are applicable only to a limited extent. For- eign powers are not expected to be versed in the niceties of our criminal laws, and proceedings for a surrender are not such as put in issue the life or liberty of the ac- cused. They simply demand of him that he shall do what all good citizens are required, and ought to be willing to do, viz. submit themselves to the laws of their country.” Brown, J. Grin v. Shine, 187 U. S. 184. Rights of Accused Persons. “Persons charged with crime in foreign countries, who have taken refuge here, are entitled to the same defenses as others ac- cused of crime within our own jurisdiction.” Brown, J. Grin v, Shine, 187 U. S. 184. Sufficiency of Pleadings. “Tt is clear that a person ought not to be arrested upon a criminal charge. upon less direct allegations than are necessary to au- thorize the arrest of a fraudulent or abscond- ing debtor.” Brown, J. Rice v. Ames, 180 Uz. S. 375. “Who would doubt that an information, where that is the statutory pleading for pur- poses of trial, is sufficient to justify an ex- tradition?” Brewer, J. Matter of Strauss, 197 U. S. 332. Return of Warrant. “It may be said that technically the war- rant should be made returnable before the magistrate issuing it, but where it is made returnable before another officer, having the same power and jurisdiction to act, we do not think it is fairly open to criticism.” Brown, J. Grin v. Shine, 187 U. S. 187, Determination by Governor. “Tt must appear to the governor, be- fore he can lawfully comply with the de- mand for extradition, that the person demanded is substantially charged with a crime against the laws of the state from whose justice he is alleged to have fled, by an indictment or an affidavit, etc. and that the person demanded is a fugitive from the justice of the state the executive authority of which makes the demand.” PEcKHAM, J. Hyatt v. Corkran, 188 U, S. 709. —— Review by Courts. “Tf upon a question of fact made before the governor [in extradition proceedings], which he ought to decide, there were evi- dence pro and con the courts might not be justified in reviewing the decision of the governor upon such question.” PrcKHAm, J. Hyatt v. Corkran, 188 U. S. 711. Trial for Different Offense. “Where an extradition treaty does exist, and a criminal has been delivered up under it, he cannot, without violating the treaty, be tried for any other crime but that for which he was delivered up.” Braptey, J., dissenting. Mahon v. Justice, 127 U. S. 716. “The Power to Surrender is clearly in- cluded within the treaty-making power and the corresponding power of appointing and receiving ambassadors and other public min- isters. Its exercise pertains to pub- lic policy and governmental administration, is devolved on the executive authority, and the warrant of surrender is issued by the 742 EXTRADITION. secretary of state as the representative of the President in foreign affairs.” FULLER, C. J. Terlinden v. Ames, 184 U. S, 289. “The power to surrender fugitives, who, having committed offenses in a foreign coun- try, have fled to this for shelter, belongs under the Constitution of the United States, exclusively to the federal government.” Taney, C. J. Holmes v. Jennison, 14 Pet. 579, “The power of deciding whether a fugitive from a foreign nation should or should not be surrendered, was, necessarily, a part of the powers thus granted [by the Constitu- tion*to the general government].” Taney, C. J. Holmes v. Jennison, 14 Pet. 571. “The confusion and disorder which would arise from the exercise of this power [to surrender fugitives] by the several states, is too obvious to need comment.” Taney, C, J. Holmes v. Jennison, 14 Pet. 578. “There is certainly no specific provision in the Constitution on the subject of sur- rendering fugitives from justice, from a for- eign country, if demanded; and we are left at large to conjectyre upon various parts of the Constitution, to see if we can find that such power is by fair and necessary impli- cation embraced within the Constitution: I mean, whether any such obligation is im- posed upon any department of our govern- men, by the Constitution, to surrender to a foreign government a fugitive from jus- tice.” THompson, J. Holmes v. Jennison, 14 Pet. 582. “There is no other clause of the Constitu- tion [than the second section of the fourth article], which, in terms, has even the remotest allusion to the surrender of fugi- tives from justice.” Barpour, J. Holmes w. Jennison, 14 Pet. 587. Right to Delivery of Accused. “The demanding government [in extra- dition proceedings], when it has done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the other government is under obligation to make the surrender.” Futter, C. J. Wright v. Henkel, 190 U. S. 62. Transfer of Person by Wrongful Force. “Tn this court it has been held that if a person is brought within the jurisdiction of one state from another, or from a for- which would render the officer liable to a eign country, by the unlawful use of force, “ters for present consideration. civil action in a criminal proceeding be- cause of the forcible abduction, such fact would not prevent the trial of the person thus abducted in the state wherein he had committed an offense.” Day, J. Adams wv. New York, 192 U. S. 596. “Tt is questionable whether the states could constitutionally enter into an agree- ment or stipulation with each other for the purpose of defining or limiting the offenses for which fugitives would or should be sur- rendered. But it is settled by the decisions of this court that, except in the case of a fugitive surrendered by a foreign govern- ment, there is nothing in the Constittition, treaties or laws of the United States which ‘exempts an offender, brought before the courts of a state for an offense against its laws, from trial and punishment, even though brought from another state by unlawful vio- lence, or by abuse of legal process.” JAcK- son, J. Lascelles v. Georgia, 148 U. S. 543. “Whether Congress might not provide for the compulsory restoration to the state of parties wrongfully abducted from its terri- tory, upon application of the parties, or of the states, whether such provision would not greatly tend to the public peace along the borders of the several states, are not mat- It is suf- ficient now that no means for such redress through the courts of the United States have as yet been provided.” Fretp, J. Mahon v. Justice, 127 U. S. 705. Review of Magistrate’s Habeas Corpus. “The settled rule is that the writ of habeas corpus cannot perform the office of a writ of error, and that, in extradition pro- ceedings, if the committing magistrate ~ has jurisdiction of the subject-matter and of the accused, and the offense charged is within the terms of the treaty of extradition, and the magistrate, in arriving at a decision to hold the accused, has before him com- petent legal evidence on which to exercise his judgment as to whether the facts are sufficient to establish the criminality of the accused for the purposes of extradition, such decision cannot be reviewed on_ habeas corpus.” Fuutzr, C. J. Terlinden v. Ames, 184 U. S. 278. “The statute in respect of extradition gives no right of review to be exercised by any court or judicial officer, and what cannot be done directly cannot be done indirectly through the writ of habeas corpus.” Fut- LER, C. J. Terlinden v. Ames, 184 U. S. 278. Decision by 743 ' FACTORS AND BROKERS. FACTORS AND BROKERS. See AGENCY. Difference Between Broker and Factor. “The difference between a factor or com- mission merchant and a broker is stated by all the books to be this: a factor may buy and sell in his own name, and he has the goods in his possession; while a broker, as such, cannot ordinarily buy or sell in his own name, and has no possession of the goods sold.” Braptey, J. Slack v. Tucker & Co., 23 Wall. 330. Fiduciary Element in Obligation of Factor. “Tt cannot be doubted that an element of a fiduciary nature enters into the obligation of the factor—an element different from that which exists in case of vendor and pur- chaser.” Brewer, J. Union Stock Yards Bank v. Gillespie, 187 U. S. 420. Factor Cannot Delegate Employment. “A factor cannot delegate his employment to another, so as to raise a privity between that other and his principal.” Wayne, J. Warner v. Martin, 11 How. 223. “A factor cannot delegate his trust to his clerk. The law upon this point is settled.” Wayne, J. Warner v. Martin, 11 How. 223. Shipper Purchasing with His Own Funds Not Factor. “The shipper who purchases goods on his own credit or with his own funds, is not acting in the ordinary capacity of a factor. If he were, the goods, even before ship- ment, would be the property of the individual on whose order the purchase is made. Such shipments are in the nature of a mercantile credit, and the shipper always retains the uncontrolled exercise of discretion in ex- tending it.” JoHnson, J. The Frances, 9 Cranch 189. Contract in Name of Factor Binds Prin- cipal. “Tt is well settled, as a general rule, that a written contract made by a factor in his own name for the purchase or sale of goods for his principal will bind the principal, and he may sue and be sued thereon ex- actly as if he were named in it, for it is treated as the contract of the principal as well as of the agent.” Woops, J. Higgins v. McCrea, 116 U. S. 680. Implied Power of Factor to Sell. “Tf a power to sell be implied, it must be implied from the antecedent course of business and relation of the parties, as prin- cipal and factors.” Story, J. Tiernan v. Jackson, 5 Pet. 597. Factor Passing Property for Antecedent Debt Is Not a Sale. “When a contract is proposed between factors, or between a factor. and any other creditor, to pass property for an antece- dent debt, it is not a sale in the legal sense oi that word in any sense in which it is used in reference to the commission which a factor has to sell. It is not ac- cording to the usage of trade. It is a naked transfer of property in payment of a debt.” Wayne, J. Warner v. Martin, 11 How. 226. Title to and Power over Consigned Prop- erty Before Sale. “When property is consigned to a factor, and before sale, who doubts the continuing title of the principal, or his power to re- strain unauthorized disposition of such prop- erty, or to compel observance by the factor of all the conditions of the trust reposed in him?” Brewer, J. Union Stock Yards Bank v. Gillespie, 187 U. S. 421. Title to Moneys Received on Sale. “While it may be true that a legal title to the moneys received on such sale [factor’s sale] is in the factor rather than in the principal, so that the principal may not main- tain an action at law as against one receiv- ing such moneys from the factor; yet, equitably, those moneys belong to the prin- cipal, and equitably they may be followed into the hands of any person who receives them chargeable with notice of their trust character.” Brewer, J. Union Stock Yards Bank v. Gillespie, 137 U. S, 421. Advances on Consignments — Purchase Distinguished. “The distinction between money advanced on articles consigned, and money employed in purchases, although the articles may be pur- chased for the purpose of being consigned, is obvious. Money advanced, is always to another, never to the individual making the advance.” Marswatt, C. J. Schimmelpen- nich v. Bayard, 1 Pet. 288. — Effect on Ownership — Lien. “No doubt a factor who has made ad- vances upon goods consigned to him, may be regarded, in a limited sense, and to the ex- tent of his advances, as an owner. Yet, in reality, he has but a lien with a right of possession of the goods for its security. He 744 \ FACTORS AND BROKERS. may protect that possession by suit against a trespasser upon it, and he may sell the property to reimburse advances; remaining however, accountable to his consignor for any surplus. But after all he is not the real owner. He is only an agent of the owner for certain purposes.” Stronc, J. U. S. v. Villalonga, 23 Wall. 41. —— Not More than Special Property. “A factor, notwithstanding he may have made advances upon the property consigned to him, has but a limited right. That right is sometimes called a_ special property, but it is never regarded as a gen- eral ownership. At most, it is no more than ownership of a lien or charge upon the prop- erty. Such is unquestionably the doctrine of the common law.” Stronc, J. U. S. w. Villalonga, 23 Wall. 42. — Reclaiming Possession. “The owner may, at any time before his factor has sold the goods, reclaim the pos- session upon paying the advances made, with interest and expenses. He has not lost his ownership by committing the custody of the goods to a factor and by receiving advances upon them.” Srrone, J. U. S. wv. Villalonga, 23 Wall. 42. — Proceeds of Sale. “He [the consignor] is entitled to the pro- ceeds of any sale which may be made, even by his agent, the factor, subject only to a charge of the advances and expenses.” Strone, J. U.S. v. Villalonga, 23 Wall. 42. — Debtor to United States Cannot Evade Liability by Receiving Advances. “Can a debtor to the United States evade his liability to a judgment against him by consigning his property to a factor and ob- taining some advances? May the factor re- cover all that is in the treasury, though the government may have large claims against his principals, who are the real parties in interest? We cannot think the Acts of Con- gress admit of such an _ interpretation.” Strong, J. U.S. v. Villalonga, 23 Wall. 44. Business of Broker. “The business of a broker is to serve as a connecting link between the party who is to be insured and the party who is to do the insuring. to bring about ‘the meeting of their minds,’ which is necessary to the consummation of the contract. In the discharge of his business he is the repre- sentative of both parties to a certain extent.” Waite, J. Hooper v. California, 155 U. S. 657. Contract for Brokerage. “Nothing is more common in our large cities than to charge brokerage for pro- curing the loan of money. This varies as the money market rises or falls. One per cent., and sometimes two, is charged for this service. The' same rule applies as to the sale of property. Where the contract is fair, it is not perceived why such compensation, should not be paid, as agreed by the parties, or by an established usage.” McLean, J. Kock v. Emmerling, 22 How. 74. “Tt is not perceived why a contract to sell property, real or personal, on commis- sion, should not be governed by the same rules as other sales.” McLean, J. Kock v. Emmerling, 22 How. 74. Right to Sell by Sample and Liability of Principal. “A merchant, who employs a broker to sell his goods, knows, or is presumed to know, the state and condition of the article he offers for sale; and if the nature or situa- tion of the property is such that it cannot be conveniently examined in bulk, he has a right, and it is for the convenience of trade that he should be permitted, to select a portion, and exhibit it as a specimen or ‘sample of the whole; and that he should be held responsible for the truth of such repre- sentation. The broker is his special agent for this purpose, and goes into the market, clothed with authority to bind his principal. In such cases, if the article does not cor- respond with the sample, the injured pur- chaser knows where to look for redress; and the owner is justly chargeable with the loss, as he was bound to know the con- dition of his own property, and to send out a fair sample, if he undertook to sell in that way.” THompson, J. The Monte Al- legre, 9 Wheat. 644. Authority of Broker to Deal According to Usage of Trade. “The general rule [is] that a party send- ing an order to a broker doing business in an established market or trade for a trans- action in that trade, thereby confers upon the broker authority to deal according to any well-settled usage in such trade or mar- ket.” PeckHAM, J. Clews v. Jamieson, 182 U.S. 481. Lien of Broker for General Balance. “Even the courts of law have recog- nized the lien of a broker on a chose in action for a general balance of account, and much more so ought a court of equity in 745 FACTORS AND BROKERS. the application of a principle so peculiarly its own, as that which gives effect to a transfer by assignment of a chose in action not in its nature negotiable.” JoHNson, J. Leeds v. Marine Ins. Co., 6 Wheat. 570. General Nature, Purpose, and Business of Exchanges. “It is common knowledge that these ex- changes [for dealing in food products] en- courage and promote honest and fair dealing among their members; that they provide penalties for violation of their rules in that regard, and that contracts between members relating to business on the exchange have the advantage of the sanction provided by the exchange for such purposes. They fur- nish a meeting place for those engaged in the purchase and sale of commodities or other things to be sold, and in that way they offer facilities for a market for them. Deal- ings among members so engaged tend to establish the market price of the articles they deal in, and that price is very apt to be the price for the same article when bought or sold outside. The price is arrived at by offers to sell on the one side and to purchase on the other until, by what has frequently been termed, the ‘higgling’ of the market, a price is agreed upon and the sales are ac- complished. In arriving at this price, of course the great law of the cost of produc- tion and also that of supply and demand enter into the problem, and it is upon a consideration of all matters regarded as material that the agreement to buy and sell is made, The prices thus fixed are usually followed when the transaction occurs out- side, and the market means really the ex- change price. That an enormous amount of the busipess of the country which is engaged in the distribution of the commodities grown or produced therein is transacted and takes place through the medium of boards of trade or exchanges facilitate transactions of pur- chase and sale, and it would seem that such facilities or privileges, even though not granted by the government or by the state, ought nevertheless to be recognized as ex- isting facts and to be subject to the judg- ment of Congress as fit matters for taxa- tion.” PrckHamM, J. Nicol v. Ames, 173 U.S. 517, Sales at Exchanges — Taxation. “A sale at an exchange differs from a sale made at a man’s private office, or on his farm, or by a partnership, because, al- though the subject-matter of the sale may be the same in each case, there are at an exchange certain advantages in the way of finding a market, obtaining a price, the sav- ing of time, and in the security of payment, and other matters which are more easily obtained there than at an office or upon a farm. To accomplish a sale at one’s farm or house or office might and probably would occupy a great deal of time in finding a customer, bringing him to the spot and agree- ing on a price. All this can be done at an exchange in the very shortest time and at the least convenience. The market is there, and all that is necessary is to send the commodity. Although a sale is the re- sult in each case and the things sold may be of the same kind, the difference exists in the means and facilities for accomplishing such sale, and those means and _ facilities there is no reason for saying may not be taxed, unless all sales are taxed, whether the facilities be used or not.” PrckHAm, J. Nicol v. Ames, 173 U. S. 522. “*Calls’ are not distributed as mere advertisements of what the ‘owner of the property described therein is willing to do. They are sold, and in parting with them the vendor receives what to him is satis- factory consideration.” Brewer, J. Treat v. White, 181 U. S. 266. Purchasing on Margin. “There is no doubt that purchases on margin may be and frequently are used as a means of gambling for a great gain or a loss of all one has. It is said that in California, when the Constitution was adopted, the whole people ‘were buying mining stocks in this way with the result of infinite disaster.” Hotmes, J. Otis v. Parker, 187 U, S. 610. “Tf a man can buy on margin he can launch into a much more extended venture than where he must pay the whole price at once. If he pays the whole price he gets the purchased article, whatever its worth may turn out to be. But if he buys stocks on margin he may put all his property into the venture, and being unable to keep his margins Sood if the stock market goes down, a slight fall leaves him penniless, with noth- ing to represent his outlay, except that he has had the chances of a bet.” Hotmes, J. Otis v. Parker, 187 U. S. 609. “We cannot say that there might not be conditions of. public delirium in which at least a temporary prohibition of sales on margins would be a salutary thing. Still less can we say that there might not be con- ditions in which it reasonably might be 746 FEDERALIST (THE). thought a salutary thing, even if we disagree with the opinion.” Hotmes, J. Otis v. Parker, 187 U, 5S. 609. FALSE IMPRISONMENT. Want of Probable Cause — Liability of Principal for Act of Agent. “The general doctrine that the person who procures the arrest of another by judicial process, by instituting and conducting the proceedings, is liable to an action for false imprisonment, where he acts without prob- able cause, is not to be controverted. Nor can it be denied that he who assumes the authority to order the imprisonment of an- other is responsible for the acts of the per- son to whom such order is given, when the arrest is without justification.’ Mutter, J. Kilbourn v. Thompson, 103 U. S. 200. Court Acting Without or Beyond Juris- diction. “Where a court has no jurisdiction over the subject-matter, [yet] it tries and assumes it, or where an inferior court has jurisdiction over the subject-matter, but is bound to adopt certain rules in its proceedings, from which it deviates, whereby the proceedings are rendered coram non judice, tres- pass for false imprisonment is the proper remedy, where the liberty of the citizen has been restrained by process of the court, or by the execution of its judgment.” Wayne, J. Dynes v. Hoover, 20 How. 80. Questions for Jury. “And this is not an action for a malicious prosecution; but for an assault and false imprisonment. And whether the acts charged were done or not, and what motives actu- ated the defendant, are questions of fact ex- clusively for the jury; and probable cause or not is of no further importance than as evi- dence to be weighed by them in connection with all the other evidence in this case, in determining whether the defendant acted from a sense of duty or from ill-will to the plaintiff.” Taney, C. J. Dinsman v. Wilkes, 12 How. 402. Evidence in Mitigation of Damages. “Tt will appear from an examination of the adjudged cases, as it must on principle, that when illegal measures have been taken to redress private wrongs, or to punish for offenses against the public, it is inadmissible to prove, in mitigation of actual or exemplary damages, that the party injured was guilty of the offense or misconduct constituting the provocation to the illegal measures, ex- cept where the provocation is of a personal character calculated to excite passion, and so recent as to create the presumption that the acts complained of were committed under the influence of the passion thus excited.” Firxp, J., dissenting. Beckwith v. Bean, 98 Uz. S. 301. “Where is the law or reason for allowing one, who by force-holds another in confine- ment in order to extort the payment of money, to show in extenuation of his conduct that the man had been guilty of some offense against the law? The answer in all such cases should be that the law attaches the proper penalties to its violation, and appoints the ministers by whom those penalties are to be enforced; and whenever they can act, whoever usurps their authority and attempts to punish supposed offenders in any other mode than that provided by the law, is him- self a criminal.” Frerp, J., dissenting. Beckwith v. Bean, 98 U. S. 299. FALSE PRETENSES. “A genuine instrument containing a false statement of facts, used in support of a claim, the party knowing it to be false, and using it with the intent to defraud, presents a case not distinguishable in prin- ciple, or in turpitude, or in its mischievous effects, from one in which every part of the instrument is fabricated.” Netson, J. U. S. v. Staats, 8 How. 47. FEDERALIST (THE). “The opinion of The Federalist has always been considered as of great authority. It is a complete commentary on our Constitution; and is appealed to by all parties in the ques- tions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank; and the part two of its authors performed in framing the Constitution, put it very much in their power to explain the view with which it was framed. These essays have been published while the Constitution was before the nation for adoption or re- jection, and having been written in answer to objections founded entirely on the extent of its powers, and on its diminution of state sovereignty, are entitled to the more con- sideration where they frankly avow that the power objected to is given, and defend it.” MarsHaLL, C, J. Cohen v. Virginia, 6 Wheat, 418. TAT FERRIES. FELLOW SERVANTS. See MAsTER AND SERVANT. FELONIES. See Crime; CriminaL Law. Modern Understanding of Term. “Tt may be conceded that the present com- mon understanding of the word [felony] de- parts largely from the technical meaning it had at the old common law. This departure is owing to the fact that the punishments other than death, to wit, forfeiture of the lands or goods of the offender, which for- merly constituted the test of a felony, are no longer inflicted, at least in this country, and to the further fact that in many of the states offenses are by statute divided into two classes, felonies and misdemeanors, the former including all offenses punishable by death or imprisonment in a county jail, and in other states, in which no statutory classifi- cation is prescribed, many offenses punish- able by imprisonment in a penitentiary are in terms declared to be felonies.” Brewer, J. Reagan v. U. S., 157 U. S. 302. Necessity of Felonious Intent. “Tf it [the term ‘felony’] is used, in the sense of the law, to denote the actual crime itself, the felonious intent becomes an essen- tial ingredient to constitute it. The term signifying the crime committed, and not the degree of punishment, the felonious intent is of the essence of the offense ; as much so as the intent to maim, or disfigure, are essential ingredients in constituting these several offenses.” Netson, J. U. S. v. Staats, 8 How. 45. FEMALES. See Cririzens AND CirizENsHIP; HusBanp AND WiFE; MarriAGE AND MArriED WoMEN ; WIipow Hoop. FENCES. See Apjoininc LANDOWNERS. FERRIES. See Bripces; NAvicaTion; ToL. Rights and Duties of Owners. ““Tn the case of a ferry there is a public charge and duty. The owner must keep the ferry in good repair, upon the peril of an indictment. He must keep sufficient accom- modations for all travelers, at all reasonable times. He must content himself with a rea- sonable toll. Such is the jus publicum: In retutn, the law will exclude all injurious competition, and deem every new ferry a nuisance which subtracts from him the ordi- nary custom and toll.” Story, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 630. Ferry Franchise Is Property. “A ferry franchise is as much property as a rent or any other incorporeal hereditament, or chattels, or realty. It is clothed with the same sanctity and entitled to the same pro- tection as other property.’ Swayne, J. Conway v. Taylor, 1 Black 632. “TA ferry] franchise is property entitled to the protection of the law.” Haran, J. Louisville, etc., Ferry Co. v. Kentucky, 188 UL S. 394. —Power of Legislature to Supersede Ferry. “The authority of a legislature may prob- ably supersede such a ferry as is public and across a great public highway of a navigable river, by allowing a bridge over the same place.” Woopsury, J. East Hartford vw. Hartford Bridge Co., 10 How. 536. Franchise Extends Beyond Landing Place. “That the franchise of a ferry at common law extends beyond the landing places, is very clear from authority.” M’LeEan, J. Charles River Bridge v. War- ren Bridge, 11 Pet. 556. Ferry Business Confined to Transporta- tion of Persons, “At common law the exclusive franchise to operate a ferry within designated limits might be conferred upon a particular person or persons. In a strict sense the ferry busi- ness is confined to the transportation of per- sons with or without their property, and a ferryman carrying on only a ferry business is bound to transport in no other way.” Wuirte, J. St. Clair County wv. Interstate Transfer Co., 192 U. S. 467. Power of States to Establish and Regu- late. “The legislature has the power to license ferries, . . . and so to regulate them that no rival ferries can be estab- lished within certain fixed distances.” Davis, J. The Binghamton Bridge, 3 Wall. 81. “Tf one owns the soil and landing places on both banks of a stream, he cannot use them for the purposes of a public ferry, except upon such terms and conditions as the body politic may from time to time impose; and this because the common good requires that all public ways shall be under the con- 748 FINES, PENALTIES, trol of the public authorities.” Ware, C. J. Munn v. Illinois, 94 U. S. 126. “The power of the states to regulate mat- ters of internal police includes the establish- ment of ferries.” Fietp, J. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 215. — Interstate Ferries. “Such a ferry [interstate] is a means, and a necessary means, of commercial inter- course between the states bordering on their dividing waters, and it must, therefore, be conducted without the imposition by the states of taxes or other burdens upon the commerce between them.” Fretp, J. Glou- cester Ferry Co. v. Pennsylvania, 114 U. S. 217. : “Tt is true that, from the earliest period in the history of the government, the states have authorized and regulated ferries, not only over waters entirely within their limits, but over waters separating them.” Frezp, J. Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 217. “Tt may be conceded that in many respects the states can more advantageously manage . . . interstate ferries than the general government; and that the privilege of keep- ing a ferry, with a right to take toll for passengers and freight, is a franchise grant- able by the state, to be exercised within such limits and under such regulations as may be required for the safety, comfort and con- venience of the public.” Frexp, J. Glou- cester Ferry Co. v. Pennsylvania, 114 U. S. 217. “Undoubtedly, the states, in conferring ferry rights, may pass laws so infringing the commercial power of the nation that it would be the duty of this court to annul or con- trol them. The function is one of extreme delicacy, and only to be performed where the infraction is clear.” Swayne, J. Conway v. Taylor, 1 Black 634. “Reasonable charges for the use of prop- erty, either on water or land, are not an in- terference with the freedom of transporta- tion between the states secured under the commercial power of Congress.” FiExp, J. Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 217. FICTIONS OF LAW. See RELATION; TERM AND VACATION. Not Permitted to Work Wrong. “Tt seems to be a rule founded in com- mon sense, as well as strict justice, that AND FORFEITURES. fictions of law shall not be permitted to work any -wrong, but shall be used ut res magis valeat quam pereat.’ Story, J. U.S. v. 1,960 Bags of Coffee, 8 Cranch 415. Must Give Way to Public Policy. “When logic and the policy of a state con- flict with a fiction due to historical tradition, the fiction must give way.” Ho.mgs, J. Blackstone v. Miller, 188 U. S. 206. “The Law Often Regards Money as Land and Land as Money, and, through the forms in which property may be put, will, if possible, trace and establish the original ownership.” McKenna, J. McIntosh v. Aubrey, 185 U. S. 125. FIFTEENTH AMENDMENT. See Execrions; Civi Ricuts; Constitu- TIONAL Law. FIFTH AMENDMENT. See ConstirutionaL Law; Due Process or Law; Eminent Domain; JeoparDy; PEr- sons; WITNESSES. FILLERS. See Tosacco. FINES, PENALTIES, AND FORFEITURES. J. DEFINITIONS AND GENERAL PRIN- CIPLES, II. AttitupE or Courts Towarp For- FEITURES AND PENALTIES. III. PRocEEDINGS FOR ENFORCEMENT. IV. Time at Wuicu ForFeirurRe TAKES EFFECT. CROSS-REFERENCES. See Capture, Recaprure, CoNnFISCATION, AND Prizz; Imports, Exports, AND Customs Duties; Res Jupicata; REVENUE Laws; SEARCHES AND SEIZURES. I. DEFINITIONS AND GENERAL PRINCIPLES. “The Power of the State to Impose Fines and Penalties for a violation of its statutory requirements is coeval with govern- ment; and the mode in which they shall be enforced, whether at the suit of a private 749 FINES, PENALTIES, AND FORFEITURES. party, or at the suit of the public, and what disposition shall be made of the amounts collected, are merely matters of legislative discretion.” Fretp, J. Missouri Pac. R. Co. v. 115 U. S. 523. Penalty Involves Idea of Punishment. “The term ‘penalty’ involves the idea of ‘ punishment, and its character is not changed by the mode in which it is inflicted, whether by a civil action or a criminal prosecution.” Fiexp, J. U. S. v. Chouteau, 102 U. S. 611. And see SENTENCE AND PUNISHMENT. —Imposition of Penalty Implies De- linquency. “As a general thing, the imposition of a penalty implies‘delinquency by the party on whom it is imposed.” Frerp, J. German Sav. Bank v. Archbold, 104 U. S. 710. — Personal Culpability Essential to Liability for Penalty. “Where penalties which are punitive, and not mere liquidated damages, are concerned, . there must, in all cases, be personal culpa- bility arising from original authorization of the fraudulent act, or assent to it, or its sub- sequent adoption with knowledge.” Fiexp, J., dissenting. Stockwell v. U. S., 13 Wall. 567. Forfeiture Imports a Penalty. “The term forfeiture imports a penalty; it has no necessary or natural connection with the measure or degree of injury which may result from a breach of coritract, or from an imperfect performance. It implies an abso- lute infliction, regardless of the nature and extent of the causes by which it is superin- duced. Unless, therefore, it shall have been expressly adopted and declared by the parties to be a measure of injury or compensation, it is never taken as such by courts of justice, who leave it to be enfotced where this can be done in its real character, viz., that of a penalty.” Danret, J. Van Buren v. Digges, 11 How. 477. Tax and Penalty Not Easily Distinguish- able. “Tt is not easy to draw an exact line of demarcation between a tax and a penalty.” Brown, J. Hodge v. Muscatine County, 196 U.S. 279. Penal Statutes Defined. “The very definition of a penal statute is that it is a statute which inflicts a penalty for the violation of its provisions.” Fiep, J., dissenting. Stockwell v. U. S., 13 Wall. 555. “Penal laws, Strictly and properly, are those imposing punishment for an offense committed against the state, and which, by the English and American Constitutions, the executive of the state has the power to par- don.” Statutes giving a private action against the wrongdoer are sometimes spoken of as penal in their nature, but in such cases it has been pointed out that neither the liability imposed nor the remedy given is strictly penal.” Gray, J. Huntington v. Attrill, 146 U. S. 667. “Tn one sense, every law imposing a pen- alty or forfeiture may be deemed a penal law; in another sense, such laws are often deemed, and truly deserve to be called, remedial.” Srory, J. Taylor v. U. S, 3. How. 210. Forfeiture Proceedings, Though Civil in Form, Are Criminal in Nature. “We are also clearly of opinion that pro- ceedings instituted for the purpose of declar- ing the forfeiture of a man’s property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal.” Braptey, J. Boyd wv. U. S., 116 U. S. 633. “ Cases arise, undoubtedly, where the judg- ment of forfeiture necessarily carries with it, and as a part of the sentence, a conviction and judgment against the person for the crime committed and in that state of the ‘pleadings it is clear that the proceeding is one of a criminal character; but where the information, . . . does not involve the personal conviction of the wrongdoer for the offense charged, the remedy of forfeiture claimed is plainly one of a civil nature; as the conviction of the wrongdoer must be obtained, if at all, in another and wholly independent proceeding.” Czirrorp, J. Dob- bin’s Distillery v. U. S., 96 U. S. 399. “Tt has been adjudged by this court, that informations under the revenue laws for the forfeiture of goods, which seek no judgment of fine or imprisonment against any person, though civil actions and not strictly criminal cases, are so far in the nature of criminal proceedings as to come within the rule, that a general verdict, upon sevetal counts, seek- ing in different forms one object, must be upheld if one count is good.” BLatcurorp, J. Coffey v. U. S., 116 U. S. 433. “Informations in Rem Against Property Differ Widely from an Action Against the Person to Recover a Penalty imposed to punish the offender. But they differ even 750 FINES, PENALTIES, AND FORFEITURES. more widely in the course of the trial than in the intrinsic nature of the remedy to be enforced.” CuirForp, J. Lilienthal’s Tobacco uv. U.S, 97 UL. S. 271. “Forfeiture Is of that Which a Party Hath, but he cannot be said to have forfeited what he never had acquired, as the title to that which he had never acquired, must always have been in the state or in another person.” C.iFForD, J. U.S. v. Cas- tillero, 2 Black 196. Penalties and Forfeitures Not Imposed for Lawful Acts. “Penalties and forfeitures are not inflict- ed at this day in any civilized and free gov- ernment for the motives with which lawful acts are done.” Fietp, J., dissenting. Hen- derson’s Distilled Spirits, 14 Wall. 65. Two Penalties May Be Incurred for Sim- ilar Offenses on Same Day. “Tt has been settled in a penal prosecution that a like act, when prohibited, if distinctly repeated, even on the same day, constitutes a second offense, and incurs an additional penalty.” Woopsury, J. Wilkes v. Dins- man, 7 How. 127. Cases in Which Forfeiture Can be Applied. “Tt is unquestionably a correct legal prin- ciple, that a forfeiture can only be applied to those cases in which the means that are prescribed for the prevention of a forfeiture may be employed.” MarsHat, C. J. Peisch v. Ware, 4 Cranch 363. Accrual — Dependency on Judgment. “Forfeiture accrues to the United States on the commission or omission of the acts specified [in the statute].” BLatcurorp, J. Origet v. U. S., 125 U. S. 246. “Fines, penalties, and disabilities are not incurred, and do not accrue, in the technical sense of the terms, until judgment.” Joun- son, J., concurring. U. S. v. Morris, 10 Wheat. 299. “T deny that a party suing another for a statute penalty can acquire a vested right in the sum which the law allows in such cases, tuntil he has actually received the money into his own possession.” MILLER, J., dissenting. Pacific Mail Steamship Co. v. Joliffe, 2 Wall. 466. “Tf the claim on which he proceeded was a vested right, it remains so after judgment; not because of the judgment, but because it existed before, and the judgment only ascer- tains that fact, and enables him to enforce it. If the judgment was founded on a stat- ute right, it still only declares that on the facts as the law then stood, the plaintiff was entitled to recover; but that right is no more sacred or no more protected from legislative action than before.” Mutter, J., dissenting. Pacific Mail Steamship Co. v. Joliffe, 2 Wall. 466. Forfeiture Not Recoverable After Repeal or Expiration of Statute. “A forfeiture incurred under a_ penal statute, temporary in its terms, cannot be enforced after the statute has expired, and . . . the repeal of a penal statute has the same effect, unless the repealing law con- tains a saving clause as to the pending prose- cutions.” CxiFForD, J. The Reform, 3 Wall. 629. II. ATTITUDE OF COURTS TOWARD FORFEITURES AND PENALTIES. Forfeitures Regarded with Disfavor. “Forfeitures are not favored in the law. They are often the means of great oppres- sion and injustice. And, where adequate compensation can be made, the law in many cases, and equity in all cases discharges the forfeiture, upon such compensation being made.” Braptey, J. Knickerbocker L. Ins. Co. v. Norton, 96 U. S. 242. “The law leans strongly against forfeiture, and it is incumbent on the party who seeks to enforce one, to show plainly his right to it.” Curtis, J. Philadelphia, etc., R. Co. v. Howard, 13 How. 340. “When either of two constructions can be given to a statute and one of them in- volves a forfeiture, the other is to be pre- ferred.” Swayne, J. Farmers’, etc, Nat. Bank v. Dearing, 91 U. S. 35. — Rule as to Contracts for Public Works. “Tt is said that provisions for forfeiture are regarded with disfavor and construed with strictness, and that courts of equity will lean against their enforcement. This, as a general rule, is true when applied to cases of contract, and the forfeiture relates to a matter admitting of compensation or restora- tion, but there can be no leaning of the court against a forfeiture which is intended to se- cure the construction of a work, in which the public is interested, where cotmpetsation cannot be made for the default of the party, nor where the forfeiture is imposed by 751 FINES, PENALTIES, positive law.” Fretp, J. Farnsworth wv. Minnesota, etc., R. Co., 92 U. S. 68. Construction of Penal Statutes —In Gen- eral. “ [A] statute being penal, must be construed with such strictness as to care- fully safeguard the rights of the defendant and at the same time preserve the obvious intention of the legislature. If the language be plain, it will be construed as it reads, and the words of the statute given their full meaning; if ambiguous, the court will lean more strongly in favor of the defendant than it would if the statute were remedial. In both cases it will endeavor to effect substan- tial justice.” Brown, J. Bolles v. Outing Co., 175 U. S. 265. “There is in a penal statute, a difference between restraining general words and enlarging particular words.” MarsHALL, C.J. U.S. v. Wiltberger, 5 Wheat. 97. —— Penal Statutes Strictly Construed. “As this is a penal section, it must be construed ‘strictly.”. McLean, J. Backus v, Gould, 7 How. 811. “The rule that penal laws are to be con- strued strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.” MarsHalt, C. J. U. S. v. Wiltberger, 5 Wheat. 95. “The elementary rule is that penal statutes must be strictly construed, and it is essential that the crime punished must be plainly and unmistakably within the statute.” Wuute, J. Ballew v. U. S, 160 U. S. 197, “Tt is, a general principle in the construction of statutes, that where a penalty is prescribed to be recovered in a special manner, in a special court, it excludes a recovery in any other mode or court.” ‘Jounson, J., dissenting. Houston v. Moore, 5 Wheat. 71. “Where a statute creates a new offense and denounces the penalty, or gives a new right and declares the remedy, the punish- ment or the remedy can be only that which the statute prescribes.” Swayne, J. Farm- ers,’ etc., Nat. Bank v. Dearing, 91 U. S. 35. — Doubts Resolved in Favor of De- fendant. “In the construction of a penal statute, it AND FORFEITURES. is well settled, also, that all reasonable doubts concerning its meaning ought to operate in favor of the respondent.” Woopzury, J. Harrison v. Vose, 9 How. 378. —— Construction Must Not Defeat Inten- tion of Legislature. “But though penal laws are to be con- strued strictly, yet the intention of the legis- lature must govern in the construction of penal as well as other statutes, and they are not to be construed so strictly as to defeat the obvious intention of the _ legislature.” Fuizer, C. J. U. S. v. Lacher, 134 U. S. 628. “In construing a statute, penal as well as others, we must look at the object in view, and never adopt an interpretation that will defeat its own purpose, if it will admit of an, other reasonable construction.” THomp- son, J. The Emily & The Caroline, 9 Wheat. 388. “Even penal laws, which, it is said, should be strictly construed, ought not to be con- strued so strictly as to defeat the obvious intention of the legislature.” WasHINGTON, J. American Fur Co. v. U. S., 2 Pet. 367, ——JIntention Must Be Gathered from Language. “The intention of a penal statute must be found in the language actually used, in- terpreted according to its fair and obvious meaning.” Suuras, J. U. S. v. Harris, 177 U. S. 309. — Settled Meaning of Words Cannot Be Disregarded. “Courts [cannot] in . construing penal statutes safely disregard the popular signifi- cation of the terms employed, in order to bring acts, otherwise lawful, within the effect of such statutes, because of a supposed pub- lic policy or purpose.” Sutras, J. Sarlls v. U. S., 152 U. S. 575. “Tt is not permitted to courts .. . to attribute inadvertence or oversight to the legislature when enumerating the classes of persons who are subject to a penal enact- ment, nor to depart from the settled mean- ing of words or phrases in order to bring persons not named or distinctly described within the supposed purpose of the statute.” Sutras, J. U.S. v. Harris, 177 U. S. 309. — Probability an Unsafe Guide. “Probability is not a guide which a court, in construing a penal statute, can safely take.” Marsnatt, C. J. U. S. vu, Wilt- berger, 5 Wheat. 105, 752 FINES, PENALTIES, AND FORFEITURES. III, PROCEEDINGS FOR ENFORCE- MENT. ‘ Remedy for Recovery of Fine, Penalty, o Forfeiture. : “Almost every fine or forfeiture under a penal statute may be recovered by an action of debt as well as by information.” MarsHatt, C. J. Adams wv. Woods, 2 Cranch 341. “Nor is it doubted that when a statute gives to a private person a right to recover a penalty for a violation of law he may main- tain an action of debt.” Strone, J. Stock- well v. U. S., 13 Wall. 542. Parties to Forfeiture Proceedings — Status of Informer. “Tnformations, to recover municipal .for- feitures, whether the seizure was made on navigable waters or on land, must be insti- tuted in the name of the United States, and they must be prosecuted, in the subordinate courts, by the district attorney, and in this court, when brought here by appeal, or by writ of error, by the attorney-general. Where the seizure was made on navigable waters, the case belongs to the instance side of the subordinate court; but where the seizure was made on land, the suit is one at common law, and the claimants are entitled to a trial by jury. Mention of the name of the informer, in the information, in such cases, is not necessary, as he is not a party to the suit, nor is he entitled to be heard, as such, in any stage of the proceedings. He cannot institute the suit, nor move for proc- ess, nor join in the pleadings, nor take testi- mony, nor except to the ruling of the court, nor sue out a writ of error, nor take an ap- peal. Judgment is for the claimant, or for the United States, and if for the latter, and the claimants do not remove the cause into this court for revision, it then becomes the duty of the court to render the decree for distribution. Prior to such a decree, the in- terest of the informer is conditional, and under the decision of this court it continues to be so until the money is paid over, as required by law.” C.irForD, J. Confiscation Cases, 7 Wall. 462. — Owner of Goods Is Substantial Party. “ Although the owner of goods, sought to be forfeited by a proceeding in rem, is not the nominal party, he is, nevertheless, the substantial party to the suit; he certainly is so, after making claim and defense.” Brap- LEY, J. Boyd v. U. S, 116 U. S. 638. 1 Os. Dic.—48 Limitation of Forfeiture Proceedings. “In a country where not even treason can be prosecuted after a lapse of three years, it can hardly be supposed that an in- dividual would remain forever liable to a pecuniary forfeiture.’ MarsHat, C. J. Adams v. Woods, 2 Cranch 342. Procedure in Revenue Cases Similar to That in Admiralty. “There is no essential difference between the forms of proceeding or the practice in revenue cases and those in admiralty, except where there are disputed facts.” Strone, J. Miller v. U. S., 11 Wall. 303. Necessity for Seizure of Goods. “Doubtless it is true that the court had no authority to decree confiscation of any- thing which had not by seizure of the mar- shal been brought within its jurisdiction. Seizure is essential to confer jurisdiction. But the marshal’s return that he had at- tached the bond, mortgage, and credit, con- clusively establish that a seizure was made, and that the subjects of the seizure were within the jurisdiction of the court.” Stronc, J. Brown v. Kennedy, 15 Wall. 597. “Judicial proceedings in rem, to enforce a forfeiture, cannot in general be properly in- stituted until the property inculpated is pre- viously seized by the executive authority, as it is the preliminary seizure of the property that brings the same within the reach of such legal process.” CttiFForD, J. Dobbins’s Dis- tillery v. U. S., 96 U. S. 396. “A forfeiture attached to a thing, con- veys no property to the government in the thing, until seizure made or suit brought.” Story, J. U. S. vw. 1,960 Bags of Coffee, 8 Cranch 416. Bond for Discharge of Property Seized. “Bond or stipulation with sureties for the discharge of the property seized is allowed in all revenue cases, except for forfeiture, and the better opinion is that even in seizures for forfeiture the bond may be executed in the same manner by the claimant.” Cuir- ForD, J. U. S. v. Ames, 99 U. S. 39. Evidence — Strict Proof Required. “Tt is familiar law that one who is seek- ing to recover a penalty is bound by the rule of strict proof.” Brewer, J. Parsons wv. Chi- cago, etc., R. Co., 167 U. S.. 455. “Penalties are not recoverable on mere possibilities.” Brewer, J. Parsons v. Chi- cago, etc., R. Co., 167 U. S. 460. 153 FINES, PENALTIES, “Tt is settled, too, that, where penalties are to be recovered, greater fulness of evi- dence is necessary to make out such a case as the law contemplates. The proof must then, bring a transaction within the spirit as well as the letter of the law, and must usually show a plain breach of both.” Woop- Bury, J. Harrison v. Vose, 9 How. 378. — Goods Seized Furnish Evidence of Their Unlawful Use, “Tn all cases where proceedings in rem are authorized for a disregard of some municipal or public law, the offense constituting the ground of condemnation inheres, as it were, in the thing itself. The thing is the instru- ment of wrong, and is forfeited by reason of the unlawful use made of it, or the unlawful condition in which it is placed. And gen- erally the thing, thus subject to seizure, it- self furnishes the evidence for its own con- demnation. Thus, goods found smuggled, not having been subjected to the inspection of the officers of the customs, or paid the duties levied by law, prove of themselves nearly all that is desired to establish the right of the government to demand their confiscation. A ship entering the mouth of a blockaded port furnishes by its position evi- dence of its intention to break the block- ade, and the decree of condemnation fol- lows, A ship captured whilst engaged in the slave-trade furnishes, in the use to which it was subjected, the material fact to be es- tablished for its’ forfeiture. In all these cases the proceeding is against the offending thing. And it is true that in these cases criminal proceedings will also lie against the smuggler, or slave-trader, if arrested, and that the proceedings in vem are wholly in- dependent of, and unaffected by, the criminal proceedings against the person. But in the two cases the proof is entirely different. In the one case, there must be proof that the thing proceeded against was subjected to some unlawful use, or was found in some unlawful condition. In the other case the personal guilt of the party must be es- tablished, and when condemnation is founded upon such guilt, it must be preceded by due conviction of the offender according to the forms prescribed by the Constitution.” Fretp, J., dissenting. Miller v U. S., 11 Wall. 321. Default Justifies Decree of Condemnation. “Tn revenue cases, as in admiralty, default entered establishes the facts averred in the libel or information as effectively as they can be established on hearing, and warrants a de- AND FORFEITURES. cree of condemnation if the information con- tains the necessary averments.” Strone, J. Miller v. U. S., 11 Wall. 303. Effect of Decree of Condemnation or Ac- quittal, “ All persons having an interest in the sub- ject-matter, whether as seizing officers or in- formers, or claimants, are parties or may be parties to such suits, so far as their interest extends. The decree of the court acts upon the thing in controversy, and settles the title of the property itself, the right of seizure, and the question of forfeiture. If its decree were not binding upon all the world upon the points which it professes to decide, the consequences would be most mischievous to the public. In case of condemnation, no good title to property could be conveyed, and no justification of the seizure be asserted under its protection. In case of acquittal, a new seizure might be made by any persons toties quoties for the same offense, and the claimant be loaded with ruinous costs and expenses. This reasoning applies to the de- cree of a court having competent jurisdiction of the cause, although it may be. exclusive. But it applies with greater force to a court of exclusive jurisdiction; since an attempt to re-examine its decree, or deny its con- clusiveness, is a manifest violation of its ex- clusive authority. It is, in effect, impeaching collaterally, a sentence which the law pro- nounced to be valid until vacated or re- versed on appeal by a superior tribunal.” Story, J. Gelston v. Hoyt, 3 Wheat. 312. “Upon principle, where is there to be found a substantial difference between a sentence of condemnation and of acquittal im rem? If the former ascertains and fixes the forfeiture, and, therefore, is conclusive, the latter no less ascertains that there is no forfeiture, and, therefore, restores the prop- erty to the claimant. It cannot be pre- tended that a new seizure might, after an ac- quittal, be made for the same supposed of- fense; or if made, that the former sentence would not, as evidence, be conclusive, and, as a bar, be peremptory against the second suit in rem. And if ‘conclusive either way, it must be because the acquittal ascertains the fact that there was no forfeiture. And if the fact be found, it is strange that it can- not be evidence for the party if found one way, and yet can be evidence against him if found another way. If such were the rule, it would be a perfect anomaly in the law, and utterly subversive of the first principles of reciprocal justice.” Srory, J. Gelston v. Hoyt, 8 Wheat. 317. 754 FINES, PENALTIES, “Nothing can be better settled than that a sentence of condemnation is, in an action of trespass for the property seized, conclu- sive evidence against the title of the plain- tiff.” Story, J. Gelston v. Hoyt, 3 Wheat. 315. IV. TIME AT WHICH FORFEITURE TAKES EFFECT. Depends on Construction of Statute, “Where a forfeiture is given by a statute, the rules of the common law may be dis- pensed with, and the thing forfeited may either vest immediately, or on the perform- ance of some particular act, as shall be the will of the legislature. This must de- pend upon the construction of the statute.” Marswal.t, C. J. U.S. uv. Grundy, 3 Cranch 351. Seizure Confers Inchoate Right to Goods Seized. “ By the common law a party entitled to a share of a thing forfeited, acquires by the seizure an inchoate right, which is con- summated by a decree of condemnation, and when consummated, it relates back to the time of the seizure. This principle is famil- jarly applied to many cases’ of forfeiture to the crown; and even in respect to private persons entitled to forfeitures, the interest which is acquired by seizure has been deemed a sufficient title to sustain an action in deti- nue for the property.” Story, J. Jones v. Shore, 1 Wheat. 471. “By the settled doctrine of this court, whenever a statute enacts that upon the commission of a certain act specific property used in or connected with that act shall be forfeited, the forfeiture takes effect immedi- ately upon the commission of the act; the right to the property then vests in the United States, although their title is not perfected until judicial condemnation; the forfeiture constitutes a statutory transfer of the right to the United States at the time the offense is commited; and the condemnation, when obtained, relates back to that time and avoids all intermediate sales and alienations, even to purchasers in good faith.” Gray, J. U. S. uv. Stowell, 183 U. S. 16. — Forfeiture Attaches at Moment of Commission of Offense. “The forfeiture must be deemed to at- tach at the moment of the commission of the offense, and, consequently, from that moment, the title of the plaintiff would be completely devested, so that he could maintain no action AND FORFEITURES. for the subsequent seizure. This is the doctrine of the English courts, and it has been recognized and enforced in this court, upon very solemn argument.” Story, J. Gelston v. Hoyt, 3 Wheat. 311, —Title Relates Back from Condemna- tion to Commission of Offense. “Tn all forfeitures accruing at common law, nothing vests in the government until some legal step shall be taken for the asser- tion of its right, after which, for many pur- poses, the doctrine of relation carries back the title to the commission of the offense.” MarsHatr, C. J. U. S. wv. Grundy, 3 Cranch 350. “Without a critical examination of the doctrine of relation, it would seem to be a necessary part of that doctrine, that the title to a thing which is to relate back to some former time, must exist against the thing itself, not against some other thing which the claimant may wish to consider as its sub- stitute.” Marswatt, C. J. U. S. v. Grundy, 3 Cranch 354. “The title of the United States to goods forfeited is not consummated until after judicial condemnation; but the right to them relates backwards to the time the offense was committed, so as to avoid all intermedi- ate sales of them between the commission of the offense and condemnation.” Wayne, J. Caldwell v. U. S., 8 How. 381. — Rule at Common Law. “By the common law of England, even in the case of the forfeiture of all the real and personal estate of an offender, while the forfeiture of his goods and chattels was only upon conviction and had no relation backwards, the forfeiture of his lands had relation to the time of the offense com- mitted, so as to avoid all subsequent sales and incumbrances.” Gray, J. U. S. wv. Stowell, 183 U. S. 18. Limited Forfeiture — Offender Cannot Dispose of Ulterior Estate. “The statute of 5th Elizabeth, c. 11, ‘against the clipping, washing, rounding, and filing of coins,’ declared those offenses to be treason, and enacted that the offender or offenders should suffer death, and lose and forfeit all his or their goods and chattels; and also ‘lose and forfeit all his or their lands and tenements during his or theit natural life or lives only.’ The statute of 18th Elizabeth, c. 1, enacted the same provi- sion ‘against diminishing and impairing of 755 FIRE INSURANCE. the queen’s majesty’s coin and other coins current with the realm, and declared that the offender or offenders should ‘lose and forfeit to the queen’s highness, her heirs and successors, all their lands, tenements, and hereditaments during his or their natural life or lives only,’ each of these statutes pro- vided that no attainder under it should work corruption of blood, or deprive a wife of an offender of her dower. The statute of 7 Anne, c. 21, is similar. They all provide for a limited forfeiture — limited in duration, not in quantity. Certainly no case has been found, none, we think, has ever existed, in which it has been held that either statute intended to leave in the offender an ulterior estate in fee after a forfeited life estate, or any interest whatever subject to his disposing power. Indeed, forfeiture has frequently been spoken of in the English courts as equivalent to conveyance.” Strone, J. Wal- lach v. Van Riswick, 92 U. S. 210. FIRE DEPARTMENT. See MunicipaL CoRPORATIONS. FIRE INSURANCE. See INsuRANCE; Lire INSURANCE; MARINE INSURANCE; REINSURANCE. Definition and General Principles. “Policies of fire insurance are contracts whereby the insurers undertake for a stipu- lated sum to indemnify the insured against loss or damage by fire, in respect to the property covered by the policy, during the prescribed period of time, to an amount not exceeding the sum specified in the written contract.” CLiFForD, J. Lycoming Fire Ins. Co. v. Haven, 95 U. S. 242. “Contracts of insurance are contracts of indemnity upon the terms and conditions specified in the policy or policies, embodying the agreement of the parties. For a com- paratively small consideration the insurer undertakes to guaranty the insured against loss or damage, upon the terms and con- ditions agreed upon, and upon no other, and when called upon to pay, in case of loss, the insurer, therefore, may justly insist upon the fulfilment of these terms. If the insured cannot bring himself within the conditions of the policy, he is not entitled to recover for the loss. The terms of the policy consti- tute the measure of the insurer’s liability, and in order to recover, the assured must show himself within those terms; and if it appears that the contract has been termi- nated by the violation on the part of the as- sured, of its conditions, then there can be no right of recovery. The compliance of the assured with the terms of the contract is a condition precedent to the right of recovery. If the assured has violated or failed to perform the conditions of the contract, and such violation or want of performance has not been waived by the insurer, then the assured cannot recover. It is immaterial to consider the reasons for the conditions or provisions on which the contract is made to terminate, or any other provision of the policy which has been accepted and agreed upon. It is enough that the parties have made certain terms, conditions on which their contract shall continue or terminate. The courts may not make a contract for the parties. Their function and. duty consists simply in enforcing and carrying out the one actually made.” Jackson, J. Imperial Fire Ins. Co. v. Coos County, 151 U. S. 462. “Marine and fire policies are contracts of indemnity, by which the claim of the insured is commensurate with the damages he sus- tained by the loss of, or injury to, the prop- erty insured. Such being the nature of the contract, it is clear that an absolute sale of the property insured, prior to the alleged disaster, is a good defense to an action on the policy, as the insured cannot justly claim indemnity for the loss of, or injury to, prop- erty in which he had no insurable interest at the time the loss or injury occurred.” Cuirrorp, J. Phenix Mut. L. Ins. Co. w. Bailey, 13 Wall. 618. Differences Between Fire and Other Kinds of Insurance. * We see many differences between fire in- surance and other insurance, both to the in- surer and the insured —differences in the elcments insured against and the possible re- lation of the parties to them, producing con- sequences which may justify if not demand different legislative treatment. Of course it is not for us to debate the policy of any particular treatment.” McKenna, J. Orient Ins. Co. v. Daggs, 172 U. S. 562. Usual Stipulations. “Policies of fire insurance, it 1s well known, usually contain stipulations that the insured shall give notice of a loss, and fur- nish proofs thereof within a brief period after the fire, and it is undoubted that if such notice and proofs have not been given in the time designated or have not been waived, the insurers are not liable.” Srronc, 756 FIRE INSURANCE. J. Southern Express Co. v. Caldwell, 21 Wall. 269. “Clauses in fire policies respecting notice of prior and subsequent policies are designed to enable the underwriters, who are almost necessarily ignorant of many facts, which might materially affect their rights and interests, to judge whether they ought to insure at all, or for what premium; and to ascertain, whether there still remains any such substantial interest of the insured in the premises insured, as will guaranty on his part, vigilance, care, and strenuous ex- ertions to preserve the property.” Srory, J. Carpenter v. Providence, etc., Ins. Co., 16 Pet. 510. Voluntary Destruction of Property. “Policies of insurance do not protect an assured against his voluntary destruction of the thing insured.” Srronc, J. Atna Fire Ins. Co. v. Boon, 95 U. S. 131. “Where a Creditor Effects Insurance on Property Mortgaged or Pledged to him as security for the payment of his debt, the insurers do not become sureties of the debt, nor do they acquire all the rights of such sureties. They are insurers of the particular property only, and so long as that property is liable for the debt so long its destruction by fire would be a loss to the creditor within the terms of the policy. A surety of the debt might complain if the creditor should sur- render to the debtor collateral securities; but an insurer of property for the benefit of the mortgagee would have no just ground of complaint. True, after a loss has occurred and the insurance has beén paid, sufficient to discharge the debt, the insurers may be en- titled to be subrogated to the rights of the creditor against the debtor, and to any col- lateral securities which the creditor may then hold and which are primarily liable for the debt before the insurers. But even then we do not think that the creditor is bound to take any active steps to realize the fruits of a collateral, or to keep it from expiring, un- less the insurance be first paid and notice be given to him of a desire on the part of the insurers to be subrogated to his rights, with a tender of indemnity against expenses.” Brapiey, J. Insurance Co. v. Stinson, 103 UL S. 28. Building of Tenant. “A building held under a lease for years about to expire, might be generally spoken of as the building of the tenant; but no under- writer would be willing to insure it as if it was his; and an offer for insurance, stating it to belong to him, would be a gross imposi- tion.” MarsHaL.t, C. J. Columbian Ins. Co. v. Lawrence, 2 Pet. 49. “ Conditions in policies of fire insurance that no action shall be brought for the re- covery of a loss unless it shall be commenced within a specified time, less than the statu- tory period of limitations, are enforced, as not against any legal policy.” Strone, J. Southern Express Co. v. Caldwell, 21 Wall. 269. Errors in Proofs. “Tt has repeatedly been held that errors and omissions in the proofs of loss furnished to insurers, in cases of fire insurance, may be corrected or supplied at the trial.” Stronc, J. Connecticut Mut. Life Ins. Co. wv. Schwenk, 94 U. S. 595. Issuance of Policy Constituting Waiver of Statement. “If one applying for insurance upon a building against fire is asked whether the property is incumbered, and for what amount, and in his answer discloses one mortgage, when in fact there are two, the policy issued thereon is avoided. But if to the same ques- tion he merely answers that the property is incumbered, without stating the amount of incumbrances, the issue of the policy without further inquiry is a waiver of the omission to state the amount.” Gray, J. Pheenix L. Ins. Co. v. Raddin, 120 U. S. 190. “Where Property Is Sold, the insurance does not follow it, but ‘ceases to have any value, unless the insurer consent to the trans- fer of the policy to the grantee of the prop- erty.” Braptey, J. The City of Norwich, 118 U. S. 494. Ratification of Procuring Insurance. “Where a part owner of property effects an insurance for himself and others, without previous authority, the act is sufficiently ratified, where suit is brought on the policy in their names.” Davis, J. Howard Ins. Co. v. Chase, 5 Wall. 514. Insurance Procured by Trustee. “Tt is true that in the administration of the trust, where there is more than one trus- tee, all must concur, but the entire body can direct one of their number to transact busi- ness, which it may be inconvenient for the others to perform, and the acts of one thus authorized, are the acts of all, and binding on all. The trustee thus acting is to be BT FIRE INSURANCE. considered the agent of all the trustees, and not as an individual trustee. If, within the scope of his agency, he procures an insur- ance, it is for the other trustees, as well a3 himself. If he does it without authority, still it ig a ‘valid contract, which the underwriter cannot dispute, if his cotrustees subsequently ratify it.” Davis, J. Howard Ins. Co. wv. Chase, 5 Wall. 514. “A trustee, . . having the right, is justified in insuring the [trust] property, even to its full value, although there is no obligation on him, in the absence of express directions, to insure at all.’ Davis, J. How- ard Ins. Co. v. Chase, 5 Wall. 514. “That a trustee having no personal inter- est in the property may procure an insurance on it, is a doctrine too well settled to need a citation of authorities to confirm it.’ Davts, J. Howard Ins. Co. v. Chase, 5 Wall. 513. Right of Lessee to Avoid Policy to Lessor. “Lessees holding under an ordinary parol lease do not acquire such an interest in real estate so leased as to avoid a policy issued to the lessor, even though the insured failed to represent the matter to the company in a case where no inquiries were made of the applicant, at the time the policy was issued, as to the true character of the title or occt- pancy of the insured premises, and where no pretense is shown that the insured has been guilty of any fraud or misrepresenta- tion.” CxiirForD, J. Lycoming Fire Ins. Co. v. Haven, 95 U. S. 250. Necessity for Knowing Ownership of Property “Prudence requires that a company, be- fore insuring against fire, should be in- formed as to the actual ownership of the property proposed to be insured, and know who, in virtue of such ownership, will be entitled to its custody and to control it during the term of the policy.” HARLAN, J. Royal Ins. Co. v. Martin, 192 U. S. 166. Misrepresentations. ‘ “Generally speaking it is undoubtedly true that any misrepresentation with regard to the ownership of the property insured will suffice to vitiate the policy.” Brapiey, J. Phoenix Ins. Co. v. Hamilton, 14 Wall. 509. Failure to Disclose Secret Information of Loss. “Tf a party, having secret information of a loss, procures insurance, without disclos- ing it, it is a manifest fraud, which avoids the policy.” Story, J. M’Lanahan v, Uni- versal Ins. Co., 1 Pet. 185. Insurable Interest. “A contract of insurance, is intended to indemnify one who is insured against an uncertain event, which, if it occurs, will cause him loss or damage. The assured must therefore have an interest in the prop- erty insured; otherwise, there is a tempta- tion to destroy it, which sound policy con- demns.” Davis, J. Howard Ins. Co. wv. Chase, 5 Wall. 512. “Any ote having any legal interest in property can insure it as his own, and in his own name, without specifying the nature of his interest.” Davis, J. Howard Ins. Co. v. Chase, 5 Wall. 514. “Tt is undoubtedly the law that wharfingers, warehousemen, and commission-merchants, having goods in their possession, may insure them in their own names, and in case of loss may recover the full amount of insur- ance, for the satisfaction of their own claims first, and hold the residue for the owners.” Stronc, J. Home Ins. Co. wv. Baltimore Warehouse Co., 93 U. S. 548. “ Any one who has made himself responsi- ble for the safety of goods has a sufficient interest in them to enable him to obtain insurance upon them.” Gray, J. Pheenix Ins, Co. v. Erie Transp. Co., 117 U. S. 323. “A man’s interest in property insured is so distinct from the insurance, that unless he has such an interest independent of the insurance, his policy will be void.” Brap.ey, J. The City of Norwich, 118 U. S. 494. “It is well settled that any person has an insurable interest in property, by the ex- istence of which he will gain an advantage, or by the destruction of which he will suffer a loss, whether he has or has not any title in, or lien upon, or possession of the prop- erty itself.” Gray, J. Harrison v. Fort- lage, 161 U. S. 65. “Even a common carrier may obtain in- stirance against losses occasioned by the negligence of himself or of his servants, or may, by stipulation with the owner of goods carried, have the benefit of such insurance procured thereon by such owner.” Gray, J. Hartford Ins. Co, v. Chicago, ete, R. Co., 175 U. S. 98. “Unless the true ownership or interest in the property is required by the conditions of the policy to be specifically and with particularity and accuracy set forth, it will in general be sufficient if the insured has an 758 e FIRE INSURANCE. insurable interest under any status of own- ership or possession, in cases where no in- quiries are made at the time the applicant is presented or the policy executed.” C.iF- ForD, J. Lycoming Fire Ins. Co. v. Haven, 95 U. S. 249. Relation of Compensation to Value of In- terest. “Compensation is intended by the funda- mental principles of insurance to bear a di- rect relation to the moneyed value of the interest which the party insured had in the property. Where the only interest of the as- sured is the full and perfect ownership of the property, that is the interest insured ; and the amount to be recovered on the policy of insurance is that full: value or such sum less than that as the insurer stipulates to be liable for.’ Mutter, J. Insurance Cos. v. Thompson, 95 U. S. 549. Profits. “Courts of justice have got over their difficulties on the question whether profits are an insurable interest; but how and where that interest must be estimated by proof, in case of loss, is not well settled. Here there appears to be a conflict be- tween the British and American decisions.” Jounson, J. Patapsco Ins. Co. v. Coulter, 3 Pet. 239. “If a Mortgagor Insures the Property Mortgaged, the mortgagee has no interest in the insurance. He may stipulate that the policy shall be assigned to him, and the mortgagor may agree to assign it; and if it be assigned with the insurer’s consent, the mortgagee will then have the benefit of it; or, if not assigned according to agreement, the mortgagee may have relief in equity to ob- tain the benefit of it.” Braptry, J. The City of Norwich, 118 U. S. 494. “If a Mortgagee Insures His Interest in the premises, he is bound, under a pro- vision calling for circumstances affecting his interest, to state prior mortgages on the same premises.” CzFForD, J. Lycoming Fire Ins. Co. v. Haven, 95 U. S. 248, Causes of Losses. “Losses by fire must happen either from the act of God, from design, or from acci- dent. If from design, and by the captain and crew, it is barratry; if by any other per- son, or by pure accident, it is clearly a risk by fire, but from the peculiar character of this risk, it is no easy matter to point out an accident that may not be resolved into negligence.” Jounson, J. Patapsco Ins. Co. v. Coulter, 3 Pet. 236. “The efficient cause, the one that set others on motion, is the cause to’ which the loss is to be attributed, though the other causes may follow it and operate more im- mediately in producing the disaster.” STRONG, J. Etna Fire Ins. Co. v. Boon, 95 U. S. 131. “The proximate cause . . . is the dominant cause, not the one which is inci- dental to that cause, its mere instrument, though the latter may be nearest in place and time to the loss.” Srronc, J. Aetna Fire Ins. Co. v. Boon, 95 U. S. 133. “When one of several successive cattses is sufficient to produce the effect (for example, to cause a loss), the law will never regard an antecedent cause of that cause, or the “causa causans’” Stronc, J. Howard Fire Ins. Co. v. Norwich, etc., Transp. Co., 12 Wall. 199. “When there is no order of succession in time, when there are two concurrent causes of a loss, the predominating efficient one must be regarded as the proximate, when the damage done by each cannot be dis- tinguished.” Stronc, J. Howard Fire Ins. Co. v. Norwich, etc, Transp. Co., 12 Wall. 199, “Tt is well settled that when an efficient cause nearest the loss is ‘a peril expressly insured against, the insurer is not to be re- lieved from responsibility by his showing that the property was brought within that peril by a cause not mentioned in the con- tract.” Stronc, J. Howard Fire Ins. Co. v Norwich, etc., Transp. Co., 12 Wall. 199. “As Between a Common Carrier of Goods and an Underwriter upon Them, the liability to the owner for their loss or destruction is primarily upon the carrier, while the liability of the insurer is only secondary.” Srronc, J. Hall v. Railroad Companies, 13 Wall. 370. “Tt is too well settled by the authorities to admit of question that, as between a com- mon carrier of goods and an underwriter upon them, the liability of the owner for their loss,in destruction is primarily upon the carrier, while the liability of the insurer is only secondary. The contract of the car- rier may not be the first in order of time, but it is first and principal in ultimate lia- bility. In respect to the ownership of the 759 FIRES. goods, and the will incident thereto, the owner and the insurer are considered but one person, having together the beneficial right to the indemnity due from the carrier for a breach of his contract or for non- performance of his legal duty. Standing thus, as the insurer does, practically, in the position of a surety, stipulating that the goods shall not be lost or injured in conse- quence of the peril insured against, when- ever he has indemnified the owner for the loss he is entitled to all the means of indem- nity which the satisfied owner held against the party primarily liable. His right rests upon familiar principles of equity. It is the right of subrogation, dependent not at all upon privity of contract, but worked out through the right of the creditor or owner.” Surras, J. Wager v. Providence Ins. Co., 150 U. S. 107. Negligence of Servants or Tenants as Defense. “Tt seems generally conceded, that in the case of insurance against fire on land, negli- gence of servants or of the tenant is no defense, nor of the proprietor, unless of such character as to sustain the imputation of fraud or design.” JoHNson, J. Patapsco Ins. Co. v. Coulter, 3 Pet. 237. FIRES. As to destruction of leased premises, see LANDLoRD AND TENANT. Liability for Injuries Caused by Fire — Common-law Rule. “At common law, every man appears to have been obliged, by the custom of the realm, to keep his fire safe so that it should not injure his neighbor; and to have been liable to an action if a fire, lighted in his own house, or upon his land, by the act of himself, or his servants or guests, burned the house or property of his neighbor, unle:s its spreading to his neighbor’s property was caused by a violent tempest or other inevita- ble accident which he could not have fore- seen.” Gray, J. St. Louis, etc., R. Co. wv. Mathews, 165 U. S. 5. “The law of England, from the earliest time, held any one lighting a fire upon his premises to the strictest accountability for damages caused by its spreading to the property of others.” Gray, J. St. Louis, etc., R. Co. v. Mathews, 165 U. S. 22. “In modern times in England, the strict rule of the common law as to civil liability in damages for fire originating on one’s own land, and spreading to property of another, has been recognized as still existing, ex- cept so far as clearly altered by statute.” Gray, J. St. Louis, etc, R. Co. v. Mathews, 165 U. S. 6. “In this country, the strict rule of the common law of England as to liability for accidental fires has not been generally adopted; but the matter has been regulated, in many states, by statute.” Gray, J. St. Louis, etc, R. Co. v. Mathews, 165 U. S. 9. — Statutory Liability of Railroad Com- panies. “The earliest statute which declared rail- road corporations to be absolutely responsi- ble, independently of negligence, for damages by fire communicated from their locomotive engines to property of others, was passed in Massachusetts in 1840, soon after such en- gines had become common.” Gray, J. St. Louis, etc., R. Co. v. Mathews, 165 U. S. 22. “Fire, while necessary for many uses of civilized man, is a dangerous, volatile and destructive element, which often escapes in the form of sparks, capable of being wafted afar through the air, and of destroying ariy combustible property on which they fall; and which, when it has once gained headway, can hardly be arrested or controlled. Rail- road corporations, in order the better to carry out the public object of their creation, the sure and prompt transportation of pas- sengers and goods, have been authorized by statute to use locomotive engines propelled by steam generated by fires lighted under those engines. It is within the authority of the legislature to make adequate provision for protecting the property of others against loss or injury by sparks from such engines. The right of the citizen not to have his property burned without compensation is no less to be regarded than the right of the corporation to set it on fire. To require the utmost care and diligence of the rail- read corporations in taking precautions against the escape of fire from their engines might not afford sufficient protection to the owners of property in the neighborhood of the railroads. When both parties are equally faultless, the legislature may properly con- sider it to be just that the duty of insur- ing private property against loss or injury caused by the use of dangerous in- struments should rest upon the railroad com- pany, which employs the instruments and cteates the peril for its own benefit, rather 760 FISH AND FISHERIES. than upon the owner of the property, who has no control over or interest in those instru- ments.” Gray, J. St. Louis, etc, R. Co. v. Mathews, 165 U. S. 26. -—— Proximate Cause. “Tf a building be set on fire by negligence, and an adjoining building be destroyed with- out any negligence of the occupants of the first, no one would doubt that the destruc- tion of the second was due to the negli- gence that caused the burning of the first. Yet in truth, in a very legitimate sense, the immediate cause of the burning of the second was the burning of the first. The same might be said of the burning of the furniture in the first. Such refinements are too minute for rules of social conduct.” Strone, J. Milwaukee, etc., R. Co. v. Kel- logg, 94 U. S. 476. Governmental Duty to Prevent Destruc- tion by Fire. “The duty of protecting, so far as may be, all property within the state against destruc- tion by fire, is a public and governmental duty, which rests upon the government of the state; and it does not cease to be a duty of that character because the state has dele- gated it to, or permitted it to be performed by, a municipal corporation. When intrusted by the legislature to a municipal corpora- tion, a political division of the state, it is not for peculiar benefit of that corporation or division, but for its benefit in common with the whole public. A fire department is established in a municipality, not merely for the protection of buildings and property within the municipality itself, but equally for the protection of buildings and property beyond its limits, to which a fire originating within those limits may be in danger of spreading. Moreover, the necessity and ap- propriateness of the course and measures to be taken to stay a conflagration must be promptly determined, in the first instance, by those charged with the performance of the duty at the time of the exigency, and often cannot be accurately judged of long after the fact.” Gray, J., dissenting. Work- man v. New York City, 179 U. S. 585. “The duty of the state to protect the property of all from destruction by fire covers vessels in its harbors, as well as buildings within its territory. The authority of the fire department and its members as to both kinds of property is derived from the municipal law, and not from the mari- time law. All the shipping, foreign and do- mestic, in.the port, is under the same safe- guard, and subject to the same risks. Prompt, decisive and unembarrassed action of the firemen is necessary to the protection of both buildings and vessels from the dan- gers of a conflagration.” Gray, J., dissenting. Workman v. New York City, 179 U. S. 590. “The putting out of fires which are in danger of spreading is for the benefit of the whole public, and for the protection of the property of all. The danger is so great and imminent that it is especially one of those cases in which the public safety must be preferred to private interests. Salus po- puli suprema lex.’ Gray, J., dissenting. Workman v. New York City, 179 U. S. 585. Destruction of Property to Prevent Spread. “At the common law every one had the right to destroy real and personal property, in cases of actual necessity, to prevent the spreading of a fire, and there was no respon-. sibility on the part of such destroyer, and remedy for the owner.” Swayne, J. Bow- ditch v. Boston, 101 U. S. 18. “By our law, indeed, either public officers or private persons may raze houses to pre- vent the spreading of a conflagration. But this right rests on public necessity, and no one is bound to compensate for or to con- tribute to the loss, unless the town or neigh- borhood is made liable by express statute.” Gray, J. Ralli v. Troop, 157 U. S. 405. “Tt is the public good, the general wel- fare, that justifies the destruction of neigh- boring buildings to prevent the spreading of a fire which as yet rages in one building only.” Gray, J., dissenting. Workman vw. New York City, 179 U. S. 585. FISH AND FISHERIES. See ANIMALS; GAME. Property in Fish. “When the fisherman drags by his net fish from the sea, he has a property in them, of which no one is permitted to despoil him.” Fietp, J., dissenting. Spring Valley Water Works v. Schottler, 110 U. S. 374. Preservation of Fish and Fisheries. “The preservation of fish, even although they are not used, as food for human beings, but as food for other fish which are so used, is for the common benefit.” Briatcurorp, J. Manchester v. Massachusetts, 189 U. S. 265. “The pertinent observation may be made that, as Congress does not assert, by legis- 761 FISH AND. FISHERIES. lation, a right to control pilots in the bays, inlets, rivers, harbors, and ports of the United States, but leaves the regulation of that matter to the states, . so, if it does not assert by affirmative legislation its right or will to assume the control of menhaden fisheries in such bays, the right to control such fisheries must remain with the state which contains such bays.” BLATCHForRD, J. Manchester v. Massachusetts, 139 U. S. 266. “The preservation of fish . .. has always been treated as within the proper domain of the public power, and laws prescribing the time and man- ner in which fish may be caught, have been repeatedly upheld by the courts.” Brown, J. Lawton wv. Steele, 152 U. S. 138. “The duty of preserving the fisheries of a state from extinction, by prohibiting ex- haustive methods of fishing, or the use of such destructive instruments as are likely to result in the extermination of the young as well as the mature fish, is as clear as its power to secure to its citizens, as far as possible, a supply of any other wholesome food.” Brown, J. Lawton wv. Steele, 152 U.S. 189. Protection of Fishery Rights. “Rivers, though not navigable for boats or rafts, and even smaller streams of water, may be and often are regarded as public rights, subject to legislative control, as the means for creating power for operating mills and machinery, or as the source for furnish- ing a valuable supply of fish, suitable for food and sustenance. Such water power is everywhere regarded as a public right, and fisheries of the kind, even in waters not navigable, are also so far public rights that the legislature of the state may ordain and establish regulations to prevent obstructions to the passage of the fish, and to promote the usual and uninterrupted enjoyment of the right by the riparian owners.” CLIFFORD, J. Holyoke Water-Power Co. v. Lyman, 15 Wall. 506. “Water rights of the kind, whether the streams are used for mill purposes or merely as fisheries, are justly entitled to public protection, and they are in many cases of great value to the community where they exist, but they are the source of many con- flicting interests which the state legislatures as well as the courts have fotnd it difficult to adjust, as appears from the countless efforts which have been made in that behalf without complete success.” CxiFForD, J. Holyoke Water-Power Co. v. Lyman, 15 Wall. 507. “Evidently the right of fishery, as well as the right to use the water of a stream for mill purposes, is the subject of private ownership, and when held by a good title, the one as much as the other is a vested right; and both alike are entitled to pub- lic protection, and are subject, in a certain sense, to legislative regulation and control.” CuirForD, J. Holyoke Water-Power Co. v. Lyman, 15 Wall. 512. “Laws of the kind, requiring the owners of dams across the rivers and streams of the state [Massachusetts] to build fishways and keep them in repair, have been passed, in numerous instances, since the state Con- stitution was adopted, many of which are still in force. Such laws usually require the owners of the dam to build the fishway at their own expense, and subject their doings in that behalf to the approval of some supervisory board or committee.” CutrForp, J. Holyoke Water-Power Co. v. Lyman, 15 Wall. 513. “Fish rights below a dam, constructed without passageways for the fish, are lidble to be injured by such a structure as well as those owned above the dam, as the mi- gratory fish, if they cannot ascend to the head of the stream at their accustomed sea- sons will soon cease to frequent the stream at all, or in greatly diminished numbers.” Cuirrorv, J. Holyoke Water-Power Co. wv. Lyman, 15 Wall. 519. Several, Common, and Exclusive Fisheries. “A several fishery and a common fishery are utterly incompatible with each other. The former is founded upon and annexed to the right of soil, And when that right of soil is acquired by an individual, the several fishery begins, and the common fish- er, ends.” THompson, J., dissenting. Mar- tin v. Waddell, 16 Pet. 430. “Prima facie a fishery in a navigable river is common, and he who sets up an exclusive right, must show title either by grant or prescription.” THompson, J., dis- senting. Martin v. Waddell, 16 Pet. 424. “All grants of land, whether dry land or coveted with water, are for great public purposes subject to the control of the sov- ereign power of the country. So the grant of the soil under water, which carries with it a several fishery, is subject to the use of the water for the public purposes of navigation, and passing and repassing; but 762 FORECLOSURE OF MORTGAGES. / it is nowhere laid down as the law of the land, that a several fishery is a part of the jus publicum, and open to the use of the pub- lic. So long as the fishery remains un- granted, it is common, and may be used by the public; but when granted to indi- viduals, it becomes private property as much as any other subject whatever; and I think the law is too well settled, that a fishery may be the subject of a private grant, to be at this day drawn in question.” Tompson, J., dissenting. Martin v. Waddell, 16 Pet. 426. “Tf lands under water can be granted and are actually granted, the grantees must of course acquire all the right to the use and enjoyment of such lands of which they are susceptible as private property, as much so as the dry land; and there can be no grounds for any implied reservation of un- granted rights in the one case more than in the other; and the grant of the soil carries with it, of course, all the uses to which it may be applied, among which is an exclusive or several fishery.” THomeson, J., dissenting. Martin v. Waddell, 16 Pet. 426. “With respect, however, to the right of fishery, there is in my judgment a marked distinction, both in reason and authority, between the right in relation to floating fish, and the right of dredging for oysters. The latter is entirely local and connected with the soil. There are natural beds of oysters, but in other places there is a peculiar soil, adapted to the growing of oysters. They are planted and cultivated by the hand of man like other productions of the earth; and the books in many cases clearly hold up such a distinction, and speak of the oyster fishery as distinct from that of floating fish.” Tuompson, J., dissenting. Martin v. Wad- dell, 16 Pet. 433. “The Planting of Oysters in the Soil Covered by Water Owned in Common by the People of the State is not different in principle from that of planting corn upon dry land held in the same way. Both are for the purposes of cultivation and ‘profit; and if the state, in the regulation of its public domain, can grant to its citizens the exclusive use of dry lands, we see no rea- son why it may not do the same thing in respect to such as covered by water. And as all concede that a state may grant to one of its citizens the exclusive use of a part of the common property, the conclu- sion would seem to follow that it might by appropriate legislation confine the use of the whole to its own people alone.” Warre, C. J. McCready v. Virginia, 94 U. S. 396, “The Cases Are Innumerable in Which Actions of Trespass Have Been Sustained for Fishing in a Several Fishery (which is the exclusive right to fish in one’s own waters, or is derived therefrom by grant); or in which the action of trespass has been defended by the plea of common of fishery (which is the right to fish in the waters of another). The right of public fishery is never mentioned except in connection with tidewaters where the title to the land is in the crown. It is never said that this right exists in lakes or ponds, or in any other fresh waters.” Brapiey, J. Hardin v. Jordan, 140 U. S. 389. FIXTURES. Distinction Between Trade and Agricul- tural Fixtures. “The distinction is certainly a nice one between fixtures for the purposes of trade, and fixtures for agricultural purposes; at least in those cases where the sale of the pro- duce constitutes the principal object of the tenant, and the erections are for the purpose of such a beneficial enjoyment of the es- tate.” Srory, J. Van Ness v. Pacard, 2 Pet. 144. Right to Remove Trade Fixtures. “Tt is difficult to conceive that any fix- ture, however solid, permanent and closely attached to the realty, placed there for the mere purposes of trade, may not be removed at the end of the term.” Brown, J. Wig- gins Ferry Co. v. Ohio, etc., R. Co., 142 U. S. 416. FOOD. See Potice Power. FORBEARANCE. “A suspension of an existing demand is frequently of the utmost importance to a debtor, and it constitutes one of the oldest titles of the law under the head of for- bearance, and has always been considered a sufficient and valid consideration.” CLIFForD, J. Goodman y. Simonds, 20 How. 370. And see CONSIDERATION. FORECLOSURE OF MORTGAGES. See Eguity oF REDEMPTION ; MorTGAGES. Remedies Available to Mortgagee on De- fault. “He [a mortgagee] may file a bill to fore- close in one court, sue at law to recover his 763 FORECLOSURE OF MORTGAGES. debt in another, and bring an action of eject- ment to recover possession of the mort- gaged premises in a third. Each of such courts will see in the end that its process is not abused and that no wrong is done to the debtor.” Swayne, J. Christmas v. Russell, 14 Wall. 83. “In the present state of the law, where there is no prohibition by statute, it is com- petent for the mortgagee to pursue three remedies at the same time. He may sue on the note or obligation, he may bring an action of ejectment, and he may file a bili for foreclosure and sale.” Swayne, J. Gilman v. Illinois, etc, Tel. Co. 91 U. S. 616. “A mortgagee, or any one holding under him, may recover possession of the mort- gaged premises, after default, on this action [ejectment], unless it appears that the debt has been paid, or is extinguished, or the mortgage security for good cause held in- effectual to pass the title.” Neztson, J. Smith v. Kernochen, 7 How. 217. ‘ “Tf seizure and sale of mortgaged prop- erty do not result in full satisfaction of the debt, suit has to be brought on the primary security in order to recover the balance.” Braptey, J. Gordon v. Gilfoil, 99 U. S. 175. : Nature of Foreclosure Proceedings. “A bill to foreclose a mortgage and en- force the sale of the mortgaged property has no analogy to an action of trover, detinue, or trespass. The claim of the mortgagee is a “jus ad rem’ nota ‘jus in re” He does not claim as owner of the property. The pos- session of the mortgagor is not adverse, but under the mortgagee. And, although this species of realty is movable, and may be car- ried away or fraudulently concealed from the pursuit of the mortgagee, such acts can- not be alleged in a court of equity as an adverse possession, which will defeat the lien of the creditor after two years, in anal- ogy to the limitation of actions at law for tak- ing and carrying away or converting to one’s own use the property of another.” Grier, J. Louisiana Union Bank v. Stafford, 12 How. 341. -——cCourt Does Not Merely Effectuate Agreements of Mortgagee and Mort- gagor. “We may observe that a court, assuming in foreclosure proceedings the charge of railroad property by a receiver, can never rightfully become the mere silent registrar of the agreements of mortgagee and mort- gagor.” Brewer, J. Louisville Trust Co. w. Louisville, etc., R. Co., 174 U. S. 688. — Jurisdiction to Determine Priorities. “A court of equity, in a suit for the fore- closure of a mortgage, clearly has cognizance of all questions relating to priority of lien on the property in litigation, as between the parties to the suit and those whom they lawfully represent. The mode in which the jurisdiction shall be exercised is not so much a matter of substance as of form.” Brapiey, J. U. S. v. New Orleans, etc, R. Co., 12 Wall. 364. — Rights of All Persons in Interest Considered, “Tt is a fact of common knowledge, that, whatever the legal rights of the parties may be, ordinarily foreclosures of railroad mort- gages mean not the destruction of all inter- est of the mortgagor and a transfer to the mortgagee alone of the full title, but that such proceedings are carried on in the in- terests of all parties who have any rights in the mortgaged property, whether as mortgagee, creditor or mortgagor.” Brewer, J. Louisville Trust Co. v. Louisville, etc., R. Co. 174 U. S. 683. — Rights of Person Claiming Adversely to Mortgagor and Mortgagee Not Con- sidered. “Tt is well settled that in a foreclosure proceeding the complainant cannot make a person who~claims adversely to both the mortgagor and mortgagee a party, and liti- gate and settle his rights in that case.” Swayng, J. Hitchcock v. Galveston, 96 U. S. 341. “As a general rule, a court of equity, in a suit to foreclose a mortgage, will not under- take to determine the validity of a title prior to the mortgage and adverse to both mort- gagor and mortgagee; because such a con- troversy is independent of the controversy between the mortgagor and the mortgagee as to the foreclosure or redemption of the mortgage, and to join the two controversies in one bill would make it multifarious.” Gray, J. Hefner v. Northwestern L. Ins. Co., 123 U. S. 751. “Tt goes without saying that the proceed- ing in the foreclosure of an ordinary mort- gage on real estate is simple and speedy. No one need be considered except the mortgagor and mortgagee, and if they concur in the disposition of the foreclosure it is sufficient, 764 FORECLOSURE OF MORTGAGES. and the court may properly enter a decree in accordance therewith. Other parties, al- though claiming rights in antagonism to both or either mortgagor or mortgagee, may be considered outside the scope of the fore- closure, and whatever rights they may have may properly be relegated to independent suits.” Brewer, J. Louisville Trust Co. v. Louisville, etc., R. Co., 174 U. S. 682. Right of Junior Mortgagee to Foreclose. “A court of equity [in foreclosure] on the application of a junior incumbrancer, will provide for the sale of the entire encum- bered property, if the circumstances of the case show that the interests of the mortgagor . and of the incumbrancers require the sale.” BuiatcHFrorD, J. Shepherd v. Pepper, 133 U.S. 650. — Lien of Senior Mortgage Not Dis- placed by Sale. “Priority of lien certainly gave priority of legal right, just as in the case of a first and second mortgage. Either may pro- ceed in the case of mortgage, where the condition is broken, to foreclose; but if the second mortgagee proceeds first, his decree of foreclosure does not supersede or im- pair the rights of the first mortgagee, nor did the proceedings of the plaintiff to en- force the lien of his judgment have any effect whatever to supersede or displace the prior lien under which the defendants claim.” CiirForp, J. Howard v. Milwaukee, etc., R. Co., 101 U. S. 845. “The sale of the property by one having only a subsequent lien will not supersede or displace a prior lien held by another; and it is equally clear that a sale in’ equity under a prior lien will not impair any rights which belong to the holder of the subse- quent lien, if the latter duly asserts his rights in proper season.”” CiiFForD, J. . How- ard v. Milwaukee, etc., R. Co., 101 U. S. 847. Necessary Parties — Mortgagor Who Has Parted with Interest in Property. “The general rule is that a mortgagor who has parted with his interest in the mort- gaged premises need not be a party in a suit for foreclosure, unless he has warranted the title to his assignee.” Swayne, J. Rob- ertson v. Carson, 19 Wall. 105. — Senior Mortgagee. “As a general rule, a prior mortgagee is not a necessary party to a bill to foreclose a junior mortgage, where the decree sought . is only for a foreclosure of the equity of redemption from the prior mortgage, and not of the entire property or estate.’ Gray, J. Woodworth v. Blair, 112 U. S. 11, “To a bill in equity to foreclose a second. mortgage, although the first mortgagee is not a usual or necessary party when the decree sought and rendered is subject to his mort- gage, yet, at least when he holds the legal title, and his debt is due and payable, he may —and, when the property is ordered to be sold free of all incumbrances, must — be made a party; and if he is, and the bill contains sufficient allegations, he is barred by the decree, the bill in such case being in effect both a bill to foreclose the second mortgage and a bill to redeem from the first mortgage.” Gray, J. Hefner v. North- western L. Ins. Co., 123 U. S. 754. —— Junior Mortgagee. Subsequent incumbrances, when not made parties to a bill for foreclosure or sale, are not bound by the decree.” CuiFForp, J. Howard v. Milwaukee, etc., R. Co., 101 U. S. 848. “Tt by no means follows that the decree of sale in equity is void because a second incumbrancer is not made a party to the proceeding, as it is clear that his lien re- mains in full force notwithstanding the de- cree of sale entered pursuant to such a pro- ceeding.” CiiFForp, J. Howard v. Milwau- kee, etc, R. Co. 101 U. S. 849. Trustee under Railroad Mortgage Represents Bondholders. “As a rule the trustee of a railroad mort- gagee represents the bondholders in all legal proceedings carried on by him affecting his trust to which.they are not actually par- ttes.” Wate, C. J. Cleveland First Nat. Bank v. Shedd, 121 U. S. 86. Necessity of Proving Debt. “To enforce his mortgage, the mortgagee must prove his debt, and he can recover only to the extent of what he proves.” Waite, C. J. Wood v. Weimar, 104 U. S. 793. — Mortgage Bonds of Corporation. “In cases of corporate mortgages the bonds are often widely scattered, owned in foreign countries, or by persons totally ig- norant that a suit for foreclosure is in progress. Months and even years might be required to produce them all. The practice has been to order a decree for foreclosure and sale without their production.” Brown, J. Dick- erman v. Northern Trust Co., 176 U. S. 194. 765 FORECLOSURE OF MORTGAGES. “When, after a sale, the case is referred to a master for proof of claims against the proceeds of sale, they [corporate bonds] must of course be brought into court for payment and cancellation, and the title of each holder must then be proved.” Brown, J. Dickerman v. Northern Trust Co., 176 U.S. 194. — Right of Mortgagor to Be Heard as to Existence of Debt. “The owner of the property, whether the original mortgagor or his successor in inter- est, has the same right to be heard respect- ing the existence of the debt or other obli- gation alleged before the property can be sold, which at common law the owner of the equity of redemption had to be heard before the foreclosure of his equity could be decreed.” Fietp, J. Terrell v. Allison, 21 Wall. 293. Defenses to Foreclosure Proceedings. “If the debt secured by a mortgagee be justly due, it is no defense to a foreclosure that the mortgagee was animated by hos- tility or other bad motive.” Brown, J. Dickerman v. Northern Trust Co., 176 U. S. 190. “This [purchase without notice] was never held to be a defense to a bill to fore- close a mortgage.” Jounson, J. Mutual Assur. Soc. v. Watts, 1 Wheat. 287. Presumption that Mortgage Has Been Discharged. “Where the mortgagee brings his bill of foreclosure, the mortgage will, after the same length of time [twenty years] be pre- sumed to have been discharged unless there be circumstances to repel the presumption, as payment of interest, a promise to pay, an acknowledgment by the mortgagor that the mottgage is still existing and the like.” McLean, J. Slicer v. Pittsburgh Bank, 16 How. 580. Appointment of Receiver. “The remedy last mentioned [foreclosure sale] was resorted to in the state court by the mortgagees in the second mortgage, those in the first having been made parties, and that mortgage thus brought before the court. That court, therefore, had full jurisdiction as to the rights of all the parties touching both instruments, It would have been com- petent for the court im limine, upon a proper showing, to appoint a receiver, and clothe him with the duty of taking charge of the road and receiving’its earnings, with such limit of time as it might see fit to prescribe. It might have done the same thing subse- quently, during the progress of the suit, When the final decree was made, a receiver might have been appointed, and required to receive all the income and earnings until the sale was made and confirmed, and pos- session delivered over to the vendee.” Swayne, J. Gilman v. Illinois, etc. Tel. Co., 91 U. S. 616, “A receivership is not essential to a [mortgage] foreclosure and sale, and the court is charged, when an application there- for is made, with the duty of inquiring whether, under all the circumstances, con- sidering the interests of the parties and the public, it is wise and proper to take pos- session of the property. It may in its judg- ment be necessary to appoint a_ receiver without prescribing any terms. It may be that the interests of the parties or the pub- lic require that the appointment shall be made subject to certain conditions.” Brewer, J. Bosworth v. St. Louis Terminal Road Assoc., 174 U. S. 187. Decree — Nature of Foreclosure Decree. “Tt often happens that the debt is not fully ascertained when a decree for sale and foreclosure is made; as where there are many outstanding bonds which have to be called in and verified. The sale in such cases is frequently made in advance, and the proceeds brought into court for distri- bution amongst those who may appear to be entitled thereto; all which shows that a decree of foreclosure is a very different thing from a personal decree or judgment for the debt.” Braprezy, J. Kountze v. Omaha Hotel Co., 107 U. S. 393. “The mere delay of the sale for the pur- poses of an appeal does not operate to the legal injury of the mortgagee. It does not suspend execution for the debt; he has no right to such an execution by the decree of foreclosure and sale. It is not a decree against the person, and cannot be enforced by an execution against goods and lands gen- erally. It is simply a decree for the sale of the land mortgaged, in order that the proceeds may be applied to the debt. The amount due is ascertained by the decree, it is true, but only for the purpose of deter- mining the amount of charge on the land. The debt may be prosecuted by a personal action against the debtor, and this may be the defendants in the suit, of some other person. The rule of court by which a per- sonal decree may, in some cases, be entered 766 FORECLOSURE OF MORTGAGES, up against the mortgagor for the residue of the debt, after the proceeds arising from the sale of the land have been applied, is a recent rule intended to obviate the necessity of a separate action. It has not changed the essential nature of the decree for foreclosure and sale.” Braptey, J. Kountze v. Omaha Hotel Co., 107 U. S. 393. -——Decree for Instalments of Debt Ma- turing After Institution of Suit. “Tt is true, that where a mortgage has been given to secure a debt payable in instal- ments, and a bill has been filed for fore- closure and sale, upon a default as to one, the decree may require payment of all! instal- ments then due, though maturing since the institution of the suit.” Matruews, J. Chi- cago, etc., R. Co. v. Fosdick, 106 U. S. 74. —Final Decree from Which Appeal May Be Taken. “Tn foreclosure suits it has been held that a decree which settles all the rights of the parties and leaves nothing to be done but to make a sale and pay over the proceeds is final for the purposes of an appeal. The reason is that in such a case the sale is the execution of the decree of the court, and simply enforces the rights of the parties as finally adjudicated.” Warre, C. J. Green v. Fisk, 103 U. S. 520. Sale — Property Located in More than One State. “Multitudes of bridges span navigable streams in the United States, streams that are boundaries of two states. These bridges are often mortgaged. Can it be that they cannot be sold as entireties by the decree of a court which has jurisdiction of the mortgagors?” Srtronc, J. Muller v. Dows, 94 U. S. 449. — Reporting Sale for Confirmation. “In an equity foreclosure in a Circuit Court, while the requirements of the state law should be complied with and the forms of proceeding pursued as nearly as prac- ticable, it is proper for the officer who makes the sale to make a report or return to the court for confirmation. Resistance to’ such confirmation may be made, under circum- stances, and this sometimes results in the setting aside of the sale and an order for a resale.” Futter, C. J. Nalle v. Young, 160 U. S. 637. — Setting Aside Sale Made under Deed of Trust. “The doctrine is well settled, that the option to avoid such a sale [under a deed of trust] must be exercised within a reason- able time. This has never been held to be any determined number of days or years as applied to every case, like the statute of limitations, but must be decided in each case upon all the elements of it which affect that question. These are generally the pres- ence or absence of the parties at the place of the transaction, their knowledge or igno- rance of the sale and of the facts which render it voidable, the permanent or fluctu- ating character of the subject-matter of the transaction as affecting its value, and the actuial rise or fall of the property in value during the period within which this option might have been exercised. In fixing this period in any particular case, we are but little aided by the analogies of the statutes of limitation; while, though not falling ex- actly within the rule as to time for rescind- ing, or offering to rescind, a contract by one of the parties to it for actual fraud, the analogies are so strong as to give to this latter great force in the consideration of the case. In this class of cases the party is bound to act with reasonable diligence as soon as the fraud is discovered, or his right to rescind is gone. No delay for the purpose of enabling the defrauded party to speculate upon the chances which the future may give him of deciding profitably to himself whether he will abide by his bargain, or rescind it, is allowed in a court of equity.” Murer, J. Twin-Lick Oil Co. v. Marbury, 91 U. S. 591. Purchase by Mortgage Bondholders, “ Permission to bondholders who are mort- gagees to purchase at a sale of the mort- gaged property and to pay by their bonds is not only usual, but it is highly advanta- geous to all persons who have an interest.” Strone, J. Ketchum v. Duncan, 96 U. S. 673. “We notice . . . that railroad mort- gages, or trust deeds, are ordinarily so large in amount that on foreclosure thereof only the mortgagees, or their repesentatives, can be considered as probable purchasers. While exceptional cases may occur, yet this is the rule, as shown by the actual facts of fore- closure proceedings, as well as one which might be expected from the value of the property and the amount of the mortgage.” Brewer, J. Louisville Trust Co. v. Louisville etc, R. Co., 174 U. S. 683. — Liability of Purchasers for Debts of Old Corporation. “Tt is a well-established principle that the mere purchase of a railway under a fore- 767 FOREIGN CORPORATIONS. closure sale by a new corporation does not of itself make such new corporation liable for the obligations of the old one.” Brown, J. Wiggins Ferry Co. v. Ohio, etc, R. Co., 142 U. S. 407. FOREIGN CORPORATIONS. I. DEFINITION. II. Corporations Have No Extra- TERRITORIAL EXISTENCE. III. Power to Hotp Rea Estate. ITV. Exercise or Powers OUTSIDE OF Domicitiary JURISDICTION DE- PENDENT ON CoMITY. V. Domestic STATUTES RESTRICTING Ricut To Do BuSINEss. 1. In General. 2. Discriminating Between Domestic and Foreign Corporations. 3. Excluding Foreign Corporations From the State. 4. Imposing Conditions on Right to Do Business. VI. DomESTICATION OF FOREIGN Cor- PORATIONS. VII. Actions By anp AGAINST For- EIGN CORPORATIONS. CROSS-REFERENCES. As to statutes interfering with the right of citizens to contract with foreign cor- porations, see Liserty. And see generally CorPoraTIoNs. I. DEFINITION. “All corporations in states other than the state of its creation are deemed to be for- eign corporations.” Fretp, J. Horn Silver Min. Co. v. New York, 143 U. S. 314. II. CORPORATIONS HAVE NO EX- TRATERRITORIAL EXISTENCE. Rule Stated. “A corporation can have no legal exist- ence outside of the sovereignty by which it was created. Its place of residence is there, and can be nowhere else. Unlike a natural person, it cannot change its domicil at will, and, although it may be permitted to trans- act business where its charter does not oper- ate, it cannot on that account acquire a resi- dence there.” Davis, J. Germania Fire Ins. Co, v. Francis, 11 Wall. 216. “The corporation being the mere creation of local law, can have no legal existence be- yond the limits of the sovereignty where created.” Fie.p, J. Paul v. Virginia, 8 Wall. 181, “A corporation can have no legal exist- ence beyond the limits of the sovereignty which created it.” Fre.p, J., dissenting. Pensacola Tel. Co. v. West., etc., Tel. Co., 96 U. S. 19. Doing Business Abroad Does Not Change Citizenship. “The [corporations’] charters are the law of their existence, and are taken wherever they go. By doing business away from their legal residence they do not change their citizenship, but simply extend the field of their operations. They reside at home, but do business abroad.” Warts, C. J. Balti- more, etc., R. Co. v. Koontz, 104 U.S. 11. “Tt is . . . true that a corporation is, for purposes of jurisdiction in the fed- eral courts, conclusively presumed to be a citizen of the state which created it, but it does not follow therefrom that its franchise to be is for all purposes to be regarded as confined to that state. For the transaction of its business it goes into various states, and wherever it goes as a corporation it carries with it that franchise to be. But the franchise to be is only one of the franchises of a corporation. The franchise to do is an independent franchise, or rather a combina- tion of franchises, embracing all things which the corporation is given power to do, and this power to do is as much a thing of value and a part of the intangible property of the corporation as the franchise to be. Franchises to do go- wherever the work is done.” Brewer, J. Adams Express Co. v. Ohio, 166 U. S. 224. “The ruling of the Supreme Court of Mis- souri, that corporations created by other states do not become residents of Missouri by engaging in business in that state, agrees with the rulings of the federal courts.” BiatcurorD, J. New York, etc. R. Co. v. Estill, 147 U. S. 610. III. POWER TO HOLD REAL ESTATE. “We can discover no sound reason why a corporation existing in England may not as well hold real property in the United States, as ordinary trustees for charitable, or other purposes, or as natural persons for 768 FOREIGN CORPORATIONS. their own use.” WasHINGToN, J. Society v. New Haven, 8 Wheat. 490. IV. EXERCISE OF POWERS OUT- SIDE OF DOMICILIARY JURIS- DICTION DEPENDENT ON COM- ITY. General Rule. ““A corporation is the mere creation of a local law, and can have no legal existence -beyond the limits of the sovereignty where created, and the recognition of its existence in other states and the enforcements of its contracts made therein depend purely upon the comity of those states.” McKenna, J. Waters-Pierce Oil Co. v. Texas, 177 U. S. 45. “Money is frequently borrowed in one state, by a corporation created in another. The numerous banks established by different states are in the constant habit of contract- ing and dealing with one another. Agencies for corporations engaged in the business of insurance and of banking have been estab- lished in other states, and suffered to make contracts without any objection on the part of the state authorities. These usages of commerce and trade have been so general and public, and have been practiced for so long a period of time, and so generally acqui- esced in by the states, that the court cannot overlook them when a question like the one before us is under consideration. The silence of the state authorities, while these events are passing before them, show their assent to thé ordinary laws of comity which per- mit a corporation to make contracts in an- other state.” Taney, C. J. Augusta Bank v. Earle, 13 Pet. 590. “ A corporation cannot change its residence or its citizenship. It can have its legal home only at the place where it is located by or under the authority of its charter; but it may by its agents transact business unless prohibited by its charter or excluded by local laws.” Warts, C. J. Ex p. Schollenberger, 96 U. S. 377. “An individual may, without asking per- mission of state authorities, do business where he pleases, and, if a citizen of one state, he is entitled to all the privileges and immunities of citizens of the several states. . . Not so with corporations. Their iahits outside the state, under the authority of which they are created, depend primarily on their charters, If the charter allows it, they may exercise their chartered privileges 1 Os, Dic.—49 in any other state which, by express grant or by implication, permits them to do so. They have no absolute right of recognition in any other state than their own.” Waite, C. J. Baltimore, etc., R. Co. v. Koontz, 104 U.S. 11. “Tt [a corporation] cannot migrate nor change its residence without the consent, ex- press or implied, of its state; but it may transact business wherever its charter allows, unless prohibited by local laws.” Wailte, C. J. Baltimore, etc., R. Co. v. Koontz, 104 U.S. 12. Exceptions to General Rule. “The principle that the right of a foreign corporation to engage in business within a state other than that of its creation, depends solely upon the will of such other state, has been long settled, and many phases of its application have been illustrated by the de- cisions of this court. Whilst there are exceptions to this rule, they embrace only cases where a corporation created by one state rests its right to enter another and to engage in business therein upon the fed- eral nature of its business. As, for instance, where it has derived its being from an Act of Congress, and has become a lawful agency for the performance of governmental or quasi-governmental functions, or where it is necessarily an instrumentality of interstate commerce, or its business constitutes such commerce, and is, therefore, solely within the paramourit authority of Congress. In these cases, the exceptional business is pro- tected against interference by state authority. The reasons upon which the exceptions to the general rule are based have been often explained.” Wuurte, J. Hooper v. California, 155 U. S. 652. Right to Revoke License to Foreign Cor- poration. “A license to a foreign corporation to enter a state does not involve a permanent right to remain, subject to the laws and Consti- tution of the United States. Full power and control over its territories, its citizens, and its business, belong to the state.” Hunt, J. Doyle v. Continental Ins. Co., 94 U. S. 541. Right of Private Citizen to Enjoin Foreign Corporation from Doing Business. “Upon principle of comity, the corpora- tions of one state are permitted to do busi- ness in another, unless it conflicts with the law, ot unjustly interferes with the rights of the citizens of the state into which they come. Under such circumstances no citizen 769 FOREIGN CORPORATIONS. of a state can enjoin a foreign corporation from pursuing its business.” Waite, C. J. Pensacola Tel. Co. v. West. etc., Tel. Co., 96 U. S. 18. Validity of Contracts. “Tt is a matter of history, which this court are bound to notice, that corporations, created in this country, have been in the open practice for many years past, of mak- ing contracts in England of various kinds, and to very large amounts; and we have never seen a doubt suggested there of the validity of these contracts, by any court or any jurist.” Taney, C. J. Augusta Bank v. Earle, 13 Pet. 590. “It is impossible to imagine that any court in the United States would refuse to execute a contract, by which an American corporation had borrowed money in Eng- land; yet if the contracts of corporations made out of the state by which they were created, are void, even contracts of that de- scription could not be enforced.” Taney, C. J. Augusta Bank v. Earle, 13 Pet. 590. “Tt has been decided in many of the state courts, we believe in all of them where the question has arisen, that a corporation of one state may sue in the courts of another. If it may sue, why may it not make a con- tract? The right to sue is one of the powers which it derives from its charter. If the courts of another country take notice of its existence as a corporation, so far as to allow it to maintain a suit, and permit it to exer- cise that power; why should not its exist- ence be recognized for other purposes, and the corporation permitted to exercise an- other power which is given to it by the same law and the same sovereignty — where the last mentioned power does not come in conflict with the interest or policy of the state?” Taney, C. J. Augusta Bank v. Earle, 13 Pet. 591. Estoppel of Foreign Corporation to Deny Validity of Contracts. “Tt is generally true that a corporation exists only within the territory of the juris- diction that created it. But it is well settled that a corporation may, by its agents, make contracts and transact business in another territory, and may sue and be sued therein. It may hold land in another territory so long: as the local authorities do not object. .And we see no reason why it should not be estopped by the action of its directors in another ter- ritory, when that action isthe basis of nego- tiations by which third parties have bona fide parted with their money and the company has received the benefits of the transaction. A contrary doctrine would authorize a com- pany to take advantage of its wrong, and would seriously impair the negotiability and value of such securities.” Brap.ey, J. Gal- veston, etc, R. Co. v. Cowdrey, 11 Wall. 476. V. DOMESTIC STATUTES RE- STRICTING RIGHT TO DO BUSI- NESS. 1. In GENERAL. Discretion of States. “They [the states] may exclude the for- eign corporation entirely, they may restrict its business to particular localities, or they may exact such security for the perform- ance of its contracts with their citizens as in their judgment will best promote the pub- lic interest. The whole matter rests in their discretion.” Fietp, J. Paul v. Virginia, 8 Wall. 181. “The state of California has the power to exclude foreign insurance companies alto- gether from her territory, whether they were formed for the purpose of doing a fire or a marine business. She has the power, if she allows any such companies to enter her con- fines, to determine the conditions on which the entry shall be made. And, as a necessary consequence of her possession of these powers, she has the right to enforce any conditions imposed by her laws as prelimi- nary to the transaction of business within her confines by a foreign corporation, whether the business is to be carried on through officers or through ordinary agents of the company, and she has also the further right to prohibit a citizen from’ contracting within her jurisdiction with any foreign company which has not acquired the privilege of engaging in business therein, either in his own behalf or through. an agent em- powered to that end. The power to exclude embraces the power to regulate, to enact and enforce all legislation in regard to things done within the territory of the state which may be directly or incidentally requisite in order to render the enforcement of the con- ceded powers efficacious to the fullest ex- tent, subject always, of course, to the para- mount authority of the Constitution of the United States.” Wuutsr, J. Hopper v. Cal- ifornia, 155 U. S. 655. Presumption. ; “Because two states have adopted a par- ticular policy in relation to the banking cor- 770 FOREIGN CORPORATIONS. porations of other states, we cannot pre- sume that the same rule prevails in all of the other states. Each state must decide for itself.” Taney, C. J. Augusta Bank w, Earle, 13 Pet. 597. 2. DIscRIMINATING BETWEEN DoMEs- TIC AND FOREIGN CORPORATIONS, Power Clearly Established. “The power of the state to discriminate between her own domestic corporations and those of other states, desirous of transacting business within her jurisdiction, is clearly established.” NeEtson, J. Ducat v. Chicago, 10 Wall. 415. Illustrations. “Aside from the demand made by the statutes of certain states of deposits by for- eign corporations to secure home creditors, there are frequent illustrations of discrimina- tion based upon the matter of residence. Often non-resident plaintiffs are required to give security for costs when none is de- manded of resident suitors. Attachments will lie in the beginning of an action, author- izing the seizure of property upon the ground that the defendant is a non-resident, when no such seizure is permitted in case of resi- dent defendants. These and many similar illustrations, which might be suggested, only disclose that it has been accepted as a gen- eral truth that a state may discriminate on the ground of residence, and that such dis- crimination is not to be condemned as one between citizens.” Brewer, J., dissenting. Blake v. McClung, 172 U. S. 266. 8. ExcLupING FoREIGN CORPORATIONS FROM THE STATE. General Rule. “A state has the right to exclude foreign insurance companies within its jurisdiction.” Warts, C. J., dissenting. Home Ins. Co. v. Morse, 20 Wall. 458. “Tt is quite competent, no doubt, for Colo- rado to prohibit a foreign corporation from acquiring a_domicil in that state, and to prohibit it from carrying on within that state its business of manufacturing machin- ery. But it cannot prohibit it from selling in Colorado, by contracts made there, its machinery manufactured elsewhere, for that would be to regulate commerce among the states.” Matruews, J. Cooper Mfg. Co. v. Ferguson, 113 U. S. 737. “This court has held that a state may prescribe the conditions upon which the cor- porations of other states, not engaged in interstate commerce, may do business within its jurisdiction; indeed, may exclude such corporations altogether from its limits.” Hartan, J., dissenting. Hooper v. Califor- nia, 155 U. S. 660. “To shut these institutions [corporations] out of neighboring states would not only cripple their energies, but would deprive the people of those states of the benefits of their enterprise. The needs of the country require that corporations — at least those of a com- mercial or financial character—should be able to transact business in different states. If these states can, at will, deprive them of - the right to resort to the courts of the United States, then, in large portions of the coun- try, the government and laws of the United States may be nullified and rendered inop- erative with regard to a large class of transactions constitutionally belonging to their jurisdiction.” Bravery, J., dissenting. Doyle v. Continental Ins. Co., 94 U. S. 544, Corporations Engaged in Interstate Com- merce. “Tt is well settled by numerous decisions of this court, that a state cannot, under the guise of a license tax, exclude from its ju- risdiction a foreign corporation engaged in interstate commerce, or impose any burdens upon such commerce within its limits.” La- MAR, J. Novfolk, etc. R. Co. v. Pennsyl- vania, 136 U. S. 118. “The state cannot exclude from its limits a corporation engaged in interstate or for- eign commerce.” Fretp, J. Horn Silver Min. Co. v. New York, 143 U. S. 314. “A state cannot exclude from its limits a corporation engaged in interstate or for- eign commerce, or a corporation in the em- ployment of the general government, either directly in or indirectly by the imposition of inadmissible conditions. Nevertheless the state may subject it to such property taxa- tion as only incidentally affects its occupa- tion, as all business, whether of individuals or corporations, is affected by common gov- ernmental burdens.” Futier, C. J. Postal Tel. Cable Co. v. Adams, 155 U. S. 696. 4, IMPOSING CONDITIONS ON RIGHT TO Do BUSINESS. Right to Impose Conditions. “ The insurance business, for example, can- not be carried on in a state by a foreign corporation without complying with all the conditions imposed by the legislation of that 74. FOREIGN CORPORATIONS. state. So with regard to manufacturing cor- porations, and all other corporations whose business is of a local and domestic nature, which would include express companies whose business is confined to points and places wholly within the state.” Bravery, J. Crutcher v. Kentucky, 141 U. S. 59. “There is no doubt of the power of the state to prohibit foreign insurance companies from doing business within its limits. The state can impose such conditions as it pleases upon the doing of any business by those companies within its borders, and unless the conditions be complied with the prohibition may be absolute.” PrckHam, J. Allgeyer v. Louisiana, 165 U. S. 583. “That a state may keep such a corpora- tion [foreign corporation] out of its territory is conceded; and that, in permitting it to enter, the state may impose such conditions as it sees fit, is, as a general proposition, also admitted.” Brewer, J., dissenting. Blake v. McClung, 172 U. S. 264. “The power of a state to impose condi- tions upon foreign corporations is certainly as extensive as the power over domestic corporations.” McKenna, J. Orient Ins. Co. v. Daggs, 172 U. S. 566. “A state has the undoubted power to prohibit foreign insurance companies from making contracts of insurance, marine or other, within its limits, except upon such conditions as the state’ may prescribe, not interfering with interstate commerce.” Gray, J. Nutting v. Massachusetts, 183 U. S. 556. “Of course, speaking generally, a state may impose conditions on its own and for- eign corporations.” Haran, J., dissenting. Fidelity Mut. L. Assoc. v. Mettler, 185 U. S. 332, “A corporation of one state cannot do business in another state without the latter’s consent, express or implied, and that con- sent may be accompanied with such condi- tions, as it may think proper to impose.” Fretp, J. St. Clair v. Cox, 106 U. S. 356. “Tt is well settled that corporations of one state may exercise their faculties in another, so far, and on such terms, and to such ex- tent as may be permitted by the latter.” Swayne, J. Baltimore, etc, R. Co. v. Har- ris, 12 Wall. 82. Conditions Alterable at Pleasure of State. “Having the right to impose such terms as it may see fit upon a corporation of this kind [a foreign corporation] as a condition upon which it will permit the corporation to do business within its borders, the state is not thereafter and perpetually confined to those conditions which it made at the time that a foreign corporation may have availed itself of the right given by the state, but it may alter them at its pleasure.” PrcKHam, J. Connecticut Mut. L. Ins. Co. v. Sprat- ley, 172 U. S. 621. Conditions Must Not Conflict with Con- stitution or Laws of United States. “Tn all the cases in which this court has considered the subject of the granting by a state to a foreign corporation of its con- sent to the transaction of business in the state, it has uniformly asserted that no con- ditions can be imposed by the state which are repugnant to the Constitution and laws of the United States.” BriatrcHrorp, J. Barron v. Burnside, 121 U. S. 200. “Though a state may have the power, if it sees fit to subject its citizens to the incon- venience, of prohibiting all foreign corpora- tions from transacting business within its jurisdiction, it has no power to impose un- constitutional conditions upon their doing so. Total prohibition may produce suffering, and may manifest a spirit of unfriendliness to- wards sister states; but prohibition, except under conditions derogatory to the jurisdic- tion and sovereignty of the United States, is mischievous, and productive of hostility and disloyalty to the general government. If a state is unwise enough to legislate the one it has no constitutional power to legis- late the other.” Braptey, J., dissenting. Doyle v. Continental Ins. Co., 94 U. S. 543. “In my judgment the power of excluding foreign corporations from doing business within its limits, by agents, cannot be ex- erted by the state so as to impair or destroy the constitutional rights of its own people or of citizens of other states.” Haran, J. dissenting. Hooper v. California, 155 U. S. 664. “Tt is one thing for a state to forbid a particular foreign corporation, or a particu- lar class of foreign corporations, from doing business at all within its limits. It is quite another thing for a state to admit or license foreign corporations to do business within its limits and then subject them to some statutory provision that is repugnant to the Constitution of the United States.” Har- LAN, J., dissenting. Fidelity Mut. L. Assoc. v. Mettler, 185 U. S. 332, 772 FOREIGN CORPORATIONS. “The defendant company was doing busi- ness in Texas under a license issued by the state. By accepting such license, the com- pany did not agree to submit to any local regulation that was repugnant to the Con- stitution of the United States. It could re- sist the enforcement of any regulation or statutory provision that was inconsistent with rights secured to it by that instrument.” Haran, J,, dissenting. Fidelity Mut. L. Assoc. v. Mettler, 185 U. S. 335. —Must Not Impair Contracts. “We recognize the power of the state to impose conditions upon foreign corporations doing business in the state. We have affirmed the existence of that power many times, but manifestly it cannot be exercised to discharge the citizens of the state from their contract obligations.” McKenna, J. Bedford v. Eastern B. & L. Assoc., 181 U. S. 241, —-Must Not Interfere with Interstate Commerce. “ Whatever power may be conceded to a state, to prescribe conditions on which for- eign corporations may transact business with- in its limits, it cannot be admitted to extend so far as to prohibit or regulate commerce among the states; for that would be to in- vade the jurisdiction which, by the terms of the Constitution of the United States, is conferred exclusively upon Congress.” Matruews, J. Cooper Mfg. Co. wv. Fergu- son, 113 U. S. 736. “The construction, claimed for the consti- tution of Colorado, and the statute of that state passed in execution of it, cannot be extended to prevent the plaintiff in error, a corporation of another state, from transact- ing any business in Colorado, which, of itself, is commerce. The transaction in question was clearly of that character. It was the mak- ing of a contract in Colorado to manufacture certain machinery in Ohio, to be there de- livered for transportation to the purchasers in Colorado. That was commerce; and to pro- hibit it, except upon conditions, is to regulate commerce between Colorado and Ohio; which is within the exclusive province of Congress.” Martruews, J. Cooper Mfg. Co. v. Fergu- son, 113 U. S. 736. Constructive Notice of Conditions. “Every one dealing with a foreign cor- poration is bound to take notice of the statutes of the state imposing conditions upon that corporation in respect to the transaction of its business within the state, just as he must take notice of any mortgage or other incumbrance placed by the corporation upon its property there situated.” Brewer, J., dis- senting. Blake v. McClung, 172 U. S. 264. “Tf voluntarily the [foreign] corporation placed a mortgage upon all its assets within the state to secure a debt to a single cred- itor residing within the state, and such mort- gage was duly recorded, no one would have the hardihood to say that a resident or citi- zen of another state could challenge its valid- ity or its priority over his unsecured debt simply because he was a citizen of another state, or did not, in fact, know of its ex- istence. And that which is true in case of a mortgage to a single creditor would be equally true in case such foreign corporation placed a mortgage upon its assets to secure every creditor within the state. The num- ber of creditors secured does not change the validity of the security or affect the matter of notice or relieve the foreign creditor from the consequences of notice.” Brewer, J., dissenting. Blake v. McClung, 172 U. S. 264. Corporation Doing Single Act of Business. “The Constitution requires the foreign corporation to have one or more known places of business in the state before doing any business therein. This implies a purpose at least to do more than one act of business. For a corporation that has done but a single act of business, and purposes to do no more, cannot have one or more known places of business in the state. To have known places of business it must be carrying on or intend- ing to carry on business. The statute passed to carry the provision of the Constitution into effect makes this plain, for the certifi- cate which it requires to be filed by a for- eign corporation must designate the principal place in the state where the business of the corporation is to be carried on.” Woops, J. Cooper Mfg. Co. v. Ferguson, 113 U. S. 734. Specific Conditions Held Valid — Liability to Suit. “It [a corporation] cannot migrate, but may exercise its authority in a foreign terri- tory upon such conditions as may be pre- scribed by the law of the place. One of these conditions may be that it shall consent to be sued there. If it do business there it will be presumed to have assented and will be bound accordingly.” Swayne, J. Balti- more, etc., R. Co. v. Harris, 12 Wall. 81. “Tt may be admitted that any state by its own laws requires, as a condition precedent 1738 FOREIGN CORPORATIONS. to the right of a corporation to be organized, or to transact business, within its territory, that it shall appoint an agent there on whom process may be served; or even that every stockholder in the corporation shall appoint an agent upon whom, or designate a dom- icil at which, service may be made within the state, and that, upon his failure to make such appointment ot designation, the service may be made upon a certain public officer, and that judgment rendered against the cor- poration after such service shall bind the stockholders, whether within or without the state. In such cases, the service is held binding because the corporation, or the stock- holders, or both, as the case may be, must be taken to have consented that such service within the state shall be sufficient and bind- ing; and no individual is bound by proceed- ings who is not a stockholder.” Gray, J. Wilson v. Seligman, 144 U. S. 45. “Tf a state permits a foreign corporation to do business within her limits, and at the same time provides that in suits against it for business there done, process shall be served upon its agents, the provision is to be deemed a condition of the permission; and corpora- tions that subsequently do business in the state are to be deemed to assent to such con- dition as fully as though they had specially authorized their agents to receive service of such process.” Fretp, J. St. Clair v. Cox, 106 U. S. 356. “The state may . . . impose as a con- dition upon which a foreign corporation shall be permitted to do business within its lim- its, that it shall stipulate that in any litiga- tion arising out of its transactions in the state, it will accept as sufficient the service of process on its agents or persons specially designated; and the conditions would be eminently fit and just. And such condition and stipulation may be implied as well as expressed.” Fretp, J. St. Clair v. Cox, 106 U. S. 356. — Liability to Taxation. “Having the absolute power of excluding the foreign corporation, the state may, of course, impose stich conditions upon permit- ting the corporation to do business within its limits as it may judge expedient; and it may make the grant or privilege dependent upon the payment of a specific license tax, or a sum proportioned to the amount of its capital. No individual member of the corpo- ration, or the corporation itself, can call in questiof the validity of any exaction which the state may require for the grant of its privileges.” Freip, J. Horn Silver Min. Co. v. New York, 143 U. S. 315. “Undoubtedly, state taxation of interstate commerce, directly placed upori the articles or subjects of such commerce, or upon the necessary means of their transportation, may be used to restrict or regulate such com- merce, and, more than once, this court has been obliged to pronounce invalid state legis- lation respecting such matters. On the other hand, we have frequently had occasion to show that the existence of federal super- vision over interstate commerce and the con- sequent obligation upon the federal courts to protect that right of control from en- croachment on the part of the states, are not inconsistent with the power of each state to control its own interstate commerce, and to tax the franchises, property, or business of its own corporations engaged in such com- merce, nor with its power to tax foreign corporations on account of their property within the state.” Surras, J. New York, etc., R. Co. v. Pennsylvania, 158 U. S. 437. — Requirement of Mortgage to Secure Domestic Creditors. “Tf the [foreign] corporation may volun- tarily place a mortgage upon all its assets within the stateto secure its creditors ,within the state, why may not the legislature re- quire as a condition of its doing business that it give such a mortgage? Is the cor- poration more powerful than the state? Is a voluntarily executed mortgage more valid than a statute?” Brewer, J., dissenting. Blake v, McClung, 172 U. S, 265. VI. DOMESTICATION OF FOREIGN CORPORATIONS. “Nor do we see any reason why one state may not make a corporation of another state, as there organized and conducted, a corpora- tion of its own, quo ad hoc any property within its territorial jurisdiction.” Swayne, J. Baltimore, etc, R. Co. v. Harris, 12 Wall. 82. “This court has often recognized that a corporation of one state may be made a cor- poration of another state by the legislature of that state, in regard to property and acts within its territorial jurisdiction.” Gray, J. Louisville, etc, R. Co. v. Louisville Trust Co., 174 U. S. 562. “The power of corporations of other states to become corporations, or to constitute themselves a consolidated corporation, under the Ohio statutes, and thus avail of the rights T74 FOREIGN CORPORATIONS. given thereby, is as completely dependent on the will of that state as is the power of its individual citizens to become a corporate body, or the power of corporations of its own creation to consolidate under its laws.” Waite, J. Ashley v. Ryan, 153 U. S. 442. VII. ACTIONS BY AND AGAINST FOREIGN CORPORATIONS. Right to Sue. “In England, from which we have re- ceived our general principles of jurispru- dence, no doubt appears to have been enter- tained of the right of a foreign corporation to sue in its courts.’ Taney, C.J. Augusta Bank v. Earle, 13 Pet. 590. “A corporation may sue in a foreign state, by its attorney there; and if it fails in the suit, be subject to a judgment for costs.” Curtis, J. Lafayette Ins. Co. v. French, 18 How. 407. Liability to Be Sued. “Tt is well settled that a corporation of one state doing business in another is suable where its business is done, if the laws make provision to that effect.” Warrs, C. J. Bal- timore, etc., R. Co. v. Koontz, 104 U. S. 10. “In the courts of the United States, it is held, that a corporation of one state doing business in another, is suable in the courts of the United States established in the latter state, if the laws of that state so provide, and in the manner provided by those laws.” BiatcuForD, J. New England Mut. L. Ins. Co. v. Woodworth, 111 U. S. 146. “The liability of a foreign corporation to be sued in a particular jurisdiction need not be distinctly expressed in the statutes of that jurisdiction, but may be implied from a grant of authority in those statutes to carry on its business there.” Gray, J. Barrow Steam- ship Co. v. Kane, 170 U. S. 108. “In England, the right of a foreign cor- poration doing business in England to sue in the English courts was long ago, recog- nized ; and its liability to be subjected to suit in those courts, by service made upon one of its principal officers residing and representing it within the realm, has been fully established by recent decisions. In the courts of several states of the Union, the like view has prevailed. The courts of New York and Massachusetts, indeed, have declined to take jurisdiction of suits against foreign cor- porations, except as far as it has been ex- pressly conferred by the statutes of the state. But the jurisdiction of the Circuit Courts of the United States is not created by, and does not depend upon, the statutes of the several states. In the Circuit Courts of the United States, there have been conflicting opinions, but the most satisfactory ones are those of Judge Drummond and Judge Lowell in favor of the liability of for- eign corporations to be sued.” Gray, J. Barrow Steamship Co. v. Kane, 170 U. S. 109. “A vast mass of business is now done throughout the country by corporations which are chartered by states other than those in which they are transacting part of their busi- ness, and justice requires that some fair and reasonable means should exist for bringing such corporations within the jurisdiction of the courts of the state where the business was done, out of which the dispute arises.” Prcxuam, J. Connecticut Mut. L. Ins. Co. v. Spratley, 172 U. S. 619. “Formerly it was held that a foreign cor- poration could not be sued in an action for the recovery of a personal demand outside of the state by which it was chartered.” Freon, J. St. Clair v. Cox, 106 U. S, 354. —Service of Process on Corporation’s Agents. “Serving process on its [a corporation’s] agents in other states, for matters within the sphere of their agency, is, in effect, serving’ process on it as much so as if such agents resided in the state where it was created.” Frexp, J. St. Clair v. Cox, 106 U. S. 356. “The manifest injustice which would en- sue, if a foreign corporation, permitted by a state to do business therein, and to bring suits in its courts, could not be sued in those courts, and thus, while allowed the benefits, be exempt from the burdens of the laws of the state, has induced many states to provide by statute that a foreign corporation mak- ing contracts within the state shall appoint an agent residing therein, upon whom proc- es: may be served in actions upon such con- tracts. This court has often held that wher- ever such a statute exists service upon an agent so appointed is sufficient to support jurisdiction of an action against the foreign corporation, either in the courts of the state, or, when consistent with the Acts of Con- gress, in the courts of the United States held within the state; but it has never held the existence of such a statute to be essential to the jurisdiction of the Circuit Courts of the 75 FOREIGN LAWS. United States.” Gray, J. Barrow Steam- ship Co. v. Kane, 170 U. S. 107. “Tt has been recently held in this court that as to a Circuit Court of the United States, where a corporation is doing business in a state other than the one of its incorpora- tion, service may sometimes be made upon its regularly appointed agents there, even in the absence of a state statute conferring such authority.” PeckHam, J. Connecticut Mut. L. Ins. Co. v. Spratley, 172 U. S. 618. — Appearance by Attorney. “We assume that a foreign cor- poration may appoint an attorney to appear for it when sued in a foreign state, and that a judgment obtained against it, upon such appearance, would be perfect and complete. We are not aware that this proposition has ever been doubted.” Hunt, J., concurring. Tioga R. Co. v. Blossburg, etc, R. Co., 20 Wall. 149. + “If a corporation appear and defend in a foreign state it is bound by the judgment.” Swayne, J. Baltimore, etc, R. Co. v. Har- ris, 12 Wall. 86. — Administration of Assets of Insolvent Corporation. “Beyond question, a state may through judicial proceedings take possession of the assets of an insolvent foreign corporation within its limits, and distribute such assets or their proceeds among creditors according to their respective rights.’ Haran, J. Blake v. McClung, 172 U. S. 247. “Nor must we be understood as saying that a state may not, by its courts, retain within its limits the assets of a foreign cor- poration, in order that justice may be done to its own citizens; nor, by appropriate action of its judicial tribunals, see to it that its own citizens are not unjustly discriminated against by reason of the administration in other states of the assets there of an insol- vent corporation doing business within its limits.” Hartan, J. Blake v. McClung, 172 U. S. 257. FOREIGN COUNTRIES. “A foreign country was defined by Mr. Chief Justice Marshall and Mr. Justice Story to be one exclusively within the sovereignty of a foreign nation, and without the sover- eignty of the United States.” Brown, J. De Lima v. Bidwell, 182 U. S. 180. “In a general sense it [the term foreign] is applied to any person or thing belonging to another nation or country. We call an alien a foreigner, because he is not of the country in which we reside. In a political sense we call every country foreign, which is not within the jurisdiction of the same government. In this sense, Scotland before the union was foreign to England; and Canada and Mexico foreign to the United States. In the United States all transatlantic countries are foreign to us. But this is not the only sense in which it is used. It is ap- plied with equal propriety to an adjacent territory, as to one more remote. Canada or Mexico is as much foreign to us as Eng- land or Spain. And it may be laid down as a general rule, that when used in relation to countries in a political sense, it refers to the jurisdiction or government of the country. In a commercial sense, we call all goods coming from any country not within our own jurisdiction foreign goods. . . . In the diplomatic use of the term [foreign] we call every minister a foreign minister who comes from another jurisdiction or government. And this is the sense in which it is judicially used by this court, even as between the dif- ferent states of this union.” THompson, J., dissenting. Cherokee Nation v. Georgia, 5 Pet 56. “Mexico or Canada is certainly to be con- sidered a foreign country, in reference to the United States. It is the political rela- tion in which one government or country stands to another, which constitutes it for- eign to the other.’ THompson, J., dissent- ing. Cherokee Nation v. Georgia, 5 Pet. 55. “A country ceases to be foreign the instant it becomes domestic.” Brown, J. De Lima v. Bidwell, 182 U. S. 197. “If Congress saw fit to cede one of its newly acquired territories (even assuming that it had the right to do so) to a foreign power, there could be no doubt that from the day of such cession and the delivery of possession, such territory would become a foreign country, and be reinstated as such under the tariff laws.” Brown, J. De Lima v. Bidwell, 182 U. S. 197. FOREIGN LAWS. I. EXTRATERRITORIAL FORCE OF Laws. II. Comiry. II]. JupictaL Cocnizance anv Evt1- DENCE. 776 FOREIGN LAWS. CROSS-REFERENCES. See ConstirutionaAL Law; IMPAIRMENT OF OBLIGATION oF CONTRACTS; INSOLVENCY; JupictaL Notice. I. EXTRATERRITORIAL FORCE OF LAWS. In General. “The laws of the state have no operation outside of its territory, except so far as may be allowed by comity.” Fietp, J. Freeman v. Alderson, 119 U. S. 188. “Laws have no force of themselves be- yond the jurisdiction of the state which en- acts them, and can have extraterritorial effect only by the comity of the states.” Gray, J. Huntington v. Attrill, 146 U. S. 669. “ That the laws of a country have no extra- territorial force is an axiom of international jurisprudence, but things done in one coun- try under the authority of law may be of binding effect in another country.” WalItE, C. J. Canada Southern R. Co. v. Gebhard, 109 U. S, 536. ‘No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. The extent to which the law of one nation, as put in force within its territory, whether by execu- tive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call ‘the comity of nations.’ Al- though the phrase has been often criticised, no satisfactory substitute has been sug- gested.” Gray, J. Hilton v. Guyot, 159 U. S. 163. “The statutory provision of the state of New York in reference to forfeitures has no extraterritorial effect, and does not of itself apply to contracts made by a New York com- pany outside of that state.” Brewer, J. Mutual L. Ins. Co. v. Hill, 193 U. S. 554. Laws of Domicil. “As the law of the domicil of the ward has no extraterritorial effect, except by the comity of the state where the property is situ- ated, or where the guardian is appointed, it cannot of course prevail against a statute of the state in which the question is presented for jurisdiction, expressly ‘applicable to the estate of a ward domiciled elsewhere.” Gray, J. Lamar v. Micou, 112 U. S. 472. Jurisdiction of Court. “Circumstances often exist which render it inexpedient for the court to take jurisdic- tion of controversies between foreigners in cases not arising in the country of the forum; as, where they are governed by the laws of the country to which the parties belong, and there is no difficulty in a resort to its courts; or where they have agreed to resort to no other tribunals.” Braptey, J. The Belgen- land, 114 U. S. 363. Penal Laws. “The courts of no country execute the penal laws of another.” Marsuati, C. J. The Antelope, 10 Wheat. 123. “For the purposes of extraterritorial jurisdiction, it may be that actions by a com- mon informer, called, as Blackstone says, ‘popular actions, because they are given to the people in general,’ to recover a penalty imposed by statute for an offense against the law, and which may be barred by a pardon granted before action brought, may stand on the same ground as suits brought for such a penalty in the name of the state or of its officers, because they are equally brought to enforce the criminal law of the state.” Gray, J. Huntington v. Attrill, 146 U. S. 673. “When a law for the punishment of of- fenses is passed by either the federal or a state government, it can only operate within the proper jurisdiction. The officers of the federal government can take no cognizance of the penal laws of a state; nor can the judiciary of a state, in my opinion, carry into effect the criminal laws of the Union. If this could be done, it would consolidate the jurisdictions of the respective governments, and introduce into our judicial proceedings and utmost confusion.” McLegau, J., dissent- ing. U.S. v. Bailey, 9 Pet. 259. “Personal disabilities imposed by the law of a state, as an incident or consequence of a judicial sentence or decree, by way of pun- ishment of an offender, and not for the benefit of any other person —such as attainder, or infamy, or incompetency of a convict to tes- tify, or disqualification of the guilty party to a cause of divorce for adultery to marry again —are doubtless strictly penal, and therefore have no extraterritorial operation.” Gray, J. Huntington v. Attrill, 146 U. S. 673. “Repeated instances have occurred where suit was brought in one state to enforce the statute liability for the debts of a corporation created by legislature of another state, in all which it is held that the statute is penal, and 177 FOREIGN LAWS. that it can only be enforced in the state where the statute was passed.” CLirForD, J. Steam- Engine Co. v. Hubbard, 101 U. S. 192. “The rule that the courts of no country execute the penal laws of another applies not only to prosecutions and sentences for crimes and misdemeanors, but to all suits in favor of the state for the recovery of pecuniary penalties for any violation of statutes for the protection of its revenue, or other municipal laws, to all judgments for such penalties. If this were not so, all that would be necessary to give ubiquitous effect to a penal law would be to put the claim for a penalty into the shape of a judgment.” Gray, J. Wisconsin v. Pelican Ins. Co., 127 U. S. 290. “By the law of England and of the United States, the penal laws of a country do not reach beyond its own territory, except when extended by express treaty or statute to offenses committed abroad by its own citi- zens and they must be administered in its own courts only, and cannot be enforced by the courts of another country.” Gray, J. Wisconsin v. Pelican Ins. Co., 127 U. S. 289. “Tt is true that if the prosecution in the courts of one country for a violation of its municipal law is in rem, to obtain a for- feiture of specific property within its juris- diction, a judgment of forfeiture rendered after due notice, and vesting the title of the property in the state, will be recognized and upheld in the courts of any other country in which the title to the property is brought in issue. But the recognition of a vested title in property is quite different from the enforcement of a claim for a pe- cuniary penalty. In the one case, a complete title in the property has been acquired by the foreign judgment; in the other, further judicial action is sought to compel the pay- ment by the defendant to the plaintiff of money in which the plaintiff has not as yet acquired any specific right.” Gray, J. Wis- consin v. Pelican Ins. Co., 127 U. S. 291. II. COMITY. General Considerations. “When there is no positive rule, affirming, denying, or restraining the operation of for- eign laws, courts establish a comity for such as are not repugnant to the policy or in con- flict with the laws of the state from which they derive their organization.” Wayne, J. Townsend’‘v. Jemison, 9 How. 416. “To say that we recognize by comity the law of a foreign domicil as controlling the transmission or succession of personal prop- erty because it thereby becomes our law (and the property therefore taxable), as is indicated in some cases, notably in Albany v. Powell, 2 Jones Eq. 51, is misleading and little more than a play upon words. When we speak of our laws we mean to be under- stood as referring to our own statutory laws or the common law we inherited from the mother country, and when we apply the laws of a foreign domicil we do so, not because they are our laws, but because upon principles of comity we recognize those laws as ap- plicable to the particular case. But to speak of such foreign laws as thereby becoming ‘ the intestate laws of any state or territory,’ wherein they are enforced, is practically to confound the whole: distinction between the law of the situs and the law of the domicil.” Brown, J. Eidman v. Martinez, 184 U. S. 591. “By the general practice of civilized coun- tries, the laws of the one, will, by the comity of nations, be recognized and executed in another, where the rights of individuals are concerned. The cases of contracts made in a foreign country are familiar examples.” Taney, C. J. Augusta Bank v. Earle, 13 Pet. 589. “Nations, from convenience and comity, and from mutual interest, and a sort of moral necessity to do justice, recognize and ad- minister the laws of other countries. But, of the nature, extent, and utility, of them, respecting property, or the state and condi- tion of persons within her territories, each nation judges for itself; and is never bound, even upon the ground of comity, to recog- nize them, if prejudicial to her own interests. The recognition is purely from comity, and not from an absolute or paramount obliga- tion.” Netson, J. Scott v. Sandford, 19 How. 460. “In the absence of positive law to the contrary, the will of every civilized state must be presumed to be to allow such effect to foreign laws as is in accordance with the settled rules of international law. And legal tribunals are bound to act on this presump- tion. It may be assumed that the motive of the state in allowing such operation to for- eign laws is what has been termed comity. But, as has justly been said, . . . it is the comity of the state, not of the court. The judges have nothing to do with the motive of the state. Their duty is simply to ascertain and give effect to its will. And when it is found by them that its will to depart from a rule of international law has not been mani- 778 FOREIGN LAWS. fested by the state, they are bound to assume that its will is to give effect to it.” Curtis, J., dissenting. Scott v. Sandford, 19 How. 594. “Tt is true that Congress may, and in cer- tain cases has seen fit to, adopt the laws of a particular state, and apply them within a territory, as was done when Congress applied the laws of Oregon to Alaska, . . . and certain statutes of Nebraska to Oklahoma, ‘ They thereby became the laws of ihose territories as much as if enacted by a territorial legislature, and were universally applicable. But that result follows expressly from the statute, and not from the recogni- tion of the foreign law as applicable to a particular case.” Brown, J. Eidman vw. Martinez, 184 U. S. 592. “ Whatever force or effect the laws of one state or nation may have in the territories of another, must depend solely upon the laws and municipal regulations of the latter, upon its own jurisprudence and polity, and upon its ‘own express or tacit consent.” NeLson, J. Scott v. Sandford, 19 How. 460. “Tt is difficult to conceive of the exercise of national comity, by a state having no na- tional power.” M’Krntey, J., dissenting. Augusta Bank v. Earle, 13 Pet. 599. “In the absence of any positive rule, af- firming, or denying, or restraining the opera- tion of foreign laws, courts of justice pre- sume the tacit adoption of them by their own government, unless they are repugnant to its policy or prejudicial to its interests.” M’Kintey, J., dissenting. Augusta Bank v. Earle, 13 Pet. 599. “The general theory on which an action is maintained upon a cause which accrued in another jurisdiction is that the liability is an obligatio, which, having been attached to the person by the law then having that person within its power, will be treated by other countries as accompanying the person when brought before their courts. But, as the source of the obligation is the foreign law, the defendant, generally speaking, is entitled to the benefit of whatever conditions and limitations the foreign law creates.” HotMeEs, J. Davis v. Mills, 194 U. S. 453. “In more than one case we have had oc- casion to hold that, if a foreign statute be adopted in this country, the decisions of foreign courts in the construction of such statute should be considered as incorporated into it.” Brown, J. Robinson & Co. v. Belt, 187 U. S. 47. “There is no little conflict of authority on the general question as to how far the trans- fer of personal property by assignment or sale, made in the country of the domicil of the owner, will be held to be valid in the courts of the country where the property is situated, when these are in different sover- eignties, And it may be conceded that as a question of comity, the weight of authority is in favor of the proposi- tion that such transfers will generally be re- spected by the courts of the country where the property is located, although the mode of transfer may be different from that pre- scribed by the local law.” Mutier, J. Green v. Van Buskirk, 5 Wall. 311. “Tt is an acknowledged doctrine, that in conflicts of rights, those arising under our own laws, if not superseded in point of time, shall take precedence, §majus jus nostrum quam servemus.’ The obligation of the sov- ereign to enforce his own laws, and pro- tect his own subjects, is acknowledged to be paramount.” JoHNSOoN, J. Smith v. George- town Union Bank, 5 Pet. 526. “In order to maintain an action for an injury to the person or to movable property, some courts have held that the wrong must be one which would be actionable by the law of the place where the redress is sought, as well as by the law of the place where the wrong was done.” Gray, J. Huntington v. Attrill, 146 U. S. 670. “The question how far the transfer of personal property lawful in the owner’s domicil will be respected in the courts of the country where the property is located and a different rule of transfer prevails F is a vexed question, on which learned courts have differed; but after all there is no abso- lute right to have such transfer respected, and it is only on a principle of comity that it is ever allowed. And this principle of comity always yields when the laws and policy of the state where the property is located has prescribed a different rule of transfer with that of the state where the owner lives.” Davis, J. Green v. Van Buskirk, 7 Wall. 150. “The rule is, that whatever is a justifica- tion where the thing is done, must be a justi- fication in the forum where the case is tried.” CAMPBELL, J. Scott v. Sandford, 19 How. 493. “Tt has been held by this court in re- peated cases that an action for such a tort [negligently causing of death] can be main- 779 FOREIGN LAWS. tained ‘where the statute of the state in which the cause of action arose is not in substance inconsistent with the statutes or public policy of the state in which the right of action is sought to be enforced.’” BREWER, J. Stewart v. Baltimore, etc, R. Co. 168 U.S. 448. “Where the statute simply takes away a common-law obstacle to a recovery for an ad- mitted tort,‘ it would seem not unreasonable -to hold that an action for that tort can be maintained in any state in which that common-law obstacle has been removed.” Brewer, J. ‘Stewart v. Baltimore, etc, R. Co., 168 U. S. 448. “Tt is well settled that, where the prop- erty is conveyed to a use which would be protected, if to be executed at home, in the absence of a prohibition, the conveyance would be valid if the execution were ordered to take place abroad.” CAMPBELL, J. Mc- Donogh v. Murdock, 15 How. 414. “Tt must be conceded that the rights and merits of a case may be governed by a different law from that which controls a court in which a remedy may be sought.” Strone, J. The Scotia, 14 Wall. 187. “A judicial tribunal, in one state or na- tion, can recognize personal rights acquired by force of the law of any other state or nation, or so far as it is the law of the former state that those rights should be recognized.” Curtis, J., dissenting. Scott v. Sandford, 19 How. 594. Comity of States. “Tt has been supposed that the rules of comity between foreign nations do not apply to the states of the Union; that they extend to one another no other rights than those which are given by the Constitu- tion of the United States; and that the courts of the general government are not at liberty to presume, in the absence of all legisla- tion on the subject, that a state has adopted the comity of nations towards the other states, as a part of its jurisprudence; or that it acknowledges any rights but those which are secured by the Constitution of the United States. The court think otherwise.” Tawney, C. J. Augusta Bank v. Earle, 13 Pet. 590. “Because the municipal laws of nations cannot operate beyond their respective ter- ritorial limits, and because one nation has no right to, legislate for another, certain rules founded in the law of nature and the im- mutable principles of justice have, for the promotion of harmony and commercial inter- course, been adopted by the consent of civil- ized nations. But no necessity exists for such a law among the several states. In their character of states they are governed by written constitutions and municipal laws.” M’Kintey, J., dissenting. Augusta Bank v. Earle, 13 Pet. 598. “So far as any of them [the states] have acted on this subject, it is evident that they have regarded the comity of contract, as well as the comity of suit, to be a part of the law of the state, unless restricted by statute.” Taney, C. J. Augusta Bank v. Earle, 13 Pet. 591. “The intimate union of these states, as members of the same great political family; the deep and vital interests which bind them so closely together; should lead us, in the absence of proof to the contrary, to presume a greater degree of comity, and friendship, and kindness to one another, than we should be authorized to presume between foreign nations. And when (as without doubt must occasionally happen) the interest or policy of any state requires it to restrict the rule, it has but to declare its will, and the legal presumption is at once at an end. But until this is done, upon what grounds could this court refuse to administer the law of in- ternational comity between these states.” Taney, C. J. Augusta Bank v. Earle, 13 Pet. 590. “By our law, a private action may be maintained in one state, if not contrary to its own policy, for such a wrong done in another and actionable there, although a like wrong would not be actionable in the state where the suit is brought.” Gray, J. Hunt- ington v. Attrill, 146 U. S. 670. “Tt would be a very dangerous doctrine to establish, that in all cases where the several states have substituted the statute for the common law, the liability can be enforced in no other state but that where the statute was enacted and the transaction occurred.” ° Miter, J. Dennick v. New Jersey Cent. R. Co., 103 U. S. 18. \ III. JUDICIAL COGNIZANCE AND EVIDENCE. General Principles. “No court of a state is charged with knowledge of the laws of another state; but such laws are in that court matters of fact, which, like other facts, must be proved be- fore they can be acted upon.” Warts, C. J. Chicago, etc., R. Co. v. Wiggins Ferry Co., 119 U. S. 622. 780 FOREIGN LAWS. “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.” ,Gray, J. Liverpool, etc. Steam Co. v. Phoenix Ins. Co., 129 U. S. 445. “That the laws of a foreign nation, de- signed only for the direction of its own affairs, are not to be noticed by the courts of other countries, unless proved as facts, . . . cannot be questioned.” MARSHALL C. J. Talbot v. Seeman, 1 Cranch 38. “Tt is true, that the existence of a foreign law, written or unwrittten, cannot be judi- cially noticed, unless it be proved as a fact, by appropriate evidence.” Wayne, J. Ennis v. Smith, 14 How. 426. “In most of the states the laws of other states are treated as foreign laws, which must be pleaded and proven.” Wuutrte, J. Union Pac. R. Co. v. Wyler, 158 U. S. 295. “No court is to be charged with the knowledge of foreign laws; but they are well understood to be facts, which must, like other facts, be proved before they can be received in a court of justice. It is equally well settled that the several states of the Union are to be considered as in this respect foreign to each other, and that the courts of one state are not presumed to know, and therefore not bound to take judicial notice of, the laws of another state.” Gray, J. Han- ‘ley v. Donoghue, 116 U. S. 4. “When there is no written law upon the subject, the duty still rests upon the judicial tribunals of ascertaining and de- claring what the law [of a foreign country] is, whenever it becomes necessary to do so, in order to determine the rights of the par- ties to suits regularly brought before them. In doing this, the courts must obtain such aid as they can from judicial decisions, from the works of jurists and commentators, and from the acts and usages of civilized na- tions.” Gray, J. Hilton v. Guyot, 159 U. S. 163. “To require respecting laws or other trans- actions, in foreign countries that species of testimony which their institutions and usages do not admit of would be unjust and un- reasonable. The court will never require such testimony. No testimony will be required which is shown to be unattain- able. But no civilized nation will be pre- sumed to refuse those acts for authenticating instruments which are usual, and which are deemed necessary for the purposes of justice. It cannot be presumed that an application to authenticate an edict by the seal of the nation would be rejected, unless that fact should appear to the court. Nor can it be presumed that any difficulty exists in ob- taining a copy.” MarsHa, C. J. Church v. Hubbart, 2 Cranch 237. “They [consuls] are not the keepers of those laws [of foreign nations]. They can grant no official copies of them. There ap- pears no reason for assigning to their cer- tificate respecting a foreign law any-higher or different degree of credit, than would be assigned to their certificates of any other fact.” MarsHatt, C. J. Church v. Hub- bart, 2 Cranch 237. “The court cannot presume the laws of any country to have been enacted in ter- rorem, nor that they will be disregarded by its judicial authority. Their obligation on their own courts must be considered as com- plete; and without resorting either to public notoriety, or the declarations of our own laws on the subject, the decisions of the French courts must be admitted to have conformed to the rules prescribed by their government.” MarsHaul, C. J. Talbot v. Seeman, 1 Cranch 40. “No court in the universe, which pro- fessed to be governed by principle, would, we presume, undertake to say that the courts of Great Britain, or of France, or of any other nation, had misunderstood their own stat- utes, and therefore erect itself into a tribunal which should correct such misunderstand- ing.’ MarsHa.., C. J. Elmendorf v. Tay- lor, 10 Wheat. 159. “It is admitted that all instruments of writing, whether purporting to be grants or contracts, must be construed by the court. But if the instrument has been executed under foreign laws, and especially if it relate to the realty, parol evidence is heard both in regard to its form and effect. This prin- ciple is as old as the law itself; and it arises from that natural sense of justice, which pervades all systems of jurisprudence.” Mc- Lean, J., dissenting. U. S. v. Philadelphia, 11 How. 654. “And in administering this foreign law [Spanish law], we must ascertain and regard the usages under it, in the acquisition of titles to land. This is a universal principle, ‘respected by all courts, in the administration of justice. Parol evidence must be heard to. establish those usages, in addition to what 781 FORGERY. may appear from the action of the local tribunals.” McLegan, J., dissenting. U.S. v. Boisdore, 11 How. 101. Written Laws. “The written foreign law may be proved, by a copy of the law properly authenti- cated.” Wayne, J. Ennis v. Smith, 14 How. 426. “A foreign written law may be received, when it is found in a statute book, with proof that the book has been officially pub- lished by the government which made the law.” Wayne, J. Ennis v. Smith, 14 How. 429, “The general rule as to the proof of for- eign laws is that the law which is written, that is the statute law, must be proved by a copy properly authenticated and that the unwritten law must be proved by the testi- mony of experts, that is by those acquainted with the law. But this rule may be varied by statute.” Frerp, J. Pierce wv. Indseth, 106 U. S. 551. Statutes Permitting Laws of State to Be Proved. “In most, if not all, of the states of this Union statutes have been passed permitting laws of sister states to be proved simply by production of a book containing what pur- ports to be an authorized edition of such laws printed by state authority.” Brown, J. Nashua Sav. Bank v. Anglo-American Co., 189 U. S. 229. Matter of Fact. “Foreign laws and usages are, as to us, matters of fact, and not matters of law.” Brabwey, J. Dainese v. Hale, 91 U. S. 20. “The evidence of a witness stating what the law of the foreign jurisdiction is, founded upon the terms of a statute, and the de- cision of the courts thereon as to its mean- ing and effect, is really a matter of opinion, although proved as a fact.” PrckHam, J. Finney v. Guy, 189 U. S. 342. “No Witness Can Conclude a Court by His Opinion of the construction and meaning of statutes and decisions already in evidence.” Brewer, J. Eastern Building, etc., Assoc. v. Williamson, 189 U. S. 127. Full Faith and Credit to Judgments. “Whenever it becomes necessary for a court of one state, in order to give full faith and credit to a judgment rendered in another state, to ascertain the effect which it has in that state, the law of that state must be proved, like any other matter of fact.” Gray, J. Hanley v. Donoghue, 116 U. S, 5. FORFEITURES. See Fines, PENALTIES, AND FORFEITURES ; SENTENCE AND PUNISHMENT. FORGERY. As to whether a printed instrument is an instrument in writing, see WRITING; the act of a partner in antedating an instrument executed after dissolu- tion of partnership, see PARTNER- SHIP. See also BANKS AND BANKING; NEGoTIA- BLE INSTRUMENTS. Forgery One of the Crimen Falsi under the Roman Civil Law. “ By the Roman civil law, forgery was looked upon as one of the subdivisions of the crimen falsi, which included forgery, perjury, the alteration of the current coin, dealing with false weights and measures, etc.” Mutter, J. Benson v. McMahon, 127 Uz S. 466. What Constitutes Forgery. “Tt is clearly settled that the mak- ing of a false instrument, which is the sub- ject of forgery, with a fraudulent intent, although in the name of a non-existing per- son, is as much a forgery as if it had been made in the name of a person known to exist, and to whom credit was due. . . . Nor is it material, whether a forged instru- ment be made in such a manner, as that if in truth it were such as it is counterfeited for, it would be of validity or not. . . . Nor is it any answer to the charge of for- gery, that the instrument is not available, by reason of some collateral objection not appearing upon the face of it.” Story, J. U. S. v. Turner, 7 Pet. 137. —— Forgery of Printed or Engraved In- strument. “We are not satisfied that the crime of forgery, even at common law, is limited to the production by means of a pen of the resemblance of some man’s signature which was produced with a pen. This view of the subject would exclude from the defini- tion of this crime all such instruments as government bonds, bank-notes, and other obligations of great value, as well as rail- 782 FRANCHISES. road tickets, where the signature of the officer which makes them binding and effec- tual is impressed upon them by means of a plate or other device representing his genuine signature. It would also exclude from its definition all such instruments charged as forgeries where the similitude of the signer’s name is produced by a plate used by the forger. It can hardly be possible that these are not forgeries within the definition of the common law; and if they are, they show that it is not necessary that the name which ap- pears upon the false instrument shall be placed thereon by means of a pen or by the actual writing of it in script, but that the crime may be committed as effectually if it is done by an engraved plate or type so ar- ranged as to represent or forge the name as made by the actual use of a pen. It is difficult to perceive how the question as to whether the forgery was committed by print- ing, or by stamping, or with an engraved plate, or by writing with a pen, can change the nature of the crime charged.” Mutter, J. Benson v. McMahon, 127 U. S. 467. And see WRITING. Forgery of Promissory Notes Payable at National Banks. “Tts [Congress’s] legislation does not as- sume to restrict the authority, which the states have always exercised, of punishing in their own tribunals the crime of forging promissory notes and other commercial secur- ities executed by private persons, and used for purposes of private business. The for- gery of such instruments is none the less injurious to the welfare of the people of a state because they happen to be made pay- able to or at banking associations which come into existence under the authority of the United States.” Hartan, J. Cross v. N. Carolina, 132 U. S. 139. “If it were competent for Congress to give exclusive jurisdiction to the courts of the United States of the crime of falsely making or forging promissory notes, pur- porting to be executed by individuals, and made payable to or at a national bank, or of the crime of uttering or punishing as true any such falsely made or forged notes, it has not done so.” Hartan, J. Cross v. N. Carolina, 132 U. S. 139. Effect of Forgery on Rights of Parties. “Forgery can confer no power nor transfer any rights.” Fretp, J. Telegraph Co. v. Davenport, 97 U. S. 371. “Tt is always open to show that an in- strument produced in evidence, whether in an action at law or in a suit in equity in support of a claim or defense, was never ex- ecuted by the person whose signature it bears, but that it is a simulated and forged docu- ment. And when the time of execution is material to the enforcement of the instru- ment, it is competent to show the date when the signature of the party was attached. Antedating cannot be used to cut off exist- ing rights or defenses of third parties which would not be impaired or defeated if the true date was given.” Fietp, J. Marsh v. Nichols, etc., Co., 128 U. S. 610. Evidence. “Tn cases of forgery, the party whose name is supposed to have been forged is not a competent witness in England. But a differ- ent course has generally, although perhaps not universally, prevailed in America.” Story, J. U.S. v. Murphy, 16 Pet. 210. FORTHWITH. See TIME. FOURTEENTH AMENDMENT. See Cuinese Exciusion Acts; CITIZENS AND CitizensHip; Civit Ricuts; Costs; Deprive; Due Process or Law; ELEcrions; Eminent Domain; Jury AND Jury TRIAL; Lrperty; Lire; NATURALIZATION; PERSONS; SENTENCE AND PUNISHMENT. ' FRANCHISES. See Corporations; Eminent Domain; Ferries; GAs AND Gas CoMPANIES; GRANTS; MunicipaL CorpoRATIONS; RAILROADS; TAX- ATION, Definition. “A franchise is a privilege conferred in the United States by the immediate or ante- cedent legislation of an act of incorporation, with conditions expressed, or necessarily in- ferential from its language as to the manner of its exercise and for its enjoyment. To ascertain how it is to be brought into ex- istence, the whole charter must be consulted and compared.” Wayne, J. Woods v. Law- rence County, 1 Black 409. “Generalized, and divested of the special form which it assumes under a monarchical government based on feudal traditions, a franchise is a right, privilege or power of public concern, which ought not to be ex- ercised by private individuals at their mere will and pleasure, but should be reserved for public control and administration, either 783 FRANCHISES. by the government directly, or by public agents, acting under such conditions and regulations as the government may impose in the public interest, and for. the public security. Such rights and powers must ex- ist under ever form of society. They are always educed by the laws and customs of the community. Under our system, their ex- istence and disposal are under the control of the legislative department, of the govern- ment, and they cannot be assumed or ex- ercised without legislative authority. No private person can establish a public highway, or a private ferry, or railroad, or charge tolls for the use of the same, without author- ity from the legislature, direct or derived. These are franchises. No private person can take another’s property, even for a public use, without such authority; which is the same as to say, that the right of eminent domain can only be exercised by virtue of a legislative grant. This is a franchise. No persons can make themselves a body corpo- rate and politic without legislative authority. Corporate capacity is a franchise. The list might be continued indefinitely.” BRADLEY, J. California v. Pacific R. Co., 127 U. S. 40. “Tt is clear that the privilege of making a railway or turnpike, or establishing a ferry and taking tolls for the use of the same, is a franchise, as the public have an interest in the same, and the owners of the privilege are liable to answer in damages if they refuse the use of the same, without any reasonable excuse, upon being paid or tendered the usual fare.” C.iFForD, J. People’s Passenger R. Co. v. Memphis R. Co., 10 Wall. 51. “Tt [‘franchise’] is often used as syn- onymous with rights, privileges, and immuni- ties, though of a personal and temporary character; so that, if any one of these exists, it is loosely termed a ‘franchise,’ and is supposed to pass upon a transfer of the fran- chises of the company. But the term must always be considered in connection with the corporation or property to which it is al- leged to appertain.” Fiexp, J. Morgan v. Louisiana, 93 U. S. 223. Power of Congress to Grant Franchises. “The power to construct, or to authorize individuals or corporations to construct, na- tional highways and bridges from state to state, is essential to the complete control and regulation of interstate commerce.” Brap- LEY, J. California v. Pacific R. Co., 127 U.S. 39. Power of States to Grant Franchises. “The [state’s] power to grant [franchises of bridges and ferries] is not limited by any restrictive terms in the Constitution; and it is of course general and unlimited as to the terms, the manner, and the extent of grant- ing franchises. These are matters resting in its sound discretion; and having the right to grant, its grantees have a right to hold, ac- cording to the terms of their grant, and to the extent of the exclusive privileges con- ferred thereby.” Story, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 644. “T cannot understand how any grant of a franchise is a derogation from the rights of the people of the state, any more than a grant of public land. The right, in each case, is gone to the extent of the thing granted, and so far may be said to derogate from, that is to say, to lessen the rights of the people, or of the state.” Story, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 604. “Tt will hardly be contended that every grant of the government is injurious to the interests of the people; or that every grant of a franchise must necessarily be so. The erection of a bridge may be of the highest utility to the people.” Story, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 605. “Whether the grant of a franchise is, or is not on the whole, promotive of the public interest is a question of fact and judgment, upon which different minds may entertain different opinions. It is not to be judicially assumed to be injurious, and then the grant to be reasoned down.” Srory, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 605. Power of Municipal Authorities to Grant Franchises. “Tt is clear that such franchises [granting the right to supply gas or water to a municipality] may be bestowed upon cor- porations by the municipal authorities, pro- vided the right to do so is given by their charters, State legislatures may not only execise their sovereignty directly, but may delegate such portions of it to inferior legis- lative bodies, as, in their judgment, is desir- able for local purposes.” Brown, J. Walla Walla v. Walla Walla Water Co. 172 U.S. 9. “Cases are not infrequent where under a general power to cause the streets of a city to be lighted, or to furnish its inhabitants with a supply of water, without limitation as 784. —e;, FRANCHISES. to time, it has been held that the city has no right to grant an exclusive franchise for a period of years; but these cases do not touch upon the question how far the city, in the exercise of an undoubted power to make a particular contract, can hedge it about with limitations designed to do little more than bind the city to carry out the contract in good faith, and with decent regard for the rights of the other party.” Brown, J. Walla Walla v. Walla Walla Water Co., 172 Uz. S. 18. “The granting of a franchise is not the same thing as a contract, and the exercise of such a power cannot be upheld or vindi- cated as falling within the same rule as the power to make contracts.” CLiFForp, J. People’s Passenger R. Co. v. Memphis R. Co., 10 Wall. 51. Grants of Franchises to Vest in Futuro. “When a charter is given for franchises or property to a corporation, which is to be brought into existence by some future acts of the corporators, such franchises or property are in abeyance until such acts shall have been done, and then they instan- taneously attach.” Wayne, J. Woods uv. Lawrence County, 1 Black 409. Franchises Are Property. “In some states the franchise and _privi- leges of a corporation are declared to be personal property.” Fietp, J. Home Ins. Co. v. New York, 134 U. S. 601. “A franchise for banking is in every state of the Union recognized as property. The banking capital attached to the franchise is another property, owned in its parts by per- sons, corporate or natural.” Waynes, J. Gordon v. Appeal Tax Court, 3 How. 150. “In respect to corporate franchises, they are, properly speaking, legal estates vested in the corporation itself as soon as it is in esse. They are not mere naked powers granted to the corporation, but powers coupled with an interest. The property of the corporation vests upon the possession of its franchises; and whatever may be thought as to the corporators, it cannot be denied that the corporation itself has a legal interest in them. It may sue and be sued for them. Nay, more, this very right is one of its ordinary franchises.” Story, J. Dartmouth College v. Woodward, 4 Wheat. 700. “Corporate franchises are legal estates vested in the corporation itself as soon as it is in esse. They are not mere naked powers 1 Os, Dic.—5o 785 granted to the corporation, but powers coupled with an interest which vests in the corporation upon the possession of its fran- chises, and whatever may be thought of the corporators, it can not be denied that the corporation itself has a legal interest in such franchises.” CLiFForD, J. Savings Soc. wv. Coite, 6 Wall. 606. “In respect to franchises, whether cor- porate or not, which, include a permanency of profits, such as a right of fishery, or to hold a ferry, a market, or a fair, or to erect a turnpike, bank, or bridge, there is no pretense to say that grants of them are not within the Constitution. Yet they may, in point of fact, be of no exchangeable value to the owners. They may be worthless in the market.” Srory, J. Dartmouth College v. Woodward, 4 Wheat. 699. Sanctity of Franchises Essential to En- couragement of Progress. “Tf the government means to invite its citizens to enlarge the public comforts and conveniences, to establish bridges, or turn- pikes, or canals, or railroads, there must be some pledge, that the property will be safe; that the enjoyment will be coextensive with the grant: and that success will not be the signal of a general combination to overthrow its rights, and to take away its profits. The very agitation of a question of this sort, is sufficient to alarm every stockholder in every public enterprise of this sort, throughout the whole country.” Story, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 608. State Cannot Reverse Grant of Franchise. “A state cannot impose a tax on land, granted with an exemption from taxation nor take away a corporate franchise.” BALDwIn, J. U.S. v. Arredonda, 6 Pet. 738. “The distinction between destroying what is denominated the corporate franchise lof a bank], and destroying its vivifying prin- ciple [the right to deal in money], is pre- cisely as incapable of being maintained as a distinction between the right to sentence a human being to death, and a right to sen- tence him to a total privation of sustenance during life.” Marsuatt, C. J. Osborn v. Bank of U. S., 9 Wheat. 862. Power of United States over Franchises Granted by States. “While a grant from one government may supersede and abridge franchises and rights held at the will of its grantor, it cannot abridge any property rights of a public char- FRANCHISES. acter created by the authority of another sov- ereignty.” Brewer, J. St. Louis v. Western Union Tel. Co., 148 U. S. 100. “No matter how broad and comprehensive might be the terms in which the franchise was granted, it would be confessedly subor- dinate to the right of the individual not to be deprived of his property without just compensation. And the principle is the same when, under the grant of a franchise from the national government, a corporation as- sumes to enter upon property of a ptiblic nature belonging to a state.” Brewer, J. St. Louis v. Western Union Tel. Co., 148 U. S. 101. “Although the franchise when granted by the state becomes by the grant the property of the grantee, yet there are some regulations respecting the exercise of such grants which Congress may make under its power to regulate commerce among the several states. This will be conceded by all, the only ques- tion being as to the extent of the power.” PecxHam, J. U.S. v. Joint Traffic Assoc. 171 U. S. 570. Power of States over Franchises Granted by United States. “The state cannot lawfully do anything to impair or cripple the franchise, rights and privileges derived from the United States.” Hartan, J., dissenting. Central Pac. R. Co. v. California, 162 U. S. 165. Rights of Public in Regard to Exercise of Franchises. “Turnpikes, bridges, ferries, and canals, although made by individuals under public grants, or by companies, are regarded as publici juris. The right to exact tolls or charge freights is granted for a service to the public. The owners may be private com- panies, but they are compellable to permit the public to use their works in the manner in which such works can be used.” Srrone, J. Olcott v. Supervisors, 16 Wall. 695. “Railroads, turnpikes, bridges, ferries, are all things of public concern, and the right to erect them is a public right. If it be con- ceded to a private individual or corporation, it is conceded as a public franchise; and the right to take toll is granted as a compensa- tion for erecting the work and relieving the public treasury from the burden thereof. Those who have such franchises are agents of the public. They have, it is true, a pri- vate interest in the tolls; but the works are public, and subject to public regulation, and the entire public has the right to use them.” Brabey, J. Dodge County Com’rs v. Chand- ler, 96 U. S. 208. Right of Individuals to Combine in Ap- plying for Franchises. “Tt would scarcely be doubted that two or more parties may properly unite in a part- nership or corporation and thus unitedly make, in the name of the partnership or cor- poration, a single application for a grant or franchise; and, if they may so unite before any application, it is not easy why they may not so unite after having once made separate applications, providing all the facts and cir- cumstances are fully disclosed and the public authorities act upon full knowledge; and if they may sometimes so unite, an agreement for uniting is not necessarily void.” BREWER, J. Hyer v. Richmond Traction Co., 168 U.S. 477. Exclusive Franchises or Privileges — Power of State to Grant. “Tt is the duty of the government to pro- vide suitable roads, bridges and ferries for the convenience of the public, and if it chooses to devolve this duty to any extent, or in any locality, upon particular individuals or corporations, it may of course stipulate for such exclusive privileges connected with the franchise as it may deem proper, without encroachment upon the freedom or the just rights of others. The grant, with exclusive privileges, of a right thus appertaining to the government, is a very different thing from a grant, with exclusive privileges, of a right to pursue one of the ordinary trades or callings of life, which is a right appertaining solely to the individual.” Fretp, J., dissent- ing. Slaughter-House Cases, 16 Wall. 88. “Tt has been a common practice in all the states to encourage enterprises having for their object the promotion of the public good, such as the construction of bridges, turnpikes, railroads, and canals, by granting for limited periods exclusive priv- ileges in connection with them. Such grants, so far from ‘being deemed encroachments upon any rights or powers of the United States, are held to constitute contracts, and to be within the protecting clause of the Constitution prohibiting any impairing of their obligation.” Frexp, J., dissenting. Pen- sacola Tel. Co. v. Western Union Tel. Co., 96 U.S. 16. “The exclusiveness of a privilege often constitutes the only inducement for under- takings holding out little prospect of imme- diate returns.” Fte.p, J., dissenting. Pen- 786 FRANCHISES. sacola Tel. Co. v. Western Union Tel. Co., 96 U.S. 15. — Are Strictly Construed. “Exclusive rights to public franchises are not favored. If granted, they will be pro- tected, but they will never be presumed. Every statute which takes away from a legis- lature its power will always be construed most strongly in favor of the state.” WatTE, C. J. Wright v. Nagle, 101 U. S. 796. “Grants from the public are strictly con- strued in favor of the public, and grants of a privilege are not ordinarily to be taken as grants of an exclusive privilege.” BREWER, J. L. I. Water Supply Co. v. Brooklyn, 166 U. S. 696. “That such power [of exclusive franchise] must be given in language explicit and ex- press, or necessarily to be implied from other powers, is now firmly fixed. There were many reasons which urged to this — reasons which flow from the nature of the municipal trust —even from the nature of the legis- lative trust, and those which, without the clearest intention explicitly declared — in- sistently forbid that the future should be committed and bound by the conditions of the present time, and functions delegated for public purposes be paralyzed in their exercise by the existence of exclusive privileges.” McKenna, J. Citizens’ St. Ry. Co. v. De- troit Ry., 171 U. S. 53. “ Any grant of power in general terms read literally can be construed to be unlimited, but it may, notwithstanding, receive limita- tion from its purpose — from the general pur- view of the act which confers it.” Mc- Kenna, J. Citizens’ St. Ry. Co. v. Detroit Ry., 171 U. S. 55. “There is great virtue in particular phrases; and when it is once suggested, that a grant is of the nature or tendency of a monopoly, the mind almost instantaneously prepares itself to reject every construction which does not pare it down to the narrowest limits. It is an honest prejudice, which grew up in former times from the gross abuses of the royal prerogatives: to which in America, there are analogous authorities.” Story, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 606. “When the crown grants a ferry from A to B without using any words which import it to be an exclusive ferry, why is it that by the common law the grant is con- strued to be exclusive of all ferries between the same places, or termini; at least, if such ferries are so near that they are injurious to the first ferry, and tend to a direct dimi- nution of its receipts? Plainly, it must be because from the nature of such a franchise it can have no permanent value, unless it is exclusive; and the circumstance that during the existence of the grant, the grantee has public burdens imposed upon him, raises the implication that nothing shall be done to the prejudice of it, while it is a subsisting fran- chise.” Story, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 620. “Tf in the grant of any such franchise of a fair, or market, or ferry, there is no implied obligation or condition that the king will not make any subsequent grant to the prej- udice of such prior grant, or impairing its rights, it is inconceivable why such a pro- viso should not be implied. But, if (as the law certainly is), the king can make no subsequent grant to the prejudice of his former grant, then the reason of such im- plication is clear; for the king will not be presumed to intend to violate his duty, but rather to be deceived in his second grant, if to the prejudice of the first.” Story, J., dissenting.- Charles River Bridge v. Warren Bridge, 11 Pet. 619. — Abolition by New Government. “Upon a change of government, . . . it may be admitted that such exclusive privi- leges attached to a private corporation as are inconsistent with the new government may be abolished.” Srory, J. Terrett v. Taylor, 9 Cranch 51. Franchise of Being a Corporation —Is Distinct from Corporation’s Property. _ “The right and privilege, or franchise, of being a corporation, is of value to its mem- bers and is considered as property separate and distinct from the property which the cor- poration may acquire.” Furer, C. J. Cen- tral Pac. R. Co. v. California, 162 U. S. 127, “The real estate of a corporation is a dis- tinct thing from its franchises. But the right to acquire and sell real estate is a franchise.” Swayne, J. Davis v. Gray, 16 Wall. 228. — Taxability. “A corporation being the mere creature of the legislature, its rights, privileges and powers are dependent solely upon the terms of its charter. Its creation (except where the corporation is sole) is the investing of two or more persons with the capacity to act 787 FRAUD AND DECEIT. as a single individual, with a common name, and the privilege of succession in its mem- bers without dissolution and with a limited individual liability. The right and privilege, or the franchise, as it may be termed, of be- ing a corporation, is of great value to its members, and is considered as property sepa- rate and distinct from the property which the corporation itself may acquire. According to the law of most states this franchise or privilege of being a corporation is deemed personal property, and is subject to separate taxation. The right of the states to thus tax it has been recognized by this court and the state courts in instances without number.” Fietp, J. Horn Silver Min. Co. v. New York, 143 U. S. 312. — Does Not Pass to Foreclosure Pur- chasers of Corporation’s Property. “In a certain sense the franchise to be a corporation does belong to the corporators in so far as it does not pass by a mortgage by the company of its charter and franchises, and a sale under the foreclosure of the mort- gage does not confer on the purchaser the right to be a corporation.” PEckHam, J. New Orleans Debenture, etc., Co. v. Louisi- ana, 180 U. S. 329. Mortgage of Corporation’s Franchises. “The power given to mortgage the fran- chise of . . . [a] corporation must neces- sarily include the power to bring it to sale with the property to make the sale effectual as a means of transferring the right to use the thing conveyed.” Day, J. Julian wv. Central Trust Co., 193 U. S. 106. — Mortgage Sale Passes Franchises to Purchasers. “When there has been a judicial sale of railroad property under a mortgage author- ized by law, covering its franchises, it is now well settled that the franchises necessary to the use and enjoyment of the railroad passed to the purchasers.” Woops, J. New Or- leans, etc, R. Co. v. Delamore, 114 U. S. 510. “A sale under a junior security must be subordinate to one that is prior and para- mount. Successive sales of the same fran- chises can no more be deemed incompatible than successive sales of the same property; and we all know that a sale of land under a judgment does not, in the slightest man- ner, affect a prior mortgage. A subsequent sale of the same land may be made by vir- tue of the latter.” Braptey, J. Galveston, etc., R. Co, v. Cowdrey, 11 Wall. 476. Franchises Subject to Right of Eminent Domain. “The grant of a franchise is of no higher order, and confers no more sacred title, than a grant of land to an individual; and, when the public necessities require it, the one, as well as the other, may be taken for public purposes on making suitable compen- ‘sation; nor does such an exercise of the right of eminent domain interfere with the inviolability of contracts.” Grier, J. Rich- mond, etc., R. Co. v. Louisa R. Co., 13 How. 83. “Tf, in the judgment of the state, the pub- lic interests will be best subserved by an abandonment of the policy of granting ex- clusive privileges to corporations, other than railroad companies, in consideration of ser- vices to be performed by them for the pub- lic, the way is open for the accomplishment of that result, with respect to corporations whose contracts with the state are unaffected by that change in her organic law [purporting to abolish pre-existing corporate monopolies]. The rights and franchises which have be- come vested upon the faith of such con- tracts can be taken by the public, upon just compensation ‘to the company, under the state’s power of eminent domain.” Hartan, J. New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 673. “Nothing is better settled than that the franchise of a private corporation — which in its application to a railroad is the privilege of running it and taking fares and freight — is property, and of the most valuable kind, as it cannot be taken for public use even without compensation.” Davis, J. Wilming- ton, etc., R. Co. v. Reid, 13 Wall. 268. Loss by Nonuser. “A franchise may be lost [by nonuser], nonuser being one of the common grounds assigned as a cause of forfeiture.” Braptey, J. Givenv. Wright, 117 U. S. 656. FRAUD AND DECEIT. See FraAupDULENT SALES AND CONVEY- ANCES; MARRIAGE AND MarrieD WoMEN; MISTAKE. “Epithets do not make out fraud.” Fut- Ler, C. J. Kent v. Lake Superior Ship Canal, etc., Co., 144 U. S. 91. “The Greater the Fraud Intended, the more particular the parties to it often are to proceed according to the strictest forms of 788 FRAUD AND DECEIT. law.” Braptey, J. Graffam v. Burgess, 117 U.S. 186. Nature and Consequence of Fraud. “The right not to be led by fraud to change one’s situation is anterior to and in- dependent of the contract. The fraud is a tort. Its usual consequence is that as be- tween the parties the one who is defrauded has a right, if possible, to be restored to his former position.” Hotmegs, J. National Bank, etc, Co. v. Petrie, 189 U. S. 425. Contention that Mind Affects Body. “Just exactly to what extent the mental condition affects the body, no one can ac- curately and definitely say. One person may believe it of far greater efficacy than another, but surely it cannot be said that it is a fraud for one person to contend that the mind has an effect upon the body and its physical con- dition greater than even a vast majority of intelligent people might be willing to admit or believe, even intelligent people may and indeed do differ among themselves as to the extent of this mental effect.” PrckHam, J. School of Magnetic Healing v. McAnnulty, 187 U. S. 104. Obtaining Money from United States. “A> party who, without right and with guilty knowledge, obtains money of the United States from a disbursing officer, be- comes indebted to the United States, and they may recover the amount.” Swayne, J. U_ S. v. Boston State Nat. Bank, 96 U. S. 35. “Fraud Destroys the Validity of Every- thing into which it enters. It affects fatally even the most solemn judgments and decrees.” Swayne, J. Nudd v. Burrows, 91 U. S. 440. “There is no question of the general doc- trine that fraud vitiates the most solemn contracts, documents, and even judgments.” Miter, J. U.S. v. Throckmorton, 98 U. S. 64. “Fraud, as it is sometimes said, ‘ vitiates every act’ — correctly, too, when properly ap- plied to the subject-matter in controversy and to the parties in it, and in a proper forum.” Wayne, J. Field v. Seabury, 19 How. 331. Transactions and Judgments May Be Set Aside. “The most solemn transactions and judg- ments may, at the instance of the parties, be set aside or rendered inoperative for fraud.” lusion.” Brapbey, J. Johnson v. Waters, 111 U. S. 667. Maxim Void in Part, Void in Toto. “As respects fraud in law as contradis- tinguished from fraud in fact, where that which is valid can be separated from that which is invalid, without defeating the gen- eral intent, the maxim, ‘void in part, void in toto, does not necessarily apply, and te the instrument may be sustained notwithstanding the invalidity of a particular provision.” Futter, C. J. Peters v. Bain, 133 U. S. 688. Liability for Fraud. “Whenever fraud is perpetrated by one party to the injury of another, the offender is liable.” Swayne, J. Nudd v. Burrows, 91 U.S. 440. Solicitude of Courts. “Parties engaged in a fraudulent intent to obtain a neighbor’s property are not the objects of the special solicitude of the courts. If they are caught in their own toils, and are themselves the sufferers, it is a legitimate consequence of their violation of the rules of law and morality. Those who violate these laws must suffer the penalty.” Hunt, J. Neblett v. Macfarland, 92 U. S. 105. “A Fraudulent Concealment is the sup- pression of something which the party is bound to disclose.” Swayne, J. Magee vw. Manhattan L. Ins. Co., 92 U. S. 98. “The Test [as to Fraudulent Conceal- ment] is, whether one of the parties know- ingly suffered the other to deal under a de- Swayne, J. “Magee v. Manhattan L. Ins. Co., 92 U. S. 99. Silence — Parties. ; “In dealing with a man, whose rights, without his knowledge, but which by due diligence he might know, are passing away by lapse of time into another’s hands, the lat- ter may, perhaps, justify himself in the eye of the law (though not in conscience) in preserving a wary and crafty silence, so as to put his victim off his guard and bring him into his own power, whilst he would be per- fectly inexcusable in taking such advantage of a woman, unskilled in business, and un- used to the stratagems which are sometimes resorted to by unscrupulous persons.” Brap~ LEY, J. -Graffam v. Burgess, 117 U. S. 185. Silence and Concealment Distinguished. i In an action of deceit, it is true that silence as to a material fact is not necessarily, 789 FRAUD AND DECEIT. as matter of law, equivalent to a false repre- sentation. But mere silence is quite differ- ent from concealment; aliud est tacere, aliud celare; a suppression of the truth may amount to a suggestion of falsehood; and, if with in- tent to deceive, either party to a contract of sale conceals or suppresses a material fact, which he is in good faith bound to disclose, this is evidence of and equivalent to a false representation, because the concealment or suppression is in effect a representation that what is disclosed is the whole truth. The gist of the action is fraudulently producing a false impression upon the mind of the other party; and if this result is accomplished, it is unimportant whether the means of ac- complishing it are words or acts of the de- fendant, or his concealment or suppression of material facts not equally within the knowl- edge or reach of the plaintiff.” Gravy, J. Stewart v. Wyoming Ranch Co., 128 U. S. 388, “To Render the General Allegation of Concealment Sufficient in a pleading, it is necessary also to aver that the creditor either procured the surety’s signature, or was present when the instrument was executed, and then misrepresented or concealed essen- tial facts which should have been disclosed; otherwise the allegation of fraud is only the pleader’s deduction.” Swayne, J. Magee vu Manhattan L. Ins. Co., 92 U. S. 99. Fraudulent Representations. “The general principles applicable to cases of fraudulent representation are well settled. Fraud is never presumed; and where it is alleged the facts sustaining it must be clearly made out. The representation must be in regard to a material fact, must be false and must be acted upon by the other party in ignorance of its falsity and with a reasonable belief that it was true. It must be the very ground on which the transaction took place, although it is not necessary that it should have been the sole cause, if it were prox- imate, immediate and material.” FuLter, C.J. Farrar v. Churchill, 135 U. S. 615. “The Affirmation of What One Does Not Know or Believe to Be True, is equally in morals and law, as unjustifiable as the affirmation of what is known to be positively false. And even if the party in- nocently misrepresents a fact by mistake, it is equally conclusive; for it operates as a surprise and imposition on the other party.” Bargour, J. Smith v. Richards, 13 Pet. 36. Silence Amounting to False Representa- tion. “Silence may be under some circumstances equivalent to false representation.” FULLER, C. J. Farrar v. Churchill, 135 U. S. 616. Promissory Statements. “To make a false representation the sub- ject of an indictment, or of an action, two things are generally necessary, viz. that it should be a statement likely to impose upon one exercising common prudence and caution, and that it should be the statement of an existing fact. A promissory statement is not, ordinarily, the subject of either an indict- ment or of an action.” Huwnt, J. Sawyer v. Prickett, 19 Wall. 160. “The law gives a different effect to a rep- resentation of existing facts, to that given to a representation of facts to come into ex- istence.” Hunt, J. Sawyer v. Prickett, 19 Wall. 160. ; “The law .. gives a different effect to those promissory statements based upon general knowledge, information, and judg- ment, and those representations which, from knowledge peculiarly its own, a party miay certainly know will prove to be true or false.” Hunt, J. Sawyer v. Prickett, 19 Wall. 160. Inducing Another to Withdraw Products from Sale. “A manufacturer may by superior energy, or enterprise, supply all the buyers of a par- ticular article, and thus leave no market for similar articles manufactured by others. But he may not fraudulently or by deceitful rep- resentations induce another to withhold from sale his products without being answerable for the injury occasioned by the fraud.” Strone, J. Butler v. Watkins, 13 Wall. 463. Misrepresentation of Law. “That a misrepresentation or misunder- standing of the law will not vitiate a con- tract, where there is no misunderstanding of the facts, is well settled.” Hunt, J. Upton v. Tribilcock, 91 U. S. 50. “False and Fraudulent Representations upon the Sale of Real Property may un- doubtedly be ground for an action for dam- ages, 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 priv- ileges connected with it, or the rents and 790 FRAUD AND DECEIT. profits derived therefrom.” Fie.p, J. An- drus v. St. Louis Smelting Co., 130 U. S. 648. “A Mistaken Opinion of the Value of the Property, if honestly entertained, and stated as opinion merely, unaccompanied by an assertion, or statement, untrue jn fact, can never be considered as a fraudulent misrep- resentation.” WasHincTon, J. Hepburn v. Dunlop & Co., 1 Wheat. 189. Representations in Regard to Title. “Representations by the vendor as to his having title to the premises sold may 5 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 es- tablishing his right to them. But where the vendor, holding in good faith un- der an instrument purporting to transfer the premises to him, or under a judicial determi- nation of a claim to them in his favor, ex- ecutes 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 pos- session which it gives, are regarded, how- ever highly colored, as mere expressions of confidence in his title, and are merged in the warranty and covenant, which determines the extent of his liability.” Frevp, J. Andrus wv. St. Louis Smelting Co., 180 U. S. 648. Caveat Emptor. “The tule [caveat emptor] ob- tains when the complaining party does not rely upon the misrepresentations, but seeks from other quarters means of verification of the statements made, and acts upon the in- formation thus obtained.” Fretp, J. Slaugh- ter v. Gerson, 18 Wall. 383. “Where the Means of Knowledge Are Open and at hand or furnished to the purchaser or his agent and no effort is made to prevent the party from using them, and especially where the purchaser undertakes examination for himself, he will not be heard to say that he has been deceived to his injury by the misrepresentations of the ven- dor.” Day, J. Shappirio v. Goldberg, 192 Uz. S. 241, “Tf the Purchaser Investigates for Him- self and nothing is done to prevent his investigation from being as full as he chooses, he cannot say that he relied on the vendor’s representations.” Fuiter, C. J. Farrar v. Churchill, 135 U. S. 615. Party Did Not Expect to Be Believed. “No one can be permitted to say, in re- spect to his own statements upon a material matter, that he did not expect to be believed; and if they are knowingly false, and wilfully made, the fact that they are material is proof of an attempted fraud, because their material- ity, in the eye of the law, consists in their tendency to influence the conduct of the party who has an interest in them, and to whom they are addressed.” Matruews, J. Claflin v. Commonwealth Ins. Co., 110 U. S. 95. Purchasing Goods on Credit. “Tf a person buy goods on credit in good faith, knowing that he is unable to pay for them at the time, but believing that he will be able to pay for them at the maturity of the bill, he is guilty of no offense even if he be disappointed in making such payment. But if he purchases them, knowing that he will not be able to pay for them, and with an in- tent to cheat the vendor, this is a plain fraud.” Brown, J. Evans vu. U. S., 153 U.S. 592. Recommendations. “That a fraudulent recommendation [and a recommendation, known at the time, to be untrue, would be deemed fraudulent] would subject the person giving it to damages sus- tained by the person trusting to it, seems now to be generally admitted.” MARSHALL, C. J. Russell v. Clark, 7 Cranch 92. “The question, how far merchants are responsible for the character they give each other, is one of much delicacy, and of great importance to the commercial world.” Mar- SHALL, C. J. Russell v. Clark, 7 Cranch 92. 4 “TMerchants] know that when one com- mercial man speaks of another in extensive business, he must be presumed to speak from that knowledge only which is given by repu- tation. He is not supposed to have inspected all the books and transactions of his friend, with the critical eye which is employed in a case of bankruptcy. He must, therefore, be supposed to speak of the credit, not of the actual known funds of the person he recom- mends; of his apparent, not of his real solid- ity.’ MarsHatt, C. J. Russell v. Clark, 7 Cranch 93. “Merchants generally possess, and are therefore presumed, in their correspondence, to speak from that knowledge only of the circumstances of other merchants, which may be acquired by observing the course of busi- 791 FRAUD AND DECEIT. ness, their punctuality and their general credit.” Marsua.., C. J. Russell v. Clark, 7 Cranch 93, 94. Damages Recoverable. “There are adjudged cases holding to the broad doctrine that in an action for deceit, based upon the fraudulent representations of a defendant as to the property sold by him, the plaintiff is entitled to recover, by way of damages, not simply the difference between its real, actual value at the time of purchase, however great between such actual value and the value (in excess of what is paid) at which the property could have been fairly valued if the seller’s representations concern- ing it had been true.’ Hartan, J. Siga- fus v. Porter, 179 U. S. 125. “The Ancient Remedy for a False War- ranty was an action on the case sounding in tort.” Swayne, J. Schuchardt v. Allens, 1 Wall. 368. Acts Punishable. “Tf an act, in itself immoral, in its con- sequences injurious to another performed for the purpose of effecting that injury, be not cognizable and punishable by our laws, our system of jurisprudence is more defective than has hitherto been supposed.” Mar- SHALL, C. J. Russell v. Clark, 7 Cranch 92. “Fraud Should Never Be Fixed on the Individual until he has been allowed to clear himself from imputation, if in his power.” .MarsHALL, C. J. The George, 1 Wheat. 411. Government’s Fraud. “Fraud is not imputable to a government.” Jounson, J. Doe v. Robertson, 11 Wheat. 359, Evidence of Fraud. “Fraud, or breach of trust ought not lightly to be imputed to the living; for the legal presumption is the other way; and as to the dead who are not here to answer for themselves, it would be the hight of injus- tice and cruelty to disturb their ashes, and violate the sanctity of the grave, unless the evidence of fraud be clear beyond a reason- able doubt.” Story, J. Prevost v. Gratz, 6 Wheat. 498, Sufficiency, “Tn order to maintain an action for fraud it is sufficient to show that the defendant was guilty of deceit, with a design to deprive the plaintiff of some profit or advantage, and to acquire it for himself, whenever loss or damage has resulted from the deceit.” Strone, J. Butler v. Watkins, 13 Wall. 464. Circumstantial Evidence. “It is seldom that a fraud or conspiracy to cheat can be proved in any other way than by circumstantial evidence, as knaves have usually sufficient cunning to have no wit- nesses present who can testify directly to their fraudulent contrivances.” Grier, J., dissenting. Thompson v. Bowie, 4 Wall. 473. “To establish fraud, it is not necessary to prove it by direct and positive evidence. Cir- cumstantial evidence is not only sufficient, but in most cases it is the only proof that can be adduced.” Braprey, J. Rea v. Mis- souri, 17 Wall. 543. “Parol Proof is admissible to show fraud.” McLean, J. Babcock v. Wyman, 19 How. 300. “ Actual Fraud Is Always Attended by an Intent to Defraud, and the intent may be shown by any evidence that has a tend- ency to persuade the mind of its existence.” Strone, J. Butler v. Watkins, 13 Wall. 464, “A Mere Preponderance of Evidence which at the same time is vague or ambig- uous is not sufficient to warrant a finding of fraud, and will not sustain a judgment based on such a finding.” Prcxuam, J. Lalone v. U. S., 164 U. S. 257, “Fraud Is Always a Question of Fact to be determined by the court or jury upon a careful scrutiny of the evidence before it.” Swayne, J. Smith v. Vodges, 92 U. S. 184, “For many years past the tendency has been, in England and in the United States, to consider the question of fraud as a fact for the jury under the instruction of the court. - And the weight of authority seems to be now, in this country, favorable to this position.” McLean, J. Warner v. Norton, 20 How. 460. , . “Fraud Is a Conclusion of Law from Facts respecting the transactions desig- nated, and if they do not necessarily tend to such conclusion, the allegation falls to the ground, however often repeated or with what- ever amount of earnest asseveration.” Frexp, J., dissenting. Evans v. U. S. 153 U. S. 606. 792 FRAUD AND DECEIT. Intent Must Clearly Appear. “To constitute fraud, the intent to deceive must clearly appear.” Swayne, J. Magee v. Manhattan L. Ins. Co., 92 U. S. 98. Fraud Should Not Be Presumed. “Tt has been frequently held that fraud ought not to. be presumed, but must be proved.” Grier, J. Kempner v. Churchill, 8 Wall. 369. “Fraud will not be presumed but must be proved as other facts, either by direct proof or by circumstantial evidence which will convince the mind of a jury that a fraud was committed.” Grier, J., dissenting. Thompson v. Bowie, 4 Wall. 472. “Fraud is not to be presumed.” NELSON, J. Gaines v. Nicholson, 9 How. 364. In Equity. “Fraud cannot be presumed or inferred without proof in a court of equity, any more than in a court of law; and in both the rule is, that he who makes the charge must prove it.” Ciirrorp, J. Hager v. Thomson, 1 Black 91. Relief in Equity — Estoppel. “The fact of being a party does not estop a person from obtaining in a court of equity relief against fraud. It is generally parties that are the victims of fraud.” BrapLEy, J. Johnson wv. Waters, 111 U. S. 667. Unconscionable Bargains. “There may be such an unconscionableness or inadequacy in a bargain, as to demonstrate some gross imposition or some undue in- fluence; and in such cases courts of equity ought to interfere upon satisfactory ground of fraud; but then, such unconscionableness or such inadequacy should be made out as would, to use an expressive phrase, shock the conscience, and amount in itself to con- clusive and decisive evidence of fraud.” DantEL, J. Eyre v. Potter, 15 How. 60. Mere Inadequacy of Consideration. “It is true that mere inadequacy of con- sideration, unless extremely gross, does not ber se prove fraud.” Grier, J. Kempner v. Churchill, 8 Wall. 369. “The Fact that Fraudulent Relations Are Possible is hardly a sufficient reason for denouncing transactions which are not fraudulent.” Brewer, J. Etheridge v. Sper- ry, 139 U. S. 278, Intelligence of Parties. “Upon the very same state of facts, an in- telligent man, acting deliberately, might well be regarded as guilty of fraud, and an ig- norant and inexperienced person might be entitled to a more charitable view. Yet the injury to the complainant would be the same in either case.” Sutras, J. Wasatch Min. Co. v. Crescent Min. Co., 148 U. S. 298. Conviction of Fraud Not Charged on Record. “Tt would not be in conformity with set- tled rules of pleading and evidence in courts of equity, to convict a party of a fraud, not charged on the record, and brought out for the first time by the voluntary state- ments of a witness in answer to no question, and resting at last upon mere hearsay.” Curtis, J. Very v. Levy, 13 How. 362. Conduct of Complaining Parties. “Those who seek to set aside their solemn written contracts, by proving loose conver- sations, should be held to make out a very clear case; and when they charge others with fraud, founded on such evidence, their own conduct and acts (which speak louder than words) should be consistent with such a hypothesis.” Grier, J. Ogilvie v. Knox Ins. Co., 22 How. 390. Reaping Advantage from Fraud. is Parties to suits at law may assert their rights to the fullest extent; but neither a plaintiff nor a defendant is at liberty to de- ceive, either actively or passively, his ad- versary, and a court whose province it is to administer justice, will take care that on the trial of every cause neither party shall reap any advantage from his own fraud.” ‘StRoNG, J. Shutte v. Thompson, 15 Wall. 159. Claiming Benefit of Fraudulent Contract. “No one can claim the benefit of an ex- ecutory contract fraudulently obtained, after the discovery of the fraud, without approving and sanctioning it.” 'Frerp, J. New York Life Ins. Co. v. Fletcher, 117 U. S. 535. Defenses. “There are cases where misrepresentations are made which deceive the purchaser, in which it is no defense to say that had the plaintiff declined to believe the representa- tions and investigated for himself he would not have been deceived.” Day, J. Shappirio v. Goldberg, 192 U. S. 241. “An action for damages caused by fraud- ulent representations which induced a con- 793 FRAUDS, STATUTE OF. tract, affirms the contract, and relies upon it and therefore may be subject to the same defenses as an action brought directly upon the contract.” Hotmes, J. National Bank, etc., Co. v. Petrie, 189 U. S. 425. Fraud as Defense— Liability of Stock- holders. “Where an agent of an existing corpora- tion procures a subscription of additional stock in it by fraudulent representations, the fraud can be relied on as a defense to a suit for the unpaid instalments, when suit is brought by the corporation; and that if the stockholder has in reasonable time repudiated the contract, and offered to rescind before the insolvency or bankruptcy of the corpora- tion, the defense is valid against the assignee of the corporation.” Mutter, J., dissenting. Upton v. Tribilcock, 91 U. S. 55. “That a stockholder may relieve himself from his liability by proof that he was misin- formed as to the effect of his contract when he made it would be a disastrous doctrine.” Hunt, J. Upton v. Tribilcock, 91 U. S. 50. “That a defendant, who could not by con- tract lawfully relieve himself from liability as a stockholder, can accomplish that result by proof that it was fraudulently represented . to him that he could so relieve himself, would be strange indeed.” Hunt, J. Upton wv. Tribilcock, 91 U. S. 50. Showing Fraud in Court of Law. “Fraud in the execution of the instru- ment has always been admitted in a court of law, as where it has been misread, or some other fraud or imposition has been prac- ticed upon the party in procuring his sig- nature and seal. The fraud in this aspect goes to the question whether or not the in- strument ever had any legal existence.” Netson, J. Hartshorn v. Day, 19 How. 223. “Tt is a well settled principle, that fraud may be investigated as well at law as in chancery.” M’Lean, J. Bagnell vw. Brode- rick, 13 Pet, 455. “Courts of Law . . . Have Concur- rent Jurisdiction of Questions of Fraud, when properly raised; and, although they cannot cancel or set aside fraudulent in- struments of writing, yet when they are produced in evidence by a party claiming any right under them, their fraudulent character may, under proper circumstances, be shown, and their validity in the particular case con- tested.” Miter, J. Miles v. Caldwell, 2 Wall. 39. Necessity for Returning Property. “While the general rule is that the per- formance of every contract may be resisted on the ground of fraud, at law as well as in equity, yet upon a contract of sale, the de- fendant having accepted performance, cannot interpose this defense to defeat the contract, unless he returns the article or proves it to have been entirely worthless, though he may ordinarily recoup the damages which he can show he has sustained through the fraud.” Futter, C. J. Hume wv. U. S.,132 U. S. 418. Diligence Required in Repudiating Trans- action. “Parties -vho are shareholders, and claim to be relieved on the ground of fraud, must act with the utmost diligence and prompti- tude.” Hunt, J. Upton wv. Tribilcock, 91 U.S. 55. “One who claims to have been drawn into a fraudulent purchase must exercise care and vigilance to discover the fraud, and must be prompt in repudiating his contract on the ground of such fraud.” Hunt, J. Upton v. Tribilcock, 91 U. S. 54, Lapse of Time. “There is no question that many rights originally founded in fraud become — by lapse of time, by the difficulty of proving the fraud, and by the protection which the law throws around rights once established by formal judicial proceedings in tribunals established by law, according to the methods of the law—no longer open to inquiry in the usual and ordinary methods.” MIULtER, J. U. S. v. Throckmorton, 98 U. S. 65. FRAUDS, STATUTE OF. I. DEFINITIONS AND GENERAL PRIN- CIPLES. (1. WHat Contracts Are WITHIN STATUTE. III. Compirance witH STATUTE. 1. Sufficiency Of. 2. Part Performance. IV. ExTENSION AND RELAXATION OF STATUTE, V. MISCELLANEOUS, I. DEFINITIONS AND GENERAL PRINCIPLES. “The Word ‘Bargain,’ in the statute [of frauds] means the terms upon which the respective parties contract.” Netson, J. 194 FRAUDS, STATUTE OF. Salmon Falls Mfg. Co. v. Goddard, 14 How. 454, ; “The Meaning of the Word ‘Good,’ in the statute of frauds, is settled to be the same with ‘valuable.” MarsHatL, C. J. Hodgson v. Butts, 3 Cranch 157. Purpose of Statute, “The statute of frauds was designed to prevent frauds, and courts of equity will not permit it to be used to accomplish that which it was designed to prevent.” Brewer, J. Smithsonian Institution v. Meech, 169 U. S. 408. Founded in Wisdom. “The statute of frauds is founded in wis- dom and has been justified by long experi- ence.” Woops, J. Dunphy v. Ryan, 116 U.S. 498. Applicability of Statute. “Tt has never been held that the statute of frauds applies to cases of inurement, and it has been conceded that it does not affect cases of dedication.” Swayne, J. Dicker- son v. Colgrove, 100 U. S. 583. Re-enactment of Statute by States — Con- struction. “The several states of the Union, in re-en- acting this provision [section 4] of the stat- ute of frauds in its original words, must be taken to have adopted the known and settled construction which it has received by judicial decisions in England .- And the rule established in England by those decisions has ever since been generally recognized in Eng- land and America, although it may in a few instances have been warped or misapplied.” Gray, J. Warner v. Texas, etc., R. Co., 164 U.S. 423. II. WHAT CONTRACTS ARE WITHIN STATUTE. Guaranty. “Cases in which the guaranty or promise is collateral to the principal contract, but is made at the same time, and becomes an es- sential ground of the credit given to the prin- cipal debtor, are, in general, within the statute of frauds.” CLiFForD, J. Emerson v. Slater, 22 How. 43. Consideration. “Nothing is better settled than the rule, that if there is a benefit to the defendant, and a loss to the plaintiff, consequential upon and directly resulting from the defendant’s promise in behalf of the plaintiff, there is a sufficient consideration moving from the plain- tiff to enable the latter to maintain an action upon the promise to recover compensation.” CuirForD, J. Emerson v. Slater, 22 How. 43. “Other authorities state the proposition much stronger, authorizing the conclusion that benefit to the party to whom the prom- ise is made, or to a third person at his in- stance, or damage sustained at the instance of the party promising, by the party in whose favor the promise is made, is sufficient to constitute a good and valid consideration on which to maintain an action.” CLIFFoRD, J. Emerson v. Slater, 22 How. 43. Collateral Agreement Subsequent to Debt. “Other cases arise which also fall within the statute [of frauds] where the collateral agreement is subsequent to the execution of the debt, and was not the inducement to it, on the ground that the subsisting liability was the foundation of the promise on the part of the defendant, without any other direct and separate consideration moving be- tween the parties.” CLirForD, J. Emerson v. Slater, 22 How. 43. When Agreement Is Not to Answer for Another. “Whenever the main purpose and ob- ject of the promissor is not to answer for another, but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself, or damage to the other contracting party, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and al- though the performance of it may incidentally have the effect of extinguishing that liability.” CuiFForD, J. Emerson v. Slater, 22 How. 43. Construction of Contract. “The law will subject a man, having no interest in the transaction, to pay the debt of another, only when his undertaking man- ifests a clear intention to bind himself for that debt. Words of doubtful import ought not, it is conceived, to receive that construc- tion. It is the duty of the individual, who contracts with one man on the credit of an- other, not to trust the ambiguous phrases and strained constructions, but to require an ex- plicit and plain declaration of the obligation he is about to assume.” MarsHAL, C. J. Russell v. Clark, 7 Cranch 90. Contracts Not to Be Performed Within a Year. “The statute of frauds applies only to contracts, which, by their terms, are not to 795 FRAUDS, STATUTE OF. be performed within a year, and do not apply because they may not be performed within that time. In other words, to make a parol contract void it must be apparent that it was the understanding of the parties that it was not to be performed within a year from the time it was made.” Muiier, J. McPherson v. Cox, 96 U. S. 416. Variation of Contract by Subsequent Agreement. “The better opinion is, that a written con- tract falling within the statute of frauds can- not be varied by any subsequent agreement of the parties, unless such new agreement is also in writing.” CLiFForD, J. Swain v. Seamens, 9 Wall. 272. “Perhaps the better opinion is, according to the weight of authority, that a written contract within the statute of frauds cannot be varied by any subsequent agreement of the parties, unless such new agreement is also in writing.” CLiFForD, J. Emerson v. Slater, 22 How. 42. III. COMPLIANCE WITH STATUTE. 1. SUFFICIENCY OF. Written Evidence Necessary. “The sale [a sheriff’s sale of land under a fieri facias] being within the statute of frauds, it must be proved by written evi- dence.” Taney, C. J. Remington v. Linthi- cum, 14 Pet. 92. Defective Writing. “Unless the essential terms of the sale can be ascertained from the writing itself, or by reference in it to something else, the writing is not a compliance with the statute [of frauds] and, if the agreement be thus defective, it cannot be, supplied by parol proof, for that would at once introduce all the mischiefs which the statute was intended to prevent.” C.irrorp, J. Williams v. Morris, 95 U. S. 456. Price Must Be Mentioned. “ Decided cases everywhere require that the memorandum [for the sale of land] should mention the price.” CiirForp, J. Williams v. Morris, 95 U. S. 455, Sufficiency of Signing. “The signature of one of the parties is a sufficient signing [of a note or memorandum under the statute of frauds] to charge the firm.” NeEtson, J. Salmon Falls Mfg. Co. v. Goddard, 14 How. 455. Principal Need Not Be Disclosed. “Tt is not necessary to the validity of a contract, under the statute of frauds, that the writing disclose the principal. In the brief memoranda usually made by brok- ers and factors, it is seldom done.” Grizr, J. Ford v. Williams, 21 How. 289. Parol Evidence May Explain Latent Am- biguities. “Any note or memorandum in writing which furnishes evidence of a complete and practicable agreement is sufficient under the statute [of frauds] and parol evidence is admissible to explain latent ambiguities, and to apply the instrument to the subject-mat- ter.” CuirForp, J. Williams v. Morris, 95 Uz. S. 456. Statute Binding on Courts of Equity. “The statute, which requires such con- tracts [contracts for the sale of lands] to be in writing, is equally binding on courts of equity as courts of law.” Grier, J. Purcell v. Miner, 4 Wall. 517. 2. Part PERFORMANCE. Contract for Sale of Land. “Tn discussing what are and what are not acts done in part performance [of a contract fc: the sale of land, the contract being within the statute of frauds], which will entitle the plaintiff to a decree in his favor, the entry into possession of the land and the making of valuable improvements thereon is treated by all the cases as one of the most satis- factory evidences of part performance, and entitling plaintiff to a decree in his favor.” Brown, J. Townsend v. Vanderwerker, 160 U. S. 184. What Must Be Shown. “Where the attempt is to take the case out of the statute [of frauds] upon the ground of part performance, the party making the at- tempt must show by clear and satisfactory proof the existence of the contract as laid in his pleading, and the act of part perform- ance must be of the identical contract which he has in that manner set up-and alleged. It is not enough that the act of part perform- ance is evidence of some agreement; but it must be unequivocal and satisfactory evidence of the particular agreement charged in the bill or answer.” CurFForD, J. Williams v. Morris, 95 U. S. 456. Acts Must Refer to Contract. “Acts of part performance which will take a case out of the statute must be refer- 796 FRAUDS, STATUTE OF. able solely to the contract.” PreckHam, J. Winslow v. Baltimore, etc, R. Co., 188 U. S. 658. “Where one of the two contracting parties has been induced or allowed to alter his position on the faith of such contract, to such an extent that it would be fraud on the part of the other party to set up its validity, courts of equity held that the clear proof of the contract and of the acts of part perform- ance will take the case out of the operation of the statute [of frauds] if the acts of part performance were clearly such as to show that they are properly referable to the parol agreement.” CLIFFORD, J. Williams v. Mor- ris, 95 U. S. 457. Ancillary or Preparatory Matters. “Nothing is part performance for this purpose [statute of frauds] which is only ancillary or preparatory; it must be a direct act which is intended to be a substantial part performance of an obligation created by the contract as proved; and it must be an act which would not have been done but for the contract; and it must be directly in prejudice of the party doing the act, who must him- self be the party calling for the completion of the contract.” CLiFForp, J. Williams wv. Morris, 95 U. S. 457. Delivery Taking Case Out of Statute. “Where goods are purchased in several parcels, to be paid for at a future day, the whole, within the meaning of the statute of frauds, constitutes but one contract, and the delivery of part to the purchaser is suf- ficient to take the case out of the operation of the statute of frauds.” Czirrorp, J. Garfield v. Paris, 96 U. S. 565. IV. EXTENSION AND RELAXATION OF STATUTE. Requirements of Statute Relaxed. “Courts of equity have, in many instances, relaxed the rigid requirements of the statute [of frauds]; but it has always been done for the purpose of hindering the statute made to prevent frauds from becoming the instrument of fraud.” Grier, J. Purcell wv. Miner, 4 Wall. 517. “The statute of frauds requires a contract concerning real estate to be in writing, but courts of equity, whether wisely or not it is too late now to inquire, have stepped in and relaxed the rigidity of this rule, and hold that a part performance removes the bar of the statute, on the ground that it is a fraud for the vendor to insist on the absence of a written instrument, when he had permitted the contract to be partly executed.” Davis, J. Neale v. Neale, 9 Wall. 9. Power of Courts to Relax Requirements. “ The principles which require that a prom- ise to pay the debt of another shall be in writing, and which will not permit a written contract to be explained by parol testimony, originate in a general and a wise policy, which this court cannot relax so far as to except from its operation cases within the principles.” MarsHatt, C. J. Grant v. Nay- lor, 4 Cranch 235. “Already have so many cases been taken out of the statute of frauds, which seem to be within its letter, that it may well be doubt- ed whether the exceptions do not let in many of the mischiefs against which the rule was intended to guard. The best judges in Eng- land have been of opinion that this relaxing construction of the statute ought not to be extended further than it has already been carried, and this court entirely concurs in that opinion.” MarsHatit, C. J. Grant v. Naylor, 4 Cranch 235. Extending Operation of Statute. “Tn cases not absolutely closed by author- ity this court has already expressed a strong inclination not to extend the operation of the statute of frauds, so as to embrace orig- inal and distinct promises, made by different persons at the same time under the same gen- eral consideration.” Story, J. Townsley v. Sumrall, 2 Pet. 182. V. MISCELLANEOUS. Enforcement of Void Contract. “A contract void by the statute [of frauds] cannot be enforced directly or col- laterally. It confers no right and creates no obligation as between the parties to it.” Woops, J. Dunphy v. Ryan, 116 U. S. 496. “Tf the mere refusal of a party to per- form a parol contract for the sale of lands could be construed to be such a fraud as would give a court of equity jurisdiction to enforce it, the statute of frauds would be rendered vain and nugatory.” Woops, J. Dunphy v. Ryan, 116 U. S. 498. Money Paid under Void Contract. “Tt is well settled that when one person pays money or performs services for another upon a contract void under the statute of frauds, he may recover the money upon a count for money paid to the use of defend- 797 FRAUDULENT SALES ant at his request, or recover for the serv- ices upon the quantum meruit count.” Woops, J. Dunphy v. Ryan, 116 U. S. 497. Relief in Equity. “A court of equity will not relieve an individual from the operation of the statute of frauds, which requires that interest in lands be created by an instrument of writ- ing, and impose an equitable lien upon land in favor of one who makes improvements thereon, knowing that the title is in an- other, especially where the money is ex- pended under an express understanding with reference thereto had with the owner, but will leave the party to the remedies, if any, which a court of law provides.” W24uure, J. Washington Market Co. v. District of Co- lumbia, 172 U. S. 371. Defense of Statute as Fraud. “Tf the plaintiff, with the knowledge and consent of the promisor, does acts pursuant to and in obvious reliance upon a verbal agreement [within the statute of frauds] which so change the relations of the parties as to render a restoration of their former condition impracticable, it is a virtual fraud upon the part of the promisor to set up the statute in defense, and thus to receive to himself the benefit of the acts done by the plaintiff, while the latter is left to the chance of a suit at law for the reimbursement of his outlays, or to an action upon a quantum meruit for the value of his services.” Brown, J. Townsend v. Vanderwerker, 160 U. S. 184. Fraud Taking Case Out of Statute. “Tt is undoubtedly the rule that the breach of a parol promise or trust as to an interest in land does not constitute such fraud as will take a case out of the statute.” FULLER, C. J. Moore v. Crawford, 130 U. S. 130. FRAUDULENT SALES AND CONVEYANCES. I. GENERAL PRINCIPLES. II. PREFERENCES. III. Bona Fip— PurcHASERS. IV. Votuntary CONVEYANCES. V. RELIEF. VI. EvIpENCE. I. GENERAL PRINCIPLES. Collusive Transfer — Statute of 13 Eliza- beth. “Under cover of pretense of paying or securing one set of creditors, property actu- AND CONVEYANCES. ally procured from another would be with- drawn from the reach of the latter. Yet the only remedy afforded by the common- law was in the principle of the statute of 13 Elizabeth, c. 5, which have been substantially re-enacted in the various states of the Union. Under those principles a collusive transfer, placing the property of a debtor out of the reach of his creditors, while securing to him its beneficial enjoyment, would be inval- id.” Syrras, J. U.S. Rubber Co. v. Ameri- can Oak Leather Co., 181 U. S. 448. —Enactment in Various States. “The statute of 13 Eliz. c. 5, has been in the main re-enacted in the various states of the Union.” Futrer, C. J. Crawford v. Neal, 144 U. S. 594. “The principles, if not the exact language of the statute of 13 Eliz. have been accepted in the equitable jurisprudence of nearly all the states of common-law origin.” MUILtrr, J. Means v. Dowd, 128 U. S. 280. Purpose of Statute. “The statute designed to prohibit frauds, by protecting the rights of creditors. If the facts and circumstances show clearly a fraud- ulent intent, the conveyance is void against: all creditors, past or future.” McLean, J. Parish v. Murphree, 13 How. 99. “Credit is Extended in reliance upon the evidence of the ability of the debtor to pay, and in confidence that his possessions will not be diminished to the prejudice of those who trust him. This reliance is dis- appointed, and this confidence abused, if he divests himself of his property by giving it away after he has obtained credit.” FULLER, C. J. Washington Central Bank v. Hume, 128 U. S. 204. “The Exercise of a General Power of Appointment might be fraudulent and void under the statute 13 Eliz. c. 5, but not the exercise of a limited or exclusive power, because, in the latter case, the debtor never had any interest in: the property himself which could have been available to a cred- itor, or by which he could have obtained credit.” Futter, C. J. Washington Central Bank v. Hume, 128 U. S. 204. “A Debtor Is Not Bound to Succumb under Temporary Reverses in His Affairs, and has the right, acting in good faith, to use his property in any mode he chooses, in order to avoid a general assignment for the benefit of his creditors.” Harzan, J. White v. Cotzhausen, 129 U. S. 342. 798 FRAUDULENT SALES AND CONVEYANCES. “We Speak. of Conveyances Void as to Creditors, meaning that creditors may avoid them, but not others.’ MartrHews, J. Ewell v. Daggs, 108 U. S. 149. Subsequent Creditors. “It is a well-settled rule of law that if an individual, being solvent at the time, without any actual intent to defraud cred- itors, disposes of property, for an inadequate consideration, or even makes a voluntary conveyance of it, subsequent creditors can- not question the transaction. They are not injured. They gave credit to the debtor in the status which he had after the voluntary conveyance was made.” BrapiEy, J. Gra- ham wv. La Crosse; etc., R. Co., 102 U. S. 153. “The principle that subsequent creditors cannot question a voluntary or fraudulent disposition of property by their debtor, not intended as a fraud against them, is espe- cially applicable in cases of constructive fraud.” Braptey, J. Graham v. La Crosse, etc, R. Co., 102 U. S. 160. “Tt seems clear that subsequent creditors have no better right than subsequent pur- chasers, to question a previous transaction in which the debtor’s property was obtained from him by fraud, which he has acquiesced in, and which he has manifested no desire to disturb. Yet, in such a case, subsequent pur- chasers have no such right.” BrapLey, J. Gra- ham v. La Crosse, etc., R. Co., 102 U. S. 154. “It is a well-settled principle, that subse- quent creditors cannot be heard to impeach an executed contract, where their dealings ‘with the company, of which they claim the benefit, occurred after the contract became an executed contract.” BLAtcHForD, J. Por- ter uv. Pittsburg Bessemer Steel Co. 120 U.S. 673. Placing Property to Escape Responsibility. “J think if in any case between private persons, one of them had placed property in the hands of minors, servants, or other irresponsible persons, for the purpose of escaping the responsibility attaching to the ownership of such property, while securing all the advantages of such ownership, it, would be held to be a transaction which could not be supported on any legal or equi- table principle.” Mutuer, J,, dissenting. An- derson vw. Philadelphia Warehouse Co., 111 U. S. 485. “The Fraud Which Will Vitiate a Sale Must Be Mutual, that is, must be intended by both parties, or by one with knowledge of the other’s purpose, and thus acquiesced in and furthered.” Fietp, J. Horbach v. Hill, 112 U. S. 148, Assignment of Insurance Policies. “Where a person has taken out policies of insurance for the benefit of his estate, it has been frequently held that, as against creditors, his assignment, when insolvent, of such policies, to or for the benefit of wife and children, or either, constitutes a fraudulent transfer of assets within the statute, and this, even though the debtor may have had no deliberate intention of depriving his creditors of a fund to which they were entitled, because his act has in point of fact withdrawn such a fund from them, and dealt with it by way of bounty. The rule stands upon precisely the same ground as any other disposition of his prop- erty by the debtor. The defect of the dis- position is that it removes the property of the debtor out of the reach of his creditors.” Futter, C. J. Washington Central Bank v. Hume, 128 U. S. 204. Like Principles Applicable to Corporations and Individuals. “We see no reason why the disposal by a corporation of any of its property should be questioned by subsequent creditors of the corporation, any more than a like disposal by an individual of his property should be so. The same principles of law apply to each.” Braptey, J. Graham v. La Crosse, etc, R. Co., 102 U. S. 161. Depreciation in Value No Objection to Restoration. “Tt is no objection to a restoration of property received on a fraudulent sale that it has fallen in value since the date of the transaction.” Hunt, J. Neblett v. Macfar- land, 92 U. S. 104. “Sales of Personal Property Merely Colorable, made with the intention that the title should not be transferred in reality but only in appearance, convey no title what- ever to the apparent purchaser.” CLirForp, J. Lilienthal’s Tobacco v. U. S., 97 U. S. 269. II. PREFERENCES. Right to Give Preferences. “Tn the absence of any bankrupt or in- solvent law, a debtor may lawfully give a preference to one of his creditors, if he does not thereby intend to defraud the others; and a sale and delivery of goods in satis- 799 FRAUDULENT SALES faction of an honest debt cannot be avoided by other creditors, unless made and received with intent in fact to defraud them. This is well settled by the decisions of this court, as well as by those of the highest courts of the state of Indiana.” Gray, J. Jewell v. Knight, 123 U. S. 434. “An insolvent debtor may prefer a cred- itor, even though the latter has knowledge of such insolvency and the effect of the preference be to delay or disappoint his other creditors.” Surras, J. U. S. Rubber Co. v. American Oak Leather Co., 181 U. S. 448. “Tt is not to be disputed that, except as forbidden by the bankrupt law, a debtor has the right to prefer one creditor over an- other, and that the vigilant creditor is enti- tled to the advantage secured by his watch- fulness and attention to his own interests.” Woops, J. Blennerhassett v. Sherman, 105 U. S. 117. “Creditors have an equitable claim on all the property of their debtor, and it is his duty, as well as his right, to devote the whole of it to the satisfaction of their claims. The exercise of this right by the honest performance of this duty cannot be deemed a fraud.” Marsuatt, C. J. Brashear vw. West, 7 Pet. 614. “The common law recognizes in every man the right to dispose of his property as he pleases. If he becomes insolvent, he may pay one creditor, and leave another unpaid. He may secure one and not another by a transfer of assets. Such a condition of things, when left uncontrolled, naturally re- sulted in great abuses.” Sutras, J. U. S. Rubber Co. v. American Oak Leather Co., 181 U. S. 448. “A collusive transfer, placing the property of a debtor out of the reach of his creditors, while securing to him its beneficial enjoy- ment, is not to be tolerated; yet an insolvent debtor may prefer a creditor, even though the latter has knowledge of such insolvency. The effect of the preference may be to delay his other creditors, but if the transaction is in good faith and made with the intention of paying the preferred debt, and without any secret trust, ‘the conveyance by which the preference is effected is not fraudulent.” Futter, C.'J. Crawford v. Neal, 144 U. S. 595. “We do not understand it to have ever been doubted that a debtor may openly pre- AND CONVEYANCES. fer one creditor to the rest, and may transfer property to him or give him security even after others have begun their actions.” Brown, J. Davis v. Schwartz, 155 U. S. 640, “Where a person, being lawfully indebted to several creditors, makes a mortgage or other conveyance to one for the open and avowed purpose of preferring him, then in the absence of a law of the forum prohibit- ing preferences, such mortgage or convey- ance is valid, though it may operate to bar other creditors from obtaining satisfaction of their debts. A mortgage which may have the effect of hindering other creditors is not necessarily unlawful, though a mortgage given to defraud them is always so.” Brown, J. Davis v. Schwartz, 155 U. S. 639. “The effect of every mortgage to a cred- itor as security for the payment of a pre- existing debt is to withdraw the value of the property covered by the security from the assets of the debtor, which would other- wise be available in satisfaction of his other debts. But unless a general bankrupt law, or a law of the particular state makes the preference illegal, it is difficult to see why mortgages given under the circumstances that these were given should be held to be invalid.” Brown, J. Davis v. Schwartz, 155 U. S. 640. Mortgagees Intending to Obtain Prefer- ence. “Tf there be nothing to impeach the con- sideration and the good faith of the parties, the fact that the mortgagees intended to obtain a preference over other creditors should not invalidate the mortgages, since the very object of giving such securities is to give a preference to the creditors therein designated.” Brown, J. Davis v. Schwartz, 155 U. S. 638. Attempt to Obtain Forbidden Preference. “There is a wide difference between the case of a fraud ab initio, such, for instance, as a scheme to enforce a false or pretended indebtedness, so as to remove the assets of an alleged debtor from the reach of his bona fide creditors, and the case of an at- tempt by bona fide creditors to secure pref- erences for themselves, but using methods forbidden by statute or by the policy of law. In the former case, undoubtedly, a court of equity will refuse to permit the guilty par- ties to derive any profit or advantage from the fraudulent arrangement. In the latter case a court of equity will not declare a forfeiture of just debts, or, by postponing 800 FRAUDULENT SALES AND CONVEYANCES. them tilt all other creditors are satisfied, practically confiscate them, but will, while defeating the attempt to obtain a forbidden preference, leave such creditors to use and enjoy the same rights and remedies pos- sessed by other creditors.” Sutras, J. U. S. Rubber Co. v. American Oak Leather Co., 181 U. S. 452. ' TI. BONA FIDE PURCHASERS. General Considerations. “A bona fide purchaser, without notice, is not affected by the fraud of his grantor.” McLean, J. Swayze v. Burke, 12 Pet. 24. “Tt is . . an elementary doctrine of equity that where a grantor has been in- duced by fraud to part with the legal title to his property, he cannot reclaim it from subsequent innocent purchasers for value.” Marruews, J. Colorado Coal, etc., Co. v. U. S., 123 U.S. 314. ; “The case of a fraudulent grantee and the case of a bona fide purchaser from such grantee, without notice [is] a distinction most importanf in itself, and in many cases decisive in favor of the purchaser, whatever may have been the fraud of the original grantee.” Story, J. Winn v. Patterson, 9 Pet. 679. ‘ “Tf a suit be brought to set aside a con- veyance obtained by fraud, and the fraud be clearly proved, the conveyance will be set aside, as between the parties; but the rights of third persons, who are purchasers without notice, for a valuable consideration, cannot be disregarded.” MarsHait, C. J. Fletcher v. Peck, 6 Cranch 133. ; Consideration. “The extinguishment of an existing in- debtedness is a valuable consideration for a purchase made in good faith.” FULLER, C. J. Crawford v. Neal, 144 U. S. 595. Necessity for Good Faith and Valuable Consideration. “Tt has been the accepted law even since Twyne’s Case, 3 Coke 80, that good faith as well as a valuable consideration is neces- sary to support a conveyance as against other creditors.” Brown, J. Davis vw. Schwartz, 155 U. S. 638. Purchaser. with Notice from Bona Fide Purchaser. “A purchaser with notice may protect him- self by obtaining the title of a purchaser for a valuable consideration without notice, un- 1 Os. Dic.—51 less he be the original party to the fraud. The bona fide purchase purges away the equity from the title in the hands of all persons who may obtain a derivative title, except it be that of the original party, whose conscience stands bound by the violation of the trust, and a meditated fraud.” NeL- son, J. Rogers vw Lindsey, 18 How. 446. IV. VOLUNTARY CONVEYANCES. In General. “A voluntary conveyance is good as against subsequent creditors, unless execu- ted as a cover for future schemes of fraud.” Fietp, J. Horbach v. Hill, 112 U. S. 149. Voluntary Conveyance to Defraud Future Creditors. “Where a voluntary conveyance is made by an individual free from debt, with a purpose of committing a fraud on future creditors, it is void.” McLean, J. Parish v. Murphree, 13 How. 99. Conveyance by Person Free fram Embar- rassment. “Tf an individual, being in debt, shall make a voluntary conveyance of his entire prop- erty, it would be a clear case of fraud; but this rule would not apply if such a convey- ance be made by a person free from alk embarrassments and without reference to future responsibilities.” McLean, J. Parish v. Murphree, 13 How. 98. “A Voluntary Settlement in Favor of a Wife and Children is not to be impeached by subsequent creditors, on the ground of its being voluntary.” MarsHatt, C. J. Sex- ton v. Wheaton, 8 Wheat. 250. “A Deed from a Parent to a Child, for the consideration of love and affection, is not absolutely void as against creditors. It may be so under certain circumstances; but the mere fact of being in debt to a small amount would not make the deed fraudu- lent, if it could be shown that the grantor was in prosperous circumstances, and unem- barrassed, and that the gift to the child was a reasonable provision according to his state and condition in life, and leaving enough for the payment of the debts of the grant- or.” THompson, J. Hinde v. Longworth, 11 Wheat. 213. Grants from Husband to Wife. “Tn regard to grants from the husband to the wife, an examination of the cases in the books will show, when they have not been sustained in equity, it has been on 801 FRAUDULENT SALES account of some feature in them impeaching their fairness and certainty, as that they were not in the nature of a provision for the wife; or when they interfered with the rights of a creditor; or when the property given or granted had not been distinctly separated from the mass of the husband’s property.” Wayne, J. Wallingsford v. Al- len, 10 Pet. 594. “While the books of reports are full of cases in which real or personal property con- veyed to the wife in fraud of the husband’s creditors has been pursued and subjected to the payment of his debts after it had been identified in her hands, or in the hands of voluntary grantees or purchasers with no- tice, we are not aware of any well-consid- ered case of high authority where the suit of the property has been abandoned, and a judgment in personam for its value taken against the wife.’ Mrmr, J. Phipps vw. Sedgwick, 95 U. S. 9. Fraudulent Intent. “Tn all purely voluntary conveyances it is the fraudulent intent of the donor which vitiates. If actually insolvent, he is held to knowledge of his condition; and if the Necessary consequence of his act is to hin- der, delay, or defraud his creditors, within the statute, the presumption of the fraudu- lent intent is rebuttable and conclusive, and inquiry into his motives is inadmissible.” Futier, C. J. Washington Central Bank v. Hume, 128 U. S. 213 V. RELIEF. Relief in Equity in General. “A court of equity, in setting aside a deed of a purchaser upon grounds other than positive fraud on his part, sets it aside upon terms, and requires a return of the purchase money, or that the conveyance stand as a security for its payment. This con- stitutes the essential difference between re- lief in equity and that afforded in a court of law. A court of law can hold no middle course. The entire claim of each party must rest, and be determined at law, on the single point of the validity of the deed; but it is the ordinary case in the former court, that a deed not absolutely void, yet, under the circumstances, inequitable as be- tween the parties, may be set aside upon terms.” Netson, J. Coiron v. Millaudon, 19 How. 115. He Who Seeks Equity Must Do Equity. “Tn cases of this character [conveyance of real property procured by fraud] the general AND CONVEYANCES. principle is, that he who seeks equity must do equity; that the party against whom re- lief is sought shall be remitted to the posi- tion he occupied before the transaction complained of. The court proceeds on the principle, that, as the transaction ought never to have taken place, the parties are to be placed as far as possible in the situation in which they would have stood if there had never been any such transaction.” Hunt, J. Neblett v. Macfarland, 92 U. S. 103. Necessity for Judgment and Execution. “In those cases in which it has been held that obtaining a judgment and issuing an execution is necessary before a court of equity can be asked to set aside fraudulent dispositions of a debtor’s property, the reason given is that a general creditor has no lien. And when such bills have sustained without a judgment at law, it has been to enable the creditor to obtain a lien, either by judgment or execution.” Srrone,.J. Case v. Beaure- gard, 101 U. S. 691. “A creditor, without having first obtained a judgment at law, may come into a court of equity to set aside fraudulent convey- ances of his debtor, made for the purpose of hindering and delaying creditors, and to subject the property to the payment of the debt due to him.” Srrone, J. Case v. Beau- regard, 101 U. S. 690. Bill to Set Aside Fraudulent Conveyance. “As early as 1750, it was held that a bill would lie by an execution creditor to set aside a fraudulent conveyance, wheth- er he could recover at law or not.” Brown, J. Wehrman v. Conklin, 155 U. S. 328. Effect of Setting Aside Deed. “Tt is well settled, where a deed is set aside as void as to existing creditors, that all the creditors, prior and subsequent, share in the fund pro rata.” Davis, J. Kehr v. Smith, 20 Wall. 36. Relief of Creditors. “Tt is true that creditors can obtain relief in respect to a fraudulent conveyance where the grantor cannot, but that relief only re- stores the subjection of the debtor’s property to the payment of his indebtedness as it existed prior to the conveyance.” Futter, C. J. Washingon Central’ Bank v. Hume, 128 U. S. 204. Party Seeking to Set Aside Sale of Shares — Liability for Calls. “A party seeking to set aside a sale of shares is not bound to pay calls on them to 802 FREIGHT. prevent forfeiture after filing his bill; nor is it fatal to his right of rescission that some of the shares have been thus perfected.” Hunt, J. Neblett v. Macfarland, 92 U. S. 104. VI. EVIDENCE. Fraud. “Tf a man were to convey his whole estate, and afterwards to contract debts, there would be much reason to suspect a secret trust for his own benefit. The transaction would be closely inspected, and a sweeping convey- ance of his whole property would undoubt- edly form an important item in the testimony to establish fraud.” MarsHatt, C. J. Bra- shear v. West, 7 Pet. 614. Acts, Intents, Neglects at Time of Sale. “To make a fraudulent sale it is neces- sary to go back to the acts, the intents, or the neglects existing at the time of the sale.” Hunt, J. Stephen v. Beall, 22 Wall. 340. Subsequent Occurrences as Imputing Fraud. “Tt would seem to be a self-evident prop- osition that when it is conceded that a sale was in fact fair, honest, and just when made, that no unlawful act or intent then existed, that a fraudulent intent or an unjust dealing as to that time could not be imputed to the party from subsequent occurrences.” Hunt, J. Stephen v. Beall, 22 Wall. 340. Good Faith Question of Fact. “While the fact,that a mortgage is given for a larger amount than is due, is doubtless a suspicious circumstance, raising a presump- tion of fraud, and may, under certain cir- cumstances, avoid the whole mortgage, .. . it will only have this effect when given wilfully, in connivance with the mortgagee, and with an actual design to impose upon and defraud the general creditors. In all such cases the question of good faith is one of fact, and a mere error of judgment will not be imputed as a fraud. The fact that the debt so included was a bona fide debt, and that the act of the mortgagee in so in- cluding it was subsequently affirmed by the creditors interested, will be strong evidence that no actual fraud was intended.” Brown, J. Davis v. Schwartz, 155 U. S. 644. “Fraud Is Always a Question of Fact with reference to the intention of the grant- or. Where there is no fraud, there is no infirmity in the deed. Every case depends upon its circumstances, and is to be carefully scrutinized. But the vital question is al- ways the good faith of the transaction. There is no other test.” Swayny, J. Lloyd v. Fulton, 91 U. S. 485. Necessity for Actual Fraud. “There is a class of cases undoubtedly in wich transfers of property are adjudged to be fraudulent, although there be no actual fraud meditated by the parties. Such are the cases of an assignment by an insolvent debt- or reserving portions of the assigned prop- erty for his own benefit, requiring releases from creditors as a condition of participat- ing in the fund, and the like’ Hunt, J. Stephen v. Beall, 22 Wall. 340. “Where Possession of Goods Does Not Accompany the Deed, it is prima facie fraudulent, but open to the circumstances of the transaction, which may prove an in- nucent purpose.” McLean, J. Warner v. Norton, 20 How. 460. “Tt would seem to be difficult, on princi- ple, to maintain that the possession of goods sold is, per se, fraud, to be so pronounced by the court, as that cuts off all explanation of the transaction, which may have been entirely | unexceptionable.” McLean, J. Warner v. Norton, 20 How. 460. “The Tendency of Courts in modern times has been, not to hold instruments of this character [deeds of trust to indemnify surety on note] to be fraudulent and void upon their face, unless they contain provi- sions plainly inconsistent with an honest pur- pose, or the instrument indicates with rea- sonable certainty that it was executed, not to secure bona fide creditors, but to enable the debtor to continue to carry on his busi- ness under cover of another name.” Brown, J. Huntley v. Kingman, 152 U. S. 532. What May Be Deemed Fraudulent. “To hold that a settlement of a small amount, by an individual in independent cir- cumstances, and which if known to the pub- lic, would not affect his credit, is fraudulent, would be a perversion of the statute.” Mc- Lean, J. Parish v. Murphree, 13 How. 98. FREIGHT. See Carriers; ToLL; TRANSPORTATION. Definition. oe “The word freight, when not used in a sense to imply the burden or loading of a ship, or the cargo which she has on board, is the hire agreed upon between the owner or master for the carriage of goods from one 803 GAME. port or place to another.” Wayne, J. Brit- tan v. Barnaby, 21 How. 533. “By the Law Maritime the word ‘freight’ is used fo denote not the thing carried, but the compensation for the car- riage of it. Prior to the era of steam navi- gation, travel by sea was comparatively of such little magnitude that ‘ freight’ was com- monly used to denote compensation for the carriage of goods.” Brown, J. The Main v. Williams, 152 U. S. 129. FREIGHT CARS. “Freight cars are generally, if not uni- versally, constructed so as to ride upon two four-wheeled trucks, uporl which the cars are supported by means of devices called bolsters. One of these devices is attached to the bottom of the car body, and is called a body bolster. The other is attached to the truck, and is called the truck bolster. The body bolster rests upon the truck bolster, and at the point of contact there is a device called the centre bearing plate, which, acting in connection with a king bolt, permits the truck to conform to inequalities and curva- tures in the track, regardless of the direction of the axis of the car body. Side supports are also furnished, to secure stability of the car upon the track, and prevent any tendency to upset, by limiting the rocking of the car body. Ordinarily, though, the weight is carried upon the centre bearing plate, that the swivelling may be done as easily as possible, in order to avoid friction between the car and the side bearings, espe- cially it hauling a heavy train around a curve.” Brown, J. McCarty v. Lehigh Val- ley R. Co., 160 U. S. 114. FROG. “A frog, in railroad parlance, is a section of a rail, or of several rails combined, at a point where two railways cross, or at the point of a switch from a line to a siding or to another line, and its function is fo en- able a car or train to be turned from one track to another. In a blocked frog the point of space between the rails, at the point where the car is switched from one track to another, is filled with wood or other mate- rial, so that the foot will not be held. There is a form of cast-iron frog, in which the space between the rails at the apex of the frog is filled with cast iron.” Sutras, J. Southern Pace. Co. v. Seley, 152 U. S. 150, FROM. See DisTANCE. FRUIT. See VEGETABLES. “The passages recited from the diction- aries define the word ‘fruit’ as the seed of plants, or that part of plants which contains the seed, and especially the juicy, pulpy prod- ucts of certain plants, covering and contain- ing the seed. These definitions have no tend- ency to show that tomatoes are ‘fruit,’ as distinguished from ‘vegetables,’ in common speech, or within the meaning of the Tariff Act.” Gray, J. Nix v. Hedden, 149 U. S. 306. “ Botanically speaking, tomatoes are the fruit of a vine, just as are cttcumbers, squashes, beans and peas. But in the com- mon language of the people, whether sellers or consumers of provisions, all these are vegetables, which are grown in kitchen gar- dens, and which, whether eaten. cooked or raw, are, like potatoes, carrots, parsnips, tur- nips, beets, cauliflower, cabbage, celery and lettuce, usually served at dinner in, with or after the soup, fish or meats which consti- tute the principal part of the repast, and not, like fruits generally, as dessert.” Gray, J. Nix vw. Hedden, 149 U. S. 307. GAME. See ANIMALS; FiIsH AND FISHERIES. Property in Game. “The wild bird in the air belongs to no one, but when the fowler brings it to earth and takes it into his possession it is his property. He has reduced it to his contro! by his own labor, and the law of nature and the law of society recognize his exclusive right to it.” Frecp, J., dissenting. Spring Valley Water Works v. Schottler, 110 U. S. 374, “The trapper on the plains and the hunter in the north have a property in the furs they have gathered, though the animals from which they were taken roamed at large and belonged to no one. They have added by their labor to the uses of man an article pro- moting his comfort which, without that la- bor, would have been lost to him.’ Fretp, J., dissenting. Spring Valley Water Works v. Schottler, 110 U. S. 374. “The owner of land has the exclusive right on his property to reduce the game there found to possession.” Wuure, J. Ohio Oil Co. wv. Indiana, 177 U. S. 209. “The owner of the soit cannot follow game when it passes from his property.” 804 GAME. Wuirtst, J. Ohio Oil Co. v. Indiana, 177 U. S. 209. Police Power as to Game. “The power of a state to control and reg- ulate the taking of game cannot be ques- tioned.” Wuure, J. Ward v. Race Horse, 163 U. S. 507. “The preservation of game . . . has always been treated as within the proper do- main of the public power, and laws limiting the seasons within which birds and wild ani- mals may be killed or exposed for sale - . » have been repeatedly upheld by the courts.” Brown, J. Lawton v. Steele, 152 U. S. 188. “From the earliest traditions the rights to reduce animals fere nature to possession has been subject to the control of the law- giving power.” WHite, J. Geer v. Connecti- cut, 161 U. S. 522. “Kent, in his Commentaries, states the ownership of animals fere nature to be only that of a qualified property. . . . In most of the states laws have been passed for the protection and preservation of game. We have been referred to no case where the power to so legislate has been questioned, al- though the books contain cases involving con- troversies as to the meaning of some of the statutes. . . . There are also cases where the validity of some particular method of enforcement provided in some of the stat- utes has been drawn in question.” WHITE, J. Geer v. Connecticut, 161 U. S. 528. “The adjudicated cases recognizing the right of the states to control and regulate the common property in game are numer- ous.” Waite, J. Geer v. Connecticut, 161 U. S. 528. — Origin and Nature of Power. “The source of the police power as to game birds . flows from the duty of the state to preserve for its people a valu- able food supply.” Wuuts, J. Geer wv. Con- necticut, 161 U. S. 534. “The right to preserve game flows from the undoubted existence in the state of a police power to that end, which may be none the less efficiently called into play, be- cause by doing so interstate commerce may be remotely and indirectly affected.” Wuure, J. Geer v. Connecticut, 161 U. S. 534. “Tn the feudal as well as the ancient law of the continent of Europe, in all countries, the right to acquire animals fere nature by possession was recognized as being subject to the government authority and under its power, not only as a matter of regulation, but also of absolute control.” Wuurtz, J. Geer v. Connecticut, 161 U. S. 523. “The common law of England also based property in game upon the principle of com- mon ownership and therefore treated it as subject to governmental authority.” WHITE, J. Geer v. Connecticut, 161 U. S. 526. “The practice of the government of Eng- land from the earliest time to the present has put into execution the authority to con- trol and regulate the taking of game. Un- doubtedly this attribute of government to control the taking of animals fere nature, which was thus recognized and enforced by the common law of England, was vested in the colonial governments, where denied by their charters, or in conflict with grants of the royal prerogative. It is also certain that the power which the colonies thus pos- sessed passed to the states with the separa- tion from the mother country, and remains in them at the present day, in so far as its exercise may be not incompatible with, or restrained by, the rights conveyed to the federal government by the Constitution.” Wurrtr, J. Geer v. Connecticut, 161 U. S. 527. — Power to Be Exercised for Public Good. “Whilst the fundamental principles upon which the common property in game rests have undergone no change, the development of free institutions has led to the recognition of the fact that the power or control lodged in the state, resulting from this common ownership, is to be exercised, like all other powers of government, as a trust for the benefit of the people, and not as a preroga- tive for the advantage of the government, as distinct from the people, or for the bene- fit of private individuals as distinguished from the public good.” Waure, J. Geer v. Connecticut, 161 U. S. 529. —— Limitation of Period for Killing. “TI do not question the power of the state to prescribe a period during which wild game within its limits may not be lawfully killed.” Haran, J., dissenting. Geer uv. Connecti- cut, 161 U. S. 543. —— Restriction as to Sale for Foreign Consumption. “ Although there are declarations of some courts that the state possesses a property in 805 GARNISHMENT. its wild game, and when it authorizes the game to be killed and sold as an article of food it may limit the sale only for domestic consumption, I am unable to assent to its soundness, where the state has never had the game in its possession or under its control or use. I do not admit that in such case there is any specific property held by the state by which, in the exercise of its rightful authority, it can lawfully limit the control and use of the animals killed to particular classes of persons, or citizens, or to citizens of particular places or states. But on the contrary, I hold that where animals within a state, whether living within its waters or in the air above, are, at the time, beyond the reach or control of man, so that they cannot be subjected to his use or that of the state in any respect, they are not the property of the state or of any one in a proper sense.” Fretp, J., dissenting. Geer v. Connecticut, 161 U. S. 538. “In view of the authority of the state to affix conditions to the killing and sale of game, predicated as is this power on the peculiar nature of such ‘property and its common ownership by all the citizens of the state, it may well be doubted whether com- merce is created by an authority given by a state to reduce game within its borders to possession, provided such game be not taken, when killed, without the jurisdiction of the state.” Wuute, J. Geer v. Connecticut, 161 U. S. 530. “When any animal, whether living in the waters of the state or in the air above, is lawfully killed for the purposes of food or other uses of man, it becomes an article of commerce, and its use cannot be limited to the citizens of one state to the exclusion of citizens of another state.” Frexp, J., dissent- ing. Geer v. Connecticut, 161 U. S. 538. “TI do not doubt the right of the state, by its legislation, to provide for the protec- tion of wild game, so far as such protection is necessary for their preservation or for the comfort, health and security of its citizens, and does not contravene the power of Con- gress in the regulation of interstate com- merce. state, in its legislation for the protection and preservation of game, to interfere in any respect with the paramount control of Congress in prescribing the terms by which its transportation to another state, when killed, shall be restricted to such conditions as the state may impose. The absolute con- trol of Congress in the regulation of inter- But I do deny the authority of the © state commerce, unimpeded by any state au- thority, is of much greater consequence than any regulation the state may prescribe with reference to the place where its wild game, when killed, may be consumed.” Ftezp, J., dissenting. Geer v. Connecticut, 161 U. S. 541. “T do not think that it lies within the province of any state to confine the excel- lencies of any articles of food within its borders to its own fortunate inhabitants to the exclusion of others, and that it may law- fully require that game killed within its bor- ders shall only be eaten in such parts of the country as it may prescribe.” Frexp, J., dis- senting. Geer v. Connecticut, 161 U. S. 542. —— Exercise Must Conflict with Preserva- tion of Public Faith with Indians. “Not doubting for a moment that the preservation of game is a matter of great importance, I regard the preservation of the public faith, even to the helpless Indian, as a matter of much greater importance.” Brown, J., dissenting. Ward v. Race Horse, 163 U. S. 518. GAMING. “It Is Competent for a State to Pro- hibit Gambling by a severe penalty; and yet.to provide that an obligation given for money lost at gambling shall be valid.” McLean, J. Craig v. Missouri, 4 Pet. 459. “A Statute Giving the Right to Recover Back Money Lost at Gaming, and, if the loser does not ste within a certain time, au- thorizing qui tam action to be brought by any other person for threefold the amount, has been held to be remedial as to the loser, though penal as regards the suit by a com- mon informer.” Gray, J. Huntington v. Attrill, 146 U. S. 667. Congress Granting Power to Authorize Gaming. “Tt is reasonable to suppose that Congress, when granting a power to authorize gaming, would feel some solicitude respecting the fairness with which the power should be used; and would take as many precautions against its abuse as was compatible with its beneficial exercise” MarsHati, C. J. Clark v. City of Washington, 12 Wheat. 54. GARNISHMENT. Nature and Effect. “Garnishment almost everywhere exists. What is that but substantial attachment? 806 GAS AND GAS COMPANIES. It arrests the property in the hands of the garnishee, interferes with the owner’s or creditor’s control over it, subjects it to the judgment of the court, and therefore has the effect of a seizure. In all cases where the garnishee is a debtor, or where the gar- nishment is of stocks, it is effected by serv- ing notice upon the debtor, or corporation. A corporation holds its stock, as a quasi trustee, for its stockholders. The service of an attachment, though it is but a notice, binds the debt or the stock in the hands of the garnishee, from the time of the service, and thenceforward it is potentially in ‘gremio legis’”’ Stronc, J. Miller v. U. S, 11 Wall. 297. Necessity of Notice to Debtor. “A debt may be as valuable as tangible things. It is not capable of manual seizure, as they are, but no more than they can it be appropriated by attachment without process and the power to execute the process. A- notice to the debtor must be given, and can only be given and enforced where he is.” McKenna, J. Chicago, etc. R. Co. v. Sturm, 174 U. S. 716. Defense by Garnishee. “Where there is an express denial by the garnishees, setting up an equity of any prop- erty in their hands liable to the attachment, that allegation ought to be presumed to be supported by the local law applicable to the facts, until the contrary is explicitly estab- lished.” Story, J. Boyle v. Zacharie, 6 Pet. 647. —— Equitable Defense. “There is no principle upon which a court of chancery is required to imply that a pro- ceeding by a defendant, through the inter- vention of his creditor, to subject a legal demand, unconnected with any equity —a de- mand which equity would not permit him to collect in his own name, in consequence of the failure of consideration, shall divest -the garnishee of equitable claims and de- fenses.” CAMPBELL, J. Wanzer v. Truly, 17 How. 587. Liability of Garnishee for Interest. “As a general rule, a garnishee is not bound to pay interest, because he is liable to be called on to pay at all times.” Carron, J. Mattingly v. Boyd, 20 How. 132. Garnishment Proceedings as Defense to Action of Debt. “How proceedings in garnishment may be availed of in defense—whether in abate- ment or bar of the suit on the debt attached or for a continuance of it or suspension of execution — the practice of the states of the Union is not uniform. But it is obvious and necessary justice that such proceedings should be allowed as a defense in some way.” McKenna, J. Chicago, etc.,R. Co. v. Sturm, 174 U. S. 713. GAS AND GAS COMPANIES. Natural Gas Defined. “The substance that is taken from the bosom of the earth and which burns brightly without any further labor put upon it, is popularly designated as natural gas.” PEcK- HAM, J. U.S. v. Buffalo Natural Gas Fuel Co., 172 U. S. 340. Oil and Gas Distinguished from Other Minerals. “True it is that oil and gas, like other minerals, are situated beneath the surface of the earth, but except for this one point of similarity, in many other respects they great- ly differ. They have no fixed situs under a particular portion of the earth’s surface with- in the area where they obtain. They have the power, as it were, of self-transmission. No one owner of the surface of the earth, within the area beneath which the gas and oil move, can exercise his right to extract from the common reservoir, in which the supply is held, without, to an extent, dimin- ishing the source of supply as to which all other owners of the surface must exercise their ‘rights. The waste by one owner, caused by a reckless enjoyment of his right of striking the reservoir, at once, therefore, operates upon the surface owners. Besides, whilst oil and gas are different in character, they are yet one, because they are unitedly held in the place of deposit.” Whutre, J. Ohio Oil Co. v. Indiana, 177 U. S. 202. Analogy Between Animals Ferze Nature and Oil.or Gas. “Whilst there is an analogy between ani- mals fere nature and the moving deposits of oil and natural gas, there is no identity be- tween them.” Wuite, J. Ohio Oil Co. w. Indiana, 177 U. S. 209. Rights of Surface Proprietors as to Natural Gas and Oil. “The owner of the soil has the exclusive right to reduce to possession the deposits of natural gas and oil found beneath the surface of his land. The owner may not follow the natural gas when it shifts from beneath his own to the property of some one 807 GENERAL AVERAGE. else within the gas field. . . . As to gas and oil, the surface proprietors within the gas field all have the right to reduce to pos- session the gas and oil beneath.” Wuure, J. Ohio Oil Co. v. Indiana, 177 U. S. 209. — Gas or Oil Drawn from Deposit Ex- tending under Another Land. “Petroleum gas and oil are substances of a peculiar character, and decisions in ordinary cases of mining, for coal and other minerals which have a fixed situs, cannot be applied to contracts concerning them without some qualifications. They belong to the owner of the land, and are part of it, so long as they are on it or in it, or subject to his control, but when they escape and go into other land, or come under another control, the title of the former owner is gone. If any adjoin- ing owner drills his own land and taps a deposit of oil or gas, extending under his neighbor’s field, so that it comes into his well, it becomes his property.” ’ Sutras, J. Brown v. Spilman, 155 U. S. 669. Manufacture of Gas Is Business of Public Nature. “The manufacture of gas, and its distri- bution for public and private use by means of pipes laid, under legislative authority, in the streets and ways of a city, is not an ordi- nary business in which every one may en- gage, but is a franchise belonging to the government, to be granted, for the accom- plishment of public objects, to whomsoever, and upon what terms, it pleases. It is a business of public nature, and meets a public necessity for which the state may make pro- vision.” Harian, J. New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 669. “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 man- ufacture of articles that may be furnished by individual effort.” Futter, C. J. Gibbs v. Baltimore Consolidated Gas Co., 130 U. S. 408. GENERAL AVERAGE. See Apmriratty; Maritime Liens. “The General Principle [of General Average] certainly is, that whatever is sacrificed voluntarily for the common good, is to be recompensed by the common con- tribution of the property benefited thereby.” Story, J. Columbian Ins. Co. v. Ashby, 13 Pet. 343. “General average denotes that contribu- tion which is made by all who are parties to the same adventure towards a loss arising out of extraordinary sacrifices made, or ex- traordinary expenses incurred, by some of them, for the common benefit of ship and cargo.” CLiFForD, J. McAndrews v. Thatch- er, 3 Wall. 370. “Principle of the rule is, that ‘what is given for the general benefit of all,. shall be made good by the contribution of all’; and hence it is that losses, which arise out of extraordinary expenses incurred for the joint benefit of a ship and cargo, are as clearly to be carried into the adjustment as those which arise from sacrifices of part of the ship or part of the cargo.” CxtFForD, J. McAndrews v. Thatcher, 3 Wall. 367. “Settled rule . . . is, that when a ves- sel is accidentally stranded in the course of her voyage, and by labor and expense she is set afloat, and completes her voyage with the cargo on board, the expense incurred for that object, as it produced benefit to ali, so it shall be a charge upon all, according to the rates apportioning general average.” Cuirrorp, J. McAndrews v. Thatcher, 3 Wall. 367. Case Within Principle of General Average. “Where the cargo consists of various con- signments, and the vessel is stranded in the harbor of the port of destination, it will sel- dom or never happen that all the consign- ments will be delivered at the same time. On the contrary, some of necessity will be delivered before others; and yet, if the un- loading of the cargo has the effect to make the vessel float, and the whole adventure is saved by one continued, unremitted opera- tion, under the directions of the’ master, as the agent of all concerned, it would seem that the case was one falling directly within the equitable principle of general average, which requires that all the interests shall contribute for the expenses incurred to save the whole adventure from common peril.” CiirForD, J. McAndrews wv. Thatcher, 3 Wall. 368. “Repairs rendered necessary to the vessel by the ordinary perils of navigation, to en- able her to prosecute her voyage to her port of destination, it is admitted, must be borne by the owners of the vessel, but the question whether the sacrifice made by the ship in a case where the ship, cargo, and all on board were in imminent peril, and the ship was voluntarily stranded to save the whole ad- 808 GENERAL AVERAGE. venture, constitutes a valid claim for a gen- eral average contribution, is not an open one in this court, if the cargo is saved by the sacrifice, and it is equally well settled that extraordinary expenses incurred in get- ting the ship off, if the effort is ssuccessful, fall within the same rule.” CztrForp, J. Fowler v. Rathbones, 12 Wall. 117. “Tt is settled law in this court that the case is one for general average, although the ship was totally lost, if the stranding was designed for the common benefit and was voluntary, and it appears that the act of stranding, resulted in saving the cargo.” Currrorp, J. Fowler v. Rathbones, 12 Wall. 117. “Although the Stranded Vessel May Not Float, as a Consequence of the Un- ° lading of the Goods, still she may be so lightened by the operation, that the usual appliances at hand may be amply sufficient to enable the master to rescue the vessel without much expense or delay, and put her in a condition to receive back the cargo and transport it to the port of destination; and, in the case supposed, it cannot be doubted that the expense of saving the vessel, as well as the expense of preserving and re- loading the cargo, would be the proper sub- ject of general contribution.” CxiFForp, J. McAndrews v. Thatcher, 3 Wall. 368. Cases Neither of Contract nor of Tort. [Cases of salvage, jettison, or general av- erage] “are not matters of contract, accord- ing to the most eminent commentators on the subject, and they certainly are not cases of tort.’ Netson, J. The Eagle, 8 Wall. 23. General and Particular Average. “Where a ship was stranded by perils of the sea, and in order to lighten the vessel, the cargo was discharged and forwarded in another vessel, and subsequently new meas- ures were adopted, and additional expenses were incurred in -getting the ship off and taking ‘her into port for repairs, it was held that the expenses incurred from the misad- venture until the cargo was discharged, con- stituted a general average, but that the sub- sequent expenses were particular average, and chargeable only to the ship.” C.rFForD, J. McAndrews v. Thatcher, 3 Wall. 376. “The Rule for Computing a Technical Particular Average Loss has been in ex- istence for over a hundred years and is well known and understood. The dam- aged goods upon reaching their destination must be at once sold for the best price that can be had. It is then determined what the goods would have been worth in the same market had they been sound, and the differ- ence between the sound value and the pro- ceeds of the sale of the damaged article gives the ratio of deterioration, and the underwriter is to pay this ratio or percentage of loss on the policy value.” PscxHam, J. London Assurance v. Companhia De Moagens, 167 UL S, 171. Ship on Fire — Damage Caused by Water. “Tn this country, when a ship is on fire, damage caused to goods in the hold by water, either poured down from above, or let in by scuttling the ship, by the master, or under his order and direction, for the purpose of saving ship and cargo, has long been considered a subject of general aver- age.” Gray, J. Ralli v. Troop, 157 U. S. 411. “That damage done by pumping in water, or by scuttling and sinking the ship and extinguishing a fire, is a subject of general average contribution is now too well settled both in England and in this country to be longer a question of doubt, although the practice was formerly the other way.” Brown, J., dissenting. Ralli v. Troop, 157 U. S. 424. — Law in England. “At one time, the practice of English adjusters was to allow only the damage done to the ship by cutting holes in her to admit the water, but not the damage done by the water to the ship or cargo: # But that practice was changed, in deference to the opinion of the Court of Queen’s Bench (although any expression of opinion upon the point was avoided in the Exchequer Chamber). And the law of England in that respect has since been settled in ac- cordance with our law.” Gray, J. Ralli v. Troop, 157 U. S. 412. Origin. and Nature of General Average Law. “The law of general average, coming down to us from remote antiquity, is derived from the law of Rhodes, through the law of Rome, and is part of the maritime law, or law of the sea, as distinguished from the municipal law, or law of the land.” Gray, J. Ralli v. Troop, 157 U. S. 393. _ The rule as to general average is de- rived to us from the Rhodian law, as pro- mulgated and adopted in the Roman juris- 809 e GENERAL AVERAGE. prudence.” Story, J. Columbian Ins. Co. v. Ashby, 13 Pet. 337. “Courts universally admit that the Rho- dian law was the parent of maritime contri- bution, although, in terms, it made no provision for any case of general average, except for that of jettison of goods as the means of lightening the vessel. But the rule, as there laid down, has never been un- derstood as being confined to that particular case, but has always been regarded as a gen- eral regulation, applicable in all cases falling within the principle on which it is founded.” Cuirrorp, J. McAndrews v. Thatcher, 3 Wall. 366. True Foundation of General Average. “Tn truth, it is the safety of the property, and not of the voyage, which constitutes the true foundation of general average. If the whole cargo were thrown overboard to in- sure the safety of the ship, the voyage might be lost; but nevertheless the ship must con- tribute to the jettison.” Story, J. Colum- bian Ins. Co. v. Ashby, 13 Pet. 340. Contribution in ‘Case of Jettison Exists in All Commercial Nations. “The principle of the rule of general con- tribution, as applied to the case of a jettison, exists in all commercial nations; and the rule itself became a part of the statute law of England, in the reign of the Conqueror, and that of his youngest son. In a later period, the same principle was applied to a great number of analogous cases.” CAMPBELL, J., dissenting. Dupont de Nemours v. Vance, 19 How. 175. Roman Law. “TBy the Roman law] it was expressly declared, that if by a jettison in a tempest, the ship was saved from the impending peril, and afterwards was submerged in another place, still contribution was due from all the property which might be fished up, and saved from the calamity.” Story, J. Columbians Ins. Co. v. Ashby, 13 Pet. 340. Justice of Contribution. “Natural justice requires that where two of more parties are in a common sea fisk, and one of them makes a sacrifice or incurs extraordinary expenses for the general safe- ty, the loss or expenses so incurred shall be assessed upon all in proportion to the share of each in the adventure; or, in other words, the owners of the other shares are bound to make contribution in the proportion of the value of their several interests.” CxiF- _Forp, J. McAndrews v. Thatcher, 3 Wall. 366. “Common justice dictates that where two or more parties are engaged in the same sea risk, and one of them, in a moment of imminent peril, makes a sacrifice to avoid the impending danger or incurs extraordi- nary expenses to promote the general safety, the loss or expense so incurred shall be assessed upon all in proportion to the share of each in.the adventure.” C.LirForp, J. The Star of Hope, 9 Wall. 228. “Undoubtedly the doctrine of general av- erage contribution is deeply founded in the principles of equity and natural justice.” Currrorp, J. McAndrews v. Thatcher, 3 Wall. 372. “The law of general average has its foun- dation in equity. The principle, that ‘what is given for the general benefit of all shall be made good by the contribution of all,’ is recommended, not only by its equity, but also by its policy, because it encourages the owner to throw away his property without hesitation, in time of need.” GrtEr, J. Bar- nard v. Adams, 10 How. 303. “Where two or more parties are engaged in the same sea risk, and one of them, in a moment of imminent peril, makes a sacrifice to avoid the impending danger, or incurs extraordinary expenses to promote the safe- ty of all the associated interests, common justice requires that the sacrifice so made, or the extraordinary expenses so incurred, shall be assessed upon all the interests which were so exposed to the impending peril, and which were saved, by those means, from the threatened danger, in proportion to the share of each in the joint adventure.” CiFrorp, J. Fowler v. Rathbones, 12 Wall. 114. “Average contribution in such cases is allowed to the party, making such sacrifice or incurring such extraordinary expenses [in cases of perils to ships at sea], as a measure of justice for a meritorious service, to dis- tribute among all who were benefited by it a due proportion of what was sacrificed or expended; the principle being, that what- ever is sacrificed for the common benefit of the associated interests shall be made good by all the interests which were exposed to the common peril, and which were saved from the common danger by the sacrifice.” CiirForD, J. Hobson wv. Lord, 92 U. S. 409. Proper Subjects of General Average. “ Sacrifices, voluntarily made in the course of the voyage, of part of the ship or cargo, 810 GENERAL AVERAGE. to save the residue of the adventure from an impending evil, or extraordinary expense in- curred for the joint benefit of both ship and cargo, and which became necessary in con- sequence of a common peril, are usually regarded as the proper subjects of gen- eral average.” C.iFForD, J. McAndrews v. Thatcher, 3 Wall. 365. “ Sacrifices, voluntarily made in the course of a voyage, of part of the ship, or part of the cargo, to save the whole adventure from an impending sea peril, or extraordinary ex- penses incurred for the joint benefit of both ship and cargo, and which became necessary in consequence of a common peril of the kind, are regarded as the proper objects of general average. Average of the kind men- tioned denotes that contribution which is required to be made by all the parties to the same sea adventure towards a loss arising out of extraordinary sacrifices made, or ex- traordinary expenses incurred, by some of the parties, for the common benefit, to save the ship and cargo from an impending peril. Property not in peril requires no such sac- rifice, nor that any extraordinary expense should be incurred; and property not saved from the impending evil is not required to pay any portion of such a loss or expendi- ture, nor do ordinary losses or expenditures entitle a party to claim any such contribution from the associated interests of the adven- ture: from which it follows that the ship and cargo must have been in peril, and that the sacrifice must have been a part of the ship or cargo to save the residue of the adventure, or that the extraordinary ex- penses must have been incurred for the joint benefit of the ship and cargo, and which became necessary in consequence of a com- mon peril. Where there is no peril, such a sacrifice presents no claim for such a con- tribution; but, the greater and more immi- nent the peril, the more meritorious the claim against the other interests, if the sac- rifice was voluntary, and contributed to save the adventure from the impending danger to which all the interests were exposed.” CuirFrorp, J. Hobson v. Lord, 92 U. S. 399. — Temporary Repairs. “Temporary Repairs of damages arising from extraordinary perils of the sea, made at some intermediate port, for the purpose of prosecuting the voyage, if the damage to the ship was of a character to disable her and to interrupt the voyage, are the proper object of general average.” (CLIFFORD, J. Hobson v. Lord, 92 U. S. 407. “Repairs in such cases [of damages aris- ing from perils of the sea], if necessary to remove the disability of the ship to proceed on her voyage, are now everywhere regarded as the proper object of proportionate con- tribution; but expenses incurred for repairs, beyond what is reasonably necessary for that purpose, are not so regarded, because it is the duty of the owners, except in case of disaster, to keep the ship in a seaworthy condition.” Ciirrorp, J. Hobson v. Lord, 92 U. S. 407. “Necessary repairs to the ship, except to the extent that such repairs are required te place such parts of the ship as were sacri- ficed to save the associated interests, or to refit the ship to enable her to safely resume the voyage, are not to be included as gen- eral average by the adjuster.” CLiFForD, J. Hobson v. Lord, 92 U. S. 407. justifiable Deviation. “Where the disaster occurs in the open ocean, away from any port where repairs can conveniently be made, it often becomes nec- essary that the ship shall bear away to a port of refuge more or less distant from the usual course of her voyage; and it is unquestionably correct to say that the des viation in such a case is justifiable. Report- ed cases of the kind are quite numerous; and courts of justice, in disposing of such con- troversies, not infrequently refer to the bear- ing away of the ship as marking the time from which to compute the extraordinary expenses incurred in refitting the ship to prosecute the voyage. Examples of this kind are found in the decisions of this court, of which one of a striking character may be mentioned, where the court said that the wages and provisions of the master, officers, and crew, are general average from the time of putting away for the port of succor, and every expense necessarily incurred for the benefit of all concerned during the deten- tion.” Ctirrorp, J. Hobson v. Lord, 92 U.S. 408. Right to Contribution — Goods Saved. “Tf a cargo of cotton, about to be cap- tured or sunk, be thrown overboard in part or in whole, and the ship thus saved, the fact that the cotton floated to the shore and was saved, and therefore was in a better condition by casting away than if it had remained to be captured or sunk, cannot af- fect its right to contribution, though it may diminish its amount.” Grier, J. Barnard v. Adams, 10 How. 306. 811 GENERAL AVERAGE. “The fact that goods thrown overboard are in no worse, or even in a better, condi- tion as to chances of safety, than if they had remained on board, or that the stranded vessel is in a better condition than if she had been wrecked or sunk, cannot affect the right to contribution of that part which was selected to suffer in place of the whole.” Grirr, J. Barnard v. Adams, 10 How. 306. Seaworthiness — Test. “Tf-a vessel, during the voyage, has leaked so much as to injure the cargo, or render a jettison of it necessary, one mode of test- ing seaworthiness is, to ascertain what de- fects, occasioning leakage, were found in the vessel at the end of the voyage; and then to inquire which of those defects are attrib- utable to perils of the seas, encountered dur- ing the voyage, and which, if any, existed when it was begun; and, if any of the latter. be found, the remaining inquiry is, whether they were such as to render the vessel in- competent to resist the ordinary attacks of the sea, in the course of the particular voy- age, without damage or loss of cargo.” Curtis, J. Dupont de Nemours v. Vance, 19 How. 167. Worm-holes as Unseaworthiness. “We do not think the existence of . . worm-holes amount to wunseaworthiness.” Curtis, J. Dupont de Nemours v. Vance, 19 How. 168. Leading Limitations to Justify General Contribution. “The Roman law fully recognized and enforced the leading limitations and condi- tions to justify a general contribution, which have been ever since steadily adhered to by all maritime nations. First, that the ship and cargo should be placed in a common imminent peril; secondly, that there should be a voluntary sacrifice of property to avert that peril; and, thirdly, that by that sacrifice the safety of the other property should be presently and successfully attained.” Story, J. Columbian Ins. Co. v. Ashby, 13 Pet. 338. Three Things Must Concur to Constitute Claim. “The authorities, everywhere, agree that three things must concur in order to consti- tute a valid claim for general average con- tribution: First, there must be a common danger to which the ship, cargo, and crew were all exposed, and that danger must be imminent and apparently inevitable, except by incurring a loss of a portion of the asso- ciated interests to save the remainder. Sec- ondly, there must be the voluntary sacrifice of a part for the benefit of the whole, as, for example, a voluntary jettison or casting away of some portion of the associated in- terests for the purpose of avoiding the com- mon peril, or a voluntary transfer of the common peril from the whole to a particular portion of those interests. Thirdly, the at- tempt so made to avoid the common peril to which all those interests were exposed must be to some practical extent successful, for if nothing is saved there cannot be any such contribution in any case.” CLiFForp, J. The Star of Hope, 9 Wall. 229. “Tn order to constitute a case for general average, three things must concur: ist. A common danger;-a danger in which ship, cargo, and crew all participate; a danger imminent and apparently ‘inevitable,’ except by voluntarily incurring the loss of a portion of the whole to save the remainder. 2d. There must be a voluntary jettison, jactus, or casting away, of some portion of the joint concern for the purpose of avoiding this imminent peril, periculi imminentis evitandi causa, or, in other words, a transfer of the peril from the whole to a particular portion of the whole. 3d. This attempt to avoid the imminent common peril must be successful.” Grizr, J. Barnard v. Adams, 10 How. 303. Classification of Losses. “Losses which give a claim to general av- erage are usually divided into two great classes: (1) Those which arise from sacri- fices of part of the ship or part of the cargo, purposely made in order to save the whole adventure from perishing. (2) Those which arise out of extraordinary expenses incurred for the joint benefit of ship and cargo.” CuiFForD, J. The Star of Hope, 9 Wall. 228. “Losses in a sea risk which give a claim to general average are usually divided into two great classes: (1) Those which arise from a sacrifice of part of the ship, or part of the cargo, purposely made to save the whole adventure from perishing. (2) Such as arise out of extraordinary expenses in- curred, by one of the parties, in the course of the voyage, for the joint benefit of the ship and cargo.” Cuirrorp, J. Fowler v. Rathbones, 12 Wall. 114. “Where the Disaster Occurs in. the Course of the Voyage, and the Ship Is Disabled, the necessary expenses to refit her to go forward create an equity to sup- port such a claim, just as strong as a sacri- fice made to escape such a peril, if it appears 812 GENERAL AVERAGE that the cargo was saved, and that the ex- penses incurred enabled the master to prose- cute the voyage to a successful termination. Contribution is enforced in such a case, not because the ship when injured bore away to a port outside of the regular course of the voyage, but because the principles of equity, common justice, and the usages of commerce, require that what is given by one of the associated interests ‘for the benefit of all shall be made good by the proportionate con- tribution of all.’” Czxrrrorp, J. Hobson w. Lord, 92 U. S. 405. Crew’s Wages Where Ship Does Not Deviate. “Tt seems to me a dangerous precedent to allow contribution to the crew’s wages when a ship does not deviate from her course, but is merely delayed for repairs on the route of her regular voyage.” BrapLey, J., dissenting. Hobson v. Lord, 92 U. S. 412. When Loss Arises from Ship’s Fault. “Not only is the shipowner excluded from . contribution by way of general average when the loss arises from the ship’s fault, but he is legally responsible to the owner of the cargo for loss and damages so occasioned.” Suiras, J. The Irrawaddy, 171 U. S. 189. Where Ship Is Voluntarily Run Ashore. “Courts, as well as text writers, at the present day, agree that where the ship is voluntarily run ashore to avoid capture, foun- dering, or shipwreck, and she is afterwards recovered so as to be able to perform her voyage, the loss resulting from the strand- ing is to be made good by general average contribution, as such a claim is clearly with- in the rule that whatever is sacrificed for the common benefit of the associated inter- ests shall be made good by all the interests exposed to the common peril which were saved from the common danger by the sac- rifice.’” CzirForD, J. Fowler v. Rathbones, 12 Wall. 117. “When a ship is voluntarily run ashore, it does not of course follow that she is to be lost. The intention is not to destroy the ship, but to place her in less peril, if prac- ticable, as well as the cargo, but it is done to escape from a more pressing danger; sttch as a storm, or the pursuit of an enemy, or pirate. But, then, the act is done for the common safety; and if the salvation of the cargo is accomplished thereby, it is difficult fo perceive why, because from inevitable calamity the damage has exceeded the in- tention of expectation of the parties, the whole sacrifice should be borne by the ship owner, when it has thereby accomplished the safety of the cargo.” Story, J. Columbian Ins. Co. v. Ashby, 13 Pet. 342, Property Intrusted to Incompetent Per- sons. “Those who intrust their property in sail- ing vessels, or their cargoes to the care of persons ignorant of their duty, or incompe- tent in any other respect, have no just right to ask that others who have committed no fault should be compelled to share in their loss.” Tawney, C. J., dissenting. Haney v. Baltimore Steam Packet Co., 23 How. 295. Expenses Incurred Subsequent to Risk. “Tt is an undoubted rule that goods, or any interest, are not liable to contribute for any general average or expenses incurred subsequently to their ceasing to be at risk; because all that was not actually at risk at the time sacrifice was made or the expense incurred was not saved thereby, and no in- terest is compelled to contribute to the loss ort expense which was not benefited by the sacrifice.” CxiFForD, J. McAndrews v. Thatcher, 3 Wall. 368. “Though the Sacrifice of Part of the Cargo at Sea Cannot Be Considered a Loan, it is a forced appropriation of it to the general benefit of those engaged in a common adventure, under a contract of af- freightment; and such tse of the property of one, for the benefit of others, creates a charge on what was thus saved, for what may fairly be termed the price of that safe- ty.” Curtis, J. Dupont de Nemours v. Vance, 19 How. 170. “The Authority to Make a Jettison of Cargo Is Derived from . an In- stant Necessity, incapable of being pro- vided for save by a sacrifice of part of what is committed to the master’s care, and the presumed consent of the owners of all the subjects at risk, that the loss shall become a charge upon what is benefited by the sac- rifice. . . . If the sacrifice be made to enable the vessel to perform the voyage, by paying what the owners are bound to pay to complete it, the charge is on the vessel and its owners. If it be made to relieve the adventure from a peril which has fallen on all the subjects engaged in it, the risk of which peril was not assumed by the carrier, the charge is to be borne proportionably by all the interests, and there is a lien on each to the extent of its just contributory obli- gation. This authority of the master to 813 GENERAL AVERAGE. make the sacrifice, and this consent of the owners of the subjects at risk to have it made, and their implied undertaking to con- tribute towards the loss, are viewed by the admiralty law as sufficient to create an hy- pothecation of the subjects benefited, for the security of the payment of the several sums for which those subjects are respectively liable. In other words, as the master is au- thorized to relieve the adventurer from dis- tress, by means of an express hypothecation, in case of capture or distress in port, or by means of a sale of part of the cargo, and thereby create a lien on the property thus saved from peril.” Curtis, J. Dupont de Nemours v. Vance, 19 How. 170. What Goods Contribute to Loss. “TGoods stowed on deck] sacrificed for the common safety of the goods stowed under deck do not contribute to the loss.” Cz1F- ForD, J. The Delaware, 14 Wall. 604. Law Limited to Property Included in Maritime Adventure. “The law of general average, in England and America, is limited to property included in a maritime adventure; and has no appli- cation to other property, on land, or to con- tracts relating to such property.” Gray, J. Ralli v. Troop, 157 U. S. 405. “That Congress May Prescribe Rules in Reference to the Settlement of Average Contributions, arising in the foreign or federal commerce of the country, may be admitted, and also may assimilate the Amer- ican and French systems of commercial reg- ulation. But I am not prepared to admit that this can be done by judicial authority.” CAMPBELL, J., dissenting. Dupont de Ne- mours v. Vance, 19 How. 181. ‘ Harter Act. “While I freely concede that the owner of a ship is not by the general maritime law entitled to a general average contribution, where the loss is occasioned by the fault of the master or crew, I regard the third sec- tion of the Harter Act as introducing a new feature into the law of carriage by sea, and as eliminating altogether the question of negligence in navigation.” Brown, J., dis- senting. The Irrawaddy, 171 U. S. 196. Who May Act. “Doubtless, acts necessary to save the eommon adventure from an impending peril, or from its consequences, may either be done by the master and crew themselves; or else the master of the ship, or the owner, if present, may, in a proper case, avail himself of the aid of other private persons, or of public authorities, and necessary and reason- able expenses paid for such aid may be a subject of contribution in general average.” Gray, J. Ralli v. Troop, 157 U. S. 411. “Tf a General Average Loss Could Be Held to Arise from an Act of a Pilot, without or against the order of the master of the vessel, it could only be because the pilot, by the maritime law, and by reason of his nautical skill and experience, tempo- rarily took the place of the master, and was specially charged with the command and the safety of the whole maritime adventure, and of that adventure only.” Gray, J. Ralli v. Troop, 157 U. S. 403. “No judicial decision has been found, which recognizes a right in the pilot to make a jettison or other sacrifice.” Gray, J. Ralli v. Troop, 157 U. S. 401. Master’s Status, Duty, and Power. “Whether the master is considered as act- ing under an implied contract between the owners of the vessel and the shippers of the cargo, or as the agent of all from the necessity of the case, or as exercising a power and duty imposed upon him by the law as incident to his office whatever may be considered the source of his authority the power and the duty of determin- ing what part of the common adventure shall be sacrificed for the safety of the rest, and when and how the sacrifice shall be made, appertain to the master of the vessel.” Gray, J. Ralli v. Troop, 157 U. S. 400. “In Former Times, when merchants voyaged with their wares, their consent was held necessary to a jettison; and the captain was also required to consult with his officers, or with some of his crew, then, perhaps, more nearly his equals than in later times. But, even then, the final decision rested with the captain.” Gray, J. Ralli v. Troop, 157 U. S. 399. “At the Present Day, since voyages are longer, and merchants seldom go with their goods, there is the greater reason that upon the captain, selected for his skill and cour- age, and for his fitness to command the whole adventure, and to decide promptly and justly in cases of emergency, and better ac- quainted than any one else with the qualities and condition of the ship, and with the nature and stowage of her cargo, should rest the authority and the duty, in case of imminent peril, first taking such advice.as he sees fit, 814 GENERAL AVERAGE. to determine finally, so far as concerns the mutual relations of those interested in the maritime adventure, the time and the man- ner of sacrificing part of the adventure to secure the safety of the rest.” Gray, J. Ralli v. Troop, 157 U. S., 399. Lien. “Equity requires, that, in such a case [of peril to a ship at sea], those whose efforts have been preserved by the sacrifice or ex- traordinary expenditure of the other shall contribute to such voluntary sacrifice or ex- penditure; and commercial policy, as well as equity, favors the principle of proportionate contribution, as it encourages the owner, if present, to consent that his property, or some portion of it, may be cast away or exposed to peculiar and special danger to save the adventure and the lives of those on board from impending destruction. Such an owner, under such circumstances, has a lien upon the property saved from the imminent peril, to enforce the payment of the propor- tionate contribution for the sacrifice made or extraordinary expenses incurred.” CuiF- FoRD, J. Hobson v. Lord, 92 U. S. 405. “Tf a master of a vessel gets a lien upon the saved cargo, in case of jettison, or vol- untary stranding of his vessel, and he is in any way dispossessed of any part of it, either by a freighter or other person, he may bring a possessory action in a maritime court to regain it, or a petitory libel, if the goods saved have got into the hands of a third per- son, who claims a right of property in them against the freighter. And further, that if the freighters, in a case of jettison or vol- untary stranding of a vessel, disagree as to _what should be their respective contribu- tions, and there is no fixed rule for ascer- taining it without suit in the country where the said cargo may happen to be, either the captain having the cargo in possession, or the freighters, or either of them, may go into a maritime court, to have it judicially determined. And that a party interested in such a lien may file his libel in personam, in a maritime court, against a freighter for his contribution, if he has got possession of his part of the saved cargo, and has re- moved it beyond the sovereignty in which the court is, so that it may not be seques- trated or put under arrest, to answer the court’s decree. And it matters not whether the freighter’s possession of the saved goods has been obtained by the delivery of it to him by the master, or otherwise.” WayNE, J. Cutler v. Rae, 7 How. 734. ‘to be adjusted.” “The Place Where Average Shall Be Stated is always dependent, more or less, on accidental circumstances, affecting not the technical termination of the voyage, but the actual and practical closing of the adven- ture.” Grier, J. Barnard v. Adams, 10 How. 307. “The general rule [is] that contribution should be assessed on the value at the home port.” Grier, J. Barnard v. Adams, 10 How. 307. “Maritime usage everywhere is, that the port of destination, or delivery of the cargo, is the port where the [general] average is Currrorp, J. Hobson wv. Lord, 92 U. S. 411. Actions. “T have not been able to find a precedent, either in the United States or Great Britain, where a contributory share, in the nature of average, has been recovered, in a conten- tious litigation, in an action on a bill of lading for the non-delivery of cargo.. But the books of precedents show that average contributions are recovered in actions, either of special or general assumpsit, the form of the action depending on the fact of the. adjustment of the account.” CAMPBELL, J., dissenting. Dupont de Nemours v. Vance, 19 How. 174. Jurisdiction. “The ancient codes do nothing more than recognize the existence of a rule of contribu- tion in regard to losses arising from a jetti- son, or cases of a similar character, and the master’s power of detention of the cargo saved, for the security or payment of the contributory shares, but they do not ascribe any greater operation to the rule, either in affecting property or in designating the ju- risdictions to which the enforcement of the rule should be committed.” CAMPBELL, J., dissenting. Dupont de Nemours v. Vance, 19 How. 179. ‘ Chancery Will Enforce Contribution. “From the earliest of the chancery reports, we learn that chancery will enforce an aver- age or contribution to be made, when neces- sary, and that it will enforce an agreement among merchants to pay average.’ CAMP- BELL, J., dissenting. Dupont de Nemours v. Vance, 19 How. 176. District Courts Sitting in Admiralty. “No adjudication during sixty years of our history is to be found, where the power to 815 GLEBE. adjust or to collect am average account is afhrmed, or has been exerted by the district courts sitting in admiralty, upon direct ap- plication to them for the purpose.” CAamp- BELL, J., dissenting. Dupont de Nemours wv. Vance, 19 How. 179. Conflicting Authorities — Duty of Court. “Upon this question [generat average] the maritime jurists of continental Europe are not entirely agreed in opinion; and our own jurisprudence presents conflicting adjudica- tions. It becomes the duty of this court, therefore, to examine and weigh these op- posing opinions, and to ascertain, as far as it may, the true principle which ought to govetn ts on the present occasion.” Story, J. Columbian Ins. Co. v. Ashby, 13 Pet. 337. GIFTS. Delivery Essential to Gift. “Tt may be conceded, as a general rule, that delivery is essential, both in law and in equity, to the validity of a gift, whether of real or personal estate.”” Hunt, J. Adams v. Adams, 21 Wall. 191. “A Promise to Make a Gift Does Not Bind, but a gift cannot be taken back, and a transfer in pursuatice of mutual prom- ises is not made less effectual by those prom- ises ot by the fact that money was received in exchange.” Hotmes, J. St. Louis Hay, etc., Co. v. U. S., 191 U. S. 163. Executed Gift Is Irrevocable. “When a contract has once passed, bona fide, into grant, neither the king nor any private person, who may be the grantor, can recall the grant of the property, al- though the conveyance may have been pure- ly voluntary. [A gift, completely executed, is itrevocable.] The property conveyed by it becomes, as against the donor, the absolute property of the donee; and no such stbse- quent change of intention of the donor can change the rights of the donee. And a gift by the crown of incorporeal heredita- ments, such’ as corporate franchises, when executed, comes completely within the prin- ciple, and is, in the strictest sense of the terms, a grant.” Srory, J. Dartmouth Col- lege v. Woodward, 4 Wheat. 683. “The Condition, which Inheres in the Gift Mortis Causa, is a sybsequent condi- tion, that the subject of the gift shall be re- turned if the gift fails by revocation; in the meantime the gift is executed, the title has vested, the dominion and control of the donor has passed to the donee. While here, the condition annexed by the donor to his. gift is a condition precedent, which must happen before it becomes a gift, and, as the contingency contemplated is the donor’s. death, the gift cannot be executed in his lifetime, and, consequently, can never take ef- fect.” MatrHews, J. Basket wv. Hassell, 107 U. S. 616. “By the Code Napoleon, gifts of prop- erty, whether by acts inter vivos, or by will, mist not exceed one-half the estate if the testator leave but one child; one-third, if he leaves two children; one-fourth, if he leaves three or more. If he have no children, but leaves ancestors, both in the paternal and maternal line, he may give away but one- half of his property, and but three-fourths if he have ancestors in but one line.” Brown, J. U. S. v. Perkins, 163 U. S. 627. , Transactions Between Trustee and Bene- ficiary. “While a man in the full possession of his faculties and under no duress may give away his property, and eqttity will not recalt the gift, yet it looks with careful scrutiny upon all transactions between trustee and beneficiary, and if it appears that the trus- tee has taken any advantage of the sit- uation of the beneficiary, and has obtained from him, even for only the benefit of other beneficiaries, large property without con- sideration, it will refuse to uphold the trans- action thts accomplished.” Brewer, J. Adams uv. Cowen, 177 U. S. 484, GLEBE. See Reticious Soctettes. Nature and Necessity. “No parish church, as such, could have a legal existerice until consecration; and consecration was expressly inhibited unless upon a suitable endowment of land. The canon law, following the civil law, re- quired such endowment to be made or at least ascertained, before the building of the church was begun. . . . This endow- ment was in ancient times commonly made by an allotment of manse and glebe, by the lord of the manor, who thereupon became the patron of the church. Other persons also at the time of consecration often contributed small portions of ground, which is the rea- son, we are told, why, in England, in many parishes, the glebe is not only distant from the manor, but lies in remote, divided, par- cels.” Story, J. Pawlet v. Clark, 9 Cranch 330. 816 GOVERNMENT. Rights as to the Glebe, “ Whenever within the province, previous to the Revolution, an Episcopal church was duly erected by the crown, in any town, the parson thereof regularly in- ducted had a right to the glebe in perpetual succession. Where no such church was duly erected by the crown, the glebe remained as an hereditas jacens, and the state which succeeded to the rights of the crown, might, with the assent of the town, alien or encum- ber it; or might erect an Episcopal chureh therein, and collate, either directly, or through the vote of the town, indirectly, its parson, who would thereby become seized of the glebe jure ecclesie and be a cor- poration capable of transmitting the inherit- ance.” Story, J. Pawlet v. Clark, 9 Cranch 334, Appropriation by Vestry of Proceeds of Sale. “Upon the sale of the glebe, the pro- ceeds become parochial property, and must be applied for the common benefit, the main- tenance of the minister, the repairs of the churches, and other parochial expenses, by the vestry, in good faith. But the mode, and extent, and circumstances, under which the fund is to be applied, are necessarily left to the discretion of the vestries from time to time chosen.” Story, J. Mason v. Mun- caster, 9 Wheat. 468. GOOD WILL. Nature. “Undoubtedly, good will is in many cases a valuable thing, although there is difficulty in deciding accurately what is included un- der the term. It is tangible only as an incident, as connected with a going concern or business having locality or name, and is not susceptible of being disposed of inde- pendently.” Futier, C. J. Metropolitan Bank v. St. Louis Dispatch Co., 149 U. S. 446. Of a Newspaper. “As applied to a newspaper, the good will usually attaches to its name‘rather than to the place of publication. The probability of the title continuing to attract custom in the way of circulation and advertising pat- ronage, gives a value which may be pro- tected and disposed of, and constitutes prop- erty.” Futter, C. J. Metropolitan Bank v. St. Louis Dispatch Co., 149 U. S. 446. “There Is No Good Will in a Share of Stock Over and Above the Good Will 1 Os. Dic.—52 Which Belongs to the Corporation, and if the corporation sells and conveys all that it possesses ‘capable of private ownership,’ it sells and conveys its good will, and there is nothing left of good will or anything else belonging to the stockholders. This is so plain that he who runs may read.” BREWER, J. dissenting. San Francisco Nat. Bank wv. Dodge, 197 U. S. 93. GOVERNMENT. . I. DEFINITIONS AND GENERAL PRIN- CIPLES. II. Powers, Jurispicrion, AND Du- TIES OF GOVERNMENT. JIT, Lrapiniries or GOVERNMENT. IV. Surrs By or Acarnst GOvERN- MENT. 1. Right of Government to Sue, 2. Right to Sue Government, V. GovERNMENT DEPARTMENTS, CROSS-REFERENCES. As to revision by courts of the discretion of executive officers, see DISCRETION. See also Ciarms AGAINST THE UNITED States; Concress; INTEREST; INTERSTATE ComMeErcE; Lacues; Limitation oF ACTIONS; PoticE Power; STATES; TAXATION; TERRI- Tories; TiTLe By Discovery; Unirep States, I. DEFINITIONS AND GENERAL PRINCIPLES. “The Word ‘Nation’ as ordinarily used presupposes or implies an independ- ence of any other sovereign power more or less absolute, an organized government, rec- ognized officials, a system of laws, definite boundaries and the power to enter into ne- gotiations with other nations.” Brown, J. Montoya v. U. S., 180 U. S. 265. “Nations being composed of men natu- rally free and independent, and who, before the establishment of civil societies, live to- gether in the state of nature, nations or sovereign states, are to be considered as so many free persons, living together in a state of nature,” THompson, J., dissenting. Cherokee Nation v. Georgia, 5 Pet. 53. Territory of Sovereign Power. “Ordinarily, when the territory of a sover- eign power is spoken of, it refers to that tract of country which is under the politi- cal jurisdiction of that sovereign power.” 817 GOVERNMENT. Curtis, J., dissenting. Scott v. Sandford, 19 How. 610. : District and People. “Nor is district an appropriate designa- tion of a recognized power de facto, since such a power would represent not the terri- tory actually held but the territory covered by the claim of sovereignty. And the word ‘people,’ when not used as the equivalent of. state or nation, must- apply to a body of persons less than a state or nation, and this meaning would be satisfied by con- sidering it as applicable to any consolidated political body.” Futter, C. J. The Three Friends, 166 U. S. 58. “Sovereignty is the right to govern; a nation or state sovereign is the person or persons in whom that resides.” Jay, C. J. Chisholm v. Georgia, 2 Dall. 472. “ Sovereignty, independence, and a perfect right of self-government, can signify nothing less than a superiority to and an exemption from all claims by any extraneous power, however expressly they may be asserted, and render all attempts to enforce such claims merely attempts at usurpation.” Dantet, J. Scott v. Sandford, 19 How. 485. “There is a great deal of confusion in the use of the word ‘sovereignty’ by law writers. Sovereignty or supreme power is in this country vested in the people, and only in the people.” Fre.p, J., dissenting. Fong Yue Ting v. U. S., 149 U. S. 757. “Every state or nation possesses an ex- clusive sovereignty and jurisdiction within her territory; and her laws affect and bind all property and persons residing within it. It may regulate the manner and circum- stances under which property is held, and the condition, capacity and state, of all per- sons therein ; and, also, the remedy and modes of administering justice. And it is equally true that no state or nation can affect or bind property out of its territory, or persons not residing within it. No state, therefore, can enact laws to operate beyond its own dominions and, if it attempts to do so, it may be lawfully refused obedience. Such laws can have no inherent authority extra- territorially. This is the necessary result of the independence of distinct and separate sov- ereignties.” NELSon, J. Scott v. Sandford, 19 How. 460. “Every nation that governs itself, under what form soever, without any dependence on 2 foreign, power, is a sovereign state. Its rights are naturally the same as those of any other state. Such are:moral persons who live together in a natural society, under the law of nations. It is sufficient if it be really sovereign and independent, that is, it must govern itself by its own authority and laws. We ought, therefore, to reckon in the num: ber of sovereigns those states that have bound themselves to another more powerful, al- though by an unequal alliance. The condi- tions of these unequal! alliances may be infi- nitely varied; but whatever they are, provided the inferior ally reserves to itself the sover- eignty or the right to govern its own body, it ought to be considered an independent state. Consequently, a weak state, that, in order to provide for its safety, places itself under the protection of a more powerful one, without stripping itself of the right of gov- ernment and sovereignty does not cease on this account to be placed among the sov- ereigns who acknowledge no other power.” TuHompson, J., dissenting. Cherokee Nation v. Georgia, 5 Pet. 53. “ Sovereignty itself is, of course, not sub- ject to law, for it is the author and source of law; but in our system, while sovereign pow- ers are delegated to the agencies of govern- ment, sovereignty itself remains with the peo- ple, by whom and for whom all government exists and acts.” MatTrHews, J. Yick Wo v. Hopkins, 118 U. S. 370. “The powers of sovereignty confided to the legislative body of a state are undoubtedly a trust committed to them, to be executed to the best of their judgment for the public good; and no one legislature can, by its own act, disarm their successors of any of the powers or rights of sovereignty confided by the people to the legislative body, unless they are authorized to do so by the constitution under which they are elected.” Taney, C. J. Ohio L. Ins. Co. v, Debolt, 16 How. 431. “ All legislative powers appertain to sov- ereignty. The original power of giving the law on any subject whatever, is a sovereign power.” Marsuatt, C. J. M’Culloch v. Maryland, 4 Wheat. 409. “Tn America, the powers of sovereignty are divided between the goyernment of the Union, and those of the states. They are each sovereign with respect to the objects com- mitted to it, and neither sovereign with re- spect to the objects committed to the other.” MarsHaLt, .C, J. M’Culloch v. Maryland, 4 Wheat. 410. 818 GOVERNMENT: “Federal sovereignty as well as the sov- ereignty of the states is limited and restricted by the Constitution. Certain powers, legisla- tive, executive, and judicial, are possessed by each, independent of the other; and in the ex- ercise of such powers all agree that they act as separately and independently of each other as if the line of division was traced by land- marks visible to the eye.” CLiFForD, J., dis- senting. Tennessee v. Davis, 100 U. S. 278. “In the exercise of sovereign. right, the sovereign is sole arbiter of his own justice. The penalty of wrong is war and subjuga- tion.” Jounson, J. Cherokee Nation vw. Georgia, 5 Pet. 29. , “As a member of a corporation, a govern- ment never exercises its sovereignty. It acts merely as a corporator, and exercises no other power in the management of the affairs of the corporation, than are expressly given by the incorporating act.” Marswatt, C. J. Bank of U. S..v. Planters’ Bank of Ga., 9 Wheat. 908, “The government, by becoming a corpora- tor, lays down its sovereignty, so far as re- spects the transactions of the corporation, and exercises no power or privilege which is not derived from the charter.” MarsHaAtt, C. J. Bank of U. S. v. Planters’ Bank of Ga, 9 Wheat. 908. Partial Right of Sovereignty. “Whenever one power has an exterritorial right over the territory or sovereignty of an- other power, it is called by writers ‘a partial right of sovereignty.’” Wayne, J., concur- ring. Passenger Cases, 7 How. 422. “Tributary and Feudatory States donot thereby cease to be sovereign and independ- ent states, so long as self-government, and sovereign and independent authority is left in the administration of the © state.” THompson, J., dissenting. Cherokee Nation v. Georgia, 5 Pet. 53. ; Sovereign and Belligerent Rights. “ Admitting a sovereign who is endeavor- ing to reduce his revolted subjects to obedi- ence, to possess both sovereign and belliger- ent rights, and to be capable of acting in either character, the manner in which he acts must determine the character of the act.” MarsHALL, C. J. Rose v. Himely, 4 Cranch 272. Supreme Power or Will. “Tn every government, whether it consists of many states or of a few, or whether it be . of a federal or consolidated nature, there must be a supreme power or will; the rights of war and peace are component parts of this supremacy, and incidental thereto is the ques- tion of prize.” Paterson, J. Penhallow vw. Doane’s Adm’rs, 3 Dall. 80. Divesting of Sovereign Character. “Tt is a sound principle that when a government becomes a partner in any trading company, it devests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a Private citizen. Instead of communicating to the company its privileges and its preroga- tives, it descends to a level with those with whom it associates itself, and takes the char- acter which belongs to its associates, and to the business which is to be transacted.” MarsHat.t, C. J. Bank of U. S. v. Planters’ Bank of Ga., 9 Wheat. 907. Responsibility of Authority Cannot Be Bartered Away. “The responsibility of the legal authority, municipal or state, cannot be stipulated or bartered away.” Fuietp, J. Gray v. Connect- icut, 159 U. S. 77. Origin of Government. “Tt is a popular and flattering theory, that the only legitimate origin of government is in compact, and the exercise of individual will. That this is not practically true, is obvious from history; for, excepting the state of Massachusetts, and the United States, there is not perhaps on record. an instance of a government purely originating in compact. And even here, probably; not more than one third of those. subjected to the government has a voice in the contract. Womer and chil- dren under an age arbitrarily assumed, are necessarily excluded from the right of assent, and yet arbitrarily subjected. If the moral government of our Maker and our parents is to be deduced from gratuitous benefits be- stowed on us, why may not the government that has shielded our infancy claim from us a debt of gratitude to be repaid after man- hood?” JouNson, J., dissenting. Shanks v. Dupont, 3 Pet. 262. : “The Paternal Theory of Government is to me odious. The utmost possible liberty to the individual, and the fullest possible pro- tection to him and his property, is both the limitation and the duty of government.” Brewer, J., dissenting. Budd v. New York, 143 U. S. 551. “[The Confederation] was simply a confederacy of the several states, possessing 819 GOVERNMENT. a few defined powers over subjects of general concern, each state retaining every power, jurisdiction and right, not expressly delegated to the United States in Congress assembled. And no power was thus delegated to the gov- ernment of the Confederation, to act on any question of citizenship, or to make any rule in respect thereto. The whole matter was left to stand upon the action of the several states, and to the natural consequences of such action, that the citizens of each state should be citizens of that confederacy into which that state had entered, the style where- of was, ‘The United States of America.’” Curtis, J., dissenting. Scott v. Sandford, 19 How. 572. “The Confederate Government is to be regarded by the courts as simply the military representative of the insurrection against the authority of the United States.” Haran, J. Ford v. Surget, 97 U. S. 604. “The Great Distinction Between Mon- archies and Republics (at least our re- public) in general is, that in the former the monarch is considered as the sovereign, and each individual of his nation as subject to him, though in some countries with many im- portant special limitations. This, I say, is generally the case, for it has not been so universally. But in a republic, all the citi- zens, as such, are equal, and no citizen can rightfully exercise any authority over an- other, but in virtue of a power constitution- ally given by the whole community and such authority when exercised, is in effect an act of the whole community which forms such body politic. In such governments, there- fore, the sovereignty resides in the great body of the people, but it resides in them not as so many distinct individuals, but in their politic capacity only.” Irepett, J., concur- ring. Penhallow v. Doane’s Adm’rs, 3 Dall. 93. De Facto and De Jure Governments. “The distinguishing characteristic of such a government de facto is, that adherents to it in war against the government de jure do not incur the penalties of treason; and under certain limitations, obligations assumed by it in behalf of the country, or otherwise, will, in general, be respected by the govern- ment de jure when restored.” Cuasz, C. J. Thorington v. Smith, 8 Wall. 8. “Tts distinguishing characteristics [those of a government de facto] are (1), that its existence is maintained by active military power, within the territories, and against the rightful authority of an established and law- ful government; and (2), that while it exists, it must necessarily be obeyed in civil matters by private citizens who by acts of obedience, rendered in submission to such force, do not become responsible, as wrongdoers, for :those acts, though not warranted by the laws of the rightful government.” Cuasr, C. J. Thorington v. Smith, 8 Wall, 9. “Such a government [de facto] in its highest degree, assumes a character very closely resembling that of a lawful govern- ment. This is when the usurping government expels the regular authorities from their cus- tomary seats and functions, and establishes itself in their place, and so becomes the actual government of a country.” CuHaseg, C. J. Thorington v. Smith, 8 Wall. 8. “The government of the Confederate states, although in no sense a government de jure, and never recognized by the United States as in all respects a government de facto, yet was an organized and actual gov- ernment, maintained by military power, throughout the limits of the states that ad- hered to it, except in those portions of them protected from its control by the presence of the armed forces of the United States; and the United States, from motives of humanity and expediency, had conceded to that gov- ernment some of the rights and obligations of a belligerent.” Gray, J. Oakes v. U. S,, 174 U. S. 794. “Claims Founded upon the Acts of a Government De Facto must be sustained, if at all, by the nature and character of such acts themselves, as proceeding from the exercise of the inherent and rightful powers of an independent government. They can never be supported upon the authority of such a government, if shown to have orig- inated in a violation of its own compacts, and in derogation of rights it had expressly conceded to others. Every claim asserted upon wrong, such as this latter position im- plies, would be estopped and overthrown by alleging the compact or concession it sought to violate.” Danret, J. U. S. v. Reynes, 9 How. 153. General Considerations. “Tt is commonplace to say that it is the purpose, and indeed duty, of government, to get all it can of good out of the activities of men, and limit or forbid them when they be- come or tend to evil. Of course, what is evil may not be always clear; but to be able to dispute the policy of a law is not to 820 GOVERNMENT. establish its invalidity.” McKenna, J. Na- tional Cotton Oil Co. v. Texas, 197 U. S. 129. “Lawful government should not be re- quired to pay the expenses incurred in ef- fecting and maintaining its overthrow.” Haran, J, Keith wv. Clark, 97 U. S. 483. “Tt is undoubtedly true that, when revolu- tions in governments occur, the new gov- ernments do often, as matter of policy, and to prevent individual distress among the citi- zens, assume the obligations of the govern- ments to which they succeed. But this is done from motives of public policy only, and is not submitted to as a matter of absolute right.” Wate, C. J., dissenting. Keith v. Clark, 97 U. S. 478. “With a few exceptions, growing out of considerations of public policy, the rules of Jaw which apply to the government and to individuals are the same. There is not one law for the former and another for the lat- ter.” Swayne, J. McKnight v. U. S., 98 U. S. 186. “Human wisdom has never devised a form of government so perfect that it may not be perverted to bad purposes.” Brown, J. Downes v. Bidwell, 182 U. S. 283. “The Science of Government is the most abstruse of all sciences; if, indeed, that can be called a science which has but few fixed principles, and practically consists in little more than the exercise of a sound dis- cretion, applied to the exigencies of the state as they arise. It is the science of experi- ment.” JoHNsoNn, J. Anderson v. Dunn, 6 Wheat. 226. Underlying Principle of Institutions. “Liberty regulated by law is the underly- ing principle of our institutions.” HARLAN, J. Sparf v. U. S., 156 U. S. 103. “Tt is the theory, and I may add, the glory of our institutions, that they are founded upon law, that no one can exercise any au- thority over the rights and interests of others except pursuant to and in the man- ner authorized by law.” Fev, J. U. S. v. San Jacinto Tin Co., 125 U. S. 307. “The Principle Upon Which Our Gov- ernments Rest, and upon which alone they continue to exist, is the union of states, sovereign and independent within their own limits in their internal and domestic concerns, and bound together as one people by a gen- eral government, possessing certain enumer- ated and restricted powers, delegated to it by the people of the several states, and ex- ercising supreme authority within the scope of the powers granted to it, throughout the dominion of the United States.” Taney, C. J. Scott v. Sandford, 19 How. 447. Adapting Principles to Moral and Social Conditions. “Tt is no doubt a wise policy to adapt the principles of government to the moral and social condition of the governed. This is no less true in a judicial than it is in a political point of view; and where an intelli- gent people possess the sovereign power, they will not fail to secure this first object of a good government.” M’Lean, J., dissenting. Parsons v. Bedford, 3 Pet. 451. Prerogatives of King Entering into Our Political State. “It may be considered as settled that so much of the royal prerogatives as belonged to the king in his capacity of parens pairie, or universal trustee, enters as much into our political state as it does into the principles of the British constitution.” Strone, J. Dollar Sav. Bank v. U. S., 19 Wall. 239. Fundamental Principles of Eternal Justice. “As there are unchangeable principles of right and morality, without which society would be impossible, and men would be but wild beasts preying upon each other, so there are fundamental! principles of eternal justice, upon the existence of which all constitutional government is founded, and without which government would be an intolerable and hate- ful tyranny.” Fretp, J., dissenting. Legal Tender Cases, 12 Wall. 670. “T submit that great principles of gov- ernment rest upon solid foundations of truth and justice, and are not to be set at naught and evaded by the mere confusion of words.” Waite, J., dissenting. Adams Express Co. v. Ohio, 165 U. S. 240. Regard for Justice and Morality. “We naturally look to the action of a sovereign state, to be characterized by a more scrupulous regard to justice, and a higher morality, than belongs to the ordinary trans- actions of individuals.” McLean, J. Wood- ruff v. Trapnall, 10 How. 207. Necessity for Fundamental Principles to Be Settled. “Tf the great and fundamental principles of our government are never to be settled, there can be no lasting prosperity. The Con- stitution will become a floating waif on the 821 GOVERNMENT. billows of popular excitement.” McLean, J., dissenting. Scott v. Sandford, 19 How. 546. Test of Character and Value of Govern- ment. “Tn any society the fulness and sufficiency of the securities which surround the indi- vidual in the use and enjoyment of his property constitute one of the most certain tests of the character and value of the gov- ernment.” Brewer, J. Monongahela Nav. Co. v. U. S., 148 U. S. 324. Minimum Interference. “That government is the best which, while performing all its duties, interferes the least with the lawful pursuits of its people.” Waite, C. J. Chicago, etc., R. Co. v. Iowa, 94 U. S. 162. Difference Between Our Government and Others. “Our system of government seems to me to differ, in form and spirit, from all other governments, that have heretofore existed in the world. It is as to some particulars na- tional, in others federal, and in all the resi- due territorial, or in districts called states.” McKeay, C. J. Respublica v. Cobbet, 3 Dall. 473. “Our Government Is a Mixed Govern- ment, partly state, partly national.” Warte, C. J., dissenting. Keith v. Clark, 97 Uz S. 475. “That Distinct Sovereignties Could Ex- ist Under One Government, emanating from the same people, was a phenomenon in the political world, which the wisest states- men in Europe could not comprehend; and of its practicability many in our own country entertained the most serious doubts. Thus far the friends of liberty have had great cause of triumph in the success of the principles upon which our government rests. But all must admit that the purity and permanency of this system depend on its faithful administra- tion.” M’Lgan, J. Craig v. Missouri, 4 Pet. 464, People of United States Subject to Two Governments. “The people of the United States resident within any state are subject to two govern- ° ments; one state, and the other national; but there need be no conflict between the two. The powers which one possesses, the other does not. They are established for different purposes, and have separate jurisdictions. Together they make one whole, and furnish the people of the United States with a com- plete government, ample for the protection of all their rights at home and abroad. True, it sometimes happens that a person is amen- able to both jurisdictions for one and the same act. Thus, if a marshal of the United States is unlawfully resisted while executing the process of the courts within a state, and the resistance is accompanied by an assault on the officer, the sovereignty of the United States is violated by the resistance, and that of the state by the breach of peace, in the assault. So, too, if one passes counterfeited coin of the United States within a state, it may be an offense against the United States and a state: The United States, because it discredits the coin; and the state, because of the fraud upon him to whom it is passed. This does not, however, necessarily imply that the two governments possess powers in common, or bring them into conflict with each other. It is the natural consequence of a citizenship which owes allegiance to two sov- ereignties, and claims protection from both. The citizen cannot complain, because he has voluntarily submitted himself to such a form of government. He owes alle- giance to the two departments, so to speak, and within their respective spheres must pay the penalties which each exacts from disobedience to its laws. In return, he can demand protection from each within its own jurisdiction.” Warts, C. J. U. S. w. Cruikshank, 92 U. S. 550. “The Strength of Our Political System Consists in Its Harmony; and this can only be preserved by a strict observance of the respective powers of the state and federal government.” M’LEAN, J. Charles River Bridge v. Warren Bridge, 11 Pet. 583. Chief Object of Government. “The protection of the safety, the health, the morals, the good order and the general welfare of the people is the chief end of gov- ernment. Salus populi suprema lex.’ Gray, J., dissenting. Leisy v. Hardin, 135 U. S. 158, “Men are endowed by their Creator with certain inalienable rights, ‘life, liberty and the pursuit of happiness’; and to ‘secure,’ not grant or create, these rights governments are instituted.” Brewer, J., dissenting. Budd v. New York, 143 U. S. 550. Right to Establish Principles Conducive to Happiness. = That the people have an original right to establish, for their future government, such 822 GOVERNMENT. principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; mor can it nor ought it to be frequently repeated. The prin- ciples, therefore, so established, are deemed fundamental. And as the authority, from which they proceed, is supreme and can sel- dom act they are designed to be permanent.” MarsHaLL, C, J. Marbury v. Madison, 1 Cranch 176, Restraints for Common Good. “There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organ- ized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognized the right of each person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.” Hartan, J. Jacobson v. Massa- chusetts, 197 U. S. 26. “There is, of course, a sphere within which the individual may assert the su- premacy of his own will and rightfully dis- pute the authority of any human govern- ment, especially of any free government ex- isting under a written constitution, to in- terfere with the exercise of that will. But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” Hartan, J. Jacobson v. Massachusetts, 197 U. S. 29. “Without Government and Social Or- der, there can be no property; for without law, its ownership, its use, and the power of disposing of it, cease to exist, in the sense in which those words are used and understood in all civilized states.” Curris, J., dissenting. Scott v. Sandford, 19 How. 615. Legislation Should Be for Public Interest. “Legislation should be prompted solely from considerations of the public good, and the best means of advancing it. Whatever tends to divert the attention of legislators from their high duties to mislead their judg- ments, or to substitute other motives for their conduct than the advancement of the public interests, must necessarily and direct- ly tend to impair the integrity of our po- litical institutions.” Frerp, J. Providence Tool Co. v. Norris, 2 Wall. 54. Deprivation of Liberty. “By arguing from extremes almost every exercise of government can be shown to be a deprivation of individual liberty.” Mc- Kenna, J. National Cotton Oil Co. wv. Texas, 197 U. S. 129. Necessity for Obedience to Laws. “Our own freedom cannot be preserved without obedience to our own laws.” Taney, C. J. Kennett v. Chambers, 14 How. 50. Predominance of Principles of Patriotism. “Tf in any government, principles of pa- triotism and public good ought to predomi- nate over mere private inclination, surely they ought to do so in a republic founded on the very basis of equal rights, to be per- fectly enjoyed in every instance, where the public good does not require a restraint.” IREDELL, J., concurring. Talbot v. Janson, 3 Dall. 163. “The Dominant Principles in the British Constitution have always been monarch- ical and aristocratic.” SwaAyNe, J. Bates v, Brown, 5 Wall. 715. Matters of Detail in Administration. “In the administration of government, matters of detail are usually placed under the direction of officials. The execution of general directions of the law is left, in a great degree, to their judgment and fidelity. Any other course would be attended with infinite embarrassment.” Fretp, J. Sands wv. Manistee River Imp. Co., 123 U. S. 294. “The Surrender of a Sovereign Right carries with it all its incidents. It differs from yielding a participation to another gov- ernment, in a sovereign right. In the latter, both may have jurisdiction. The state yielding the right, retaining jurisdiction to the extent of doing nothing repugnant to the exercise of the right by the govern- ment to which it has been yielded.” Srory, J. Prigg v. Pennsylvania, 16 Pet. 643. “The Doctrine of Secession Is a Doc- trine of Treason, and practical secession is practical treason, seeking to give itself triumph by revolutionary violence.” Swayne, J. White v. Hart, 13 Wall. 650. 823 GOVERNMENT. “Where a Person Owes a Duty to Two Sovereigns, he is amenable to both for its performance; and either may call him to account.” Braptey, J. Ex p. Siebold, 100 U. S. 389. Foreign Aggression and Encroachment. “To preserve its independence, and give security against foreign aggression and en- croachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated.” Fretp, J. The Chinese Exclusion Case, 130 U. S. 606. “The American Revolution Was Not a Social Revolution. It did not alter the domestic condition or capacity of persons within the colonies, nor was it designed to disturb the domestic relations existing among them. It was a political revolution, by which thirteen dependent colonies became thirteen independent states.” CAMPBELL, J. Scott vw. Sandford, 19 How. 502. Effect of Division of Empire. “Tt is a principle of the common law, which has been recognized as well in this as in other courts, that the division of an empire works no forfeiture of previously- vested rights of property. And this maxim is equally consonant with the common sense of mankind, and the maxims of eternal jus- tice.” Story, J. Dartmouth College v. Woodward, 4 Wheat. 707. “The general principle is undisputed, that the division of an empire works no for- feiture of a right of property previously ac- quired.” Netson, J. Jones v. McMasters, 20 How. 20. Effect of Change of Government. “With respect to . . . laws affecting the possession, use and transfer of property, and designed to secure good order and peace in the community, and promote its health and prosperity, which are strictly of a mu- nicipal character, the rule is general, that a change of government leaves them in force until, by direct action of the new govern- ment, they are altered or repealed.” Fretp, J. Chicago, etc, R. Co. v. McGlinn, 114 U. S. 546. ; “The general rule of international law is that a mere transfer of sovereignty over a territory has no effect upon vested rights of property therein; and whatever provision may be made in the treaty or by the law of the nation receiving the transfer for purposes of identification, such provision is not to be e considered as tantamount to either a denial or a suspension of these vested rights.” Brewer, J. Maish v. Arizona, 164 U. S. 608. “Tt is doubtless true that a change of sovereignty implies a revocation of the au- thority vested by the prior sovereign in local officers to dispose of the public lands.” Brewer, J. Ely’s Administrator v. U. S., 171 U.S. 231. “As a matter of course, all laws, or- dinances, and regulations in conflict with the political character, institutions, and consti- tution of the new government are at once displaced.” Fre.p, J. Chicago, etc. R' Co. v. McGlinn, 114 U. S. 546. “Tt is too clear to requite the support of argument, that all contracts, and rights, respecting property, remained unchanged by the revolution.” MarsHatt, C. J. Dart- mouth College v. Woodward, 4 Wheat. 651. “We have repeatedly held that individual rights of property, in the territory acquired by the United States from Mexico, were not affected by the change of sovereignty and jurisdiction.” Davis, J. Tameling v. U. S., Freehold, etc., Co., 93 U. S. 661. “ Private rights of property in land lying within a territory ceded by one independent nation to another by a treaty between them are not affected by the change of sovereignty and jurisdiction; and are entitled to pro- tection, whether they are complete and abso- lute titles, or merely equitable interests need- ing some further act of the government to perfect the legal title The duty of securing such rights, and of fulfilling the obligations imposed upon the United States by the treaty, belongs to the political department; and Congress may either itself discharge that duty, or delegate its performance to a strictly judicial tribunal or to a board of commissioners.” Gray, J. Ainsa vw. New Mexico, etc, R. Co. 175 U. S. 79. “A Temporary Conquest and QOccupa- tion of a Country do not change the title to immovable property, or authorize its alienation. They confer only the rights of possession and use. When the military occu- pation ceases, the property reverts to the original owner with the title unimpaired.” Fret, J., dissenting. New Orleans v. Steam- ship Co., 20 Wall. 401. Cession of Territory. “ It is the duty of a nation receiving a cession of territory to respect all rights of 824 GOVERNMENT. property as those rights were recognized by the nation making the cession, but it is no part of its duty to right the wrongs which the grantor nation may have theretofore committed upon every individual. There may be an exception when the dispossession and wrong of the grantor nation were so recently before the cession that the indi- vidual may not have had time to appeal to the courts or authorities of that nation for redress. In such a case perhaps the duty will rest upon: the grantee nation.” Brewer, J. Cessna v. U. S., 169 U. S. 186. “A cession of territory is never under- stood to be a cession of the property be- longing to its inhabitants.” MarsHatt, C. J. U. S. uv. Percheman, 7 Pet. 87. “Acquired territory, in the absence of agreement to the contrary, will bear such re- lation to the acquiring government as may be by it determined.” Wuire, J., concur- ring. .Downes v. Bidwell, 182 U. S. 306. “TIt is] the rule of the law of nations, that private property in territory ceded by one nation to another, when held by a title vested before the act of cession, should be respected.” Sutras, J. U. S. v. Chaves, 159 U. S. 464. “The cession of a territory by its name from one sovereign to another, conveying the compound idea of surrendering at the same time the lands and the people who inhabit them, would be necessarily understood to pass sovereignty only, and not to interfere with private property.” MarsHati, C. J. U. S. v. Percheman, 7 Pet. 87. “By the cession of California to the United States, the rights of the inhabitants to their property were not affected. They remained as before. Political jurisdiction and sover- eignty over the territory and public prop- erty alone passed to the United States.” Fietp, J. More v. Steinbach, 127 U. S. 78. “Tt is no doubt the received doctrine, that in cases of ceded or conquered territory, the rights of private property in land are re- spected. Grants made by the former gov- ernment, being rightful when made, are not usually disturbed. Allegiance is transferred from one government to the other without any subversion of property.” Brapiey, J. Coffee v. Groover, 123 U. S. 9. “Every nation which acquires territory by treaty or conquest holds it according to its own institutions and laws.” Taney, C. J. Fleming ». Page, 9 How. 615. “Every nation acquiring territory, by treaty or otherwise, must hold it subject to the constitution and laws of its own gov- ernment, and not according to those of the government ceding it.” McKintey, J. Pol- lard v. Hagan, 3 How. 225. “A nation which has ceded away her sovereignty and dominion over a territory could with respect to that territory rightfully exert no power by which the dominion and sovereignty so ceded would be impaired or diminished.” Danizr, J. U: S. uv. D’Aute- rive, 10 How. 623. “Soil, as well as people, is the subject of sovereign action, and may be ceded with or without the sovereignty, or may be ceded with the express stipulation that the inhabitants shall remove.” JoHNson, J. Cherokee Na- tion v. Georgia, 5 Pet. 22. Nationality of Inhabitants. “Manifestly the nationality of the inhabit- ants of territory acquired by conquest or cession becomes that of the government un- der whose dominion they pass, subject to the right of election on their part to retain their former nationality by removal or other- wise, as may be provided.” Futier, C. J. Boyd v. Thayer, 143 U. S. 162. Rights and Obligations of Citizens. “Each citizen (if not under old govern- ments) certainly does, under our system of polity, possess the same rights and facul- ties, and sustain the same obligations, polit- ical, social, and moral, which appertain to each of his fellow-citizens.” DawnreL, J., dissenting. Rundle v. Delaware, etc., Canal Co., 14 How. 101. “ The Nationality of Our Citizens is that of the United States, and by the laws of the United States they are bound in ail matters in which the United States are sovereign; but in other matters, their domi- cil is in the particular state.” Futzmr, C. J. Grover, etc., Machine Co. v. Radcliffe, 137 UL S. 298. “Things Which Are Fere Nature be- long to the ‘negative community’; in other words,’ are public things subject to the ab- solute control of the state, which, although it allows them to be reduced to possession, may at its will not only regulate but wholly forbid their future taking.” Wuuirz, J. Ohio Oil Co. v. Indiana, 177 U. S. 208. “The Pacific Ocean Belongs to No One Nation, but is the common property of 825 GOVERNMENT. all.” Waste, C. J. Lord v. Goodall, etc., Steamship Co., 102 U. S. 544. “The Obligation to Contribute to the Support of Government in return for the protection and advantages afforded by gov- ernment is not dependent on contract, but on the exercise of the public will as de- manded by the public welfare.” Futrer, C. J. Bristol v. Washington County, 177 U.S. 145. Legislature Guardian of Public Faith. “The legislature is the proper guardian of the public faith, and in its action with respect to its’ own obligations, we are bound to assume that it will be guided, not only by its present necessity for revenue, but by con- sideration of its possible future needs.” Brown, J. Wazoo, etc, R. Co. v. Adams, 180 U. S. 25. Duty to Keep Faith. “Tf the government will not keep its faith, little better can be expected from the citi- zen.” Frieip, J., dissenting. Sinking-Fund Cases, 99 U. S. 767. Regulating Matters of Public Welfare. “One of the highest attributes and duties of a legislature is to regulate public mat- ters with all public bodies, no less than the community, from time to time, in the man- ner which the public welfare may appear to demand. It can neither devolve these duties permanently on other public bodies, nor permanently suspend or abandon them itself, without being usually regarded as un- faithful, and, indeed, attempting what is wholly beyond its constitutional competency. It is bound, also, to continue to regulate such public matters and bodies, as much as to organize them at first. Where not re- strained by some constitutional provision, this power is inherent in its nature, design, and attitude; and the community possess as deep and permanent an interest in such power remaining in and being exercised by the legislature, when the public progress and welfare demand it, as individuals or cor- porations can, in any instance, possess in restraining it.” Woopsury, J. East Hart- ford v. Hartford Bridge Co., 10 How. 534. Collection of Citizens’ Another Nation. “There is no principle of international law which makes it the duty of one nation to assume the collection of the claims of its citizens against another nation, if the citizens themselves have ample means of Claims Against redress without intervention of their gov- ernment.” Warts, C. J. New Hampshire v. Louisiana, 108 U. S. 90. “The Jus Postliminii, derived from the Roman law, and regulated in modern times by statute or treaty, or by the usage of civilized nations, has been rested by eminent jurists upon the duty of the sovereign to pro- tect his citizens and subjects and their prop- erty against warlike or violent acts of the enemy.” Gray, J. Oakes v. U. S., 174 U. S. 792. II, POWERS, JURISDICTION, AND DUTIES OF GOVERNMENT. In General. “That which is not supreme must yield to that which is supreme.” Futter, C. J. In re Rahrer, 140 U. S. 556. ; “T consider it as a sound political prop- osition, that whenever the legislative power of a government is undefined, it includes the judicial and executive attributes.” Pater- son, J., concurring. Cooper v. Telfair, 4 Dall, 19. “When men form a social compact, and organize a civil government, they necessarily surrender the regulation and control of these natural rights and obligations into the hands of the government.” TrimBLe, J., dissent- ing. Ogden vw. Saunders, 12 Wheat. 319. “Every government should possess the means of protecting itself; that is, of con- struing and enforcing its own laws.” Jounson, J. Osborn v. Bank of U. S., 9 Wheat. 896. “ All governments which are not extreme- ly defective in their organization, must pos- sess, within themselves, the means of ex- pounding, as well as enforcing, their own laws.” Marsuatt, C. J. Osborn v. Bank of U. S., 9 Wheat. 818. “The doctrine that where a power is not expressly forbidden it may be exercised, would change the whole character of our government.” FieLp, J., dissenting. Sink- ing-Fund Cases, 99 U. S. 763. “The true doctrine is, that where a power is not in terms granted, and is not necessary or proper for the exercise of a power thus granted, it does not exist.” Fietp, J., dis- senting. Sinking-Fund Cases, 99 U. S. 763. “It is not easy to conceive a power to exe- cute a municipal law, or to enforce obedience 826 GOVERNMENT. to that law without the circle in which that law operates.” Marsuatt, C. J. Rose v. Himely, 4 Cranch 279. “The same measure or measures scarcely distinguishable from each other, may flow from distinct powers, but this does not prove that the powers are identical. Although the means used in their execution may some- times approach each other, so nearly as to be confounded, there are other situations in which they are sufficiently distinct to estab- lish their individuality.” Barsour, J. New York v. Miln, 11 Pet. 137. “Tt is no objection to the existence of distinct, substantive powers, that in their application, they bear upon the same sub- ject.” Jounson, J. Gibbons v. Ogden, 9 Wheat. 235. “Full Power to Regulate a Particular Subject implies the whole power, and leaves no residuum; and a grant of the whole to one is incompatible with a grant to another of a part.” Story, J., dissenting. New York v. Miln, 11 Pet. 158. “A Concurrent Power in Two Distinct Sovereignties to regulate the same thing is as inconsistent in principle as it is imprac- ticable in action. It involves a moral and physical impossibility.” McLean, J. Pas- senger Cases, 7 How. 399. “A concurrent power excludes the idea of a dependent power.” McLean, J. Pas- senger Cases,-7 How. 399. “How a power exercised by one sover- eignty can be called concurrent, which may be abrogated by another, I cannot compre- hend. A concurrent power, from its na- ture, I had supposed must be equal.” Mc- Lean, J. Prigg v. Pennsylvania, 16 Pet. 662. “The Possible Abuse of a Power is not an argument against its existence.” Har- LAN, J. Lottery Case, 188 U. S. 363. “Tt is never conclusive to argue against the possession of certain powers from possi- ble abuses of them.” Brown, J. Downes v. ‘Bidwell, 182 U. S. 283. “Arguments drawn against the existence of a power from its supposed abuse are il- logical, and generally lead to unsound con- clusions.” THompson, J., dissenting. Brown v. Maryland, 12 Wheat. 457. “Tt is impossible to guard an investiture of power so that it may not, in some form, be abused: an argument, therefore, against the exercise of power, because it is liable to abuse, would go to the destruction of all gov- ernments.” M’LrEan, J. Worcester v. Geor- gia, 6 Pet. 572. “The Nonuser of a Power does not disprove its existence.” Stronc, J. Kohl v. U. S, 91 U. S. 373. Power Not Belonging to Government Founded on Law. “The power to commit violence, perpe- trate injustice, take private property by force without compensation to the owner, and compel the receipt of promises to pay in place of money may be exercised, as it often has been, by irresponsible authority, but it cannot be considered as belonging to a government founded upon law.” Frexp, J., dissenting. Legal Tender, Case, 110 U. S. 467. Classification of Powers in This Country. “In the complex system of polity which obtains in this country, the powers of gov- ernment may be divided into four classes: Those which belong exclusively to the states ; those which belong exclusively to the na- tional government; those which may he ex- ercised concurrently and independently by both; and those which may be exercised by the states, but only with the consent, ex- press or implied, of Congress. Whenever the will of the nation intervenes exclusively in this class of cases, the authority of the state retires and lies in abeyance until a proper occasion for its exercise shall recur.” Swayne, J. Farmers’, etc. Nat. Bank v. Dearing, 91 U. S. 34. Executive Declaration Disturbs No Rights. “Tn governments subject to ordinary con- stitutional limitations a mere executive dec- laration disturbs no rights that have been vested, and simply presents in any given case to the judicial department the inquiry whether the rights claimed to have been vested were legally so vested.” Brewer, J. Camou wv. U. S., 171 U. S. 290. Demanding Debt from Another Nation. “There is no doubt but one nation may, if it sees fit, demand of another nation the payment of a debt owing by the latter to a citizen of the former. Such power is well recognized as an incident of national sov- ereignty, but it involves also the national powers of levying war and making treaties.” Waite, C. J. New Hampshire v. Louisiana, 108 U. S. 90. . 827 GOVERNMENT. “ Absolute, Arbitrary Power exists no- where in this free land.” Harzan, J., dis- senting. Robertson v. Baldwin, 165 U. S. 296. “The Doctrine of Legislative Absolut- ism is foreign to free government as it exists in this country. The corner stone of our republican institutions is the principle that the powers of government shall, in all vital particulais, be distributed among three separate co-ordinate departments, legislative, executive and judicial. And liberty regu- lated by law cannot be permanently secured against the assaults of power or the tyranny of a majority, if the judiciary must be silent when rights existing independently of human sanction, or acquired under the law, are at the mercy of legislative action taken in violation of due process of law.” Haran, J., dissenting. Taylor v. Beckham, 178 U. S. 609. Absolute Control over Resources of Coun- try. “In certain emergencies government must have at its command, not only the personal services — the bodies and lives —of its citi- zens, but the lesser, though not less essen- tial, power of absolute control over the re- sources of the country.” Tender Cases, 12 Wall. 563. “The Power to Make Acquisitions of Territory by conquest, by treaty and by cession is an incident of national sovereign- ty.” Braptey, J. Mormon Church v. U.S, 136 U. S. 42. “Tt is not to be doubted that by the gen- eral principles of the law of nations every government which is sovereign within its sphere of action possesses as an inherent at- tribute the power to acquire territory by dis- covery, by agreement or treaty, and by con- quest. It cannot also be gainsaid that as a general rule wherever a government acquires territory as a result of any of the modes above stated, the relation of the territory to the new government is to be determined by the acquiring power in the absence of stip- ulations upon the subject.” Wuutre, J., con- curring. Downes v. Bidwell, 182 U. S. 300. Governing and Disposing of Territory. “The right to acquire territory involves the right to govern and dispose of it.” Brown, J. De Lima v. Bidwell, 182 U. S. 196. “Tf there be a right to acquire territory, there necessarily must be an implied power Brapiey, J. Legal_ to govern it.” McLean, J.,_ dissenting. Scott v. Sandford, 19 How. 543. Exceptions to Power in Territories. “All exceptions, to the full and complete power of a nation within its own territories, must be traced up to the con- sent of the nation itself. They can flow from no other legitimate source. This con- sent may be either expressed or implied. In the latter case, it is less determinate, exposed more to the uncertainties of con- struction; but, if understood, not less ob- ligatory.” MarsHatt, C. J. Schooner Ex- change v. M’Faddon, 7 Cranch 136. Imposing Limits to Avarice and Tyranny of Individuals. “Trt is equally the duty and right of governments to impose limits to the avarice and tyranny of individuals, so as not to suffer oppression to be exercised under the semblance of right and justice.” JoHNson, J. Ogden v. Saunders, 12 Wheat. 292. Powers of Public Functionaries. “If there is one maxim which necessarily rides over all others, in the practical applica- tion of government, it is, that the public functionaries must be left at liberty to ex- ercise the powers which the people have in- trusted to them. The interests and dignity of those who create them, require the exer- tion of the powers indispensable to the at- tainment of the ends of their creation.” Jounson, J. Anderson v. Dunn, 6 Wheat. 226. “Where all power is derived from the people, and public functionaries, at short intervals, deposit it at the feet of the people, to be resumed only again at their will, in- dividual fears may be alarmed by the mon- sters of imagination, but individual liberty can be in little danger.” JouNson, J. An- derson v. Dunn, 6 Wheat. 226. Acts of Supreme Power Must Be Con- sidered Pure. “The acts of the supreme power of the country must be considered pure for the same reason that all sovereign acts must be considered just; because there is no power that can declare them otherwise.” JouHNsoN, J., dissenting. Fletcher v. Peck, 6 Cranch 144. Resort to Force. “Force, which acts upon the physical powers of man, or judicial process, which addresses itself to his moral principles or 828 GOVERNMENT. his fears, are the only means to which gov- ernments can resort in the exercise of their authority. The former is happily unknown to the genius of our Constitution, except as far as it shall be sanctioned by the latter; but let the latter be obstructed in its progress by an opposition which it can- not overcome or put by, and the resort must be to the former, or government 1s no more.” JoHNsoN, J., concurring. “Mar- tin v. Hunter, 1 Wheat. 363. Controlling Property. “Every state that is in any sense sover- eign and independent possesses, and must possess, the inherent power of controlling property held and owned within its jurisdic- tion, and in virtue and under the protection of its own laws, whether that control be ex- erted in taxing it, or in determining its tenure, in directing the manner of its trans- mission; and this, too, irrespective of the quantities in which it is held or transferred, or the sources whence it may -have been derived.” DAnteL, J. License Cases, 5 How. 617. Holding Property. . “The sovereign cannot hold property ex- cept by agents.” Gray, J., dissenting. U.S. v. Lee, 106 U. S. 226. “States Act Through Men, and, -of course, cannot have a greater appreciation or prophecy of things than men. Events may disappoint their purposes, but they cannot for that reason be relieved from their ob- ligations. There are limits to the power of government and the wisest provisions may be frustrated or turned to detriment by causes which no prescience can foresee.” McKenna, J. Citizens’ Bank v. Parker, 192 U. S. 80. Power to Bind Government by Contract. “When a government enters into a con- tract, there is no doubt of its power to bind itself to any extent not prohibited by its constitution.” MarsHatt, C. J. Goszler wv. Corporation of Georgetown, 6 Wheat. 597. Powers Cannot Be Enlarged by Legisla- tion. “It cannot be successfully contended that either Congress or the states can, by their own legislation, enlarge their powers, and the question of ‘the extent and limit of the powers of either is a judicial question under the fundamental law.” Futirr, C. J., dissent- ing. Lottery Case, 188 U. S. 367. Constitutional Provisions Which Cannot Be Directly Enforced. “There are many constitutional provisions mandatory upon the legislature which can- not be directly enforced, —the duty, for ex- ample, when creating a debt, to provide ade- quate ways and means for its payment. It affects the public generally, but no individual in particular, in such manner as to give him a legal remedy. So the state debt may be increased beyond limit, without admitting of judicial redress. It may arise indirectly in the accomplishment of public works necessary to the general safety and welfare, in such a manner as to make it difficult to tell when the line is over-passed, or whose claim arose after it had been over-passed. Executory contracts for the preservation of the public levees may be greatly swollen by work ren- dered necessary by the occurrence of un- precedented floods.” Braptey, J. Louisiana Board of Liquidation v. McComb, 92 U. S. 536. “The Right to Govern the Territory of the Enemy during its military occupation is one of the incidents of war, being a con- sequence of its acquisition; and the character and form of the government to be established depend entirely upon the laws of the con- quering state or the orders of its military commander.” Fretp, J. Coleman v. Ten- nessee, 97 U. S. 517. Law as Rule of Conduct May Be Changed. “Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legis- lature, unless prevented by constitutional limitations.” Warre, C. J. Munn v. Illinois, 94 U. S. 134. “Of the Propriety of Legislative Inter- ference within the scope of legislative power, the legislature is the exclusive judge.” Warts, C. J. Munn vz. Illinois, 94 U. S. 132. Exercise of Extraordinary Powers. “A good government never puts forth its extraordinary powers, except under cir- cumstances whi h require it.” Warrs, C. J. Chicago, etc., R. Co. v. Iowa, 94 U. S. 162. Competency to Restrain Power of Subse- quent Legislature. “We are not prepared to admit that it is competent for one legislature, by any con- tract with an individual to restrain the power of a subsequent legislature to legislate for 829 GOVERNMENT. the public welfare, and to that end to sup- press any and all practices tending to cor- rupt the public morals.” Fretp, J. Boyd wv. Alabama, 94 U. S. 650. “The Power of Governing Is a Trust committed by the people to the government, no part of which can be granted away. The people, in their sovereign capacity, have es- tablished their agencies for the preservation of the public health and the public morals, and the protection of public and private rights. These several agencies can govern according to their discretion, if within the scope of their general authority, while in power; but they cannot give away nor sell the discretion of those that are to come after them, in respect to matters the government of which, from the very nature of things, must ‘vary with varying circumstances.’ They may create corporations, and give them, so to speak, a limited citizenship; but as citizens, limited in their privileges, or otherwise, these creatures of the government creation are subject to such rules and regulations as may from time to time be ordained and established for the preservation of health and morality.” Warte, C.J. Stone v. Mis- sissippi, 101 U. S. 820. “A Legislative Body Can Not Part with Its Powers by any proceeding, so, as not to be able to continue the exercise of them.” Woopgury, J. East Hartford v. Hartford Bridge Co., 10 How. 535. Right to Command. “Every sovereign has the exclusive right to command within his territory; and the laws which originate rights to real property are commands addressed to the members of the state, requiring them to abstain from any interference with the proprietary right they recognize or establish; and in respect to this subject the sovereignty of New York has not been impaired by her adoption of the federal Constitution.’ CAmpse.t, J. Suydam v. Williamson, 24 How. 433. Enactment and Repeal of Laws — Control over Government Agents. “In every perfect or competent govern- ment, there must exist a general power to enact and to repeal laws; and to create, and change or discontinue, the agents designated for the execution of those laws. Such a power is indispensable for the preservation of the body politic, and for the safety of the individuals of the community. It is true, that this power, or the extent of its exercise, may be controlled by the higher organic law or constitution of the state, as is the case in some instances in the state consti- tutions, and as is exemplified in the provi- sion of the federal Constitution and in some other clauses of the same instrument; but where no such restriction is imposed, the power must rest in the discretion of the government alone.” Dantet, J. Butler w. Pennsylvania, 10 How. 416. Power Necessary to Making Laws. “A legislature must possess every power necessary to the making of laws.” IREDELL, J.. concurring. Talbot v. Janson, 3 Dall. 163. “The Power of Punishment Apper- tains to Sovereignty, and may be exercised whenever the sovereign has a right to act, as incidental to his constitutional powers. It is a means for carrying into execution all sovereign powers, and may be used, al- though not indispensably necessary. It is a right incidental to the powers, and condu- cive to its beneficial exercise.” MarsHaLt, C. J. M’Culloch v. Maryland, 4 Wheat. 418. Regulation of Railroads. “Tt may be that our legislatures are in- vested with too much power, open, as they are, to influences so dangerous to the inter- ests of individuals, corporations and society. But such is the Constitution of our republican form of government; and we are bound to abide by it until it can be corrected in a legitimate way. If our legislatures become too arbitrary in the exercise of their powers, the people always have a remedy in their hands; they may at any time restrain them by constitutional limitations. But so long as they remain invested with the powers that ordinarily belong to the legislative branch of government, they are entitled to exercise those powers, amongst which, in my judg- ment, is that of the regulation of railroads and other public means of intercommunica- tion, and the burdens and charges which those who own them are authorized to impose upon the public.” Brapiey, J., dissenting. Chi- cago, etc., Ry. Co. v. Minnesota, 134 U. S. 466. “A Government De Facto, in firm pos- session of any country, is clothed, while it exists, with the same rights, powers, and du- ties, both at home and abroad, as a govern- ment de jure. It may send ambassadors and make treaties. Such treaties bind the nation and descend in full force upon any succeed- ing government that may be established. The assailants of a king de facto in England are liable to be punished for treason. Such was 830 GOVERNMENT. the rule of the common law, and the cele- brated statute of Henry VII only reaffirmed it. The legislative and judicial authorities called into existence may proceed as if the prior government had not been displaced. All municipal functions may be performed without regard to the origin of the new pol- ity.” Swayne, J. Phillips v. Payne, 92 U.S. 133. ‘Validity of De Facto Government’s Grants. “Circumstances may possibly exist which would make valid the grants of a government de facto; as, for example, where they con- travene no other rights.” Braptey, J. Cof- fee v. Groover, 123 U. S. 10. “The Confederate States Government could acquire title to real property by pur- chase; and it is not easy to see why a dif- ferent rule should be applied to personal property. The ownership of that, even more than real property, was required for the ope- ration of the Confederacy.” Warts, C. J. Whitfield, v. U. S., 92 U. S. 169. “The whole Confederate power must be regarded by us as a usurpation of unlawful authority, incapable of passing, by an Act of its Congress or an order of one of its de- partments, any right or property of the United States.” Mutier, J. U. S. v. Keeh- ler, 9 Wall. 87. “The Authority to Issue Bills of Ex- change not being one expressly given by statute, can only arise as an incident to the exercise of some other power. When it be- comes the duty of an officer to pay money at a distant point, he may do so by a bill of exchange, because that is the usual and ap- propriate mode of doing it. So, when an officer or agent of the government at a dis- tance, is entitled to money here, the person holding the fund may pay his drafts. And whenever, in conducting any of the fiscal affairs of the government, the drawing a bill of exchange is the appropriate means of do- ing that which the department, or officer hav- ing the matter in charge, has a right to do, then he can draw and bind the government in doing so. But the obligation resting on him to perform that duty, and his right and authority to effect such an object, is always open to inquiry, and if they be found want- ing, or if they be forbidden by express statute, then the draft or acceptance is not binding on the government. It cannot be maintained that, because an officer can law- | fully issue bills of exchange for some pur- poses, that no inquiry can be made in any case into the purpose for which a bill was issued. The government cannot be held to a more rigid rule, in this respect, than a private individual.” Mu.ier, J. The Floyd Accept- ances, 7 Wall. 680. Legislature Parens Patriz. “Here, the legislature is the parens patria, and, unless restrained by constitutional limi- tations, possesses all the powers in this regard which the sovereign possesses in England.” Braptey, J. Mormon Church v. U. S., 136 U. S. 56. “This prerogative of parens patrie is in- herent in the supreme po--er of every state, whether that power is lodged in a royal per- son or in the legislature, and has no affinity to those arbitrary powers which are some- times exerted by irresponsible monarchs to the great detriment of the people and the destruction of their liberties. On the con- trary, it is a most beneficent function, and often necessary to be exercised in the inter- ests of humanity, and for the prevention of injury to those who cannot protect them- selves.” BrapLey, J. Mormon Church wv. U. S., 186 U. S. 57. Difference Between Judicial and Legisla- tive Power. “One often-declared difference between judicial and legislative power is that the former determines the rightfulness of acts done; the latter prescribes the rule for‘ acts to be done. The one construes what has been; the other determines what shall be.” Brewer, J., dissenting. Interstate Commerce Com. v. Brimson, 155 U. S. 9. Limitations on Powers of Government. “The powers of the government are lim- ited, and . its limits are not to be transcended.” MarsHati, C. J. M’Culloch v. Maryland, 4 Wheat. 421. “There are limitations upon the powers of all governments, without any express desig- nation of them in their organic law; limita- tions which inhere in their very nature and structure, and this is one of them,—that no rightful authotity can be exercised by them over alien subjects, or citizens resident abroad or over their property there situated.” Frexp, J., dissenting. U.S. v. Erie R. Co., 106 U. S. 334. , “Here legislative bodies, no less than the executive and judiciary, are usually not re- garded as omnipotent. They are in this country now limited in their powers, and 831 -GOVERNMENT. placed under strong prohibitions and checks.” Woopsury, J. Luther v. Borden, 7 How. 66. “Tt may be proper to say, that however ex- tensive the prerogatives and attributes of sovereignty may theoretically be, in free gov- ernments they are universally held to be re- strained within some limits.” Story, J., dis- senting. Charles River Bridge v. Warren Bridge, 11 Pet. 642. “Monarchical and despotic governments, unrestrained by written constitutions, may do with newly acquired territories what this gov- ernment may not do consistently with our fundamental law.” Haran, J., dissenting. Downes v. Bidwell, 182 U. S. 380. “The power of the legislatures is limited; of the state legislatures by their own state constitutions, and that of the United States; of the legislature of the Union by the Con- stitution of the Union. Beyond these limita- tions, I have no doubt, their acts are void, because they are not warranted by the au- thority:given. But within them, I think, they are all in cases obligatory in the country sub- ject to their own immediate jurisdiction, because in such cases the legislatures only exercise a discretion expressly confided to them by the constitution of their country, and for the abuse of which (if it should be abused) they alone are accountable. It is a discretion no more controllable (as I con- ceive) by a court of justice, than a judicial determination is by them, neither department having any right to encroach on the exclu- sive province of the other, in order to rectify any error in principle, which it may be sup- posed the other has committed. It is suffi- cient for each to take care that it commits no error of its own.” IrepELt, J. Ware v. Hylton, 3 Dall. 266. Nature of Society and Government. “Tt may well be doubted whether the na- ture of society and of government does not prescribe some limits to the legislative power.” MarsHAtt, C. J. Fletcher v. Peck, 6 Cranch 135. Ours Is a Government of Laws. “Tt has been wisely and aptly said that this is a government of laws and not of men; and there is no arbitrary power located in any individual or body of individuals; but that all in authority are guided and limited by those provisions which the people have, through the organic law, declared shall be the measure and scope of all control exer- cised over them.” Brewer, J. Cotting v. Kansas City Stock Yards Co., etc., 183 U. §. 84. ; “No Contract Limitation on the Powers of Government can be upheld by mere implication or sustained if there be doubt on the subject. The existence of such a con- tract limitation must arise clearly and by express intendment.” Waite, J., dissenting. Freeport Water Co. v. Freeport City, 180 U.S. 611. Jurisdiction of Government. “The right of jurisdiction is essentially connected to, or rather identified with, the national sovereignty.” JoHNsoN, J., dissent- ing. Fletcher v. Peck, 6 Cranch 143. “One nation cannot grant away the terri- tory of another.” Taney, C. J. Garcia v. Lee, 12 Pet. 521. “The rights of war may be exercised on the high seas, because war is carried on upon the high seas; but the pacific rights of sover- eignty must be exercised within the terri- tory of the sovereign.” MarsHatt, C. J. Rose v. Himely, 4 Cranch 279. “The jurisdiction of every nation within its own territory is absolute and exclusive; by its own consent only can any exception to that jurisdiction exist in favor of a foreign nation; and any authority in its own courts to give effect to such an exception by affirma- tive action must rest upon express treaty or statute.” Gray, J., dissenting. Tucker v. Alexandroff, 183 U. S. 456. “The validity and legality of an act done by a governor of a conquered province, de- pends on the jurisdiction over the subject- matter delegated to him by his instruction from the king, and the Jocal laws and usages of the colony, when they have been adopted as the rules for its government. If any juris- diction is given, and not limited, all acts done in its exercise are legal and valid; if there is a discretion conferred, its abuse is a matter between the governor and his gov- ernment, etc.” Batpwin, J. U.S. uw Arre- dondo, 6 Pet. 729. Legislation Is Territorial. “Tt is conceded that the legislation of every country is territorial; that beyond its own territory, it can only affect its own subjects or citizens.” MarsHatt, C. J. Rose vw. Himely, 4 Cranch 279. “The Authority of a Nation Within Its Own Territory is absolute and exclusive. The seizure of a vessel within the range of its cannon by a foreign force is an invasion 832 GOVERNMENT. of that territory, and is a hostile act which it is its duty to repel. But its power to se- cure itself from injury may certainly be ex- ercised beyond the limits of its territory. Upon this principle the right of a belligerent to search a neutral vessel on the high seas * for contraband of war is universally admitted, because the belligerent has a right to prevent the injury done to himself by the assistance intended for his enemy.” MarsHA.t, C. J. Church v. Hubbart, 2 Cranch 234. Persons Within Limits of Government. “Undoubtedly every person who is found within the limits of a government, whether for temporary purposes or as a resident, is bound by its laws.” Taney, C. J. Brown v, Duchesne, 19 How. 194. , Jurisdiction over Foreign Vessels. “When a foreign merchant vessel comes into our ports, like a foreign visitor coming into our territory, it subjects itself to the jurisdiction of this country.” Brewer, J. Patterson v. Bark Eudora, 190 U. S. 176. “Tt is undoubtedly true that for some pur- poses a foreign ship is to be treated as for- eign territory.” Brewer, J. Patterson vu Bark Eudora, 190 U. S. 176. “The general rule is that the country to which the vessel belongs will exercise juris- diction over all matters affecting the vessel or those belonging to her, without interfer- ence of the local government, unless they in- volve its peace, dignity, or tranquility, in which case it may assert its authority.” Fretp, J. U.S. v. Rodgers, 150 U. S. 260. “The merchant vessels of one country visiting the ports of another for the purposes of trade subject themselves to the laws which govern the port they visit, so long as they re- main; and this as well in war as in peace, unless it is otherwise provided by treaty.” Warts, C. J. U.S. Diekelman, 92 U. S. 525. “Tt is a part of the law of civilized nations that when a merchant vessel of one country enters the ports of another for the purposes of trade, it subjects itself to the law of the place to which it goes, unless by treaty or otherwise the two countries have come to some different understanding or agreement.” Waite, C. J. Wildenhus’s Case, 120 U. S. 11. III. LIABILITIES OF GOVERN- MENT. In General. “Where a state enters the markets of the world and becomes a borrower, she lays aside 1 Os. Dig—53 her sovereignty and takes upon herself the position of an ordinary civil corporation, or of an individual, and is bound accordingly.” Fie.p, J., dissenting. Antoni v. Greenhow, 107 U. S. 795. “Tf it [the government] comes down from its position of sovereignty, and enters the domain of commerce, it submits itself to the same laws that govern individuals there. Tiuus, if it becomes the holder of a bill of exchange, it must use the same diligence to charge the drawers and indorsers that is re- quired of individuals; and, if it fails in this, its claim upon the parties ‘is lost.” Warre, C. J. Cooke v. U. S., 91 U. S. 398. “When the government owns property, or claims to own it, it deals with it as owner and by virtue of its ownership, and if an officer of the government takes possession of the property under the claim that it belongs to the government (when in fact it does not) that may wel] be considered a tortious act on his part, for there can be no impli- cation of an intent on the part of the govern- ment to pay for that which it claims to own.” Brewer, J. U.S.v. Lynah, 188 U. S. 465. “As the government can only act through its officers, it may select for its work whom- soever it will; but it must have some repre- sentative authorized to act in all the emer- gencies of its commercial transactions. If it fail in this, it fails in the performance of its duties, and must be charged with the conse- quences that follow such omissions in the commercial world.” Watre, C. J. Cooke v. U. S., 91 U. S. 398. Acts of Officers—Misconstruction of Law. “As a general rule, and on grounds of public policy, the government cannot be bound by the action of its officers, who must be held to the performance of their duties within the strict limits of their legal author- ity, where by misconstruction of the law under which they have assumed to act, un- authorized payments are made.” Futrer, C. J. Wisconsin Cent. R. Co. v. U. S, 164 U. S. 210. Necessary Action to Bind Government. “The public can only act through its au- thorized agents, and it is not bound until all who are to participate in what is to be done have performed their respective duties.” Warts, C. J. Anthony v. Jasper County, 101 Uz S. 698, 833 GOVERNMENT. Wrongful Acts. “No principle at common law is better set- tled than that the government is not liable for the wrongful acts of her public agents.” NeEz- son, J. dissenting.’ The Siren, 7 Wall. 164. Antedating Contracts. " The authority of a public agent depends upon the law as it is when he acts. He has only such powers as are specifically granted ; and he cannot bind his principal under pow- ers that have been taken away, by simply antedating his contracts. Under such cir- cumstances, a false date is equivalent to a false signature; and the public, in the ab- sence of any ratification of his own, is no more estopped by the one than it would be by the other.” Warte, C. J. Anthony vz. Jasper County, 101 U. S. 698. Neglect of Officer. “Generally, in respect to all the commer- cial business of the government, if an offi- cer specially charged with the performance of any duty, and authorized to represent the government in that behalf, neglects that duty, and loss ensues, the government must bear the consequences of his neglect. But this cannot happen until the officer specially charged with the duty, if there be one, has acted, or ought to have acted.” Waite, C. J. Cooke v. U. S., 91 U. S. 398. “Torts Committed by an Officer in the service of the United States do not render the government liable in an implied assump- sit, even though the acts done were appar- ently for the public benefit.” Cxirrorp, J. Whiteside v. U. S., 93 U. S. 257. Personal Injuries— Negligence of Em- ployees. “Tt is for Congress to determine in all such cases [of personal injuries through neg- ligence of employees] what justice requires upon the part of the government. If any exceptions ought to be made to the general rule it is for Congress to make them.” Har- LAN, J. Bigby v. U. S., 188 U. S. 409. “Nothing short of an Act of Congress can make the United States responsible for a personal injury done to the citizen by one of its employees who, while discharging his duties, fails to exercise such care and dili- gence as a proper regard to the rights of others required.” Haran, J. Bigby v. U.S, 188 U. S. 408. Borrowing Money. “States and cities, when they borrow money and contract to repay it with interest, are not acting as sovereignties. They come down to the level of ordinary individuals. Their contracts have the same meaning as that of similar contracts between private per- sons.” Stronc, J. Murray v. Charleston, 96 U. S. 445. Contracts of Sovereign. “Whilst the contracts of a sovereign may engender natural or moral obligations, and are in one sense property, they are yet obli- gations resting on the promise of the sover- eign and possessing no other sanction than the good faith and honor of the sovereign itself.” Wuutrs, J., dissenting. South Da- kota v. North Carolina, 192 U. S. 341. Contracts of United States. “The United States are as much bound by their contracts as are individuals. If they repudiate their obligations, it is as much repudiation, with all the wrong and reproach that term implies, as it would be if the re- pudiator had been a state or a municipality or a citizen.” Warts, C. J. Sinking-Fund Cases, 99 U. S. 719. “The United States, when they contract with their citizens, are controlled by the same laws that govern the citizen in that behalf. All obligations which would be implied against citizens under the same circumstances will be implied against them.” Wartz, C. J. U. S. v. Bostwick, 94 U. S. 66, United States Party to Commercial Paper. “When the United States become parties to commercial paper, they incur all the re- sponsibilities. of private persons under the same circumstances.” WattTE, C. J. Cooke v. U. S., 91 U. S. 396, Necessity for Providing Compensation for Services. “Unless Congress has made specific pro- vision for compensation for . . . serv- ices, none can be charged against the United States. The inquiry is never limited to the fact or character of services, but always extends to the statutory authority for com- pensation. The latter being wanting, no re- covery can be had.” Brewer, J. U.S. v. Patterson, 150 U. S. 68. Statutes of Limitation and Insolvent Laws. “The very attribute of sovereignty ren- ders it unnecessary for the sovereign to leg- islate for its own behalf in the passage of statutes of limitations, insolvent and other like laws, as its will, controlled alone by the duty and sense of responsibility which sov- 834 ‘ GOVERNMENT. ereignty must be presumed to engender, de- termines the question of liability.” WHITE, J. dissenting. South Dakota v. North Caro- lina, 192 U. S. 346, Will and Pleasure in Paying Obligations. “In most instances the payment of the simplest debts - of the sovereign depends wholly upon his will and pleasure. The the- ory is that the government is always ready and willing to pay promptly whatever is due to the creditor.” Swayne, J. Phelps v. Mc- Donald, 99 U. S. 303. Recognition of Liability — Allowance of Particular Claims. “We are aware of no pritciple of law that would justify a court in treating the allowance by Congress of particular claims as a recognition by the government of its liability upon every demand of like charac- ter in the hands of claimants.” Harzan, J. U. S. v. McDougall, 121 U. S. 98. Thefts by Indians— Liability of United States. “Tt would require very plain language from Congress by which to impose a liability on the part of the United States for the seizure or stealing by Indians of property belonging to a citizen of the United States, but situated at the time of such seizure or stealing within the confines and jurisdiction of a foreign sovereignty. Generally the government ad- mits no liability for the destruction of. the property of its citizens by third parties, even when United States. Still less reason would exist for the acknowledgment of any such liability for property of its citizens destroyed or stolen within the limits and under the juris- diction of a foreign nation.” Prcxuam, J. Corralitos Co. v. U. S., 178 U. S. 282. IV. SUITS BY OR AGAINST GOV- ERNMENT. 1. Ricut oF GoVERNMENT TO SUE. In General. “That a sovereign state has not the same rights in a court of justice that are granted to her humblest citizens, is a doctrine that I have not heard advanced, and do not feel bound to disprove.” Grier, J., dissenting. Woodruff v. Trapnell, 10 How. 212. “Every government, intrusted, by the very terms of its being, with powers and duties to be exercised and discharged for the get- eral welfare, has a right to apply to its own it occurs within the limits of the. courts for any proper assistance in the exer- cise of the one and the discharge of the other, and it is no sufficient answer to its appeal to one of those courts that it has no pecuniary interest in the matter. The obli- gations which it is under to promote the interest of all, and to prevent the wrong- doing of one resulting in injury to the gen- eral welfare, is often of itself sufficient to give it a standing in court. This proposition in some of its relations has heretofore re ceived the sanction of this court.” Brewer, J. In re Debs, 158 U. S. 584. “A state may file an original bill in this court. And it may be true in some cases that such a bill may be filed against the United States.” CHaseE, C. J. Mississippi v. John- son, 4 Wall. 501. “It is competent for the United States to sue any of its debtors in a court of law.” Curtis, J. Murray v. Hoboken Land, ete. Co., 18 How. 283. “Although as a sovereign the United States may not be sued, yet as a corporation or body politic they may bring suits to en- force their contracts and protect their prop- erty, in the state of the Union, they have the same right to have it protected by the local laws that the other persons have.” Grier, J. Cotton v. U. S., 11 How. 231. “In its dealings with individuals public policy demands that the general government should otcupy an apparently favored posi- tion. It may sue, but, except by its own consent, cannot be sued. In the matter of costs it recovers but does not pay, and the liability of the individual would not be af- fected by the fact he had a judgment against the government which did not carry costs. So the statute of limitations may be pleaded by the government, but not against it; nor is it affected by the laches of its officers. . Under the bankruptcy law, it was a preferred creditor, and its claims were paid even before the wages of operatives, clerks or house servants. In short, the equities which arise as between individuals have but a limited application as between the government and a citizen.” Brown, J. U. S. uv. Verdier, 164 U. S. 218, “No authority is conferred by law, upon any officer, to make the United States a par- ty to any stit, except as a plaintiff or prose- ctitor, If the United States be interested in a suit against an individual, and he thinks fit to allow the law officer of the United States to prosecute or defend in his name, I 835 GOVERNMENT. know of no objection to it, and it is very often done.” Curtis, J., dissenting. Florida v. Georgia, 17 How. 512. Injunction Against Bringing Suit. “To enjoin the officers of the common- wealth, charged with the supervision and management of legal proceedings in her be- half, from bringing suits in her name, is nothing less than to enjoin the common- wealth, for only by her officers can suits be instituted and prosecuted.” Frexp, J. In re Ayers, 123 U. S. 508. Suit by Foreign Government Against State. “That a state of this Union may be sued by a foreign state, when a proper case exists and is presented, is too plainly and expressly declared in the Constitution to admit of doubt.” THompson, J., dissenting. Chero- kee Nation v. Georgia, 5 Pet. 52. “ Although there are many cases in which one of these United States has been sued by another, I am not aware of any instance in which one of the United States has been sued by a foreign state. But no doubt can be entertained that such an action might be sustained under a proper case being present- ed. It is expressly provided for in the Con- stitution; and this provision is certainly not to be rejected as entirely mnugatory.” Tuompson, J., dissenting. Cherokee Nation v. Georgia, 5 Pet. 58. 2. RicgHt To SUE GOVERNMENT. In General. “A sovereign cannot be sued in his own courts except with his consent.” Warre, C. J. Haycraft v. U. S., 22 Wall. 92. “The sovereign is not liable to be sued in any judicial tribunal without its consent.” Gray, J., dissenting. U.S. wv. Lee, 106 U. S. 226. “As the government cannot be sued with- out its consent, it may happen that the only temedy a party has for a wrong done by one of its officers is an application to the sense of justice of the legislative depart- ment.” Brewer, J. Pacific Whaling Co. v. U. S., 187 U. S. 452. “The government is not liable to suit un- less it consents thereto; and its liability in suit cannot be extended beyond the plain language of the statute authorizing it.” Brewer, J. Price v. U. S., 174 U. S. 375. “Tt is well settled . that no action of any kind can be sustained against the government itself, for any supposed debt, un- less by its own consent, under some special statute allowing it.” Woopsury, J. Reeside v. Walker, 11 How. 290. “It is true, the payment of a debt cannot be enforced against the government by suit; but claims against it are not the less legal or equitable on that account.” M’LgEan, J. Emerson v. Hall, 13 Pet. 412. “No maxim is thought to be better estab- lished, or more universally assented to, than that which ordains that a sovereign, or a government representing the sovereign, can- not ex delicto be amenable to its own crea- tures or agents employed under its own au- thority for the fulfilment merely of its own legitimate ends. A departure from this max- im can be sustained only upon the ground of permission on the part of the sovereign or the government expressly declared, and an attempt to overrule or to impair it on a foundation independently of such permission must involve an inconsistency and confusion, both in theory and practice, subversive of regulated order or power.” Dante, J. Hill v. U. S., 9 How. 389. “Every man must know that no suit can lie against a legislative body. His only de- pendence,’ therefore, can be, that the legis- lature, on principles of public duty, will make a provision for the execution of their own contracts, and if that fails, whatever re- proach the legislature may incur, the case is certainly without remedy in any of the courts of the state.” IrepELL, J. Chisholm v. Geor- gia, 2 Dall. 445. Exception to Rule. “Where the law has imposed upon an offi- cer of the government a well-defined duty in regard to a specific matter, not affecting the general powers or functions of the govern- ment, but in the performance of which one or more individuals have a distinct interest capable of enforcement by judicial process ” [there is an exception to the rule]. Mutter, J. Cunningham v. Macon, etc, R. Co., 109 U.S. 452. Suits Against Property. “ There is no distinction ‘between suits against the government directly, and suits against its property.” Fretp, J. The Siren, 7 Wall. 154. “To maintain an action for the recovery of possession of property held by the sover- 836 GOVERNMENT. eign through its agents, not claiming any title or right in themselves, but only as the representatives of the sovereign in its own behalf, is to maintain an action to recover possession of the property against the sov- ereign; and to invade such possession of ‘the agents, by execution or other judicial process, is to invade the possession of the sovereign, and to disregard the fundamental maxim that the sovereign cannot be sued.” Gray, J., dissenting. U.S. v. Lee, 106 U. S. 226. Crown Land Held by Officers. “The English authorities from the earliest to the latest times show that no action can be maintained to recover the title or posses- sion of land held by the crown, by its offi- cers, or servants.” Gray, J., dissenting. U. S. uv. Lee, 106 U. S. 227. Mere Assertion of Title in Sovereign. “Where the right is in the plaintiff, and the possession in the defendant, the inquiry cannot be stopped by the mere assertion of title in a sovereign. The court must proceed to investigate the assertion, and examine the title.” Marsa, C. J. Osborn v. Bank of U. S., 9 Wheat. 870. “Tf the citizen asserts a claim or lien upon property in the possession of officers of a state, the doors of the courts of justice ought not to be closed against him because those officers assert ownership in the state. The court should examine the case so far as to determine whether the state’s title rests upon a legal foundation. If that title is found to be insufficient, and if the state, claiming its constitutional exemption from suit, refuse to appear in the suit as a party of record, the court ought to proceed to a final decree as between the complainant and those who are in possession of the property, leaving the state to assert her claim in any suit she might bring. This must be so, otherwise the citizen may be deprived of his property, and denied his legal rights, simply because the officers of a state take possession of and hold it for the state.’ Haran, J., dissent- ing. Cunningham v. Macon, etc., R. Co., 109 U. S. 461. “My brethren declare it to be impossible to compel a state to pay its debts by judicial process. If, by that declaration, it was meant that no state can be sued as a party to the record, and no judgment rendered against it asa party defendant, the proposition will not be disputed. I submit, however, that under our system of government the citizen may demand that the courts shall determine his claim to, or his alleged lien upon, property, by whatever individuals that property may be held, and that he cannot be denied an ad- judication and enforcement of that claim merely because the individuals sued assert right of possession and title in the govern- ment they represent.” Haran, J., dissent- ing. Cunningham v. Macon, etc., R. Co., 109 U. S. 467. : “Tt certainly can never be alleged, that a mere suggestion of title in a state to property, in possession of an individual, must arrest the proceedings of the court, and prevent their looking into the suggestion, and examining the validity of the title.’ MarsHa.t, C. J. U.S. v. Peters, 5 Cranch 139. “We have held that a suit would lie by one person against another person to recover possession of specific property, although the latter claimed that he was in possession as an officer of the state and not otherwise. In such cases, the settled doctrine of this court is that the question of possession does not cease to be a judicial question—as between the parties actually before the court — be- cause the defendant asserts or suggests that the right of possession is in the state of which he is an officer or agent.” Hartan, J. Smith v. Reeves, 178 U. S. 439. “The proposition that when an individual is sued in regard to property which he holds as officer or agent of the United States, his possession cannot be disturbed when that fact is brought to the attention of the court, has been overruled and denied in every case where it has been necessary to decide it.” Miter, J. U.S. v. Lee, 106 U. S. 215. Mere Assertion of Authority as an Officer. “Where an individual is sued in tort for some act injurious to another in regard to person or property, to which his defense is that he has acted under the orders of the government he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted by jurisdiction because he asserts au- thority as such officer.” Mutter, J. Cun- ningham v. Macon, etc., R. Co., 109 U. S. 452. “A Claim or Lien Existing and Con- tinuing will be enforced by the courts whenever the property upon which it lies becomes subject to their jurisdiction and control. Then the rights and interests of all parties will be respected and maintained. Thus, if the government, having the title 837 GOVERNMENT. to land subject to the mortgage of the pre- vious owner, should transfer the property, the jurisdiction of the court to enforce the lien would at once attach, as it existed be- fore the acquisition of the property by the government. So if the property belonging to the government, upon which claims exist, iS sold upon judicial decree, and the proceeds are paid into the registry, the court would have jurisdiction to direct the claims to be satisfied out of them. Such decree of sale could only be made upon application of the government, and by its appearance in court ; it waives its exemption and submits to the application of the same principles by which justice is administered between pri- vate suitors.” FieLp, J. The Siren, 7 Wall. 159. “Even where claims are made liens upon the property by statute, they cannot be en- forced by direct suit, if the property subse- quently vest in the government.” Frexp, J. The Siren, 7 Wall. 157. “Seamen’s Wages constitute preferred claims, under the maritime law, upon all ves- sels; yet they cannot be enforced against a vessel of the nation, or a vessel employed in its service.” Frecp, J. The Siren, 7 Wall. 156. “The Possession of the Government can only exist through some of its officers, using that phrase in the sense of any person charged on behalf of the government with the control of the property coupled with its actual possession. This, we think, is a suffi- ciently liberal definition of the possession of property by the government to prevent any unseemly conflict between the court and the other departments of the government, and which is consistent with the principle which exempts the government from suit and its possession from disturbance by virtue of ju- dicial process.” Mutter, J. The Davis, 10 Wall. 21. “The English Remedies of Petition of Right Monstrans de Droit, and traverse of office, were never introduced into this country as part of our common law; but in the American colonies and states claims upon the government were commonly made by petition to the legislature. The inadequacy or the want of those remedies is no reason for maintaining a suit against the sovereign, in a form which is usual between private citizens, but which has not been expressly granted to them as against the sovereign.” Gray, J., dissenting. U.S. v. Lee, 106 U. S. 238. Maritime Torts of Vessel. “We, of course, concede that where mari- time torts have been committed by the ves- sels of a sovereign, and complaint has been made in a court of admiralty, that court has declined to exercise jurisdiction, but this was solely because of the immunity of sovereignty from suit in its own courts.” WuiurTs, J. Workman v. New York City, 179 U. S. 566. “The statement of the maritime law of England on the subject . makes it clear that, in harmony with the maritime law of this country, the fact that a wrong has been committed by a public vessel of the crown affords no ground for contending that no liability arises, because of the public na- ture of the vessel, although, it may be, in consequence of a want of jurisdiction over the sovereign, redress cannot be given.” Wuits, J. Workman v. New York City, 179 U.S. 568. Libel in Admiralty. “In England, it is well settled that no libel in admiralty can be maintained against the crown, or against a foreign sov- ereign, or against any property of either, without its consent.” Gray, J., dissenting. Workman v. New York City, 179 U. S. 588. Consent to Be Sued. “Tt is a familiar principle that all gov- ernments possess an immunity from suit, and it is only in a spirit of liberality, and to promote the ends of justice, that they ever allow themselves to be brought into court. If the privilege be granted at all, necessarily the regulations concerning it and the mode of proceeding will differ, as much as the gov- ernments themselves differ.” Davis, J. U. S. uv. O’Keefe, 11 Wall. 182. “Tt is but a short time since our govern- ment could be sued, and it can be done now only under the special circumstances defined by the statute.” ‘Swayne, J. Phelps v. Mc- Donald, 99 U. S. 304. “In particular classes of cases, indeed, Congress has authorized suits in equity to be brought against the United States, as, for in- stance, in cases of delinquent receivers of public money against whom a warrant of dis- tress has been issued, in cases of proprietors of land taken and sold to make certain im- provements in the city of Washington (in which the bill is spoken of as ‘in the naturé of a petition of rights’), and in claims to 838 GOVERNMENT. share in the money received from Mexico under the treaty of Guadalupe Hidalgo.” Gray, J., dissenting. U. S. v. Lee, 106 U. S. 239. “The liability of the government to suit is a matter resting in its discretion, and can- not be enlarged beyond the terms of the act permitting it.” Brewer, J. Price v. U. S., 174 U. S. 377. “The United States may consent to be sued, and may yield this consent upon such terms and under such restrictions as it may think just.” Curtis, J. Murray v. Hoboken Land, etc., Co., 18 How. 283. : “Though both the marshal and the govern- ment are exempt from suit, for any thing done by the former in obedience to legal process, still, Congress may provide by law, that both, or either, shall, in a particular class of cases and under such restrictions as they may think proper to impose, come into a court of law or equity and abide by its de- termination.” Curtis, J. Murray v. Ho- boken Land, etc. Co., 18 How. 283. “Tn a special.and limited class of cases, the United States permits itself to be sued in the Court of Claims; but such is not the general rule.’ Hunt, J. Tennessee vw. Sneed, 96 U. S. 75. “When the United States, consent to sub- mit the adjustment of claims against them to any tribunal, they have a right to pre- scribe the conditions on which they will pay.” Taney, C. J. U. S. v. Ferreira, 13 How. 4%, “The Act of March 2, 1875, in extending the jurisdiction of the Circuit Court to all cases arising under the Constitution or laws of the United States, does not exclude any parties from being plaintiffs. Whether the state could thereafter prosecute the United States upon any demand in the Circuit Court, or the Court of Claims, depended only upon the consent of the United States, they not being amenable to suit except by such con- sent. Having consented to be sued in the Court of Claims, upon any claim founded upon a law of Congress, there is no more reason why the jurisdiction of the court should not be exercised when a state is a party, than when a private person is a suitor. The statute making no exception of this kind, and this court can create none.” Fretp, J. U.S. uv Louisiana, 123 U. S. 36. “The United States, by successive Acts of Congress, have consented to be sued upon their contracts, either in the Court of Claims, or in a Circuit or District Court of the United States.” Gray, J. Belknap'v. Schild, 161 U. S. 17. “Until the organization of the Court of Claims by the Act of February 24, 1855, c. 122, 10 Stat. 612, the only recourse of claim- ants was an appeal to Congress.” BREWER, J. Schillinger v. U. S., 155 U. S. 166. “Tt may be regarded as settled that the government may be sued in the Court of Claims, as upon implied contract, not only for the value of specific property taken for public use by an officer acting under the authority of the government, even if the taking was originally without the con- sent of the owner and without legal proceed- ings for condemnation, but for the value of the use of a patented invention when such use was with the consent of the patentee.” Haran, J., dissenting. Schillinger v. U. S,, 155 U. S. 175, “Congress has created a court in which it has authorized suits to be brought against the United States, but has limited such suits to those arising on contract, with a few unimportant exceptions.” Mutter, J. U. S. v. Lee, 106 U. S. 205. “ [Congress] has often authorized suits to be brought against the United States to confirm claims, under grants from foreign governments, to lands since ceded to the United States.” Gray, J., dissenting. U. S. v. Lee, 106 U. S. 239. “The United States can be sued in no other court than the Court of Claims.” Muz- Ler, J. U. S. uv. Schurz, 102 U. S. 404. “Suits against the government in the Court of Claims, whether reference be had to the claimant’s demand, or to the defense, or to any set-off or counterclaim which the gov- ernment may assert, are not controlled by the Seventh Amendment. They are not suits at common Jaw within its true meaning.” Harian, J. McElrath v. U. S., 102 U. S. 440, “The act [Rev. Stat. U. S., § 1088] was passed for the protection of the United States. It constitutes one of the conditions which Congress has seen fit to attach to the grant of a right to sue the United States, The suitor cannot complain, for he accepted this condition of the jurisdiction when he commenced his suit.” Warts, C. J. Young v. U.S. 95 U. S. 643. 839 GOVERNMENT. “Immunity from suit is an incident of sovereignty, but the government of the United States, in a spirit of great liberality, waived that immunity in favor of those per- sons who had claims against it which were founded upon any law of Congress or reg- ulation of an executive department, or upon any contract with it, express or implied, and gave the Court of Claims the power to hear and determine cases of this nature.” Davis, J. Bonner v. U. S., 9 Wall. 159. “T am of opinion that when the govern- ment, by its agent, knowingly uses or per- mits to be used for its benefit a valid pat- ented invention, it is liable to suit in the Court of Claims for the value of such use, and that its liability arises out of contract based upon the constitutional requirement that private property shall not be taken for public use without just compensation.” Har- LAN, J., dissenting. Schillinger v. U. S., 155 U. S. 178. “While the United States as a government may not be sued without its consent, yet with its consent it may be sued, and the ju- dicial power of the United States extends to such a controversy.” Brewer, J. Minnesota v. Hitchcock, 185 U. S. 386. “Tt cannot be controverted that it is for Congress to determine when and under what circumstances the government may be sued.” Futter, C. J. Austin v. U. S., 155 U. S. 430. “Tt belongs to Congress alone to decide in what cases the United States may be made a party in the courts, and to designate the of- ficers by whom they may be made a party.” Curtis, J., dissenting. Florida v. Georgia, 17 How. 512. “When the United States consent to ap- pear merely as a suitor in the courts and to litigate her rights with an adverse private claimant, the rights of both must be deter- mined by the application of the ordinary rules which prevail in actions between private in- dividuals.” Wayne, J., dissenting. U. S. v. Castillero, 2° Black 320. “The government cannot be sued, except with its own consent. It can declare in what court it may be sued, and prescribe the forms of pleading and the rules of practice to be ob- served in such suits. It may restrict the jurisdiction of the court to a consideration of only certain classes of claims against the United States.” Hartan, J. McElrath v. U. S., 102 U. S. 440. “Before any judgment should be rendered binding the United States it is familiar and settled law that the statute claimed to jus- tify such judgment should be clear and not open to debate.” Brewer, J. Leighton wv. U. S., 161 U. S. 297. Power to Give Consent. “There is vested in no officer or body the authority to consent that the state shall be sued except in the law making power, which may give such consent to the terms it may choose to impose.” MILER, J. U.S. v. Lee, 106 U. S. 205. Terms and Conditions. “Tt is an established principle of juris- prudence in all civilized nations that the sov- ereign cannot be sued in its own courts, or in any other, without its consent and permis- sion; but it may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals, or by another state. And as this permission is al- together voluntary on the part of the sover- eignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it.’ TANeEy, C. J. Beers v. Arkansas, 20 How. 529. “Every government has an inherent right to protect itself against suits, and if, in the liberality of legislation, they are permitted, it is only on such terms and conditions as are prescribed by statute. The principle is fundamental, applies to every sovereign power, and but for the protection which it affords, the government would be unable to perform the various duties for which it was created. It would be impossible for it to col- lect revenue for its support, without infinite embarrassments and delays, for it was sub- ject to civil processes the same as a private person.” Davis, J. Nichols v. U. S, 7 Wall. 126. “In England, when the damage is in- flicted by a vessel belonging to the crown, it was formerly held that the remedy must be sought against the officer in command of the offending ship. But the present practice is to file a libel in rem, upon which the court directs the registrar to write to the lords of the admiralty requesting an appearance on behalf of the crown—which is generally given — when the subsequent proceedings to decree are conducted as in other cases.” Fisip, J. The Siren, 7 Wall. 155, 840 GOVERNMENT. “The United States is not subject to suit, except by its consent, and then only within the limits and on the terms pre- scribed.” Fuuer, C. J. Ainsa v. U. S., 184 U. S. 648. “The exemption of the United States from being impleaded without their consent is, as has often been affirmed by this court, as ab- solute as that of the crown of England or any other sovereign.” Gray, J., dissenting. U.S. v. Lee, 106 U. S. 226. “The United ‘States, like all sov- ereigns, cannot be impleaded in a judicial tri- bunal, except so far as they have consented to be sued.” Gray, J. Belknap v. Schild, 161 U. S. 16. “Tt is a fundamental principle of public law, affirmed by a long series of decisions of this court, that no suit can be maintained against the United States, or against their property, in any court, without express authority of Congress.” Gray, J. Stanley v. Schwalby, 162 U. S. 269. “ [The United States] cannot be sued with- out their consent. . If they sue, and a balance is found in favor of the defendant, no judgment can be rendered against them, either for such balance or in any case for costs. . ... A judgment in their favor can- not be enjoined. Laches, however gross, cannot be imputed to them. There is no presumption of payment against them arising from lapse of time. They can maintain a suit in their own name upon a non-negotiable claim assigned to them.” Swayne, J. U. S. v. Thompson, 98 U. S. 489. “The exemption of the United ‘States from suits, except as they themselves may provide, rests upon the same foundation as the rule of nullum tempus with respect to them. If the states can pass statutes of limitation bind- ing upon the federal government, they can by like means make it suable within their respective jurisdictions. The evils of such a state of things are too obvious to require remark.” Swayne, J. U. S. v. Thompson, 98 U. S. 490. “Tt is a familiar doctrine of the common law, that the sovereign cannot be sued in his own courts without his consent. The doctrine rests upon reasons of public policy; the inconvenience and danger which would follow from any different rule. It is obvious that the public service would be hindered, and the public safety endangered, if the su- preme authority could be subjected to suit at ’ the instance of every citizen and consequently controlled in the use and disposition of the means required for the proper administration of the government. The exemption from di- rect suit is, therefore, without exception. This doctrine of the common law is equally applicable to the supreme authority of the nation, the United States. They cannot be subjected to legal proceedings at law or in equity without their consent; and whoever institutes such proceedings must bring his case within the authority of some Act of Congress.” Fietp, J. The Siren, 7 Wall. 154. “The government of the United States cannot be sued for a claim or demand against it without its consent. This rule is carried so far by this court, that it has been held that when the United States is plaintiff in one of the federal courts, and the defendant has pleaded a set-off which the Acts of Con- gress have authorized him to rely on, no judgment can be rendered against the gov- ernment, although it may be judicially as- certained that on striking a balance of just demands the government is indebted to the defendant in an ascertained amount. And if the United States shall sue an individual in any of her courts, and fail to establish a claim, no judgment can be rendered for the costs expended by the defendant in his defense.” Murer, J. De Groot v. U. S., 5 Wall. 431. “ Express Contract Liens upon the prop- erty of the United States are incapable of enforcement. A mortgage upon property, the title to which had subsequently passed to the United States, would be in the same position as a claim against a vessel of the government, incapable of enforcement by legal proceedings. The United States, pos- sessing the fee, would be an indispensable party to any suit to foreclose the equity of redemption, or to obtain a sale of the prem- ises.” Fretp, J. The Siren, 7 Wall. 157. Set-offs and Proceedings in Rem. “Although direct suits cannot be main- tained against the United States, or against their property, yet, when the United States institute a suit, they waive their exemption so far as to allow a presentation by the de- fendant of set-offs, legal and equitable, to the extent of the demand made or property claimed; and when they proceed in rem, they open to consideration all claims and equities in regard to the property libelled. They then stand in such proceedings, with 841 GOVERNMENT. reference to the rights of defendants or claim- ants, precisely as private suitors, except that they are exempt from costs and from af- firmative relief against them, beyond the demand or property in controversy.” FI£Exp, J. The Siren, 7 Wall. 154. “Claims for Credit can be used in suits against persons indebted to the United States to reduce or extinguish the debt, but not as the foundation of a judgment against the government.” Warts, C. J. Schaumburg v. U. S., 103 U. S. 667. Not Suable in State Courts. “Certainly no state can pass a law, which would have any validity, for making the gov- ernment suable in its courts.” Brap.ey, J. Carr v. U. S., 98 U.S. 437. Infringement of Patent. “The United States are not li- able to a suit for an infringement of a patent, that being an action sounding, in tort.” Gray, J. Belknap v. Schild, 161 U. S. 17. “The Head of an Executive Depart- ment, keeping within the limits of his authority, should not be under an apprehen- sion that the motives that control his official conduct may, at any time, become the sub- ject of inquiry in a civil suit for damages. It would seriously cripple the proper and ef- fective administration of public affairs as entrusted to the executive branch of the government, if he were subjected to any such restraint. He may have legal authority to act, but he may have such large discre- tion in the premises that it will not al- ways be his absolute duty to exercise the authority with which he is invested. But if he acts, having authority, his conduct cannot be made the foundation of a suit against him personally for damages, even if the circumstances show that he is not dis- agreeably impressed by the fact that his act injuriously affects the claims of par- ticular individuals.” Hartan, J. Spalding v. Vilas, 161 U. S. 498. Injunction Against Federal Officers. “In a suit to which the state is neither formally nor really a party, its officers, al- though acting by its order and for its ben- efit, may be restrained by injunction, when the remedy at law is inadequate, from doing positive acts, for which they are personally and individually liable, taking or injuring the plaintiff's property, contrary to a plain official duty requiring no exercise of dis- cretion, and in violation of the Constitution or laws of the United States.” Gray, J. Belknap v. Schild, 161 U. S. 18. Liability of Officers. “The exemption of the United States from judicial process does not protect their officers and agents, civil or military, in time of peace, from being personally liable to an action of tort by a private person whose tights of property they have wrongfully in- vaded or injured, even by authority of the United States.” Gray, J. Belknap v. Schild, 161 U. S. 18. United States as Party to Suit. “The question whether the United States is a party to a controversy is not deter- mined by the merely nominal party on the record but by the question of the effect of the judgment or decree which can be entered.” Brewer, J. Minnesota v. Hitchcock, 185 U. S. 387. British Subject May Sue. “This court has twice decided that a British subject can sue the United States in the Court of Claims, because an American citizen is permitted to sue the British gov- ernment by a petition of right. The Act of Congress creating the court requires reci- procity.” Swayne, J. Phelps v. McDonald, 99 U. S. 307. Suits Founded on Torts. “The United States have not consented to be liable to suits, founded in tort, for wrongs done by their officers, although in the discharge of their official duties.” Gray, J. Belknap v. Schild, 161 U. S. 17. “The court has steadily adhered to the general rule that, without its consent given in some Act of Congress, the government is not liable to be sued for the torts, miscon- duct, misfeasances or laches of its officers or employees.” Harian, J. Bigby wv. U. S, 188 U. S. 407. “The United States cannot be sued in their own courts without their consent, and have never permitted themselves to be sued in any court for torts committed in their name by their officers. Nor can the settled dis- tinction, in this respect, between contract and tort be evaded by framing the claim as upon an ithplied contract.” Gray, J. Hill ». U.S. 149 U. S. 598, States. “The state cannot be brought into court or sued by a private party without its con- 842 GOVERNMENT. sent.” Braptey, J. Christian wv. Atlantic, etc. R. Co., 183 U. S. 243. “TIt is a] well settled doctrine of our law, that no suit can be maintained in a judicial tribunal against a state, or against its prop- erty, without its consent.” Gray, J., dissent- ing. Workman v. New York City, 179 U. S. 588, “A state is not now suable by an in- dividual.” Jounson, J., dissenting. Gov- ernor v. Madrazo, 1 Pet. 128. “Unless the state chooses to allow itself to be sued, it cannot be sued.” BrabLEy, J., dissenting. Marye v. Parsons, 114 U. S. 338. “The state is exempt from suits at the in- stance of private persons.” Davis, J., dis- senting. Davis v. Gray, 16 Wall. 233. “The principle is elementary that a state cannot be sued in its own courts without its consent. This is a privilege of sovereignty.” Warts, C. J. Memphis, etc., R. Co. v. Ten- nessee, 101 U. S. 339. “The rule of the common law that the sovereign cannot he held amenable to process in his own courts without his consent is applied in this country to the state, under which designation are included the people within its territorial limits, in whom re- sides whatever sovereignty the state pos- sesses.” Fuiep, J., dissenting. Louisiana v. Jumel, 107 U. S. 728. “Tt may be accepted as a point of de- parture unquestioned, that neither a state nor the United States can be sued as defendant in any court in this country without their consent, except in the limited class of cases in which a state may be made a party in the Supreme Court of the United States by vir- tue of the original jurisdiction conferred on this court by the Constitution.” Muturr, J. Cunningham v. Macon, etc., R. Co., 109 U. S. 451. Citizens of One State Against State. “Tt is well settled that no action can be maintained in any federal court by the cit- izens of one of the states against a state, without its consent, even though the sole object of such suit be to bring the state within the operation of the constitutional pro- vision which provides that ‘no state shall pass any law impairing the obligation of con- tracts.’ This immunity of a state from suit is absolute and unqualified, and the con- stitutional provision securing it is not to be so construed as to place the state within the reach of the process of the court. Accord- ingly, it is equally well settled that a suit against the officers of a state, to compel them to do the acts which constitute a per- formance by it of its contracts, is, in effect, a suit against the state itself.” Lamar, J, Pennoyer v. McConnaughy, 140 U. S. 9. State Property. “Tt has been held in a class of cases where property of the state, or property in which the state has an interest, comes before the court and under its control, in the regular course of judicial administration, without be- ing forcibly taken from the possession of the government, the court will proceed to dis- charge its duty in regard to that property. And the state, if it choose to come in as plaintiff, as in prize cases, or to intervene in other cases when she may have a lien or other claim on the property will be permitted to do so, but subject to the rule that her rights will receive the same consideration as any other party interested in the matter, and be subjected in like manner to the judg- ment of the court.” Murier, J. Cunning- ham v. Macon, etc. R. Co., 109 U. S. 452. Personal Privilege Which May Be Waived. “The immunity from suit belonging to a state, which is respected and protected by the Constitution within the limits of the judicial power of the United States, is a personal privilege which it may waive at pleasure; so that in a suit, otherwise well brought, in which a state had sufficient in- terest to entitle it to become a party de- fendant, its appearance in a court of the United States would be a voluntary submis- sion to its jurisdiction; while, of course, those courts are always open to a suitor in controversies between it and citizens of other states.” Mattuews, J. Clark v. Barnard, 108 U. S. 447. Mandamus and Injunction Against Off- cers. “A state, without its consent, cannot be sued by an individual; and a court cannot substitute its own discretion for that of ex- ecutive officers in matters belonging to the proper jurisdiction of the latter. But it has been well settled; that, when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have a mandamus to compel its performance; and when such duty is threatened to be violated by some 843 GOVERNMENT. positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it.” Braptey, J. Louisiana Board of Ligq- uidation v. McComb, 92 U. S. 541. “An officer of a state may be enjoined from executing a statute of the state which is in conflict with the Constitution of the United States, when such execution would violate’ and destroy the rights and priv- ileges of the complainant.” Lamar, J. Pen- noyer v. McConnaughy, 140 U. S. 11. Violation of Treaty. “The Constitution expressly gives to the court jurisdiction in all cases of law and equity arising under treaties made with the United States. No suit will lie against the United States upon such treaty, because no possible case can exist where the United States can be sued. But not so with respect to a state: and if any right secured: by treaty has been violated by a state, in a case proper for judicial inquiry, no good reason is per- ceived why an action may not be sustained for violation of a right secured by treaty, as well as by contract under any other form.” Tuomeson, J., dissenting. Cherokee Nation v. Georgia,:5 Pet. 59. Jurisdiction of Federal Courts. “A state is altogether exempt from the jurisdiction of the courts of the United ‘States, or from any other exterior authority unless in the special instances where the general government has power derived from the Constitution itself.” Irepett, J. Chis- holm v. Georgia, 2 Dall. 448. “Nothing heretofore said by this court justifies the contention that a state may not give its consent to be sued in its own courts by private persons or by corporations in re- spect of any cause of action against it and at the same time exclude the jurisdiction of the federal courts— subject always to the condition, arising out of the supremacy of the Constitution of the United States and the laws made in pursuance thereof, that the final judgment of the highest court of the state in any action brought against it with its consent may be reviewed or re-examined, as prescribed by the Act of Congress, if it de- nies to the plaintiff any right, title, privilege or immunity secured to him and especially claimed under the Constitution or laws of the United States.” Harzan, J. Smith v. Reeves, 178 U. S. 445. Effect of Eleventh Amendment. “It will be perceived that this [Eleventh] amendment only granted to a state immunity from suit by an individual, and did not af- fect the jurisdiction over controversies be- tween two or more states.” Brewer, J. South Dakota v. North Carolina, 192 U. S. 315. What Constitutes Suit Against State. “What is and what is not a suit against a state has so frequently been the subject of consideration by this court that nothing of importance remains to be suggested on either side of that question. It is only necessary to ascertain, in each case as it arises, whether it falls on one side or the other of the line marked out by our former decisions.” LAN, J. Fitts v. McGhee, 172 U. S. 525. “There is a wide difference between a suit against individuals, holding official po- sitions under a state, to prevent them, under the sanction of an unconstitutional statute, from committing by some positive act a wrong or trespass, and a suit against ‘officers of a state merely to test: the constitutionality of a state statute, in the enforcement of which those officers will act only by formal ju- dicial proceedings in the courts of the states.” Haran, J. Fitts v. McGhee, 172 U. S. 529. “As a state can act only by its officers, an order restraining those officers from taking any steps, by means of judicial proceedings, 5 is one which restrains the state it- self, and the suit is consequently as much against the state as if the state were named as a party defendant on the record.” Har- LAN, J. Fitts v. McGhee, 172 U. S. 529. Suit Against State Bank Not Against State. “A suit against the Planters’ Bank of Georgia is no more a suit against the state of Georgia than against any other individual corporator, The state is not a party, that is, atl entire party, in the cause.” MARSHALL, C. J. Bank of U. S. v. Planters’ Bank of Ga., 9 Wheat. 906. State Submitting to Suit. “When a state submits itself, without reservation, to the jurisdiction of a court in a particular case, that jurisdiction may be used to give full effect to what the state has by its act of submission allowed to be done; and if the law permits coercion of the public officers to enforce any judgment that may be rendered, then such coercion may be 844 : Har- GOVERNMENT. employed for that purpose.” Waits, C. J., dissenting. Louisiana v. Jumel, 107 U. S. 728. “Tf the state furnishes a remedy by proc- ess against itself or its officers, that process may be pursued because it has consented to submit itself to that extent to the jurisdic- tion of the courts; but if it chooses to with- draw its consent by a repeal of all remedies, -it is resorted to the immunity from suit, which belongs to it as a political community, responsible in that particular to no superior.” Waite, C. J. Antoni v. Greenhow, 107 U. S. 783. I Foreign Governments. “An independent foreign sovereign cannot be sued, and does not appear in court. But a friend of the court comes in, and, by sug- gestion, gives it to understand that his in- terests are involved in the controversy. The interests of the sovereign, in such a case, and in every other where he chooses to assert them under the name of the real party to the cause, are as well defended as if he were party to the record.” MarsHatt, C. J. Os- born v. Bank of U. S., 9 Wheat. 870. “A foreign sovereign cannot be compelled to appear in our courts, or be made liable to their judgment, so long as he remains in his own dominions, for the sovereignty of each is bounded by territorial limits. If, however, he comes personally within our limits, al- though he generally enjoys a personal im- munity, he may become liable to judicial process in the same way, and under the same circumstances, as the public ships of the nation.” Story, The Santissima Trinidad, 7 Wheat. 353. “Every sovereign becomes the acknowl- edged arbiter of his own justice, and cannot, consistently with his dignity, stoop to ap- pear at the bar of other nations to defend the acts of his commissioned agents, must less the justice and legality of those rules of conduct which he prescribed to them.” Jounson, J. L’Invincible, 1 Wheat. 254. “The principle that no sovereign can be sued without his consent applies equally to foreign sovereigns and to the sovereign of the country iv which the suit is brought. The exemption of the sovereign is not less re- garded by its own courts than by the courts of other sovereigns.” Gray, J., dissenting. U.S. uv. Lee, 106 U. S. 235. “Where, in a court of admiralty of one sovereign, redress is sought for a tort com- mitted by a vessel of war of another nation, it has been held that as by the rule of in- ternational comity the sovereign of another country was not subject to be impleaded, no redress could be given.” Wuure, J. Work- man v. New York City, 179 U. S. 566. “One nation treats with the citizens of an- other only through their government. A sov- ereign cannot be sued in his own courts without his consent. His own dignity, as well as the dignity of the nation he rep- resents, prevents his appearance to answer a suit against him in the courts of another sovereignty, except in performance of his obligations, by treaty or otherwise, voluntarily, assumed. Hence, a citizen of. one nation wronged by the conduct of another nation, must seek redress through his own govern- ment. His sovereign must assume the re- sponsibility of presenting his claim, or it need not be considered. If this responsibil- ity is assumed, the claim may be prosecuted as one nation proceeds against another, not by suit in the courts, as of right, but by diplomacy, or, if need be, by war. It rests with the sovereign against whom the de- mand is made to determine for himself what he will do in respect to it. He may pay or reject it; he may submit to arbitration, open his, own courts to suit, or consent to be tried in the courts of another nation. All depends upon himself.” Wartz, C. J. U. S. uw. Diekelman, 92 U. S. 524. V. GOVERNMENT DEPARTMENTS. General Considerations. “The power existing in every body politic is an absolute despotism; in constituting a government, the body politic distributes that power as it pleases, and in the quantity it pleases, and imposes what checks it pleases upon its public functionaries. The natural distribution and the necessary distribution to individual security, is into legislative, execu- tive and judicial; but it is obvious that every community may make a perfect or imperfect separation and distribution of these powers at its will.” Jounson, J. Livingston v. Moore, Y Pet. 546. “The departments of the government are legislative, executive, and judicial. They are co-ordinate in degree to the extent of the powers delegated to each of them. Each, in the exercise of its powers, is independent of the other, but all, rightfully done by either, is binding upon the others. The Constitu- tion is supreme over all of them, because the people who ratified it have made it so; con- 845 GOVERNMENT. sequently, anything which may be done un- authorized by it is unlawful. But it is not only over the departments of the government that the Constitution is supreme. It is so, to the extent of its delegated powers, over all who made themselves parties to it; states as well as persons, within those con- cessions of sovereign powers yielded by the people of the states, when they accepted the Constitution in their conventions. Nor does its supremacy end there. It is su- preme over the people of the United States, aggregately and in their separate sovereign- ties.” Wayne, J. Dodge v. Woolsey, 18 How. 347. _ “Within the sphere allotted to them, the co-ordinate branches of the general govern- ment revolve, unobstructed by any legitimate exercise of power by the state governments.” McLean, J. Worcester v. Georgia, 6 Pet, 570. “Tt is to be assumed that the departmental officers will recognize all legislation of Con- gress, and carry it into effect in accordance with its terms, and, therefore, the only mat- ters for judicial cognizance will be ques- tions arising as to misconstruction by such officers of its command, and the only judg- ments rendered against the government will be those in affirmance thereof.” Brewer, J. U.S. v. Edmondston, 181 U. S. 514. “The legislative, executive, and judicial powers, of every well-constructed govern- ment, are coextensive with each other; that is they are potentially coextensive. The ex- ectitive department may constitutionally ex- ecute every law which the legislature may constitutionally make, and the judicial de- partment may receive from the legislature the power of construing every such law.” Mar- SHALL, C. J. Osborn v. Bank of U. S., 9 Wheat. 818, “In this government, balances and checks have been carefully adjusted, with a view to secure public and private rights; and any de- parture from this organization endangers all. We have less to apprehend from a bold and open usurpation by one department of the government, of powers which belong to an- other, than by a more gradual and insidious course.” McLean, J. Cary wv. Curtis, 3 How. 266. “Tt is a peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments.” MarsiArt, C. J. Fletcher v. Peck, 6 Cranch 136. “As in the case of a judicial officer, we recognize a distinction between action taken by the head of a department in reference to matters which are manifestly or palpably beyond his authority, and actions having more or less connection with the general matters committed by law to his control or supervision.” Hartan, J. Spalding wv, Vilas, 161 U. S. 498. “The Theory of the Constitution un- doubtedly is, that the great powers of the government are divided into separate depart- ments; and so far as these powers ate de- rived from the Constitution, the departments may be regarded as independent of each other. But beyond that, all are subject to regulations by law, touching the discharge of the duties required to be performed.” Tuompson, J. Kendall v. U. S., 12 Pet. 610. “Tt is not less important that the legisla- tive power should be exercised by the appro- priate branch of the government, than that the executive duties should devolve upon the proper functionary. And if the judicial power fall short of giving effect to the laws of the Union, the existence of the federal government is at an “end.” McLean, J. Worcester v. Georgia, 6 Pet. 570. “Three Co-ordinate Branches of the Government Were Established; the execu- tive, legislative, and judicial. These branches are essential to the existence of any free government, and they should pos- sess powers, in their respective spheres, coex- tensive with each other. If the executive have not powers which will enable him to execute the functions of his office, the sys- tem is essentially defective; as those duties must, in such case, be discharged by one of the other branches. This would destroy that balance which is admitted to be essential to the existence of free government, by the wisest and most enlightened statesmen of the present day.” McLean, J. Worcester v. Georgia, 6 Pet. 570. “The Difference Between the Depart- ments undoubtedly is, that the legislature makes, the executive executes, and the ju- diciary construes the law; but the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily.” 846 GOVERNMENT. MarsHatL, C. J. Wayman v. Southard, 10 Wheat. 46. Departments Independent. “The able men who laid the foundation of this government saw that, to secure the great objects they had in view, the executive, leg- islative, and judicial powers, must occupy distinct and independent spheres of action. That the union of these in one individual or body of men constitutes a despotism. And every approximation to this union partakes of this character.” McLean, J. Cary v. Curtis, 3 How. 265. “The Accounting Officers of the Treas- ury have not the burden of responsibility cast upon them of revising the judgments, corrécting the supposed mistakes, or annul- ling the. orders of the heads of departments.” Grier, J. U. S. v. Jones, 18 How. 96. “Tt would be an insupportable burden upon the officers of the court if, every time a question was made before the accounting officers of the treasury of the correctness oi their account, they were required to pro- duce affirmative evidence of every item.” Brown, J. U.S. wv. Nix, 189 U. S. 206. “The Secretary of the Navy Represents the President, and exercises his power on the subjects confided to his department. He is responsible to the people and the law for any abuse of the powers intrusted to him. His acts and decisions, on subjects submitted to his jurisdiction and control by the Con- stitution and laws, do not require the ap- proval of any officer of another department to make them valid and conclusive.” Grier, J. U.S. v. Jones, 18 How. 98. “The Secretary of the Treasury is the head of the financial department of the gov- ernment.” Brewer, J. U.S. vw Balling, 144 U. S. 10. Following Established Construction. “When a construction has been once estab- lished in respect to a particular matter it should be followed by the department, unless plainly wrong.” Brewer, J., dissenting. Hewitt v. Schults, 180 U. S. 163. “No Money Can Be Drawn from the Treasury except in consequence of appro- priations made by law.” Futter, C. J., dis- senting. Dooley v. U. S., 183 U. S. 175. “Tt is a well-known constitutional provi- sion, that no money can be taken or drawn from the treasury except under an appro- priation by Congress.” Woopsury, J. Ree- side v. Walker, 11 How. 291. “However much money may be in the treasury at any one time, not a dollar of it can be used in the payment of anything not thus previously sanctioned. Any other course would give to the fiscal officers a most dangerous discretion.” Woopgury, J. Ree- side v. Walker, 11 How. 291. “Government Funds in a Bank, which is a public depositary, can only be lawfully withdrawn therefrom by a disbursing officer, to meet the legitimate requirements of the public service.” Davis, J. Bayne v. U. S., 93 U. S. 643. Settlement of Claims. “The heads of the different departments are often required by acts or resolutions of Congress to settle claims for losses and lia- bilities incurred on behalf of the govern- ment, or in the attempted performance of contracts on the principles of equity.” Frexp, J., dissenting. U. S. v. Circuit Judges, 3 Wall. 680. “All Contracts for Supplies should be made with those, and with those only, who will execute them most faithfully, and at the least expense to the government. Considera- tions as to the most efficient and economical mode of meeting the public wants should alone control, in this respect, the action of every depattment of the government. No other consideration can lawfully enter into the transaction, so far as the government is concerned.” Fietp, J. Providence Tool Co. v. Norris, 2 Wall. 54. Auditing and Approving Claims. “All claims paid out of the treasury of the United States must be audited by one of its officers, and approved by one of the comp- trollers; but their action in allowing or re- fusing to allow a claim proves nothing as to which of these great constitutional divisions, exectitive, legislative, or judicial, the claim- ant belongs.” Mier, J. U. S. v. Meigs, 95 U. S. 750. Executive Department —Imposition of Duties on Officers. “There are certain political duties imposed upon many officers in the executive depart- ment, the discharge of which is under the direction of the President. But it would be an alarming doctrine, that Congress cannot itiposé upon any executive officer any duty they may think proper, which is not repug- nant to any rights secured and protected by 847 GOVERNMENT. the Constitution; and in such cases, the duty and responsibility grow out of and are sub- ject to the control of the law, and not to the direction of the President. And this is em- phatically the case, where the duty enjoined is of a mere ministerial character.” THomp- son, J. Kendall v. U. S., 12 Pet. 610. Executive Department Acts Independently of Courts. “T maintain that the executive power of this nation, headed by the President, and di- vided into departments in its administration of the finances of the country, acts independ- ently of the courts of justice in paying the public creditors.” Catron, J... Decatur wv. Paulding, 14 Pet. 522. Judicial Department. “Tt is a rule which has been repeatedly sanctioned by this court, that the judicial department is to consider as sovereign and independent states and nations those powers, that are recognized as such by the executive and legislative departments of the govern- ment; they being more particularly entrusted with our foreign relations.” THompson, J., dissenting. Cherokee Nation’ v. Georgia, 5 Pet. 59. “The protection and enforcement of many rights, secured by treaties, most certainly do not belong to the judiciary. It is only where the rights of persons or property are in- volved, and when such rights can be pre- sented under some judicial form, or pro- ceedings, that courts of justice can interpose relief.” Tuompson, J., dissenting. Chero- kee Nation v. Georgia, 5 Pet. 75. “In cases involving the action of the po- litical departments of the government, the judiciary is bound by such action.” Swayne, J. Phillips v. Payne, 92 U. S. 132. “Men unite in civil society, expecting to enjoy peaceably what belongs to them, and that they may regain it by the law when wrongfully withheld. That can only be ac- complished by good laws, with suitable pro- visions for the establishment of courts of justice, and for the enforcement of their decisions. The right to establish them flows from the same source which determines the extent of the legislative and executive pow- ers of government. ‘Experience has shown that the object cannot be attained without a supreme tribunal, as one of the departments of the government, with defined powers in its organic structure, and the mode for ex- ercising them to be provided legislatively. This has: been done in the Constitution of the United States.” Wayne, J. Dodge v. Woolsey, 18 How. 354. Supervising Power of Courts. “It has been repeatedly adjudged that the courts have no general supervising power over the proceedings and action of the vari- ous administrative departments of govern- ment.” Brewer, J. Keim v. U.S.,177 U.S. 292. When Courts May Act. “As a general rule, no mere matter of administration in the various executive de- partments of the government can, pending such administration, be taken away from such departments and carried into the courts; those departments must be permitted to pro- ceed to the final accomplishment of all mat- ters pending before them, and only after that disposition may the courts be invoked to inquire whether the outcome is in accord with the laws of the United States.” BREWER, J. Brown v. Hitchcock, 173 U. S. 477. Powers. “T regard it of vital consequence, that absolute power should never be conceded as belonging under our system of government to any one of its departments.” FULLER, C. J., dissenting. Mormon Church v. U. S., 136 U. S. 67. “The war department has no authority to enter into the business of converting hogs into pork, lard, and bacon, for purposes of profit or sale as individuals do.” Mutter, J. U. S. v. Speed, 8 Wall. 82. “JT cannot consent to the enlargement of executive power, acting upon the rights of individuals, which is not restrained and guided by positive law.” McLean, J., dis- senting. Ex p. Wells, 18 How. 319. “A regulation of a department ... cannot repeal a statute; neither is a con- struction of a statute by a department charged with its execution to be held con- clusive and binding upon the courts of the country, unless such construction’ has been continuously in force for a long time.” La- MAR, J. Merritt v. Cameron, 187 U. S. 551. Limitations. “Tt is often a difficult matter to define the limitations of the legislative, the executive, and the judicial powers of a state; and this difficulty is greater in defining the limitations of the federal government. In both cases. the respective constitutions must be looked 848 GOVERNORS. to as to the source of power; but in the latter, it is often necessary to determine not only whether the power be vested, but wheth- er it is inhibited to the state.” McLean, J. Craig v. Missouri, 4 Pet. 464. “We agree that it is of vital importance that the line of demarcation between the three great departments of government should be observed, and that each should be lim- ited to the exercise of its appropriate pow- ers.” FUuLuer, C. J. U.S. v. Duell, 172 U.S. 589. Power to Pay Debts. “No officer, however high, not even the President, much less a secretary of the treasury, or treasurer, is empowered to pay debts of the United States generally, when presented to them.” Woopsury, J. Reeside uv. Walker, 11 How. 291. Review of Proceedings. “Until the matter is closed by final action, the proceedings of an officer of a department are as much open to review or reversal by himself, or his successor, as are the inter- locutory decrees of a court open to review upon the final hearing.’ Brown, J. New Orleans v. Paine, 147 U. S. 266. Encroachment and Interference. “One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions de- pends in no small degree on a strict observ- ance of this salutary rule.” Waste, C. J. Sinking-Fund Cases, 99 U. S. 718. “ There is no tendency, in these latter days, more dangerous than the assumption of one department of the government of powers that belong to another department.” Haran, J., dissenting. Schick v. U. S., 195 U. S. 99. “To permit an interference of the courts of justice with the accounts and affairs of the treasury, would soon sap its very foun- dations.” Catron, J. Decatur v. Paulding, 14 Pet. 522. “The interference of the courts with the performance of the ordinary duties of the executive departments of the government would be productive of nothing but mischief; and we are satisfied that such a power was never intended to be given to them.” Camp- BELL, J. Bartlett v. Kane, 16 How. 272. “ All will admit that a strict confinement of each department within its own proper sphere was designed by the founders of our 1 Os. Dic.—54 government, and is essential to its successful administration.” Frevp, J. Meriwether v. Garrett, 102 U. S. 515. “The Congress is the legislative depart- ment of the government; the President is the executive department. Neither can be re- strained in its action by the judicial depart- ment; though the acts of both, when per- formed, are, in proper cases, subject to its cognizance.” CuHasE, C. J. Mississippi v. Johnson, 4 Wall. 500. “Tt is a fundamental principle in our in- stitutions, indispensable to the preservation of public liberty, that one of the separate departments of the government shall not usurp powers committed by the Constitution to another department.” Haran, J. Mug- ler v. Kansas, 123 U. S. 662. GOVERNORS. As Military Commanders. “The governors of states, as military com- manders, must be considered as subordinate to the President.” JouHNson, J., dissenting. Houston v. Moore, 5 Wheat. 46. Power to Bind States by Contracts. “A governor of a state is a mere execu- tive officer; his general authority very nar- rowly limited by the constitution of the state; with no undefined or disputable pre- rogatives; without power to effect one shil- ling of the public money, but as he is author- ized under the Constitution, or by a particu- lar law; having no color to represent the sovereignty of the state, so as to bind it in any manner, to its prejudice, unless specially authorized thereto. And therefore, all who contract with him, do it at their own peril, and are bound to see (or take the conse- quences of their own discretion) that he has strict authority for any contract he makes.” TrEDELL, J. Chisholm v. Georgia, 2 Dall. 446. Power of Courts to Restrain Acts. “Where no controversy exists between states, it is not for this court to restrain the governor of a state in the discharge of his executive functions in a matter lawfully con- fided to his discretion and judgment.” Fut- LER, C. J. Louisiana v. Texas, 176 U. S. 23. “It is one thing to compel the governor of a state, by judicial order, to take affirma- tive action upon a designated subject. It is quite a different thing to say that being di- rectly charged with the execution of a statute he may not be restrained by judicial orders 849 GRANTS. from taking such action as he deems proper, even if what he is doing and proposes to do is forbidden by the supreme law of the land. His official character gives him no immunity from judicial authority exerted for the pro- tection of the constitutional rights of others against his illegal action. He cannot be in- vested by his state with any discretion or judgment to violate the Constitution of the United States.” Hartan, J., concurring. Louisiana v. Texas, 176 U. S, 25. Power of States as to Qualification, Elec- ‘tion and Installation. “Tt is the settled law of legislative bodies, and hitherto recognized in all our state con- stitutions, that each house shall be the ex- clusive judge of the election and qualification of its members. But no less settled, and hith- erto universally recognized in this country, is the law which vests exclusive jurisdiction in each state over the election, qualification, and installation of its chief executive.” Fretp, J., dissenting. Boyd v. Thayre, 143 UL S. 185. GRACE, DAYS OF. See NecoTIABLE INSTRUMENTS. GRANTS. I, DEFINITIONS AND GENERAL PRIN- CIPLES. II. REguisitEs oF GRANTS. III. ConstrucTIon oF GRANTS. 1. In General. 2. Private Grants. 3. Public Grants. IV. REvocaTION AND IMPAIRMENT OF GRANTS. CROSS-REFERENCES. See Francuises; Licenses; Pustic LAnps. I. DEFINITIONS AND GENERAL PRINCIPLES. “A Reservation is not a grant.” Ta- ney, C. J., dissenting. Vincennes University uv, Indiana, 14 How. 280, Private and Public Legislative Grants. “Private legislative grants are grants of tights of property, lands or franchises, which may be made to individuals or corporate bodies, to towns, counties, states, or terri- tories, and in which the grantee may have private beneficial interests. Examples are, -interest in his office. the grant of lands to a town for the founding of a school, or of a church, or for the benefit of the poor of the town. The grantee in all such cases takes a beneficial interest in the grant, as the representative of the persons for whose benefit it is made.” Netson, J. Rice v. Minnesota, etc. R. Co., 1 Black 382. “Public . . . legislative grants . .. concern government — are grants of political power, or of rights of property, connected with the exercise of public purposes, in which no individual or corporate body can set up a vested interest, any more than a public functionary can set up a vested or private There are grants that may be altered, modified, or repealed, at the will of the legislature. Examples of this description of grants are the erection of towns and the incorporation of cities and vil- lages, to which are delegated a portion of the political power of the government, to be administered within their limits and juris- diction.” Netson, J., dissenting. Rice vw. Minnesota, etc., R. Co. 1 Black 382. — Public Grant Not Considered as Spe- cial Verdict. “A public grant, or one made in the name and assumed authority of the sovereign power of the country, has never been con- sidered as a special verdict; capable of being aided by no inference of the existence of other facts than those expressly found or apparent by necessary implication, an objec- tion to its admission in evidence on a trial at law, or a hearing in equity, is in the nature of a demurrer to evidence on the ground of its not conducting to prove the matter in issue. If admitted, the court, jury, or chancellor, must receive it as evidence both of the facts it recites and declares, leading to and the foundation of the grant, and all other facts legally inferrable by either from what is so apparent on its face.” Batpwin, J. U. S. uv. Arredondo, 6 Pet. 728. Franchise Not Distinguishable from Other Grants. “A grant of franchises is not, in point of principle, distinguishable from a grant of any other property.” Srory, J. Dartmouth College v. Woodward, 4 Wheat. 684. “By Grants of Land We Do Not Mean the Mere Grant Itself, but the right, title, legal possession and estate, property and ownership; legally resulting upon a grant of land to the owner.” Batpwin, J. U. S. ». Arredondo, 6 Pet. 744. 850 GRANTS. Grant of Land on Condition. “It cannot be maintained, that the grant of land on condition is no grant until the condition is performed. NELson, J., dissent- ing. Rice v. Minnesota, etc., R. Co., 1 Black 384, Obligation of Conditional Grant. “ At common law or in equity a conditional grant is just as obligatory and indefeasible between the parties as one that is absolute. The grant carries with it not only the right, but the obligation, of the grantee to fulfil the condition; and until the failure to fulfil the obligation is complete and the grant irre- vocable.” Netson, J., dissenting. Rice vw. Minnesota, etc., R. Co., 1 Black 384. Forfeitures — Mere Breach of Condition. “A mere breach of condition does not of itself work a forfeiture of a grant; some other proceeding must be taken by the grantor to indicate his dissatisfaction with the breach and his intention to exercise his rights to revoke the grant and take pos- session of the property in consequence thereof.” Fretp, J. St. Paul, etc, R. Co. v. Greenalgh, 139 U. S. 22. Entry by Grantor. “In the case of a private grant, an entry by the grantor, or any act equivalent thereto, showing a purpose to take advantage of the breach of condition subsequent, and to re- claim the estate forfeited by such breach, is all that is required.” Harian, J. Schlesinger v. Kansas City, etc, R. Co., 152 U.S. 453. Breach of Condition of Public Grants. “In the case of a public grant, the right of the government to repossess itself of the estate granted may be asserted through judicial proceedings, or by some legislative act showing an assertion of ownership on account of the breach of the condition upon which the original grant was made. But judicial proceedings to that end are not absolutely necessary, unless they are pre- scribed by the grant itself.’ Haran, J. Schlesinger v. Kan. City, etc, R. Co. 152 U. S. 453. Impossibility of Performance of Condi- tions — Acts of Grantor. “Tt is an acknowledged rule of law that if a grant is made on a condition subse- quent, and its performance becomes impossi- ble by the act of the grantor, the grant becomes single.” Batpwin, J. U. S. v. Ar- redondo, 6 Pet. 745. “The Word ‘Haven’ has perhaps a broader signification than ‘harbor.’ At any rate, the use of both words in the same grant suggests that all bodies of water which might come within the reach of either term were intended to be included in the grant.” Brewer, J. Lowndes v. Huntington, 153 U.S. 23. “The Quit-rent is a hereditament, re- served under the very words of the charter, and annexed to the seigniory. It would not be absolutely improper to term it ‘royalty,’ since similar reservations are generally to be found in grants made to individuals in the royal governments.” MarsHaAm, C. J. Kirk v. Smith, 9 Wheat. 266. “[An Irredeemable Pennsylvania Ground Rent] is defined to be a rent reserved to himself and his heirs by the grantor of land, out of the land itself. It is not granted like an annuity or rent charge, but is reserved out of a conveyance of the land in fee. It is a separate estate from the ownership of the ground, and is held to be real estate, with the usual characteristics of an estate in fee simple, descendible, devisable, alien- able.” Sutras, J. Wilson v. Iseminger, 185 Uz S. 59. Surprise, Imposition or Mistake in Legis- lative Grants. “Tn the case of a legislative grant, there is no ground to impute surprise, imposition or mistake to the same extent as in a mere private grant of the crown. The words are the words of the legislature upon solemn deliberation, and examination, and debate. Their purport is presumed to be well known, and the public interests are watched and guarded by all the varieties of local, per- sonal and professional jealousy; as well as by the untiring zeal of numbers devoted to the public service.” Story, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 602. “When Land under Navigable Waters Passes to the Riparian Proprietor, along with the grant of the shore by the United States, it.does not pass by force of the grant alone, because the United States does not own it, but it passes by force of the declaration of the state which does own it that it is attached to the shore.” Howes, J. Hardin v. Shedd, 190 U. S. 519. Void and Voidable Instruments. “The distinction between a void and a voidable instrument, though sometimes a very nice one, is still a well-recognized dis- 851 GRANTS. tinction on which valuable rights often de- pend.” Miter, J. U. S. uv. Schurz, 102 U. S. 400. Operation. “A legislative grant operates as a law as well as a transfer of the property, and has such force as the intent of the legislature re- quires.” Fretp, J. Schulenberg v. Harriman, 21 Wall. 62 Estoppel. ; “A party is . . always estopped by his own grant.” MarsHatt, C. J. Fletcher v. Peck, 6 Cranch 137. Grant Extinguisk :s Grantor’s Right. “A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right.” MarsHatt, C. J. Fletcher v. Peck, 6 Cranch 137. Continuation of Grant. “A grant or conveyance by no means necessarily implies the continuance of an ob- ligation beyond the moment of executing it. It is most generally but the consummation of a contract, is functus officio the moment it is executed, and continues afterwards to be nothing more than the evidence that a certain act was done.” Jonson, J., dis- senting. Fletcher v. Peck, 6 Cranch 145. Exceptions. “An exception in a grant is said to with- draw from its operation some part or parcel of the thing granted, which, but for ‘the exception, would have passed to the grantee under the general description. The effect in such cases in respect to the thing ex- cepted is as though it had never been in- cluded in the deed.” Brown, J. Maxwell Land Grant Co. v. Dawson, 151 U. S. 604. II. REQUISITES OF GRANTS. Necessity for Existing Grantee. “Tn general no grant can take effect unless there be a sufficient grantee then in exist- ence. This, in the case of corporations, seems pressed yet further; for if there be an aggregate corporation, having a head, as a mayor and commonalty, a grant or devise made to the corporation during the vacancy of the headship is merely void; although for some purposes, as for the choice of a head, the corporation is still considered as having a legal entity.” Story, J. Pawlet v. Clark, 9 Cranch 331. “There cannot be a grant unless there is a grantee, and consequently there cannot be a present grant unless there is a present grantee. If, then, the law making the grant indicates a future grantee and not a present one, the grant will take part in the future and not presently. In all the cases in which we have given these words the effect of an immediate and present transfer, it will be found that the law has designated a grantee qualified to take, according to the terms of the law, and actually in existence at the time.” Waite, C. J. Hall v. Russell, 101 U. S. 509. Grant to Deceased Party. “TBy the common law] the grant to a deceased party is as ineffectual to pass the title of the grantor as if made to a fictitious person; and the rule would apply equally to grants of the government as to grants of individuals.” Fretp, J. Davenport v. Lamb, 13 Wall. 427. Formal Delivery of Possession. “The Mexican law, as well as the com- mon law, made a formal delivery of pos- session, or livery of seizin of the property, essential, after the execution of a grant, for the investiture of the title.’ Fretp, J. Gra- ham v. U. S., 4 Wall. 261, Necessity for Consideration. “TA grant] must not be a mere gratuity. These must be a sufficient consideration, or, no matter how long the alleged right has been enjoyed, it may be resumed by the state at its pleasure.” Swayne, J. Newton v. Mahoning County Com’rs, 100 U. S. 561. Indefiniteness of Grant. “Tt is . . . undoubtedly true... that where there is a mere grant of a cer- tain number of acres within specified out- boundaries there may be such indefiniteness as to prevent a court from declaring the true location of the granted lands. And yet it is also true that there may be disclosed by the survey or other proceedings that which will enable a court of equity to de- termine with reasonable certainty what lands were intended to be granted and the title to which should be established.” Brewer, J. Ely’s Administrator v. U. S., 171 U. S. 240. Nothing Passes Not Described or Re- ferred To. “A grant by a king does not pass any thing not described or referred to, uriless the grant is as fully and entirely as they came to the king, and that ex certa scientia, 852 GRANTS. etc.” Batpwin, J. U. S. uv. Arredondo, 6 Pet. 739. Grants Do Not Extend Beyond Expressed Meaning. “Grants of the strongest kind, ‘ex speciali gratia, certa scientia, et mero motu, do not extend beyond the meaning and intent ex- pressed in them, nor, by any strained con- struction, make any thing pass against the apt and proper, the common and usual signi- fication and intendment of the words of the grant, and passes nothing but what the king owned.” Batpwin, J. U. S. v. Arredondo, 6 Pet. 739. Inference or Presumption. “No grant can be raised by mere in- ference or presumption, and the right granted must be clearly defined.” Swayne, J. Newton v. Mahoning County Com’rs, 100 U.S. 561. Use of Equivocal Language. “There must have been a deliberate in- tention clearly manifested on the part of the state to grant what is claimed. Such a pur- pose cannot be inferred from equivocal lan- guage.” Swayne, J. Newton v. Mahoning County Com’rs, 100 U. S. 561. “When the King’s Grant Refers in Gen- eral Terms to a Certainty, it contains an express mention of it as if the certainty had been expressed in the same charter.” Bap- win, J. U.S. v. Arredondo, 6 Pet. 739. Proof of Grant — Presumptions. “A grant is void, unless the grantor has the power to make it—but it is not void because the grantee does not prove or pro- duce it. The law supplies this proof by legal presumption, arising from the full, legal, and complete execution of the official grant, under all the solemnities known or proved to exist, or to be required by the law of the country where it is made and the land is situated.” Batpwin, J. U. S. w. Arredondo, 6 Pet. 728. “Tt has been frequently held by this court that a grant raises a presumption that the incipient steps required to give it validity have been taken.” Davis, J. Best v. Polk, 18 Wall. 118. Burden of Showing Grant. “Whoever claims a privilege from the government should point to a statute which clearly indicates the purpose to grant the privilege.” Brewer, J. Cornell v. Coyne, 192 U. S. 431. “It is true that a grant made without authority is void under all governments . . but in all the question is on whom the law throws the burden of proof, of its existence, or non-existence.” Batpwin, J. U. S. v. Arredondo, 6 Pet. 728. “The Grants of Colonial Governors, Before the Revolution, have always been, and yet are, taken as plenary evidence of the grant itself, as well as authority to dispose of the public lands. Its actual exercise, without any evidence of disavowal, revoca- tion, or denial by the king, and his con- sequent acquiescence and presumed ratifica- tion, are sufficient proof in the absence of any to the contrary (subsequent to the grant) of the royal assent to the exercise of his prerogative by his local governors.” Batpwin, J. U.S. v. Arredondo, 6 Pet. 728. Grants by Implication. “No principle is better established, than the principle that when a thing is given or granted, the law giveth, impliedly, whatever is necessary for the taking and enjoying the same.” Srory, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 617. “Tt is a principle of common sense, as well as of law, that when a thing is granted, whatever is necessary to its enjoyment is granted also.” Srory, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 592. “Tf an office be granted by name, all the immunities of that office are taken by im- plication. Whatever is essential to the en- joyment of the thing granted, must be taken by implication. And this rule holds good, whether the grant emanate from the royal prerogative of the king in England, or under an act of legislation in this country.” M’Lgan, J. Charles River Bridge v. War- ren Bridge, 11 Pet. 557. III. CONSTRUCTION OF GRANTS. 1. IN GENERAL. Intention of Parties, “The words of a grant are always con- strued according to the intention of the par- ties, as manifested in the grant by its terms or by the reasonable and necessary implica- tion, to be deduced from the situation of the parties and of the thing granted, its nature and use.” Barpwin, J. U. S. w. Arredondo, 6 Pet. 740. Consideration Involving Public Duties. “Wherever a grant is made for a valuable consideration, which involves public duties 853 GRANTS. and charges, the grant shall be construed so as to make the indemnity coextensive with the burden.” Story, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 630. “By Adopting Words of a Known Le- gal Import, the grantors must be pre- sumed to have used them in that sense, and to have so intended them; to depart from this rule would be to overturn established principles.” Batpwin, J. U. S. wv. Ar- redondo, 6 Pet. 743. Common Law Must Be Considered. “In the construction of all legislative grants, the common law must be taken into consideration; for the legislature must be presumed to have in view the general prin- ciples of construction which are recognized by the common law.” Story, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 617. Use of Language. “When in the preparation of any instru- ment the attention is directed to a particular subject, it is to be expected that language expressing the exact thought of the writer in respect thereto will be selected, and the ordinary force and scope of that language should not be destroyed by words and phrases used in another portion of the in- strument in the description of some other matter.” Brewer, J. Lowndes v. Hunting- ton, 153 U. S. 22. 2. PRivATE GRANTS. Construed Against Grantor. “Tn private grants the construction is most strongly against the grantor.” Swayne, J. The Siren, 13 Wall. 392. “Tn ordinary cases, a grant is construed favorable to the grantee, and against the grantor.” McLean,J. Charles River Bridge wv. Warren Bridge, 11 Pet. 557. 3. Pusiic GRANTS. Construed Against Grantee. “Tt is a rule of interpretation that every grant from the sovereign authority is, in case of ambiguity, to be construed strictly against the grantee and in favor of the gov- ernment.” Woops, J. Wiggins Ferry Co. v. East St. Louis, 107 U. S. 371. “Where words are ambiguous, legislative grants must be interpreted most strongly against the grantee and for the government, and are not to be extended by implication in favor of the grantee beyond the natural and obvious meaning of the words employed. Any ambiguity must operate against the grantee and in favor of the public. This rule of construction obtains in grants from the United States to states or corporations in aid of the construction of public works.” Prcx- HAM, J. U. S. wv. Michigan, 190 U. S. 401. “TThere are] well settled canons of con- struction that pertain to grants by the state to private persons or corporations, as, for in- stance, that if there is any ambiguity or uncertainty in the act that interpretation must be put upon it which is most favorable to the state, that the words of the grant, being attributable to the party procuring the legislation, are to receive a strict construc- tion as against the grantee; and that, as the state acts for the public good, we should except to find the grant consistent with good morals and the general welfare of the state at large and of the particular community to be affected.” Surras, J., dissenting. Illi- nois Cent. R. Co. wv. Illinois, 146 U. S. 468. “Tt is a settled rule of construction adopted by this court, ‘that public grants are to be construed strictly.’” Grier, J. Richmond, etc. R. Co. v. Louisa. R. Co., 13 How. 81. “The difference between the rules of con- struction applicable to grants made by a government are to be strictly construed in its favor and against the grantee; in other words, that nothing passes by the grant but that which is necessarily and expressly em- braced in its terms.” Wuurs, J., dissenting. Kean v. Calumet Canal Co., 190 U. S. 498. - “Statutory grants of that character [grants of property, franchises, or privileges in which the government or the public has an inter- est] are to be construed strictly in favor of the-public, and whatever is not unequivo- cally granted is withheld; nothing passes by mere implication.” Haran, J. Coosaw Min. Co. v. South Carolina, 144 U. S. 562. “The settled rule is that statutes granting privileges or relinquishing rights of the pub- lic are to be strictly construed against the grantee.” Futter, C. J. Wisconsin Cent. R. Co. v. U. S., 164 U. S. 202. “The rule of construction applicable to the granting act is the familiar rule that afl grants of this description must be construed favorably to the government, and that noth- ing passes but what is conveyed in clear and explicit language.” Furter, C. J. U.S. w. Oregon, etc., R. Co., 164 U. S. 539. 854 GRANTS. “Tt is settled law that in grants by the public nothing passes merely by implication.” Hartan, J. Covington, etc., Turnpike Co. v. Sandford, 164 U. S. 588. “Public grants are to be construed strict- ly, and nothing passes by implica- tion.” CLIFFoRD, J. Rice v. Minnesota, etc., R. Co., 1 Black. 380. “Tt is a general rule of the common law (the reverse of that applied in ordinary cases), that a grant of the king, at, the suit of the grantee, is to be construed most bene- ficially for the king and most strictly against the grantee.” Story, J. Dartmouth College v. Woodward, 4 Wheat. 685. “Grants of Limited Political Powers are construed strictly.” McLean, J. Charles River Bridge v. Warren Bridge, 11 Pet. 557. “Public Grants Convey Nothing by Im- plication; they are construed strictly in favor of the king. . . Though such con- struction must be reasonable, such as will make the true intention of the king as ex- pressed in his charter take effect, is for the king’s honor, and stands with the rules of law.” Batpwin, J. U. S. v. Arredondo, 6 Pet. 738. Construction Giving Effect to Grant Pre- vailing. “Tf the king’s grant admits of two inter- pretations, one of which will make it utterly void and worthless, and the other will give it a reasonable effect, then the latter is to prevail.” Story, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 589. Strict Construction of Limited Applica- tion. “Tt is a well-known rule in the construc- tion of private grants, if the meaning of the words be doubtful, to construe them most strongly against the grantor. But it is said that an opposite rule prevails, in cases of grants by the king; for, where there is any doubt, the construction is made most favor- ably for the king, and against the grantee. The rule is not disputed. But it is of very limited application.” Story, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 589. Legislative Intent Must Not Be Defeated. “Public grants are construed _ strictly against grantees, but they are not to be so construed as to defeat the intent of the legis- lature, or to withhold what is given either expressly or by necessary or by fair impli- cation.” Jackson, J. U.S. v. Denver, etc., Ry Co., 150 U. S. 14. Construction Favorable to Grantee. “T admit, that where the terms of a grant are to impose burdens upon the public, or to create a restraint injurious to the public interest, there is sound reason for interpret- ing the terms, if ambiguous, in favor of the public. But at the same time, I insist, that there is not the slightest reason for saying, even in such a case, that the grant is not to be construed favorably to the grantee, so as to secure him in the enjoyment of what is actually granted.” Story, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 601. When Monopolies Are Favorably Con- strued. “Even in cases of monopolies, strictly so called, if the nature of the grant be such that it is for the public good, as in cases of patents for inventions, the rule -has always been to give them a favorable construction in support of the patent.” Srory, J., dissent- ing. Charles River Bridge v. Warren Bridge, 11 Pet. 608. Obscurities of Government Contracts. “Tt would be to the dishonor of the gov- ernment, that it should pocket a fair con- sideration, and then quibble as to the ob- scurities and implications of its own con- tract.” Story, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 597. “A Grant by the United States is to be interpreted by the statutes of the United States, and therefore is not subject to be enlarged by any principle of conveyance be- yond the express intendment of the statute under the authority of which the grant is made.” WHite, J., dissenting. Kean v. Cal- umet Canal Co., 190 U. S. 498. “In Construing a Congressional Grant, the act by which it is made is a law as well as a conveyance, and such effect must be given to it as will carry out the intent of Congress. That intent should not be defeated by applying to the grant the rules of the common law, which are properly applicable only to transfers between private parties.” Fiextp, J. Missouri, etc., R. Co. wv. Kansas, etc., R. Co., 97 U. S. 497. Royal Grants. s The general rule is, that ‘a grant of the king, at the suit of the grantee, is to be construed most beneficially for the king, 855 GRANTS. and most strictly against the grantee;’ but grants obtained as a matter of special favor to the king, or on a consideration, are more liberally construed.” Charles River Bridge.v. Warren Bridge, 11 Pet. 557. “The general words of a king’s grant shall never be so construed as to deprive him of a greater amount of revenue than he in- tended to grant, or to be deemed to be to his or the prejudice of the commonwealth.” Batpwin, J. U.S. v. Arredondo, 6 Pet. 739. “When the king grants a fair, or market, or ferry, it is usual to insert in all such grants a clause or proviso that it shall not be to the prejudice of any other existing franchise of the same nature; as a fair, or market, or ferry. But if such a clause or proviso is not inserted, the grant is always construed with the like restriction; for such a clause will be implied by law. And, therefore, if such new grant is without such a clause, if it occasion any damage either to the king, or to a subject in any other thing, it will be revocable.” Story, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 619. — Presumption of Validity. “Tt is not presumed that the king means to make a void grant; and, therefore, if it admits of two constructions, that shall be followed which shall secure its validity and operation.” Srory, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 592. King’s Contracts for Value Liberally Expounded. “The mere grant of a bounty of the king may properly be restricted to its obvious in- tent. But the contracts of the king for value are liberally expounded, that the dignity and sjustice of the government may never be jeoparded by petty evasions, and _ technical subtleties.” Srory, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 589. — Similar Construction of Crown and Private Grants. “Wherever the intent from the words is clear, or possesses a reasonable certainty, the same construction prevails in crown grants, as in private grants; especially where the grant is presumed to be from the voluntary bounty of the crown, and not from the rep- resentation of the subject.” Srory, J., dis- senting. Charles River Bridge v. Warren Bridge, 11 Pet. 591. McLean, J.: — Following Construction of Royal Grants. “If we are to have the grants of the legis- lature construed by the rules applicable to royal grants, it is but common justice to follow them throughout, for the honor of this republic. The justice of the common- wealth will not, I trust, be deemed less ex- tensive than that of the crown.” Srtory, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 597. ' “A Donation by the Crown for the Use of a Nonexisting Parish Church may well take effect by the common law as a dedi- cation to pious uses, and the crown would thereupon be deemed the patron of the fu- ture benefice when brought into life. And after such a donation it would not be com- petent for the crown to resume it at its own will, or alien the property without the same consent which is necessary for the alienation of other church property, viz., the consent of the ordinary, and parson, if the church be full, or in a vacancy, of the ordinary alone.” Story, J. Pawlet v. Clark, 9 Cranch 332. IV. REVOCATION AND IMPAIR- MENT OF GRANTS. State’s Right to Revoke Grants. “ A state does not possess the right of re- voking its own grants.” Jounson, J., dis- senting. Fletcher v. Peck, 6 Cranch 143. “Tt is well settled in this court that grants of this description [private legislative grants], when made by the legislature of a state, cannot be recalled.” NeEtson, J., dis- senting. Rice v. Minnesota, etc. R. Co. 1 Black 382. “We have no knowledge of any authority which could support the doctrine that a legis- lative grant is revocable in its nature, and held only durante bene placito. Such a doc- trine would uproot the very foundation of almost all the land titles in Virginia, and it is utterly inconsistent with a great and fun- damental principle of a republican govern- ment, the right of the citizens to the free enjoyment of their property legally acquired.” Story, J. Terrett v. Taylor, 9 Cranch 50. “The Government Has No Power to Revoke a Grant, even of its own funds, when given to a private person, or a cor- poration for special uses. It cannot recall its own endowments granted to any hospital, or college, or city, or town, for the use of such corporations. The only authority re- 856 GUARANTY. maining to the government is judicial, to ascertain the validity of the grant, to en- force its proper uses, to suppress frauds, and, if the uses are charitable, to secure their regular administration through the means of equitable tribunals, in cases where there would otherwise be a failure of justice.” Story, J. Dartmouth College v. Woodward, 4 Wheat. 698. “Subjecting the Lands of a Grantee to the Payment of His Debts, can never im- pair or contravene the rights derived to him under his grant, for in the very act, the full effect of the transfer of interest to him is recognized and asserted: because it is his, is the direct and only reason for subjecting it to his debts.” Jounson, J. Livingston v. Moore, 7 Pet. 550. Grant Prejudicing Former Grant. “The authorities are abundant to establish, that the king cannot make any second grant which shall prejudice the profits of the for- mer grant. And why not? Because the grant imposes public burdens on the grantee, and subjects him to public charges, and the profits constitute his only means of remu- neration; and the crown shall not be at lib- erty directly to impair, much less to destroy, the whole value and objects of its grant.” Story, J., dissenting. Charles River Bridge v. Warren Bridge, 11 Pet. 618. Grant of Land Previously Granted. “Tf a state convey land which it had pre- viously granted, the second grant is void; not, it would seem to me, because the second grant impairs the obligation of the first, for in fact it does not impair it; but because, having no interest in the thing granted, the state could convey none. The second grant would be void in, this country, on the same ground that it would be void in England, if made by the king. This is a principle of he common law; and is as immutable as the sis of justice. It derives no strength from the provision of the Constitution [against im- pairment of the obligations of contracts]; nor does it seem to me to come within the scope of that provision.” McLeran, J. Charles River Bridge v. Warren Bridge, 11 Pet. 573. Granting New Turnpike with Same Loca- tion as Another. “Every turnpike has its local limits and local termini; its points of beginning and of end. No one ever imagined that the legis- lature might grant a new turnpike, with ex- actly the same location and termini. That would be to rescind its first grant.” Story, J., dissenting. Charles River Bridge v. War- ren Bridge, 11 Pet. 635. GREAT LAKES. See HicH Seas. GUARANTY. See NEGOTIABLE INSTRUMENTS; SHIP. SuRETY- General Principles. “Agreements are frequently made which are not, in a certain sense, binding on both sides at the time when executed, and in which the whole duty to be performed rests primarily with one of the contracting parties. Contracts of guaranty may fall under that class, as when a person solicits another to employ a particular individual as his agent for a specified period, and engages that if the person addressed will do so, he, the appli- cant, will be responsible for the moneys the agent shall receive and neglect to pay over during that time. The party indemni- fied in such a case is not bound to employ the party designated by the guarantor; but if he __.does employ him in pursuance of the promise, the guaranty attaches and becomes binding on the party who gave it.” CuirForp, J. Storm wv. U. S., 94 U. S. 83. Necessity for Mutual Assent. “A contract of guaranty, like every other contract, can only be made by the mutual as- sent of the parties.” Gray, J. Davis Sewing Mach. Co. v. Richards, 115 U. S. 527. Construction of Contract. “Tt is rare, that in cases of guarantee the language of the instruments is such as to make the decision upon one an exact au- thority for that of another. The whole words and clauses are to be construed to- gether, and that sense is to be given to each which best comports with the general scope and intent of the whole.” Story, C. J. Douglass v. Reynolds, 7 Pet. 123. —— Consideration of Surrounding Circum- stances. “Tt has been held, that, in construing a guaranty, it is proper to look at the sur- rounding circumstances in order to discover the subject-matter the parties had in view, and thus ascertain the scope and object of the guaranty.” Stronc, J. Smeltzer v. White, 92 U. S. 392. 857 GUARDIAN —— Liberal Construction. “Instruments of this sort [letters of guar- anty] ought to receive a liberal interpreta- tion. By a liberal interpretation, we do not mean, that the words should be forced out of their natural meaning; but simply that the words should receive a fair and reasonable interpretation, so as to attain the objects for which the instrument is designed and the purposes to which it is applied. We should never forget that letters of guarantee are commercial instruments — generally drawn up by merchants in brief language — some- times inartificial, and often loose in their structure and form; and to construe the words of such instruments with a nice and technical care would not only defeat the in- tentions of the parties, but render them too unsafe a basis to rely on for extensive cred- its, so often sought in the present active business of commerce throughout the world.” Story, J. Lawrence v. McCalmont, 2 How. 449, — Strict Construction. “Tt is true, even of a technical guaranty, that its words are to be construed as strongly against the guarantor as the sense will admit.” Stronc, J. Smeltzer v. White, 92 U. S. 392. “Tt is a rule, in expounding instruments of this character [letters of guaranty], ‘that the words of the guarantee are to be taken as strongly against him as the sense will ad- mit.” Jounson, J. Drummond v. Ex’rs of Prestman, 12 Wheat. 518. “The Payment of Bonds, Without Other Designation, always implies a payment of the principal sum and its incident; and a guaranty in similar terms covers both.” Fretp, J. New Orleans v. Clark, 95 U. S. 651. GUARDIAN AND WARD. See INFANTS; PARENT AND CHILD. Power to Appoint Guardians. “The appointment of guardians is not, and never has been, peculiarly a chancery power. Guardians at common law became such by their relation to the minor, without any prejudicial appointment. Guardians were also appointed by testament by the father of any minor from time immemorial in the province of York, and on failure to thus ap- point, the ordinary had the’ power of ap- pointment. In this country the power to 858 AND WARD. appoint guardians and to pass upon their ac- counts has generally by statute been con- ferred upon the probate courts.” BRanbLey, J. Hoyt v.. Sprague, 103 U. S. 632. Guardian’s Bond. “In most of the states of the Union the guardian of the property of a minor gives bond, with personal securities, for his faith- ful conduct.” Davis, J. Lobrano v. Nelli- gan, 9 Wall. 296. Infant’s Contracts with Guardian. “An infant has no capacity, by contract with his guardian, or by assent to his un- lawful acts, to affect his own rights.” Gray, J. Lamar v. Micou, 112 U. S. 476. Authority of Guardian in Foreign Juris- diction. “ By the law of England and of this coun- try, a guardian appointed by the courts of one state has no authority over the ward’s person or property in another state, except so far as allowed by the comity of that state, as expressed through its legislature or its courts; but the tendency of modern statutes and decisions is to defer to the law of the domicil, and to support the authority of the guardian appointed there.” Gray, J. Lamar v. Micou, 112 U. S. 470. Guardian’s Failure to Comply Strictly with Law. “In a case in which the domicil of the ward has always been in a state whose law leaves much to the discretion of the guardian in the matter of investments, and he has faithfully and prudently exercised that dis- cretion with a view to the pecuniary in- terests of the ward, it would be inconsistent with the principles of equity to charge him with the amount of the moneys invested, merely because he has not complied with the more rigid rules adopted by the courts of the state in which he was appointed.” Gray, J. Lamar v. Micou, 112 U. S. 473. Foreign Guardians. “One of the ordinary rules of comity ex- ercised by some European states is, to ac- knowledge the authority and power of for- eign guardians, that is, guardians of minors and others appointed under the laws of their domicil in other states. But this rule of comity does not prevail to the same extent in England and the United States. In regard to real estate it is entirely disallowed: and is rarely admitted in regard to personal prop- erty.” Brapiey, J. Hoyt v. Sprague, 103 U. S. 631. GUARDIAN AND WARD. Laws Where Property Is Situated. “Some of those foreign jurists who con- tend most strongly for the general applica- tion of the ward’s lex domicilit admit that, when it comes to the alienation of foreign assets, an exception is to be made in favor of the jurisdiction within which the prop- erty is situate, for the reason that this con- cerns the ward’s property, and not his per- son.” Brapiey, J. Hoyt vw. Sprague, 103 U. S. 631. Powers of Guardian Appointed in State of Ward’s Domicil. “On the continent of Europe, the guardian appointed in the state of the domicil of the ward is generally recognized as entitled to the control and dominion of the ward and his movable property everywhere, and guardians specially appointed in other states are respon- sible to the principal guardian.” Gray, J. Lamar v. Micou, 112 U. S. 470. “The Preference Due to the Law of the Ward’s Domicil, and the importance of a uniform administration of his whole estate, require that, as a general rule, the management and investment of his property, should be governed by the law of the state of his domicil, especially when he actually resides there, rather than by the law of any state in which guardian may have been ap- pointed or may have received some property of the ward.” Gray, J. Lamar v. Micou, 112 U. S. 471. Change of Domicil. “The father, and after his death the wid- owed mother, being the natural guardian, and the person from whom the ward derives his domicil, may change the domicil.” Gray, J. Lamar v. Micou, 112 U. S. 471. Change of Domicil in Same State. “Any guardian, appointed in the state of the domicil of the ward, has been generally held to have the power of changing the ward’s domicil from one county to another within the same state and under the same flaw.” Gray, J. Lamar v. Micou, 112 U. S. 472, Removal of Domicil Beyond State. “Tt is very doubtful, to say the least, whether even a guardian appointed in the state of the domicil of the ward (not being the natural guardian or a testamentary guar- dian) can remove the ward’s domicil be- yond the limits of the state in which the guardian is appointed and to which his legal authority is confined.” Gray, J. Lamar v. Micou, 112 U. S. 472. Derivative Domicil from Natural Guar- dian. “The ward does not derive a domicil from any other than a natural guardian.” Gray, J. Lamar v. Micou, 112 U. S. 471. Testamentary Guardian’s Control over Domicil. “A testamentary guardian nominated by the father may have the same control of the ward’s domicil that the father had.” Gray, J. Lamar v. Micou, 112 U. S. 471. Power to Dispose of Ward’s Personalty. “ By the common law, and in those states where it has not been modified by statute, he [a guardian].is considered as having the legal power to sell or dispose of the personal property of his ward, and a purchaser who deals fairly has a right to presume that he acts for the benefit of his ward, and is not bound to inquire into the state of the trust, nor is he responsible for the faithful applica- tion of the money unless he knew, or had sufficient information at the time, that the guardian contemplated a breach of trust, and intended to misapply the money, or was in fact, by the transaction, applying it to his own private purpose.” Grier, J. Yerger v. Jones, 16 How. 37. “A guardian, unless his powers in this respect are restricted by statute, is authorized, by virtue of his office, and without any order of court, to sell his ward’s personal property and reinvest the proceeds, and to collect or compromise and release debts due to the ward, subject to the liability to be called to account in the proper court if he has acted without due regard to the ward’s interest.” Gray, J. Maclay v. Equitable L. Assur. Soc., 152 U. S. 503. Conversion of Personalty into Realty. “A guardian has no power to convert the personal property of his ward into realty.” Grier, J. Yerger v. Jones, 16 How. 37. Legislative Authority to Sell Ward’s Real Estate. “Statutes are to be found in almost every state in the Union giving authority to guar- dians to sell the real estate of their ward and usually requiring the supervision and approbation of a court. The power of the legislature to grant such special authority to guardians has been generally admitted.” Grizr, J. Florentine v. Barton, 2 Wall. 217. Legislative Authorization of Investments. “The legislature certainly might, if it saw fit, pass a general law authorizing a guardian 859 HABEAS CORPUS. to invest the property of his ward in the capital stock of a corporation engaged in manufacturing, trading, or financial opera- tions, or in a particular class of operations, as banking, insurance, or any other that might be specified. Usually, such authority, if given, would be required to be exercised under the allowance and supervision of a court; but that would be a matter of legisla- tive discretion. That such an authority could be conferred by law there can be no doubt. Analogous powers have been conferred from time immemorial.” Braptey, J. Hoyt w. Sprague, 103 U. S. 633. “The Question in What Securities a Guardian May Lawfully Invest is not one of mere construction of the contract ex- pressed in the guardian’s bond or implied by his acceptance of the guardianship, but rather of what is ‘within the sphere of the relation established thereby,’ or ‘what au- thority arises out of the fact of a contract having been entered into.” Gray, J. La- mar v. Micou, 114 U. S. 221. When Court Will Direct Maintenance. “Tt is settled, that where there are legacies to a class of children, for whom it would be beneficial that maintenance should be allowed, though the will does not authorize it, but directs an accumulation of the income, and the principal, with the ac- cumulation, to be paid over at twenty-one, with survivorship in case any should die under age, the court will direct maintenance ; but if there is a gift over, it will not be allowed without the consent of the ultimate devisee. So the court will break in upon the principal, where the in- come is insufficient for maintenance and edu- cation, and will break in upon it for past payments; and where the father is unable to maintain his children, and has contracted debts for this purpose, or for their education, the court will direct a reim- bursement out of the children’s estate, . ; and will, if the father or mother is in nar- row circumstances, in fixing the allowance, have regard to them, increasing it for the benefit of the family.” Netson, J., dissent- ing. Williamson v. Berry, 8 How. 556. Bringing Suit in Guardian’s Name. “Tf in the state of the forum the general guardian has the right to bring suit in his own name as such guardian, and does so, he is to be treated as the party plaintiff so far as federal jurisdiction is concerned, even though suit might have been instituted in the name of the ward by guardian ad litem or next friend. He is liable for costs in the event of failure to recover and for attorneys’ fees to those he employs to bring the suit, and in the event of success, the amount recovered must be held for disposal accord- ing to law, and if he does not pay the same over to the parties entitled he would be liable therefor on his official bond.” Fut- LER, C. J. Mexican Cent. R. Co. v. Eckman, 187 U. S. 434. HABEAS CORPUS. J. DEFINITIONS AND GENERAL PRIN- CIPLES. II. AUTHORITY AND JURISDICTION TO IssuE WRIT. 1. In General. 2. Jurisdiction and Power of Federal Courts. III. Return To Writ. I. DEFINITIONS AND GENERAL PRINCIPLES. Generic Term. “Tt has been truly said, that this [habeas corpus] is a generic term, and includes every species of that writ. To this it may be added, that when used singly—when we say the writ of habeas corpus, without ad- dition — we most generally mean that great writ which is now applied for; and in that sense it is used in the Constitution.” Mar- SHALL, C. J. Ex p. Bollman, 4 Cranch 95. “For the Meaning of the Term Habeas Corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law.” MarsHa.L, C. J. Ex p. Bollman, 4 Cranch Do. Not Writ of Error. “The writ of habeas corpus is not a writ of error, though in some cases in which the court issuing it has appellate power over the court by whose order the petitioner is held in custody, it may be used with the writ of certiorari for that purpose.” Mutter, J. Wales v. Whitney, 114 U. S. 571. “Even in an appellate court the writ of habeas corpus is not of itself the equivalent of a writ of error, although when supple- mented by certiorari, . . . it may bring 860 HABEAS CORPUS. the whole case before the appellate court for review.” BREWER, J. Bessette v. W. B. Conkey Co., 194 U. S. 335. “Habeas corpus is not treated as a writ of error, and while it may be issued by one court to inquire into the action of a court of co-ordinate jurisdiction, yet the inquiry is only whether the act of the court in im- posing punishment was within its jurisdic- tion.” Brewer, J. Bessette v. W. B. Con- key Co., 194 U. S, 335. — Cannot Perform Office of Writ of Error. “The general rule is well established that a writ of habeas corpus cannot be used to perform the office of a writ of error, and that this doctrine applies not only to original writs of habeas corpus issued by this court, but on appeals to it from courts below in habeas corpus proceedings.” Futter, C. J. Gon- zales v. Cunningham, 164 U. S. 621. “The writ [habeas corpus] cannot be made to do the office of a writ of error.” Prcx- HAM, J. Dimmick v. Tompkins, 194 U. S. 552. “We cannot look into any alleged errors in its rulings on the trial of the defendant. The writ of habeas corpus cannot be turned into a writ of error to review the action of that court.” Fretp, J. Davis v. Beason, 133 U.S. 341. “The writ of habeas corpus cannot be con- verted into a writ of error.” PrckHam, J. McClaughry v. Deming, 186 U. S. 69. “The writ of habeas corpus cannot per- form the office of a writ of error, but the court issuing the writ may inquire into the jurisdiction of the committing magistrate in extradition proceedings.” Futter, C.° J. Wright v. Henkel, 190 U. S. 57. “The writ of habeas corpus cannot be made to perform the functions of a writ of error.” Wuitt, J. In re Eckart, 166 U. S. 485. “Tt has been too frequently decided, to be now open to question, that a writ of habeas corpus cannot be made use of to perform the functions of a writ of error or an ap- peal.” Brown, J. In re Lennon, 166 U. S. 552. “The general rule is that the writ of habeas corpus will not issue unless the court, under whose warrant the petitioner is held, is without jurisdiction; and that it cannot be used to correct errors. Ordinarily 861 the writ will not lie where there is a remedy by writ of error or appeal. Yet in rare and exceptional cases it may be issued although such remedy exists.” Futter, C. J. In re Chapman, Petitioner, 156 U. S. 215. — In Nature of Writ of Error. “[The] writ is in the nature of a writ of error, which brings up the body of the prisoner with the cause of com- mitment.” Marsuatt, C. J. Ex p. Watkins, 3 Pet. 202. Writ Is Appellate in Nature. “The decision that the individual shall be imprisoned must always precede the applica- tion for a writ of habeas corpus, and this writ must always be for the purpose of re- vising that decision, and therefore appellate, in its nature.” MarsHALL, C. J. Ex p. Boll- man, 4 Cranch 101. — Mode Provided for Exercise of Ap- pellate Jurisdiction. “Tt has been settled by this court upon full examination, and after some conflict of opinion among its members, that the writ of habeas corpus is a mode provided for the exercise of its appellate jurisdiction, when- ever by any unauthorized action of an in- ferior tribunal, whether it be by its order, decree or process, a citizen is restrained of his personal liberty; and that a certiorari will issue in connection with the writ, to bring up the record of the inferior tribunal for examination. In such cases this court will look into the record, to determine not whether the inferior tribunal has erred in its action, but whether it has exceeded its jurisdiction in the imprisonment of the pe- titioner.” Fretp, J., dissenting. Ex p. Vir- ginia, 100 U. S. 350. “This court does not hesitate, on the plea of insufficient legislation, to issue the writ of habeas corpus as an appellate remedy wherever a citizen is deprived of his liberty in violation of the Constitution or laws of the United States, and has no other remedy.” Brab.ey, J., dissenting. Mahon v. Justice, 127 U. S. 718. “Tt has been settled by this court that the writ of habeas corpus is one of the modes by which its appellate jurisdiction will be exercised in cases where it is alleged that by the action of an inferior tribunal a cit- izen of the United States has been unlawfully deprived of his personal liberty; and, if necessary, that a certiorari will be issued with the writ to bring up for examination the rec- HABEAS CORPUS. ord of the proceedings of the inferior tri- bunal. In such cases, we look into that record to see, not whether the court erred in its rulings, but whether it had jurisdiction to impose the imprisonment complained of. If it had jurisdiction, our examination ends, and the case must await determination in the ordinary course of procedure on writ of er- ror or appeal, should the case be one which can thus be brought under our review. But if the court below was without juris- diction of the matter upon which the judg- ment of imprisonment was rendered, or if it exceeded its jurisdiction in the extent of the imprisonment imposed, this court will inter- fere and discharge the petitioner. If, there- fore, the Act of Congress, in seeking to impose a punishment upon a state officer in one of these cases for disobeying a law of the state, and in the other cases for resisting the interference of federal officials with the discharge of his duties under such law, is unconstitutional and void, the judgments of the Circuit Courts are unlawful and the peti- tioners should be released.” Fretp, J., dis- senting. Ex p. Clarke, 100 U. S. 405. “The appellate power of this court is broader than its original, and generally — that is, in most cases—it may be said that the issue of a writ of habeas corpus by us when it is directed to one of our inferior courts, is an exercise of our appellate juris- diction. Without going at large into a dis- cussion of its extent, it is sufficient for the present to notice the fact that the exercise of the appellate power is not limited by the Constitution to any particular form or mode. It is not alone by appeal or by writ of error that it may be invoked.” Srtrone, J. Ex p. Virginia, 100 U. S. 341. “Tt may be admitted that there is some refinement in denominating that an appellate power which is exercised through the instru- mentality of a writ of habeas corpus. In this form nothing more can be examined into than the legality of the commitment. However erroneous the judgment of the court may be, either in civil or criminal cases, if it had jurisdiction, and the defendant had been duly committed, under an execution or sentence, he cannot be discharged by this writ.” Mc- Lean, J. In the matter of Metzger, 5 How. 191. “The Object of the Writ [of habeas corpus] is to ascertain whether the prisoner applying for it can legally be detained.” Futter, C. J. In re Boardman, 169 U. S. 43. “[The purpose of the writ] is to enable the court to inquire, first, if the petitioner is restrained of his liberty. If he is not, the court can do nothing but discharge the writ. If there is such restraint, the court can then inquire into the cause of it, and if the alleged cause be unlawful it must then dis- charge the prisoner.” MuLLER, J. Wales v. Whitney, 114 U. S. 571. “[The writ] might unquestionably be em- ployed to bring up a prisoner to bear testi- mony in a court, consistently with the most limited construction of the words in the Act of Congress.” MarsHALL, C. J. Ex p. Boll- man, 4 Cranch 98. Not Like Action for Damages for Unlaw- ful Arrest. “A writ of habeas corpus is not like an action to recover damages for an unlawful arrest or commitment, but its object is to ascertain whether the prisoner can lawfully be detained in custody; and if sufficient ground for his detention by the government is shown, he is not to be discharged for defects in the original arrest or commitment.” Gray, J. Nishimura Ekiu wv. U. S., 142 U. S. 662. Civil Proceeding. “Tt is well settled that a proceeding in habeas corpus is a civil and not a criminal proceeding.” FuLier, C. J. Cross v. Burke, . 146 U. S. 88. “A writ of habeas corpus, sued out by one arrested for crime, is a civil suit or pro- ceeding, brought by him to assert the civil right of personal liberty, against those who are holding him in custody as a criminal.” Gray, J. Kurtz v. Moffitt, 115 U. S. 494. High Prerogative Writ. “The writ of habeas corpus is a high pre- rogative writ, known to the common law, the great object of which is the liberation of those who may be imprisoned without suffi- cient cattse. It is in the nature of a writ of error, to examine the legality of the com- mitment.” MarsHAatt, C. J. Ex p. Watkins, 3 Pet. 202. Remedy for Enforcing Personal Liberty. “The writ of habeas corpus is the remedy which the law gives for the enforcement of the civil right of personal liberty.” Waste, C.J. Ex p. Tom Tong, 108 U. S. 559. * [The right of habeas corpus is] the right of having any invasion of personal liberty 862 HABEAS CORPUS. judicially examined into, at ance, by a com- petent judicial magistrate.” BRApLery, J., dis- senting. Slaughter-House Cases, 16 Wall. 115, “The writ of habeas corpus has been often used to defend the liberty of the citizen, and even his life, against the assertion of unlaw- ful authority on the part of the executive and the legislative branches of the govern- ment.” Mutrer, J. U.S. v. Lee, 106 U. S. 220. Best Defense of Personal Freedom. “The great writ of habeas corpus has been for centuries esteemed the best and only suf- ficient defence of personal freedom.” CHASE, C.J. Ex p. Yerger, 8 Wall. 95. “ A Habeas Corpus Proceeding is a Col- lateral Attack of a Civil Nature to im- peach the validity of a judgment or sentence of another court in a criminal proceeding, and it should, therefore, be limited to cases in which the judgment or sentence attacked is clearly void by reason of its having been rendered without jurisdiction, or by reason of the court’s having exceeded its jurisdic- tion in the premises.” Jackson, J. In re Frederich, 149 U. S. 76. Questions Raised on Habeas Corpus. “The question brought forward on a ha- beas corpus, is always distinct from that which is involved in the cause itself. The question whether the individual shall be im- prisoned is always distinct from the question whether he shall be convicted or acquitted of the charge on which he is to be tried, and therefore ‘these questions are separated, and may be decided in different courts.” Mar- SHALL, C. J. Ex p. Bollman, 4 Cranch 101. —— Lack of Jurisdiction to Render Judg- ment. “Tt is firmly established that if the court which renders a judgment has not jurisdic- tion to render it, either because the proceed- ings, or the law under which they are taken, are unconstitutional, or for any other reason, the judgment is void and may be questioned collaterally, and a defendant who is impris- oned under and by virtue of it may be dis- charged from custody on habeas corpus.” Brapiey, J. Nielsen, Petitioner, 131 U. S. 182, — Questions Involving Construction of Constitution. “Tt often occurs in the progress of a crim- inal trial in a state court proceeding under a statute not repugnant to the Constitution of the United States, that questions occur which involve the construction of that instrument and the determination of rights asserted un- der it. But that does not justify an inter- ference with its proceedings by a Circuit Court of the United States, upon a writ of habeas corpus sued out by the accused either during or after the trial in the state court.” Harian, J. In re Wood, 140 U. S. 286. — Guilt or Innocence of Offense. “Tt is elementary learning that, if a pris- oner is in the custody of a state court of com- petent 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.” Warts, C. J. Ex p. Crouch, 112 U.S. 180. —— Sufficiency of Indictment. “Tt has been held that a trial court pos- sessing general jurisdiction of the class of offenses within which is embraced the crime sought to be set forth in the indictment is possessed of authority to determine the suffi- ciency of an indictment, and that in adjudg- ing it to be valid and sufficient acts within its jurisdiction, and a conviction and judg- ment thereunder cannot be questioned on habeas corpus, because of a lack of certainty or other defect in the statement in the in- dictment of the facts averred to constitute a crime.” Whitt, J. In re Eckart, 166 U. S. 483. —— Matters Dehors Record. “ Affidavits cannot add anything to the record, and . . . the writ of habeas corpus can [not] bring into review anything not apparent on the face of the record.” CuirForD, J., dissenting. Ex p. Lange, 18 Wall. 188. —— Character of Restraint or Imprison- ment. “There is no very satisfactory definition to be found in the adjudged cases of the character of the restraint or imprisonment suffered by a party applying for the writ of habeas corpus, which is necessary to sustain the writ. This can hardly be expected from the variety of restraints for which it is used to give relief.” Mutrer, J. Wales v. Whit- ney, 114 U. S. 571. “Obviously, the extent and character of the restraint which justifies the writ [writ of habeas corpus] must vary according to the nature of the control which is asserted over the party in whose behalf the writ is prayed.” Miter, J. Wales v. Whitney, 114 U..S. 571. 863 HABEAS CORPUS. “Something more than moral restraint is necessary to make a case for habeas corpus. There must be actual confinement of the present means of enforcing it.” MILLER, J. Wales v. Whitney, 114 U. S. 571. — Military or Naval Service. “Tn the case of a man in the military or naval service, where he is, whether as an officer or a private, always more or less sub- ject in his movements, by the very necessity of military rule and subordination, to the orders of his superior officer, it should be made clear that some unusual restraint upon his liberty of personal movement exists to justify the issue of the writ; otherwise every order of the superior officer directing the movements of his subordinate, which neces- sarily to some extent curtails his freedom of will, may be held to be a restraint of his liberty, and the party so ordered may seek relief from obedience by means of a writ of habeas corpus.” Mutier, J. Wales v. Whit- ney, 114 U. S. 571. — Continuation of Custody. “ Certainly, when a prisoner is brought into ccurt upon the return of a habeas corpus ad subjiciendum, he is then in the power and under the control of the court; but until the court makes some order changing the custody, it remains. The court may, in some cases, admit to bail, and may also take order for the future production of the prisoner, with- out bail; but in all cases, until the court makes some order changing the custody, ‘either for the care or security of the prisoner, or founded on the illegality of his commit- ment, the original custody continues.” Cur- Tis, J., dissenting. In re Kaine, 14 How. 122. — Conviction under Unconstitutional Law. “Tt is difficult to see why a conviction and punishment under an unconstitutional law is more violative of a person’s constitutional rights, than an unconstitutional conviction and punishment under a valid law.” Brap- Ley, J. Nielsen, Petitioner, 131 U. S. 183. —— Excess of Jurisdiction and Authority. “With regard to the power of discharging on habeas corpus, it is generally true that, after conviction and sentence, the writ only lies when the sentence exceeds the jurisdic- tion of the court, or there is no authority to hold the defendant under it.” Bran ey, J. Nielsen, Petitioner, 131 U. S. 185. “ Although the indictment was fatally de- fective, yet, if the court had jurisdiction of the cause and of the party, its judgment is not void, but only voidable by writ of error; and, until so avoided, cannot be collaterally impeached. If the judgment is upon a ver- dict of guilty, and unreversed, it stands good, and warrants the punishment of the defend- ant accordingly, and he could not be dis- charged by a writ of habeas corpus.” Gray, J. U.S. v. Ball, 163 U. S. 669. — Lack of Power to Condemn Prisoner. “A party is entitled to a habeas corpus, not merely where the court is without juris- diction of the cause, but where it has no constitutional authority or power to condemn the prisoner.” Brapitey, J. Nielsen, Peti- tioner, 131 U. S. 184. Proceeding to Be Summarily Disposed Of. “Proceedings in habeas corpus are to be disposed of in a summary way. The inter- ests of both the public and the petitioner require promptness; and if he is unlawfully restrained of his liberty it may be given to him as speedily as possible; that if not, all having anything to do with his restraint be advised thereof, and the mind of the public be put at rest, and also that if further action is to be taken in the matter it may be taken without delay. Especially is this true when the habeas corpus proceedings are had in the courts of a jurisdiction different from that in pursuance of whose mandate he is de- tained. This matter of promptness is not peculiar to these cases in federal courts, but is the general rule which obtains wherever the common law is in force. It is the one of those things which give to such proceed- ings their special value, and is enforced by statutory provisions, both state and federal. The command of the section is ‘to dispose of the party as law and justice require.’ All the freedom of equity procedure is thus pre- scribed ; and substantial justice, promptly ad- ministered, is ever the rule in habeas corpus.” Brewer, J. Storti v. Massachusetts, 183 U.S. 143. “Tf a party is unlawfully imprisoned, the writ of habeas corpus is his appropriate legal remedy. It is his suit in court, to recover his liberty. In order to be effectual for the purposes for which it is intended, the pro- ceedings must be summary; and the law has accordingly made them so.” Taney, C. J. Holmes v. Jennison, 14 Pet. 564. Legislative Power of Congress over Writ. “The Constitution . . . declares that the privilege of the writ of habeas corpus shall not be suspended, unless, when in cases 864 HABEAS CORPUS. of rebellion or invasion, the public safety may require it. No express power is given to Congress to secure this invaluable right in the non-enumerated cases, or to suspend the writ in cases of rebellion or invasion. And yet it would be difficult to say, since this great writ of liberty is usually provided for by the ordinary functions of legislation, and can be effectually provided for only in this way, that it ought not to be deemed by necessary implication within the scope of the legislative power of Congress.” Story, J. Prigg v, Pennsylvania, 16 Pet. 619. Suspension of Writ. “Tt is essential to the safety of every government that in a great crisis like the one we have just passed through [the civil war], there should be a power somewhere of sus- pending the writ of habeas corpus,” Davis, J. Ea p. Milligan, 4 Wall, 125. “If at any time the public safety should require the suspension of the powers vested 5 . in the courts of the United States [to award the writ ‘of habeas corpus], it is for the legislature to say so.” Mar- SHALL, C, J. Ex p. Bollman, 4 Cranch 101. “Tt is true that where rebellion exists, and the public safety requires it, the privilege of the writ of habeas corpus may be suspended, and to that extent one of the safeguards of the right of personal liberty may be with- drawn, but this suspension in no respect af- fects the claims of private citizens against each other arising out of contracts between them, or the means of their enforcement.” Fietp, J., dissenting. Mitchell v. Clark, 110 U.S. 649. II, AUTHORITY AND JURISDIC- TION TO ISSUE WRIT. 1. In GENERAL, “Where the Prisoner Is in Execution Upon a Conviction, the writ [of habeas corpus] ought not to be issued, or, if issued, the prisoner should at once be remanded, if the court below had jurisdiction of the offense, and did no act beyond the powers conferred upon it.” Braptey, J. Ex p. Parks, 93 U. S. 23. Duty and Power of Courts. “The courts may and must, when prop- erly called upon by petition in habeas corpus, examine and determine the right of any indi- vidual restrained of his personal liberty to 1 Os. Dic.—55 be discharged from such restraint.” Brewer, J., concurring. Turner v. Williams, 194 U. S. 295. After Judgment in Court Below. “{[I£ the Supreme Court] finds that the court below has transcended its powers, it will grant the v-rit [habeas corpus] and dis- charge the prisoner, even after judgment.” Braptey, J. Ex p. Parks, 93 U. S. 23. Bail. “A court possessing the power to bail prisoners not committed by itself, may award a writ of habeas corpus for the exercise of that power.” Marsuat, C. J. Ex p. Boll- man, 4-Cranch 100. “Under the Habeas Corpus Act [in Eng- land], indeed, it was the regular course to take bail and recognize the party to appear in the King’s Bench or assizes; though the judge would discharge absolutely if the case was clearly one of illegal imprisonment.” Brapiey, J. Ex p. Clarke, 100 U. S. 403. Sufficiency of Grounds. “Courts of justice may refuse to grant the writ of habeas corpus where no probable ground for relief is shown in the petition, or where it appears that the petitioner is duly committed for felony or treason plainly expressed in the warrant of commitment, but where probable ground is shown that the party is in custody under or by color of authority of the United States, and is im- prisoned without just cause, and, therefore, has a right to be delivered, the writ of habeas corpus then becomes a writ of right which may not be denied, as it ought to be granted to every man who is unlawfully committed or detained in prison or otherwise restrained of his liberty.” CxirForp, J., dissenting. Ex p. Lange, 18 Wall. 183. Court Need Not Be Very Critical on Ap- plication. “It is true that perhaps the court or judge who is asked to issue such a writ [habeas corpus] need not be very critical in looking into the petition or application for very clear grounds of the exercise of this jurisdiction, because, when the prisoner is brought before the court, or justice, or judge, his power to make full inquiry into the cause of commitment or detention will enable him to correct any errors or defects in the petition under which the writ issued; and it is upon such hearing to be finally determined before whom the prisoner is brought whether his imprisonment or custody is in violation of the Constitution or laws 865 HABEAS CORPUS. or treaties of the United States.” Mruzr, J. In re Burrus, 136 U. S. 591. State Court Inquiring into Federal Court’s Jurisdiction. “J have no doubt of the right of a state court to inquire into the jurisdiction of a federal court ‘upon habeas corpus, and to discharge when satisfied that the petitioner . for the writ is restrained of liberty by the sentence of a court without jurisdiction. Cuass, C. J., dissenting. Tarble’s Case, 13 Wall. 412. “An Alien Immigrant, Prevented from Landing by any . . . officer claiming authority to do so under the Act of Con- gress, and thereby restrained of his liberty, is doubtless entitled to a writ of habeas cor- pus to ascertain whether the restraint is law- ful.” Gray, J. Nishimura Ekiu v. U. S., 142 U. S. 660. Order or Judgment Not Final. “The cases of this court on habeas cor- pus, are decisive on the point, that no order or judgment rendered in them are final in their nature or effect.” BaLpwin, J. Holmes v. Jennison, 14 Pet. 629. Discharge as Bar to Further Prosecution. “Even if a Circuit Court may grant the writ of habeas corpus to a prisoner con- victed of murder in a state tribunal, and in custody on appeal under process from the highest court of a state, it by no means fol- iows that the order of such a judge dis- charging such a prisoner from custady under a state law is a bar to the further prosecu- tion of the indictment under which he was held prior to such order of discharge.” CuiFForD, J., dissenting. Coleman v. Tennes- see, 97 U. S. 534. 2. JURISDICTION AND POWER OF FED- ERAL Courts. What Necessary to Invoke Federal Juris- diction. “Tt is not now the law, and never was, that every person held in unlawful im- prisonment has a right to invoke the aid of the courts of the United States for his re- lease by the writ of habeas corpus. In order to obtain the benefit of this writ and to pro- cure its being issued by the court or justice or judge who has a right to order its issue, it should be made to appear, upon the appli- cation for the writ, that it is founded upon some matter which the exercise of federal authority, and which is necessary to the en- forcement of rights under the Constitu- tion, laws or treaties of the United States.” Miter, J. In re Burrus, 136 U. S. 591. Extent of Authority. “The question of the extent of the author- ity of the courts of the United States to use the writ of habeas corpus as a means of releasing persons held in unlawful custody has always been clouded with more or less doubt and uncertainty.” Mutier, J. In re Burrus, 136 U. S. 589. “In Any Case Falling Within the Pur- view of the Acts of Congress, the defend- ant is adequately protected against danger of unlawful oppression from the courts or authorities of the state by the right to remove it into the Circuit Court of the United States, as soon as a prosecution has been commenced against him; and by the right to apply to any court or judge of the United States for a writ of habeas corpus under sections 751- 753, whenever he ‘is in custody for an act done or omitted in pursuance of a law of the United States.” Gray, J. Virginia v. Paul, 148 U. S. 120. Purpose of Congress in Granting Author- ity. “Tt would seem—whether reference be had to the Act of 1867 or to existing statutory provisions — that it was the purpose of Con- gress to invest the courts of the Union, and the justices and judges thereof, with power upon writ of habeas corpus, to restore to lib- erty any person, within their respective juris- dictions, who is held in custody, by whatever authority, in violation of the Constitution or any law or treaty of the United States.” Haran, J. Ex p. Royall, 117 U. S. 248. Writ Will Not Issue as Matter of Course. “While the writ of habeas corpus is one of the remedies for the enforcement of the right to personal freedom, it will not issue as a matter of course, and it should, be cautiously used by the federal courts in reference to state prisoners. Being a civil procees it cannot be converted into a remedy for the correction of mere errors of judgment or of procedure in the court having cognizance of the criminal offense. Under the writ of habeas corpus, this court can exercise no ap- pellate jurisdiction over the proceedings of the trial court or courts of the state, nor re- view their conclusions of law or fact, and pronounce them erroneous. The writ of habeas corpus is not a proceeding for the correction of errors.” Jackson, J. In re Frederich, 149 U. S. 75. 866 HABEAS CORPUS. To What Judges Application May Be Made. “Prisoners in jail or confinement 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, may apply to either of the justices of the Supreme or a judge of any District Court of the United States for the writ of habeas corpus, and they are severally author- ized to grant it, in addition to the authority otherwise conferred by law.” CLiFForD, J. Riggs v. Johnson County, 6 Wall. 199. Origin of Federal Jurisdiction. “The courts of the United States derive their jurisdiction on this subject [habeas cor- pus] from the Constitution and laws of the United States.” Braptey, J. Ex p. Parks, 93 U. S. 22. “The Fourteenth Section of the Judi- ciary Act granted to all the courts power to issue writs of scire facias, habeas corpus, and all other writs necessary for the exer- cise of their respective jurisdictions, and agreeable to the principles and usages of law; and to the justices and judges, power to grant writs of habeas corpus for the pur- pose of inquiry into the cause of commit- ment; but it added a proviso, that the writ should not extend to prisoners in jail, unless in custody under or by color of authority of the United States, or committed for trial before some court of the same, or necessary to be brought into court to testify. It was found necessary to relax the limitation con- tained in this proviso; and this was done in several subsequent laws.” Brapiey, J. Ex p. Parks, 93 U. S. 22. “The Grant to the Circuit Courts in s. 751 of jurisdiction to issue writs of habeas corpus, is in language as broad as could well be employed. While it is attended by the general condition, necessarily implied, that the authority conferred must be exercised agreeably to the principles and usages of law, the only express limitation imposed is, that the privilege of the writ shall not be enjoyed by — or, rather, that the courts and the judicial officers named, shall not have power to award the writ to—any prisoner in jail, except in specified case, one of them being where he is alleged to be held in custody in violation of the Constitution.” Hartan, J. Ex p. Royall, 117 U. S. 247. Obstructing Administration of State Laws. “While the courts of the United States have power, upon habeas corpus, to inquire 867 ' into the cause of the detention of any one claiming to be restrained of his liberty in violation of the Constitution, or laws, or treaties of the United States, it was not in- tended by Congress that they should by writs of habeas corpus obstruct the ordinary administration of the criminal laws of the states, through their own tribunals.” Har- LAN, J. In re Wood, 140 U. S. 289. Federal Interference with State Proceed- ings. “It is an exceedingly delicate jurisdiction given to the federal courts by which a person under an indictment in a state court and sub- ject to its laws may, by the decision of a single judge of the federal court, upon a writ of habeas corpus, be taken out of the custody of the officers of the state and finally discharged therefrom, and thus a trial by the state courts of an indictment found under the laws of the state be finally prevented. Cases have occurred of so exceptional a nature that this course has been pursued. But the reasons for the interference of the federal court in each of those cases were extraordinary, and presented what this court regarded as such exceptional facts as to justify the interference of the federal tribunal.” Pecxuam, J. Baker v. Grice, 169 U. S. 291. Parties in Custody of State Authorities. “Undoubtedly, the courts of the United States have the power, under existing legisla- tion, by a writ of habeas corpus to discharge from custody any person held by state author- ities under criminal proceedings instituted under state enactments, if such enactments are void for repugnancy to the Constitution, laws or treaties of the United States. But even in such case we have held that this power will not be exercised, in the first instance, except in extraordinary cases, and the party will be left to make his defense in the state court.” Hartan, J. Fitts wv. McGhee, 172 U. S. 532. Federal Courts Granting Writ in First Instance. “Certain exceptional cases have arisen in which the federal courts have granted the writ in the first instance, as where a citizen or subject of a foreign state is in custody for an act done under the authority of his own government; or an officer of the United States has been arrested under state process for acts done under the authority of the fed- eral government, and there were circum: stances of urgency which seemed to demand prompt action on the part of the federal gov- { HABEAS CORPUS. ernment to secure his release.” Brown, J. Davis v. Burke, 179 U. S. 402. Must Be Appropriate to Jurisdiction. “The writ of habeas corpus is not to be used by the judges or justices or courts of the United States except in cases where it is appropriate to their jurisdiction.” Muir, J. In re Burrus, 136 U. S. 596. Circuit Taking Bond to Appear in Su- preme Court. “We know of no authority in the Circuit Court to take a bond from a prisoner brought before it, by its own writ of habeas corpus to appear in this court to answer that writ.” Waite, C. J. Ex p. Royall, 112 U. S. 182. Application to Highest Court of State for Relief. “Tt is recognized that the power to arrest the due and orderly proceedings of the state courts, or to discharge a prisoner after conviction, before an application has been made to the Supreme Court of the state for relief, is one which should be spar- ingly exercised, and should be confined to cases where the facts imperatively demand it.” Brown, J. Davis v. Burke, 179 U. S. 402. “The rule, repeatedly laid down by this court, that the Circuit Courts of the United States, while they have power to grant writs of habeas corpus for the purpose of inquir- ing into the cause of restraint of liberty of any person in custody under the authority of a state in violation of the Constitution, a law or a treaty of the United States, yet, except in cases of particular urgency, ought not to exercise that jurisdiction by a dis- charge of the person in advance of a final determination of his case in the courts of the state, and, even after such final deter- mination, will leave him to his remedy to review it by writ of error from this court.” Furrer, C. J. Tinsley v. Anderson, 171 U.S. 104. “Only in certain exceptional cases . . . will a Circuit Court of the United States, or this court upon appeal from a Circuit Court, intervene by writ of habeas corpus in advance of the final action by the highest court of the state.” Haran, J. Reid v. Jones, 187 U. S. 154, “The courts of the United States should not interfere by habeas corpus with the cus- tody by state authorities of one claiming to be held in violation of the Constitution or laws of the United States, until after final action by the state courts in the case in which such custody exists.” Haran, J. Boske v. Comingore, 177 U. S, 466. “While the power to issue writs of habeas corpus to state courts which are proceeding in disregard of writs secured by the Con- stitution and laws of the United States may exist, the practice of exercising such power before the question has been raised or de- termined in the state court is one which ought not to be encouraged.” Brown, J. Cook v. Hart, 146 U. S. 195. Reviewing State Decision. “The jurisdiction [to review by habeas corpus the decision of a state court] is more delicate, the reason against its exercise stronger, when a single judge is invoked to reverse the decision of the highest court of a state in which the constitutional rights of a prisoner could have been claimed and may be were rightly decided, or if not rightly de- cided, could be reviewed and redressed by a writ of error from this court.” McKenna, J. Markuson v. Boucher, 175 U. S. 187. Jurisdiction of Supreme Court of United States. “It has long been settled that ordinarily this court cannot issue a writ of habeas corpus except under its appellate jurisdic- tion.” Warts, C. J. Ex p. Hung-Hang, 108 Uz. S. 553. When Supreme Court Will Make Inquiry. “On a suggestion by the prisoner, that, for the reason mentioned [lack of authority] the order under which he is held is void, this court will, in the language of the statute, ‘make inquiry into the cause of the restraint of liberty.” Miter, J. Ex p. Fisk, 113 U. S. 718. “This court has held, in a multi- tude of cases, that it. had power to inquire with regard to the jurisdiction of the inferior court, either in respect to the subject-matter or to the person, even if such inquiry in- volved an examination of facts outside of, but not inconsistent with, the record.” Brown, J. In re Mayfield, 141 U. S. 116, Original Jurisdiction, a That this court has no original jurisdic- tion to issue a writ of habeas corpus ad subjiciendum, and can grant such a writ only in the exercise of its appellate jurisdic- tion, and consequently, by means of it, can revise only the proceedings of those tribunals over which, and in respect to which, it has 868 HABEAS CORPUS. an appellate control, have been so repeatedly and uniformly decided here, that they must be considered as finally settled.” Curtis, J., dissenting. In re Kaine, 14 How. 119. Power Is Appellate. “ According to the settled course of deci- sions in this court, we can only issue the writ [of habeas corpus], and entertain juris- diction of the matters set forth on the return, in the exercise of our appellate power.” NeEz- son, J., dissenting. In re Kaine, 14 How. 130. “We cannot issue any writ of habeas cor- pus, except when it is necessary for the exer- cise of the jurisdiction, original or appellate, given to it by the Constitution or laws of the United States.” Story, J. Ex p. Barry, 2 How. 65. Reviewing Circuit Court’s Judgment. “Power to grant the writ of habeas corpus was never intended to confer authority upon this court to review the judgment of a Cir- cuit Court in a criminal case, and hence it follows that this court cannot look beyond the sentence where the tribunal which pro- nounced it had jurisdiction of the case.” CuiFrForD, J., dissenting. Ex p. Lange, 18 Wall. 205. “We have no general power to review the judgments of the inferior courts of the United States in criminal cases, by the use of the writ of habeas corpus or otherwise. Our jurisdiction is limited to the single question of the power of the court to commit the prisoner for the act of which he has been convicted.” Warts, C. J. Ex p. Curtis, 106 U.S. 375. “Upon an appeal from the Circuit Court of the United States in a case of habeas corpus, all questions of law or of fact, aris- ing upon the record, including the evidence, are open to consideration; and the Circuit Court has no authority to make conclusive findings of fact, as it might do in actions at law upon waiver of a jury, or in cases of admiralty.” Gray, J. Johnson v. Sayre, 158 U. S. 115. Court Should Pass upon Issuance. “Tt is . . . well settled, that the ques- tion, whether a writ of habeas cor- pus [ad subjiciendum] shall issue from this court, is one upon which the court ought to pass, before the writ issues; the allowance of the writ being an exercise of its limited appellate jurisdiction, which only the court itself has the power to. exert.” Curtis, J. dissenting. Jn re Kaine, 14 How. 119. Where Writ May Be Issued. “A justice of this court can exercise the power of issuing the writ of habeas corpus in any part of the United States where he happens to be.” Braprey, J. Ex p. Clarke, 100 U. S. 403. Appeal to Supreme Court. “No appeal lies to this court from an order of a circuit judge of the United States, and not as a court, discharging the prisoner brought before him on a writ of habeas corpus.” Surras, J. Harkrader v. Wadley, 172 U. S. 162. “Under the statutes of the United States an appeal may be taken to this court from the final decision upon habeas corpus of a Circuit Court of the United States, in the case of any person alleged to be restrained of his liberty in violation of the Constitution or any law or treaty of the United States.” Harian, J. McKane v. Durston, 153 U. S. 685. “Congress not only has not excepted writs of habeas corpus and mandamus from this appellate jurisdiction [of the Supreme Court], but has expressly provided for the exercise of this jurisdiction by means of these writs.” Cuase, C. J. Ex. p. Yerger, 8 Wall. 98. “It is too plain for argument that the denial to this court of appellate jurisdiction in this class of cases [habeas corpus] must greatly weaken the efficacy of the writ, de- prive the citizen in many cases of its bene- fits, and seriously hinder the establishment of that uniformity in deciding upon ques- tions of personal rights which can only be attained through appellate jurisdiction, exer- cised upon the decisions of courts of original jurisdiction.” Cuasz, C. J. Ex p. Yerger, 8 Wall. 102. Review by Writ of Error. '“With all the strictness upon the subject in the English courts, we are not aware of any case there in which it has been held, that a writ of error would not lie from the judgment of a court of record, deciding, upon the return of the habeas corpus, that the warrant under which the party was held was sufficient in law to authorize his arrest and detention.” Taney, C. J. Holmes v. Jennison, 14 Pet. 564. “Tt is admitted that in the whole course of the common law, there is no one precedent 869 HANDWRITING. of a writ of error, upon the proceedings of a writ of habeas corpus.” BALpwin, J. Holmes v. Jennison, 14 Pet. 627. “The state courts are as much bound as the federal courts to see that no man is punished in violation of the Constitution or laws of the United States; and ordinarily an error in this particular can better be cor- rected by this court upon a writ of error to the highest court of the state than by an interference, which is never less than un- pleasant, with the procedure of the state courts before the petitioner has exhausted his remedy there.” Brown, J. Davis vw. Burke, 179 U. S. 402. III. RETURN TO WRIT. Mode of Compelling Return. “Prior to that [Habeas Corpus Act, 31 Car. II., c. 2] the mode of compelling a return was by taking out an alias, and then a pluries writ, and thereafter issuing an at- tachment.” Futier, C. J. Ex p. Baez, 177 U. S. 389. Conclusiveness of Return. “This court can not know what return will be made to the writ of habeas corpus when issued; and it is very clear that no one is concluded upon any question that may be raised to that return.” Davis, J. Ex p. Milligan, 4 Wall. 117. Reasonable Time for Making Return. “A reasonable time has always been al- lowed for making the return, and it is not to be presumed that one will not be made.” Futuer, C. J. Ex p. Baez, 177 U. S. 389. Necessity for Evidence to Support Return. “ At common law no evidence was neces- sary to support the return [to a writ of habeas corpus]. It was deemed to import verity until impeached.” Fretp, J. Crowley v. Christensen, 137 U. S. 94. HABITS. “When we speak of the habits of a person we refer to his customary conduct, to pursue which he has acquired a tendency, from fre- quent repetition of the same acts. It would be incorrect to say that a man has a habit of anything from a single act. A habit of early rising, for example, could not be af- firmed of one because he was once seen on the streets in the morning before the sun had risen; nor could intemperate habits be imputed to him because his appearance and actions on that occasion might indicate a night of excessive indulgence.” Frew, J. Knickerbocker L. Ins. Co. v. Foley, 105 U. S. 354, HANDWRITING. See Evipence; EXPERT AND OPINION Evi- DENCE. Who May Testify as to Handwriting. “An expert in regard to handwriting is one who has become familiar with the hand- writing of the individual in regard to whom the question is raised.” PECKHAM, J. Throckmorton v. Holt, 180 U. S. 569. “Tt is well settled that a witness who only knows a person’s handwriting from seeing it in papers produced on the trial, and proved or admitted to be his, will not be allowed, from such knowledge, to testify to that per- son’s handwriting, unless the witness be an expert, and the writing in question is of such antiquity that witnesses acquainted with the person’s handwriting cannot be had.” Brap- LEY, J. Williams v. Conger, 125 U. S. 413. Best Evidence. “The simplest and best proof of hand- writing is the testimony of one who saw the signature actually written; and inferior evidence as to his handwriting is not com- petent, until it has been shown that his testi- mony to the execution of the paper could not have been procured. And when a docu- ment, either public or private, is without a witness, the best evidence to disprove the sig- nature and to prove it forged, is the testi- mony of the supposed writer, if he be not incompetent from interest, and can be pro- duced. In the latter case, the next best evi- dence is the information of persons who have seen him write, or been in correspondence with him.” Wayne, J. Fuentes v. U. S, 22 How. 456. Evidence as to Education, Refinement, and Literary Style of Writer. “Handwriting is a physical matter and does not in itself represent any character- istics of the writer as to composition or gen- eral style, or as to his literary or legal attainments. It is to be seen and the char- acters recognized by the eye. But the process of his mind and the language or style in which in the opinion of a witness the person habitually clothes his thoughts, are not mat- ter of expert evidence, proper to be presented to a jury, for the purpose of determining whether the paper presented is or is not in 870 HEALTH. the handwriting of the particular individual, in regard to whom the inquiry is made. The fact may of course be proved that the person was a man of intelligence, education, high legal attainments, refinement, and not ad- dicted to coarseness in speech or writing, and the inference may be sought to be drawn from the facts that the paper in question is or is not his composition and is or is not his hand- writing; but where it is material the infer- ence is for the jury, and taking the opinion of the witness in that regard is to take his opinion upon the very subject to be decided by the jury, and is not at all a proper case for opinion evidence.” PEcKHAM, J. Throck- morton v. Holt, 180 U. S. 569. Comparison of Genuine and Disputed Writings. “The question is, whether they may de- termine the genuineness of a signature by comparing it with other handwriting of the party. By the general rule of the common law, this cannot be done either by the court or a jury; and that is the general rule of this country, although the courts of a few states have allowed it, and the legislatures of others, as well as of England, have author- ized it. In the ecclesiastical courts, which derived their forms of proceeding from the civil law, a different rule prevails.” BrapLey, J. Moore v. U. S., 91 U. S. 273. “Tt is certainly true that the ancient rule of the common law did not allow of testi- mony derived from a mere comparison of hands, and equally true that there has been a great diversity of opinion in the different courts of this country, in relation to this species of evidence.” Davis, J. Rogers v. Ritter, 12 Wall. 320. : “There is an obvious distinction between comparison by juxtaposition of an admitted or established writing and the disputed writ- ing, and comparison of the latter with an image in the mind’s eye, but in either in- stance papers prepared for the purpose of having the comparison made are objection- able. It is only when the paper is written, not by design but unconstrainedly and in the natural manner, so as to bear the impress of the general character of the party’s writing, as the involuntary and uncon- scious result of constitution, habit, or other permanent cause, and therefore of itself per- manent, that it furnishes, if otherwise admis- sible, any satisfactory test of genuineness.” Furuer, C. J. Hickory v. U. S., 151 U. S. 307. “In the courts there [in England] at the present day, in civil suits, the witness can compare two writings with each other, in order to ascertain whether they were both written by the same person.” Davis, J. Rogers v. Ritter, 12 Wall. 320. HARBOR. “*To harbor’ is also admitted in the argument often to mean ‘to secrete.’”” Woop- BurY, J. Jones v. Van Zandt, 5 How. 227. HARTER ACT. See ADMIRALTY; CARRIERS; CHARTER-PAR- TIES; GENERAL AVERAGE; SHIPS AND SHIP- PING. HEALTH. See Potice Power and the cross-references there given. Power of State to Pass Health Laws. “Every state has acknowledged power to pass, and enforce quarantine, health, and in- spection laws, to prevent the introduction of disease, pestilence, or unwholesome provi- sions; such laws interfere with no powers of Congress in treaty stipulations; they re- late to internal police, and are subjects of domestic regulation within each state, over which no authority can be exercised by any power under the Constitution, save by requir- ing the consent of Congress to the imposi- tion of duties upon exports and imports, and their payment into the treasury of the United States.” Batpwin, J. Holmes vw. Jennison, 14 Pet. 616. “Tt is as much for the interest of the state that the public health should be pre- served as that life should be made secure. With this end in view quarantine laws have been enacted in most if not,all of the states, insane asylums, public hospitals and institu- tions for the care and education of the blind established, and special measures taken for the exclusion of infected cattle, rags and decayed fruit. In other states laws have been enacted limiting the hours during which women and children shall be employed in factories; and while their constitutionality, at least as applied to women, has been doubted in some of the states, they have been generally upheld.” Brown, J. Holden v. Hardy, 169 U. S. 395. “The Sanitary District of Chicago Is Not a Private Corporation, formed fos 871 HEIRS AND NEXT OF KIN. purposes of private gain, but a public cor- poration, whose existence and operations are wholly within the control of the state.” Surras, J. Missouri wv. Illinois, etc., Dist., 180 U. S. 240. United States Laws Sanction Laws of State. “The laws of the United States expressly sanction the health laws of a state.” Mar- SHALL, C. J. Brown v. Maryland, 12 Wheat. 444, Practice of Medicine — Medical Prepara- tions. “Most, if not all, the states of this Union have enactments forbidding and making penal the practice of medicine by persons who have not gone through a course of appro- priate study, and obtained a license from a board of examiners; and there is similar legislation in respect to pharmacists. And it would be inconsistent, and to tend to de- feat such salutary laws, if medical prepara- tions, often and usually containing power- ful and poisonous drugs, are permitted to be widely advertised’ and sold to all who are willing to purchase. Laws might prop- erly be passed limiting and controlling such traffic by restraining retail dealers from selling such medical preparations, except when prescribed by regular medical practi- tioners.” Surras, J. Worden wv. California Fig Syrup Co., 187 U. S. 527, Controversies Between Dealers in Quack Medicines. “Some courts have gone so far as to hold that courts of equity will not inter- fere by injunction in controversies between rival manufacturers and dealers in so-called quack medicines.” Sutras, J. Worden vw. California Fig Syrup Co., 187 U. S. 527. Length of Hours of Labor. “While the general experience of man- kind may justify us in believing that men may engage in ordinary employments more than eight hours per day without injury to their health, it does not follow that labor for the same length of time is innocuous when carried on beneath the surface of the earth, where the operative is deprived of fresh air and sunlight, and is frequently subjected to foul atmosphere and a very high temperature, or to the influence of nox- ious gases, generated by the processes of refining or smelting.” Brown, J. Holden v. Hardy, 169 U. S. 396. “We have no disposition to criticize the many authorities which hold that state statutes restricting the hours of labor are unconstitutional. Indeed, we are not called upon to express an opinion on this subject. It is sufficient to say of them, that they have no application to cases where the leg- islature has adjudged that a limitation is necessary for the preservation of the health of employees, and there are reasonable grounds for believing that such determina- tion is supported by: the facts. The ques- tion in each case is whether the legislature has adopted the statute in exercise of a rea- sonable discretion, or whether its action be a mere excuse for an unjust discrimination, or the oppression or spoliation of a partic- ular class.’ Brown, J. Holden v. Hardy, 169 U. S. 398. HEIRS AND NEXT OF KIN. See Descent AnD DIstRIBUTION; ExEcU- TORS AND ADMINISTRATORS; INHERITED; LEG- ACIES AND DeEvIsES; ProBATE AND ADMINIS- TRATION ; WILLS, Heirs Defined. “Undoubtedly the word ‘heirs’ was used as meaning, as at common law, those capable of inheriting.” Futter, C. J. Hutchinson Investment Co, v. Caldwell, 152 U. S. 68. Errors of Form in Devise. “A man may devise lands to his heirs, and the statement that they are his heirs, as well as his devisees, though not a strictly artificial mode of declaring, is an error of form and not of substance.” MarsHALL, C. J. Day v. Chism, 10 Wheat. 452. Heir Does Not Mean Next of Kin. “ Where a citizen shall die leaving no heir, must mean not the next of kin, but an heir that may inherit the real estate under the laws.” McLean, J. M’Learn v, M’Lel- lan, 10 Pet. 638. No Rights of Next of Kin in Estate of Living Person. _ “Next of kin or legatees have no rights in the estate of a living person. His cred- itors indeed, may, upon proper proceedings, and due notice to him, in a court of law or of equity, have specific portions of his property applied in satisfaction of their debts. But neither creditors nor purchasers can acquire any rights in his property through the action of a court of probate, or of an administrator appointed by that court, dealing, without any notice to him, with his 872 HIGH SEAS. whole estate as if he were dead.” Gray, J. Scott v. McNeal, 154 U. S. 49. HEIRSHIP. See Descent AND DISTRIBUTION. HEREDITAMENTS. As to course of descent, see DESCENT AND DistRIBUTION. See also LANDS AND TENEMENTS, HIGH SEAS. See Law; NAVIGABLE WATERS. INTER NATIONAL General Definition. “The term [high ,seas], in the eye of reason, is applicable to the open, unen- closed portion of all large bodies of naviga- ble waters, whose extent cannot be meas- ured by one’s vision, and the navigation of which is free to all nations and people on their borders, by whatever names those bodies may be locally designated.” Fretp, J. U. S. v. Rodgers, 150 U. S. 261. Term Does Not Indicate Any Separate and Distinct Body of Water. “The term ‘high seas’ does not . . indicate any separate and distinct body of water; but only the open waters of the sea or ocean, as distinguished from ports and havens and waters within narrow headlands on the coast.” Fretp, J. U.S. v. Rodgers, 150 U. S. 254. Character of Bodies of Water Not Deter- mined by Their Names. “Wherever there are seas in fact, free to the navigation of all nations and people on their borders, their open waters outside of the portion ‘surrounded and enclosed be- tween narrow headlands or promontories,’ on the coast, as stated by Mr. Justice Story, or ‘without the body of a county,’ as de- clared by Sir Matthew Hale, are properly characterized as high seas, by whatever name the bodies of water of which they are a part may be designated. Their names do not determine their character.” Fietp, J. U. S. v. Rodgers, 150 U. S. 255, “Bodies of water of an extent which can- not be measured by the unaided vision, and which are navigable at all times in all directions and border on different nations or states or people and find their outlet in the ocean as in the present case, are seas in fact, however they may be designat- ed.” Frexp, J. U.S. v. Rodgers, 150 U. S. 266. “Seas in fact do not cease to be such, and become lakes, because by local custom they may be so called.” Fiexp, J. U. S. v. Rodgers, 150 U. S. 266. Coast Waters Without the Boundaries of Low-water Mark. “The term ‘high seas’ includes waters on the sea coast without the boundaries of low-water mark; and the waters of the port of Yokohama constitute, within the meaning of the statute [providing for the punish- ment of murder committed on the high seas], high seas.” Fretp, J. In ve Ross, 140 U. S. 471. “The high seas include coast waters without the boundaries of low water mark, though within bays or roadsteads — waters on which a court of admiralty has jurisdic- tion.” Futter, C. J. The Manila Prize Cases, 188 U. S. 271. Vessel Is on High Seas After Passing Jurisdictional Limits of a Nation. “After passing the jurisdictional limits of a state, a vessel is as much on the high seas as if in the middle of the ocean.” Jounson, J., dissenting. Rose v. Himely, 4 Cranch 288, Seas Other than the Ocean. “There are other seas than the ocean whose open waters constitute a free high- way for navigation to the nations and peo- ple residing on their borders, and are not a free highway to other nations and people, except there be free access to those seas by open waters or by conventional arrange- ments.” Fuietp, J. U. S. vw. Rodgers, 150 U. S. 256. — The Great Lakes. “The great lakes possess every essential characteristic of seas. They are of large extent in length and breadth; they are navi- gable the whole distance in either direction by the largest vessels known to commerce; objects are not distinguishable from the op- posite shores; they separate, in many in- stances, states, and in some instances consti- tute the boundary between independent na- tions; and their waters, after passing long distances, debouch into the ocean. The fact that their waters are fresh and not subject to the tides, does not affect their essential char- 873 HOMICIDE. acter as seas. Many seas are tideless, and the waters of some are saline only in a very slight degree.” Fiexp, J. U. S. v. Rodgers, 150 U. S. 256. —— View That Only the Ocean Is Com- prehended in the Term. “The high seas’ denote the ocean, the common highway of all nations — sometimes as including, sometimes as excluding, bays and arms of the sea, or waters next the coast, which are within the dominion and jurisdiction of particular states — but never as extending to any waters not immediately connecting with the sea.” Gray, J., dissent- ing. U. S. uv. Rodgers, 150 U. S. 267. “The lakes are not high seas for the very reason'that they are inland seas, within the exclusive jurisdiction and control of those countries within whose territories they lie, or between whose territories they are the boundary.” Gray, J., dissenting. U. S. v. Rodgers, 150 U. S. 271. “The term ‘high seas’ ‘has never been regarded by any public writer or held by any court to be applicable to territorial waters, and, like the word ‘highways,’ pre- supposes the right of the public to make free use of them, and excludes the idea of private ownership.” Brown, J., dissenting. U. 'S. v. Rodgers, 150 U. S. 280. “From time immemorial the term ‘high seas’ has been used to import the unen- closed and open ocean without the fauces terre.’ Brown, J., dissenting. U. S. w. Rodgers, 150 U. S. 282. HIGH WATER. See BounpDaARIES. HIGHWAYS. See STREETS AND HicGHWAYs. HOLDERS. See NEGOTIABLE INSTRUMENTS. HOMICIDE. See CrimINAL’ Law; Hicu SEAs; Polson. Murder Defined. “Murder is the charge which, at common law, is defined to be, when a per- son of sound memory and discretion un- lawfully killeth any reasonable creature in being, and in the peace of the state, with malice aforethought, either express or im- plied.” CziFForD, J., dissenting. Wiggins v. People, 93 U. S. 470. “Tt is of the very essence of that heinous crime [murder] that it be committed by a person of ‘sound memory and discretion,’ and with ‘malice aforethought,’ either ex- press or implied.” Hartan, J. Davis v. U.S. 160 U. S. 484, “Murder is defined by the law of the state (Tennessee) as follows: If any per- son of sound memory and discretion unlaw- fully kill any reasonable creature, in being and under the peace of the state, with malice aforethought, either express or im- plied, such person shall be guilty of murder. . . . When perpetrated by means of poi- son, lying in wait, or by any other kind of wilful, deliberate, malicious and premed- itated killing, or in the perpetration of or attempt to perpetrate certain other enu- merated crimes, it is murder in the first degree; and the petition of the prisoner, in this case, shows that the charge against him is murder in the first degree, as defined by the state statute. Such an offense has never been defined by an Act of Congress, when committed against the authority of the state, nor even when committed against the national authority, unless when the kill- ing was perpetrated on navigable waters, out of the jurisdiction of any particular state, or in some place within the exclusive juris- diction of the federal authority.” Cx1FForp, J. dissenting. Tennessee v. Davis, 100 U. S. 282. “Homicide resulting from the acts of a party in opposing an officer employed in the enrolment of men for the military ser- vice during the late rebellion, was defined by an Act of Congress to be murder and punishable with death; and the same sec- _ tion enacted that the conviction of the party of that offense in the Circuit Court should not relieve him from liability for any crime committed by him against the laws of the state.” CLiFForD, J., dissenting. Tennessee v. Davis, 100 U. S. 279. Manslaughter Defined. “Manslaughter at common law was de- fined to be the unlawful and felonious killing of another without any malice, either express or implied.” PeckHam, J. Steven- son v. U. S., 162 U. S. 320. “No Act of Congress has established de- grees of the crime of murder. By the 874 HOMICIDE. common law, neither deliberate premedita- tion, nor express malice or intent to kill, is required to make an unlawful homicide murder, but malice may be implied from the use of a deadly weapon or other signifi- cant facts; and any unlawful killing with- out malice, express or implied, is man- slaughter.” Gray, J. Tucker v. U. S., 151 U. S. 169. “Manslaughter is an independent crime, distinct from murder.” MarsHAtt, C. J. U. S. v. Wiltberger, 5 Wheat. 103. “The crimes of murder and manslaughter, it has been truly said, are kindred crimes.” MarsHatL, C. J. U. S. wv. Wiltberger, 5 Wheat. 97. Death Within Year and a Day. “Tn cases of murder the rule at common law undoubtedly was that no person should be adjudged ‘by any act whatever to kill another who does not die by it within a year and a day thereafter; in computation whereof the whole day on which the hurt was done shall be reckoned first’ . . . The reason assigned for that rule was that if the person alleged to have been murdered ‘die after that time, it cannot be discerned, as the law presumes, whether he died of stroke or poison, etc., or a natural death; and in case of life, a rule of law ought to be certain.’ And such is the rule in this country in prosecutions for murder, except in jurisdictions where it may be otherwise prescribed by statute.” Haran, J. Louisville, etc, R. Co. vw. Clarke, 152 U. S. 239. Murder as an Offense Against the United States. “The crime of murder, as such, is not known to the national government, except in places in which it may exercise exclusive jurisdiction.” Haran, J. Pettit v. Walshe, 194 U. S. 217. “Criminal homicide, committed in a state, is an offense against the authority of the state, unless it was committed in a place within the exclusive jurisdiction of the United States.” CiirForp, J., dissenting. Coleman v. Tennessee, 97 U. S. 535. “Unquestionable jurisdiction to try and punish offenders against the authority of the United States is conferred upon the Circuit and District Courts; but the Acts of Congress give those courts no jurisdiction whatever of offenses committed against the authority of a state. Criminal homicide, committed in a state, is an offense against the authority of the state, unless it was committed in a place within the exclusive jurisdiction of the United States. Con- gress has never defined such an offense when committed within the territorial limits of a state under the circumstances described in the transcript; nor is there any pretense for the suggestion either that the Circuit or District Courts have any jurisdiction of the case, or that there is any conflict of jurisdiction between the judicial authorities of the state and those of the United States.” CuiFrorp, J., dissenting. Tennessee v. Davis, 100 U. S. 281. “Murder is not an offense against the United States, except when committed on an American vessel on the high seas, or in some port or haven without the juris- diction of the state, or in the District of Columbia, or in the territories, or at other P:aces where the national government has exclusive jurisdiction. The offense within the limits of a state, except where jurisdic- tion has been ceded to the United States, is as much beyond the jurisdiction of these courts as though it had been com- mitted on another continent. The prose- cution of the offense in such a case does not, therefore, arise under the Constitution and laws of the United States; and the Act of Congress which attempts to give the federal courts jurisdiction of it is, to my mind, a clear infraction of the Consti- tution. That instrument defines and limits the judicial power of the United States.” Fievp, J. Virginia v. Rives, 100 U. S. 336. “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 terri- tories, or at other places where the national government has exclusive jurisdiction.” Lamar, J., dissenting. Im re Neagle, 135 U.S. 98. “Congress has provided for the punish- ment of murder committed upon the high seas, or any arm or bay of the sea within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular state; and has provided that the trial of all offenses committed upon the high seas, out of the jurisdiction of any particular state, shall be in the dis- trict where the offender is found or into which he is first brought.” Frevp, J. In ve Ross, 140 U. S. 471. 875 HOMICIDE. Capacity to Commit the Crime. _“The crime of murder necessarily in- volves the possession by the accused of such mental ‘capacity as will render him criminally responsible for his acts.’ Har- Lan, J. Davis v. U. S, 160 U. S. 485. “One who takes human life cannot be said to be actuated by malice aforethought, or to have deliberately intended to take life, or to have ‘a wicked, depraved, and malignant heart,’ or a heart ‘regardless of society duty and fatally bent on mischief,’ unless at the time he had sufficient mind to comprehend the criminality or the right and wrong of such an act.” Haran, J. Davis v. U. S., 160 U. S. 485. —— Insanity as a Defense. “We are unable to assent.to the doctrine that in a prosecution for murder, the defense being insanity, and the fact of the killing with a deadly weapon being clearly estab- lished, it is the duty of the jury to convict where the evidence is equally balanced’ on the issue as to the insanity of the accused at the time of the killing. On the contrary, he is entitled to an acquittal of the specific crime charged if upon all the evidence there is reasonable doubt whether he was capable in law of committing crime.” Har- LAN, J. Davis v. U. S., 160 U. S. 484. “In a sense it may be true that where a defense [to a prosecution for murder] is insanity, and where the case made by the prosecution discloses nothing what- ever in excuse or extenuation of the crime charged, the accused is bound to pro- duce some evidence that will impair or weaken the force of the legal presumption in favor of sanity. But to hold that such pre- sumption must absolutely control the jury until it is overthrown or impaired by evi- dence sufficient to establish the fact of in- sanity beyond all reasonable doubt or to the reasonable satisfaction of the jury, is in effect to require him to establish his innocence, by proving that he is not guilty ° of the crime charged.” Hartan, J. Davis v. U. S., 160 U. S. 486. “No one, we assume, would wish either the courts or juries when trying a case of murder to disregard the humane prin- ciple, existing at common law and recognized in all the cases tending to support the charge of the court below, that, ‘to make a complete crime cognizable by human laws, there must be both a will and an act’; and ‘as a vicious will without a vicious act is no civil crime, so, on the other hand, an un- warranted act without a vicious will is no crime at all. So that to constitute a crime against human laws, there must be, “first, a vicious will; and, sécondly, an un- lawful act consequent upon such vicious will’” Hartan, J. Davis v U. S., 160 U. S. 484. . — Verdict of Guilt Implies Jury’s Belief in Defendant’s Capacity. “As the crime of murder involves suf- ficient capacity to distinguish between right and wrong, the legal interpretation of every verdict of guilty as charged is that the jury believed from all the evidence beyond a reasonable doubt that the accused was guilty, and was therefore responsible, criminally, for his acts.” Hartan, J. Davis v. U. S., 160 U. S. 488. ) Motive. “The charge being murder, if the facts constituting that offense were established beyond a reasonable doubt, it was the duty of the jury to have found the defendant guilty as charged, although it may have been impossible to discover any adequate motive for the killing.” Harzan, J. Pointer vw. U. S, 151 U. S. 414. Malice. “Criminal homicide, in order that it may amount to murder, must have been perpe- trated with malice aforethought; and the prosecution, to prove the ingredient of malice, may introduce evidence of lying in wait, antecedent menaces, former grudges, or any formed design or concerted scheme to do the deceased bodily harm.” CLirrorp, J.. dissenting. Wiggins v. People, 93 U. S. 481, “Malice is the essential criterion by which murder is distinguished from man- slaughter, and of course it must be charged in the indictment and proved at the trial. Acts, conduct, and declarations of the kind, if done or made by the prisoner, are clearly admissible when offered by the prosecution; but the case is generally different when the evidence is offered in respect to the de- ceased.” CziFForD, J., dissenting. Wiggins v. People, 93 U. S. 482. “A death is caused of malice aforethought if, under the circumstances known to the actor, the probability of its ensuing from the act done is great and manifest accord- ing to common experience.” Hotmes, J. Aikens v. Wisconsin, 195 U. S. 203. 876 HOMICIDE. —— Presumption of Malice. “Malice may be presumed from the mere fact of killing, nothing ‘further being shown.” Hartan, J. Pointer v. U.S. 151 U. S. 414. “Homicide, apparently unnecessary or wilful, is presumed to be malicious, and, of course, amounts to murder, unless the con- trary appears from circumstances of alle- viation, excuse, or justification; and it is in- cumbent upon the prisoner to make out such circumstances to the satisfaction of the jury, unless they arise from the evidence produced against him by the prosecution.” CuirrorD, J., dissenting. Wiggins v. People, 93 U. S. 477. “The killing of one human being by an- other human being with a deadly weapon is presumed to be malicious until the con- trary appears.’ Harian, J. Davis v. U. S., 160 U. S. 485. “The law in recognition of the frailty of human nature, regards a homicide committed under the influence of sudden passion, or in hot blood produced by adequate cause, and before a reasonable time has elapsed for the blood to cool, as an offense of a less heinous character than murder. But if there be sufficient time for the passion to subside, and shaken reason to resume its sway, no such distinction can be entertained. And if the circumstances show a killing ‘with delib- erate mind and formed design ’— with com- prehension of the act and determination to perform it, the elements of self-defense be- ‘ing wanting—the act is murder. Nor is the presumption of malice negatived by pre- vious provocation, having no causal connec- tion with the murderous act, or separated from it by such an interval of -time as gives reasonable opportunity for the access of fury to moderate.” Furrer, C. J. An- dersen v. U. S., 170 U. S. 510. “Malice in connection with the crime of killing is but another name for a certain condition of a man’s heart or mind, and as no one can look into the heart or mind of another, the only way to decide upon its condition at the time of a killing is to infer it from the surrounding facts, and that inference is one of fact for a jury.” PxrcK- HAM, J. Stevenson v. U. S,, 162 U. S. 220. .—— Presumption of Malice from Evidence of Threats by Deceased. “While it is no doubt that previous threats will not, in all circumstances, justify or perhaps even extenuate the act of the party threatened in killing the person who uttered the threats, yet it by no means follows that such threats, signifying ill-will and hostility on the part of the deceased, can be used by the jury as indicating a similar state of feeling on the part of the defendant.” Swtras, J. Thompson v. U. S., 155 U. S. 281. : —— Killing Third Person Unintentionally. “Tt would be a very singular principle to establish, that, where a man was charged with a homicide, caused by maliciously shooting into a crowd with the purpose of killing some person against whom he bore malice, but with no intent to injure or kill the individual who was actually struck by the shot, he should be held excused be- cause he did not intend to kill that particular person, and had no malice against him.” Miter, J. In re Coy, 127 U. S. 753. -— Consideration of Youthfulness of Of- fender. “Where the question is whether the homi- cide was or was not done with malice, wrongfully, intentionally, and without just cause or excuse, it would seem proper that the attention of the jury should be called to the youthfulness of the offender, if the circumstances rendered that fact significant,” Fuuier, C. J. Allen v. U. S., 150 U. S. 559. Self-defense. “When one without fault is attacked by another, under such circumstances as to furnish reasonable ground for apprehend- ing a design to take away his life or do him some great bodily harm, and there is rea- sonable ground for believing the danger imminent that such design will be accom- plished, the assailed may safely act upon the appearances and kill the assailant, if that be necessary to avoid the apprehended danger; and the killing will be justified although it may afterwards turn out that the appearances were false, and that there was not in fact either design to do him serious injury, or danger that it would be done.” CuiFForD, J., dissenting. Wiggins v. People, 93 U. S. 478, “When a person apprehends that another, manifesting by his attitude a hostile intention, is about to take his life, or to do him enor- mous bodily harm, and there is reasonable ground for believing the danger imminent that such design will be accomplished, he may, if no other practicable means of es- 877 HOMICIDE, cape are at hand, oppose force by force, and may even kill the assailant, if that be nec- essary to avoid the apprehended danger; but he must act and decide as to the ne- cessity and the force of the circumstances at his peril, and with the understanding that his conduct is subject to judicial in- vestigation and review.” CLiFForD, J., dis- senting. Wiggins v. People, 93 U. S. 479. —— Defendant Must Determine Necessity of Taking Life. “Tt is psychologically true that a party in exercising the right of self-defense de- termines what the law is which gives him a right to act, and whether the case before him is within that law, and thus is judge and jury, and then, as marshal or sheriff, carries that determination into immediate execution. It may be conceded that the mental action may be rapid, instantaneous, as it were; that there may be no distinct separation in the thought of the party as to the respective functions of judge and jury, no formal representation of the law of self-defense with all its limitations; yet of necessity he determines that the situa- tion before him is one which under the law, as he understands it, gives him a right to take the life of his assailant. He is judge, jury, and sheriff.” Brewer, J., dissenting. Allen v. U. S., 150 U. S. 565, —— Proof That Deceased Was Perpetrat- ing a Joke. “If one approaches another, pointing a pistol and indicating an intention to shoot, the latter is justified by the rule of self- defense in shooting, even to death; and that such justification is not avoided by proof that the party killed was only intending a joke, and that the pistol in his hand was unloaded. Such a defense does not rest on the actual, but on the apparent, facts and the honesty of belief in danger.” Brewer, J. New Orleans, etc. R. Co. v. Jopes, 142 UL S. 23. —— Necessity of Retreating. “Cases arise, as all agree, where a per- son assailed may, without retreating, op- pose force to force, even to the death of the assailant; and other cases arise in which the accused cannot avail himself of the plea of self-defense, without showing that he retreated as far as he could with safety, and then killed the assailant only for the preservation of his own life.” Currrorp, J., dissenting. Wiggins v. People, 93 U. S. 477. —— Circumstances Unavailable. “A bare fear, unaccompanied by any overt act indicative of the supposed intention, will not warrant the party entertaining such fears in killing the other party by way of precau- tion, if there be no actual danger at the time.” CuiFForD, J., dissenting. Wiggins v. People, 93 U. S. 479. Rendering Defense “Tf he [defendant] armed himself for the purpose of pursuing his adversary, with the intention of putting himself in the way of his adversary, so as to obtain an op- portunity to kill him, then he was guilty of murder.” Hartan, J. Gourko v. U. S., 153 U. S. 191. “Tt is true that a homicide committed in actual defense of life or limb is excus- able if it appear that the slayer was acting under a reasonable belief that he was in imminent danger of death or great bodily harm from the deceased, and that his act in causing death was necessary in order to avoid the death or great bodily harm which was apparently imminent. But where there is manifestly no adequate or reasonable ground for such belief, or the slayer brings on the difficulty for the purpose of killing the deceased, or violation of law on his part is the reason of his expectation of an attack, the plea of self-defense cannot avail.” Fourier, C. J. Andersen v. U. S, 170 U. S. 508. Killing to Repel Trespass on Land. “But a person cannot repel a mere tres- pass on his land by the taking of life, or_ proceed beyond what necessity requires. When he uses in the defense of such prop- erty a weapon which is not deadly, and death accidentally ensues, the killing will not exceed manslaughter, but when a deadly weapon is employed it may be murder or manslaughter, according to the circum- stances.” FuLier, C. J. Wallace v. U. S, 162 U. S. 473. Brutal Treatment Does Not Justify Mur- der. “We are not insensible to the suggestion that persons confined to the narrow limits of a small vessel, alone upon the sea, are placed in a situation where brutal conduct on the part of their superiors, from which there is then no possible escape, may possess special circumstances of aggravation. But that does not furnish ground for the partic- ular sufferer from such conduct to take 878 HOMICIDE. the law in his own hands, nor for the sus- pension of those general rules intended for the protection of all alike on land and sea.” Fuirer, C. J. Andersen v. U. S., 170 U. S. 509. Evidence — In General. “In the trial of either party [for a homi- cide] it is proper to lay before the jury the entire affair, including the acts and con- duct of all the defendants from the time the homicide was first contemplated to the time the transaction was closed. It may have a bearing only against the party doing the act, or it may have a remoter bearing upon the other defendants; but such as it is, it is competent to be laid before the jury.” Brown, J. Fitzpatrick v. U. S., 178 U. S. 313. —— Bad Character of Deceased. “Decided cases, too numerous for cita- tion, are reported, in which it is held that evidence of the bad character of the de- ceased is not admissible in an indictment for felonious homicide, for the reason that it cannot have any effect to excuse or pal- liate the offense. Reported cases of an ex- ceptional character may be found where it is held that evidence of the dangerous char- acter of the deceased may be admitted to confirm other evidence offered by the pris- oner, to show that the killing was in self- defense.” CLIFFoRD, J., dissenting. Wiggins v. People, 93 U. S. 482. Threats Made by Deceased. “ Difficult questions arise . . as to the admissibility of previous threats made by the deceased. Judges and text- writers generally agree that such threats, not communicated to the prisoner, are not admissible evidence for the defense, where the charge is felonious homicide. Courts of justice everywhere agree that neither the bad character of the deceased nor any threats that he may have made forfeits his right to life, until, by some actual at- tempt to execute his threats, or by some act or demonstration at the time of the killing, taken in connection with such character and threats, he induces a reasonable belief on the part of the slayer that it is neces- sary to deprive him of life in order to save his own or to prevent some felony upon his person. . Exceptional cases arise where it is held that the evidence should be received as confirmatory of other evi- dence in the case tending to support the theory that the killing was in self-defense. Cases of that character may be found where courts have ruled that evidence of the kind may be admitted, even though the prisoner had no knowledge of the same at the time of the alleged felonious homicide. But there is not a well-considered case to be found anywhere, in which it is held that evidence of previous threats is admissible as substantive proof that the act of homi- cide was committed in self-defense, nor which shows that such evidence is admissi- ble for any purpose, whether the threats were known or unknown to the prisoner, except to confirm or explain other evidence in the case tending to justify or excuse the homicidal act, as having been committed in opposing force to force in defense of a or to avoid enormous bodily harm. Provided the uttering of the threats was known to the prisoner, the tendency of modern decisions is to admit the evidence even if the other evidence to support the theory of self-defense is slight, and to ex- clude it in all cases where the threats have not been communicated, unless the circum- stances tend strongly to inculpate the de- ceased as the first aggressor.” CLIFFORD, J., dissenting. Wiggins v. People, 93 U. S. 482, “Jurists and text-writers appear to con- cur that antecedent threats alone, whether communicated or not, will not justify a subsequent deadly assault by the other party, unless the party who made the previous threats manifests, at the time of the act, a design to carry the threats into imme- diate effect.” CLirForp, J., dissenting. Wig- gins v. People, 93 U. S. 485. “Weighed in the light of the adjudged cases, it is clear that the evidence of pre- vious uncommunicated threats is never ad- mitted in the trial] of an indictment for mur- der, unless it appears that other evidence has been introduced tending to show that the act of homicide was committed in self-de- fense, and that the evidence of such threats may tend to confirm or explain the other evidence introduced to establish that de- fense.” CzirForD, J., dissenting. Wiggins v. People, 93 U. S. 485. Jury Must Determine Degree of Offense. “Necessarily it must frequently happen that particular circumstances qualify the character of the offense, and it is thoroughly settled that it is for the jury to determine what effect shall be given to circumstances having that tendency whenever made to ap- pear in the evidence.” Futter, C. J. Wal- lace v. U. S., 162 U. S. 475. 879 HUSBAND AND WIFE. Verdict Must Be Supported by Evidence. “The jury would not be justified in find- ing a verdict of manslaughter if there were no evidence upon which to base such a finding, and in that event the court would have the right to instruct the jury to that effect.” PeckHAM, J. Stevenson v. U. S,, 162 U. S. 315. Punishment. “The hardship of punishing with death every crime coming within the definition of murder at common law, and the reluc- tance of jurors to concur in a capital con- viction, have induced American legislatures, in modern times, to allow some cases of murder to be punished by imprisonment, in- stead of by death. That end thas been generally attained in one of two ways. First. In some states and territories, statutes have been passed establishing degrees of the crime of murder, requiring the degree of murder to be found by the jury, and providing that the courts shall pass sen- tence of death in those cases only in which the jury return a verdict of guilty of mur- der in the first degree, and sentence of im- prisonment when the verdict is guilty of murder in the lesser degree. Sec- ond. The difficulty of laying down exact and satisfactory definitions of degrees in the crime of murder, applicable to all possible circumstances, has led other legislatures to prefer the more simple and flexible rule of conferring upon the jury, in every case of murder, the right of deciding whether it shall be punished by death or by impris- onment. This method has been followed by Congress in the Act of 1897.” Gray, J. Winston v. U. S., 172 U. S. 310. HUMAN JUDGMENT. “Such is the diversity of human judg- ment, that opposite conclusions, equally hon- est, are often drawn from the same prem- ises.” McLean, J, Prigg v. Pennsylvania, 16 Pet. 662. HUMAN NATURE. “Human nature is something whose ac- tion can never be ignored in the’ courts.” Brewer, J. Louisville Trust Co. v. Louis- ville, etc, R. Co, 174 U. S. 688. And see JupiciaL Notice. HUMAN REGULATIONS. “Human regulations are for the most part occasional and temporary.” McKenna, J. Osborne v. San Diego Co., 178 U. S. 38. And see Divine Covenants; Law. HUSBAND AND WIFE. See Curtesy; Divorce AND ALIMONY; Dower; MarrIAGE AND MARRIED WoMEN. Husband and Wife as One Person. “Husband and wife during coverture were regarded as one person at common law in most respects, from which it followed as a general rule that the wife could neither sue nor be sued without joining her husband. Great change in the rules of the com- mon law in that regard were made, even before the colonies separated from the parent country. Deeds of indenture in transferring the real property of the wife, with the consent of the husband, were substittited in the place of fine and re- covery; and when it became settled that the wife might hold a_ separate estate, many other exceptions to the rule that she could neither sue nor be sued without joining the husband were sanctioned judicial authority.” Cxirrorp, J. Bank of America v. Banks, 101 U. S. 243. Sphere of Avocations and Duties of Each Different. “The sphere of the avocations and duties of husband and wife are different. Usually she knows little of business and property interests, It is natural that she should confide in his integrity, and be guided in everything by his kindly judgment. She is always sub potestate virt, Hence, the dis- abilities and safeguards which the law wisely, throws around her.” Swayne, J. Trust Co. uv. Sedgwick, 97 U. S. 308. “Cohabitation is but one of the many incidents to the marriage relation. It is not essential to it.’ MatrHews, J. Mur- phy v. Ramsey, 114 U. S. 42. “A Feme Covert May Be a Trustee, but her husband is personally liable for any breach of trust she may commit, and hence she cannot act in the- administration of the trust without his concurrence or con- sent.” Swayne, J. Trust Co. v. Sedgwick, 97 U. S. 309. Legislative Control over Relation and Property Rights. “The relation of husband and wife is, 6 formed subject to the power of the state to control and regulate both that re- lation and the property rights directly con- nected with it, by such legislation as does not violate those fundamental principles which have been established for the pro- tection of private and personal rights against 880 HUSBAND AND WIFE. illegal interference.” Hartan, J. Baker 2. Kilgore, 146 U. S. 491. Statutes Authorizing Wife to Deal with Separate Estate, “While the statutes of New York have recognized certain rights of the wife to deal with and contract in reference to her separate property, they fall far short of establishing the principle that out of that separate property she can be made liable for money or property received at her hus- batid’s hands, which in equity ought to have gone to pay his debts. Equity has been ready, where such property remains in her hands, to restore it to its proper use, but not to hold her separate estate liable for what she has received, and probably spent at his dictation.” Miter, J. Phipps w. Sedgwick, 95 U. S. 9% “The statutes of the different states have gone very far in this country to modify the peculiar relations of husband and wife, as they existed at common law, in reference to their property. But they have not, ex- cept perhaps in Louisiana, gone so far as to recognize the civil-law rule of perfect independence in dealing with each other.” Miter, J. Phipps v. Sedgwick, 95 U. S. 9. Wife’s Creditors. “TA wife’s] creditors before marriage be- come his during coverture; she can contract no debts to which she can be made person- ally liable; her personal property becomes his by the act of intermarriage aind he ac- quites all the credit, in society, resulting from the acquisition and posséssion of that property.” Jonson, J., dissenting. Pierce v. Turner, 5 Cranch 170. “In a Contest Between the Creditors of the Husband and Wife there is, and there should be, a presumption against her which she must overcome by affirmative ptoof. Such has always been the rule of the ¢om- mon law, and the rule continues, though statutes have modified the docttine that gave to the husband absolutely the personal prop- erty of the wife in possession, and the tight to reduce into his possession aiid ownership all her choses in action.” Strong, J. Seitz & Mitchell, 94 U. S. 583. Agreements Invalid Against Creditors. “At common law, an agreement afte? marriage between husband and wife that the latter may carry on business ori het own account and retain her earnings, is invalid as against his creditors, urilegs fouund- 1 Oz. Dic.—56 ed upon a valuable considerations a volun- tary agreement to that effect is only good as against him.” Fterp, J. Glenn wv. Johnson, 18 Wall. 477. Voluntary Promise to Pay Money to Wife. “Tt may well be doubted whether in any case a mere promise by the husband, without consideration, to pay money to the wife at a future time, carn be enforced against the claims of creditors.” Davis, J. Kehr ». Smith, 20 Wall. 36. Relaxation of Ancient Rule. “The ancient rule, that a voluntary post- nuptial settlement can be avoided, if there was some indebtedness existing, has been relaxed, and the rule generally adopted in this country at the present time, will up+ hold it, if it be reasonable, not dispropor+ tidnate to the husband’s means, taking into view his debts and situation, and clear of any intent, actual or constructive, to de- fraud creditors.” Davis, J. Kehr v. Smith, 80 Wall. 35 Husband’s Rights in Wife’s Estates. “Matriage, by the rules of common law, gave the husband a freehold tenure in the estates of inheritance in land of the wife, atid the right to rents and profits during their joint lives, During coverture the hus- band must sue in his own name for any injury to the profits of the land, but for an injury to the inheritance it was fe+ quired that the wife must join in the ac- tion.” CiiFForD, J. Bank of America v. Banks, 101 U. S. 243. Husband’s Power to Convey Wife’s Land. “The husband cahnot convey his wife’s land so as to bind the inheritance. . . As he holds only an estate for life in such latid, he cari cOtivey no greater intetest.” McLean, J. Gregg v. Lessee of Sayre & Wife, 8 Pet. 252. Husband’s Power to Bind Wife’s Estate. “Promissory notes given by the husband, though describing himself as trustee for the wife, bind him personally, and do not bind her estate, unless he is clearly proved to have had aiithotity to give thent in her belialf,” Grav, J. Dodge ». Knowles, 114 U. S. 485. Personal Property Vested Absolutely in Husband. “TAt cotimoh law] moreéy, goods, and personal chattels itt posstssioti vested ab- solutely in the husband, aiid became his 881 HUSBAND AND WIFE. property as completely as property purchased with his own money; and such property never went back to his wife unless given to her by the husband in his lifetime or by his will, and in case of his death it vested in his executors. Choses in action did not vest absolutely in the husband, but he ac- quired the power to sue for and recover or release or assign the same, and when re- covered and reduced to possession, and not otherwise, the money in most cases became absolutely his own.” C.iFForp, J. Bank of America v. Banks, 101 U. S. 243. Money and Earnings. “TBy the common law] the money which the wife then possessed and her subsequent earnings belonged exclusively to her hus- band. They vested as absolutely in him as though the money had been originally his, and the earnings were the proceeds of his own labor and industry.” Fretp, J. Jack- son wv. Jackson, 91 U. S. 124. Giving Evidence For or Against Each Other. “At common law, upon grounds of pub- lic policy, husband and wife (with some exceptions not here material) were not per- mitted, even by consent, to give evidence for or against each other, or to testify, even after the ending of the marriage re- lation by death or divorce, to private com- munications which took place between them while it lasted.” Gray, , J. Hopkins vw. Grimshaw, 165 U. S. 349. “The general rule of the common law is, that neither husband nor wife is admissible as a witness for or against each other in any case, civil or criminal.” Freip, J. Stickney v. Stickney, 131 U. S. 236. “Tt was a well-known rule of the common law that neither husband nor wife was a competent witness in a criminal action against the other, except in cases of per- sonal violence, the one upon the other, in which the necessities of justice compelled a relaxation of the rule.” Brewer, J. Bassett v. U. S., 187 U. S. 505. “A husband [by the law of Louisiana] may not be a witness for his wife, or the wife for the husband, in a criminal pro- ceeding. A wife may impeach marriage to obtain a sentence of nullity; she may be a witness to certain facts in relation to those impediments deemed by the law suf- ficient to annul the marriage. But neither by the civil nor canon law, or by the com- mon law, can she be a witness for or against her husband, when he is prosecuted for any offense which the law punishes in his person. Nor can she be a witness in a prosecution of him for bigamy with her- self, until after the relation of husband and wife has been proved not to be legal, on account of direct and positive proof of the husband’s first marriage; then she may be a witness to prove the second marriage.” Catron, J. Gaines v. Relf, 12 How. 577. — Collateral Proceedings — Violence Against Wife. “The law does not seem to be entirely settled how far, in a collateral case, a wife may be examined on matters in which her husband may be eventually interested. Nor whether in such a case, she may not be asked questions as to facts, that may, in some measure, tend to criminate her husband, but which afford no foundation for a prosecu- tion. The decisions which have been made on these points, seem to have been in- fluenced by the circumstances of each case, and they are somewhat contradictory. It is, however, admitted in all the cases, that the wife is not competent, except in cases of violence upon her person, directly to criminate her .husband; or to disclose that which she has learned from him in their confidential intercourse.” McLean, J. Stein v. Bowman, 13 Pet. 222. —~ Treason. “Tt has been said, that on the grounds of state policy, the wife is a competent witness against her husband in case of treason. But it has since been set- tled that the wife is not bound to discover the ‘treason of the husband.” McLean, J. Stein v. Bowman, 13 Pet. 222. —— Legislative Change of Common-law Rule. We do not doubt the power of the leg- islature to change this ancient and well- supported rule [that neither husband nor wife can testify against the other]; but an intention to make such a change should not lightly be imputed. It cannot be assumed that it is indifferent to sacred things, or that it'means to lower the holy relations of hus- band and wife to the material plane of simple contract. So, before any departure from the rule affirmed through the ages of the common law—a rule having its solid foundation in the best interests of society —can be adjudged, the language declaring the legislative will should be so clear as to 882 IGNORANCE OF THE LAW. prevent doubt as to its intent and limit.” Brewer, J. Bassett v. U. S., 187 U. S. 505. Necessity and Effect of Not Joining Hus- band in Action. “Tf a married woman brings an action in her own name, without joining her husband, the proceeding is not void, although the defect may be pleaded in bar, and set up as a defense on the trial.’ Braptey, J. Hol- dane v. Sumner, 15 Wall. 609. “Where the Wife Complains of the Husband, and asks relief against him, she must use the name of some other person in prosecuting the suit; but where the acts of the husband are not complained of, he would seem to be the most -suitable person to unite with her in the suit. This is a mat- ter of practice, within the discretion of the court. t The modern practice in Eng- land has adopted a different course, by writing the name of the wife with a person other than her husband, in certain cases.” McLean, J. Bein v. Heath, 6 How. 240. IDENTIFICATION. See SELECTION, IGNORANCE OF THE LAW. See Law; MISTAKE. No Defense, Either Civilly or Criminally. “Tt is a common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or crimi- nally.” Story, J. Barlow v. U. S., 7 Pet. 411. “Not only the courts, but individuals, are bound to know the law,.and cannot be received to plead ignorance of it.” Bravery, J. South Ottawa v. Perkins, 94 U. S. 269. “Tgnorance of a fact may sometimes be taken as evidence of a want of criminal in- tent, but not ignorance of the law.” WailrE, C. J. Reynolds v. U. S., 98 U. S. 167. “Undoubtedly it is a condition of penal laws that ignorance of them constitutes no defense to an indictment for their violation.” Futter, C. J. Pettibone v. U. S., 148 U. S. 207. “There are occasions when the presump- tion that every man knows the law must be enforced for the safety of society itself. An individual on trial for a violation of the criminal law will not be heard to allege as a defense that he did not know the act of which he was guilty was criminal.” PEcKHAM, J. U.S. uv. Realty Co., 163 U. S. 438, “Tt would be impossible to administer the law if ignorance of its provisions were a de- fense thereto. There are cases, undoubtedly, where ignorance of the law, united with fraudulent conduct on the part of others, or mistakes of fact relating thereto, will be re- garded as a defense, but there must be some element, other than a mere mistake of law, which will afford an excuse. In addition there ought to be no negligence in attempt- ing to discover the facts.” PrckuHam, J. Utermehle v. Norment,'197 U. S. 55. Cannot Be Made Basis of Legal Right. “Every one is presumed to know the law. Ignorance standing alone can never be the basis of a legal right.” Swayne, J. U. S. v. Hodson, 10 Wall. 409. “Tgnorance of the law is no ground for re- covery, and the element of good faith will not sustain an action where the payment has been voluntary, without any request from the true owners of the land, and with a full knowledge of all the ‘acts.” Davis, J. Homestead Co. v. Des Moines Valley R. Co., 17 Wall. 166, Presumptions as to Ignorance and Knowl- edge. “The law is presumed to be equally within the knowledge of all parties.” Hunt, J. Upton v. Tribilcock, 91 U. S. 50. “Every man is supposed to know the law.” Braptey, J. Clark v. U. S., 95 U. S. 542. “Where one is bound to do a thing or to see that certain things are done, he is pre- sumed to know the direct consequence of his carelessness and neglect in those respects. Especially is this so where his doing the thing, or seeing that it is done, is necessary to the safety of life or property. He cannot shield himself from responsibility by saying that he did not know what would be the con- sequence of his carelessness and neglect. The law presumes that he does know it and in- tends it.” Frexp, J., dissenting. Providence, etc., Steamship Co. v. Hill Mfg. Co., 109 U. S. 605. “Of course, this does not extend to or cover matters of law. All parties are equally bound to know the law.” Marruews, J. Dixon County v. Field, 111 U. S. 92. “When two parties enter into a contract and make it determinable by the law of an- other state, it is conclusively presumed that each of them knows the law in respect to 883 ILLEGAL CONTRACTS. which they make the contract. There is no presumption of ignorance on the one side and knowledge on the other.” Brewer, J. Mutual Life Ins. Co. v. Phinney, 178 U. S. 341. “Undoubtedly, as a general principle, every one is chargeable with a knowledge of the law in civil as well as criminal cases. This, however, is a legal presumption which every one knows has no real foundation in fact, and has been adopted because it is necessary as a general rule for the purposes of justice. And laws are therefore often passed to protect persons who have acted in good faith in matters of property from the consequences of their ignorance of law. Thus, laws con- firming defective and void deeds for real property have frequently been passed in some of the states; and their validity has been recognized by this court. Limitation laws in regard to suits for real estates are founded upon the same principle. For if the title papers of the party in possession are all legally executed, and made by persons who had right to convey, he does not need the protection of an act of limitations.” Tawney, C. J., dissenting, Moore v. Brown, 11 How. 428, “The officers of the navy must, like all others, be presumed to be cognizant of the law.” Daniet, J., dissenting, U. S. wv. Jones, 18 How. 99. ILLEGAL CONTRACTS. I. ItteGaL Contract Is Voip. II. Contracts IN VIOLATION oF Pos- ITIVE Law. III. Contracts Acarinst Pusiic Pot- Icy. IV. SuspsEQUENT CONTRACT IN Fur- THERANCE OF ILLEGAL COoN- TRACT. V. ENFORCEMENT OF AND RELIEF FROM ILLEGAL CoNTRACTS. CROSS-REFERENCES. As to the accountability of the parties inter sese for moneys received, see Ac- COUNTS AND ACCOUNTING; liberty to contract, see LiBErty. That the consideration for a contract must not to be illegal, immoral, or con- trary to sound policy, see CoNsID- ERATION. See also Contracts; Conrracts In RE- STRAINT OF TRADE; MoNOoPOLIES AND CorRPo- RATE Trusts; U.tra Vires; Vor— Voip- ABLE; War, I. ILLEGAL CONTRACT IS VOID. In General. “In our jurisprudence a contract may be illegal and void because it is contrary to a constitution or statute, or inconsistent with sound policy and good morals.” Swayne, J. Trist v. Child, 21 Wall. 448. “Within the condemned category [of void and illegal contracts] are: An agreement ~ to pay for supporting for election a candi- date for sheriff; to pay for resigning a pub- lic position to make room for another; to pay for not bidding at a sheriff’s sale of real property; to pay for not bidding for articles to be sold by the government at auction; to pay for not bidding for a contract to carry the mail on a specified route; to pay a person for his aid and influence in procuring an office, and for not being a candidate himself; to pay for procuring a contract from the gov- ernment; to pay for procuring signatures to a petition to the governor for a pardon; to sell land to a particular person when the surrogate’s order to sell should have been obtained; to pay for suppressing evidence and compounding a felony; to convey and assign a part of what should come from an ancestor by descent, devise or distribution; to pay for promoting a marriage, to influence the disposition of property by will in a par- ticular way.” Swayne, J. Trist v. Child, 21 Wall. 449. No Interest Passes to Administrator of Party. “To say that a legal or equitable interest in a fraudulent contract can exist in a party and be transmitted to his administrator, when used as legal language, is a solecism.” Taney, C. J., dissenting. Williams v. Gibbes, 17 How. 265. Valuable Consideration. “Even a valuable consideration will not make good a contract in itself illegal.” Mar- SHALL, C. J. Craig v. Missouri, 4 Pet. 440. II. CONTRACTS IN VIOLATION OF POSITIVE LAW. In General. “Tt must . « be accepted as the doc- trine of this court, that a contract to do an act forbidden by Iaw is void, and cannot be enforced in a court of justice.” Davis, J. Tiffany v. Boatman’s Inst., 18 Wall. 385. 884 ILLEGAL CONTRACTS. “If the contract on which the suit was brought was made in violation of a law of the state, it cannot be enforced in any court sit- ting in the state charged with the interpreta- tion and enforcement of its laws.” Woops, J. Cooper Mfg. Ca. v. Ferguson, 113 U. S. 733. “The courts of the United States can hardly be authorized to sanction and enforce what are called honorary obligations of a foreign nation, when those obligations have arisen from temptations offered to our own citizens to violate the laws of their own country.” Taney, C. J., dissenting. Wil- liams v. Gibbes, 17 How. 269. Violation of Statutes. “A statute may either expressly prohibit or enjoin an act, or it may impliedly pro- hibit or enjoin it, by affixing a penalty to the performance or omission thereof. It makes no difference whether the prohibition be ex- pressed or implied. In either case, a con- tract in violation of its provisions is void. The rule is certain and plain. The practice under it has beem otherwise. The decisions in the English courts have been fluctuating and counteracting. Those im the courts of our states have followed them without much diserimination. No one ean read any ane of the recent elementary treatises upon con- tracts without noticing the differences of the opinion among judges as to the operation of the rule. Showing, however, as they do, the history of these differences, they may lead to more conformity of judicial opinion hereafter in this respect.” Wayne, J. Harris v. Run- nels, 12 How. 83. “The object of all law is to repress vice and to promote the general welfare of so- ciety; and it does not give its assistance to a person to enforce a demand, originating in his breach or violation of its principles and enactments. Contracts in violation of statutes are void; and they are so whether the consideration to be performed or the act to be done be a violation of the statute.” Wayne, J. Harris v. Runnels, 12 How. 83. “Courts of justice, even with the consent of the opposite party, will not enforce a right or contract in violation of a statute, although not expressly declared void by the enact- ment.” CriFForp, J., dissenting. Burbank v. Conrad, 96 U. S. 302. “Contracts in direct violation of statutes expressly forbidding the execution, ‘cannot be enforced.” Futrer, C. J. Gibbs v. Balti- more Consolidated Gas Co., 130 U. S. 412. “Tt is undoubtedly the general rule that a contract made in violation of a statute is void, amd no reeovery can be had upon it.” Haatan, J. Connolly ». Union Sewer Pipe Co., 184 U. S. 548. “Tt has never been doubted that, as a gen- eral rule, a contract made in contravention of a statute is void and cannot be enforced, and the only exception arises when, from an examination of the statute, the courts are able to discern a different or a limited pur- pose on the part of the law makers.” Brewer, J. Burck v. Taylor, 152 U. S. 649. -——~ Revenue Laws. “ All contracts to evade the revenue laws are void.” Grrer, J. Marshall v. Baltimore, etc, R. Co, 16 How. 334. ~—— Wagering Contracts. “In England, it is held that the contracts, although wagers, were not void at common law, and that the statute has not made them illegaf, but only mnon-enforceable.” Matruews, J. Irwin v. Willar, 110 U. S. 510. “A note given for a wager on the future amount of a branch of the public revenue is declared void; because it interests an indi- vidual in diminishing the production of the revenue.” JoHnson, J. Bank of U. S. vw. Owens, 2 Pet. 540. Z “The mere form of the transaction [wagering contracts] is of little consequence. If it were, the statute against wagers could easily be evaded. The essential inquiry in every case is as to the necessary effect of the contract and the real intention of the parties.” Hartan, J. Embrey v. Jemison, 131 U. S. 344. “It Is Familiar Law That Not Every Contract in Contravention of the Terms of a Statute Is Void, and the courts will search the language of the statute to see whether it was the intent of the makers that a contract in contravention of it should be void or not.” Brewer, J. Burck v. Tay- lor, 152 U. S. 648. III. CONTRACTS AGAINST PUBLIC POLICY. In General. “The whole doctrine of avoiding contracts for illegality and immorality is founded on public policy.” Braptry, J. Hanauer v. Doatrte, 12 Wall. 349: 885 ILLEGAL CONTRACTS. “The proposition that there is in many cases a public policy which forbids courts of justice to allow any validity to contracts because of their tendency to affect injuri- ously the highest public interests, and under- mine or destroy the safeguards of the social fabric, is too well settled to admit of dis- pute.” Muizer, J. Sprott v. U. S., 20 Wall. 463. “The law will not enforce contracts and agreements that are against the public good, and, therefore, are forbidden by public pol- icy.” Harvan, J. Ritter v. New York Mut. L. Ins. Co., 169 U. S. 158. “Tt is impossible to define with accuracy what is meant by that public policy for an interference and violation of which a contract may be declared invalid. It may be under- stood in general that contracts that are detri- mental to the interests of the public as understood at the time fall within the ban. The standard of such policy is not absolutely invariable or fixed, since contracts which at one stage of our civilization may seem to conflict with public interests, at a more ad- vanced stage are treated as legal and bind- ing.’ Brown, J. Pope Mfg. Co. v. Gor- mully, 144 U. S. 233. “Tt is sufficient to observe, generally, that all agreements for pecuniary considerations to control the business operations of the gov- ernment, or the regular administration of justice, or the appointments to public offices, or the ordinary course of legislation, are void as against public policy, without reference to the question, whether improper means are contemplated or used in their execution. The law looks to the general tendency of such agreements ; and it closes the door to tempta- tion, by refusing them recognition in any of the courts of the country.” Frexp, J. Provi- dence Tool Co. v. Norris, 2 Wall. 56. Contracts with the Public Enemy. “ All commercial contracts with the sub- jects or in the territory of the enemy, whether made directly by one in person, or indirectly through an agent, who is neutral, are illegal and void. This principle is now too well set- tled to justify discussion. No property passes and no rights are acquired under such con- tracts.” Hunt, J. U.S. v. Lapene, 17 Wall. 602. “No valid contract, therefore, can be made, nor can any promise arise by implication of law, from any transaction with an enemy. Exceptions to the rule are not admitted; and even after the war has terminated, the de- fendant in an action founded upon a contract made in violation of that prohibition, may set up the illegality of the transaction as a de- fense.” C1iirrorD, J. Hanger v. Abbott, 6 Wall. 535. Contracts in Aid of Rebellion. “No contracts made in aid of such an at- tempt [to overthrow the government of the United States by insurrectionary force] can be enforced through the courts of the coun- try whose government is thus assailed.” Cuasg, C. J. Thorington v. Smith, 8 Wall. 7. “Any contract, tinctured with the vice of giving aid and support to the rebellion, can receive no countenance or sanction from the courts of the country.” Braptey, J. Hanauer v. Doane, 12 Wall. 345. “That any person owing allegiance to an organized government, can make a contract by which, for the sake of gain, he contributes most substantially and knowingly to the vital necessities of a treasonable conspiracy against its existence, and then in a court of that government base successfully his rights on ‘such a transaction, is opposed to all that we have learned of the invalidity of im- moral contracts.” Mier, J. Sprott v. U. S., 20 Wall. 463. “No promise or contract, the consideration of which was something done or to be done by the promisee, the purpose of which was to aid the War of the Rebellion or give aid and comfort to the enemies of the United States in the prosecution of that war, is a valid promise or contract, by reason of the turpitude of its consideration.” Muturr, J Keith v. Clark, 97 U. S. 464. — Contracts Are Mala in Se. “A contract in aid of the rebellion has been held illegal because it belonged to that class of contracts which are mala in se, whose consideration is immoral and founded upon a criminal purpose.” PrcKkHAM, J. Houston etc., R. Co. v. Texas, 177 U. S. 97. — Completed Sales. “Contracts of sale made in aid of the re- bellion [in the Confederate states] will not be enforced by the courts; but completed sales occupy a different position.” Warrr, C. J Whitfield v. U. S., 92 U. S. 169. Abetting Commission of Crime. “With whatever impunity a man may lend money or sell goods to another who he knows intends to devote them to a use that is only malum prohibitum, or of inferior criminality, 886 ILLEGAL CONTRACTS. he cannot do it, without turpitude, when he knows, or has every reason to believe, that such money or goods are to be used for the perpetuation of a heinous crime, and that they were procured for that purpose.” Brap- LEy, J. Hanauer v. Doane, 12 Wall. 346. Compounding a Felony. “A contract, the consideration of which is the compounding of felony, is admitted to be void,” MarsHat., C. J. Brooks v. Mar- bury, 11 Wheat. 87. Surrendering Life or Liberty. “There are certain fundamental rights which no man can barter away, such for instance, as his right to life and personal freedom, and, in criminal cases, the right to be tried by a jury of his peers. Courts have even gone so far as to say that a man can- not consent to be tried by a jury of less than twelve men, whatever may be the circum- . stances under which the twelfth man is taken from the panel.” Brown, J. Pope Mfg. Co. v. Gormully, 144 U. S. 234. “Every man is entitled to resort to all the courts of the country, to invoke the protec- tion which all the laws and all the courts may afford him, and that he cannot barter away his life, his freedom, or his constitutional rights.” Hunt, J. Doyle v. Continental Ins. Co., 94 U. S. 538. “A contract by which one person agrees to become the slave of another would not be respected in any court, nor could it become the foundation of any claim or right, even if it were entered into without constraint being used upon the person who assumed to sur- render his liberty and become the property of another.” Haran, J., dissenting. Robert- son v. Baldwin, 165 U. S. 300. Waiver of Defense to Unjust Action. “Tt is a serious question whether public policy permits a man to barter away before- hand his right to defend unjust actions or classes of actions, though, in an individual case, he may doubtless assent that a judgment be rendered against him, even without notice.” Brown, J. Pope Mfg. Co. v. Gormully, 144 U. S. 234, “Tf one should agree for a valuable con- sideration. that he would set up no defense to any action which another might bring against him and such other person might enter up judgment against him in any such action without notice, we think that no court would hesitate to pronounce such an agree- ment invalid.” Brown, J. Pope Mfg. Co. v. Gormully, 144 U. S. 234. “In certain cases a man may doubtless agree that he will interpose no defense to a specified claim, and that another may take judgment against him: without notice.” Brown, J. Pope Mfg. Co. v. Gormully, 144 UL S. 234. ‘ “The exigencies of this case do not require us to decide the question whether a man may or may not contract beforehand not to set up a certain defense to a particular action; but we are of the opinion, that a contract not to set up any defense whatever to any suit that may be begun upon fifty different causes of action is in violation of public policy.” Brown, J. Pope Mfg. Co. v. Gor- mully, 144 U. S. 236. “Agreements in Advance to Oust the Courts of the Jurisdiction Conferred by Law are illegal and void.” Hunt, J. Home Ins. Co. v. Morse, 20 Wall. 451. Agreement to Obtain Pardon. “The law will not enforce a contract to pay money for soliciting petitions or using influence to obtain a pardon.” Gnrugr, J. Marshall v. Baltimore, etc., R. Co., 16 How. 334, Contract to Procure Marriage. “The law avoids all contracts to pay money for procuring a marriage.” Gnrrer, J. Marshall v. Baltimore, etc., R. Co., 16 How. 334, Procuring Appointment or Election to Office. “The law annuls every contract for pro- curing the appointment or election of any person to an office.” Grier, J. Marshall v. Baltimore, etc., R. Co., 16 How. 334. Contract Extorted by Public Officer. “Tt is a familiar doctrine of this court that a bond or other obligation extorted by a public officer, under color of his office, cannot be enforced.” Brown, J. Constable v. National Steamship Co., 154 U. S. 78. IV. SUBSEQUENT CONTRACT IN FURTHERANCE OF ILLEGAL CONTRACT. “It may be admitted that even a subse- quent collateral contract, if made in aid and in furtherance of the execution of one in- fected with illegality, partakes of its nature, and is equally in violation of law.” NeELson, J. McBlair v Gibbes, 17 How. 236. 887 ILLEGAL CONTRACTS. V. ENFORCEMENT OF AND RELIEF ' FROM ILLEGAL CONTRACTS. Courts Will Grant Relief to Neither Party. “As a general rule, the law leaves the parties to illegal contracts where it finds them, and affords relief to neither.” Warts, C. J. Whitfield v. U. S., 92 U. S. 169. “The law will not aid either of two par- ties who are in pari delicto in the violation of a statute. Whatever may be stated in a contract for an illegal purpose, a defendant, against whom it is sought to be enforced, may, to prevent ,it, show both the turpitude of himself and the plaintiff.” Wayne, J. Harris v. Runnels, 12 How. 86. “The general rule, in equity, as at law, is In paridelicto potior est conditio defendentis; and therefore neither party to an illegal con- tract will be aided by the court, whether to enforce it or to set it aside. If the contract is illegal, affirmative relief against it will not be granted, at law or in equity, tinless the contract remains executory, or unless the parties are considered not in equal fault, as where the law violated is intended for the eoercion of the one party and the protection of the other, or where there has been fraud or oppression on the part of the defendant.” Gray, J. St. Louis, etc, R. Co. v. Terre Haute R. Co., 145 U. S. 40%. “To refuse to grant either party to an illegal contract judicial aid for the enforce- ment of his alleged rights under it tends strongly towards reducing the number of such transactions to a minimum. The more plainly parties understand that when they enter into contracts of this nature they place themselves outside the protection of the law, so far as. that protection consists in aiding them to enforce such contracts, the less in- clined will they be to enter into them. In that way the public secures the benefit of a rigid adherence to the law.” Psrcxuam, J. McMullen v. Hoffman, 174 U. S. 669. Maxims Followed by Courts. “There are several old and very familiar maxims of the common law which formulate the result of that law in regard to illegal contracts. They are cited in all law books upon the subject and are known to all of us. They mean substantially the same thing, and are founded upon the same principles and reasoning. They are: Ex dolo malo non oritue actio; Ex pacto illicitto non oritur actio; Ex turpi causa non oritur actio.” Pecxuam, J. McMullen v. Hoffman, 174 U. S. 654. “The authorities from the earliest time ta the present unanimously hold that no court will lend its assistance in any way towards carrying out the terms of an illegal con- tract. In case any action is brought in which it is necessary to prove the illegal contract in order to maintain the action, courts will not enforce it, nor will they enforce any alleged rights directly springing from such contract. In cases of this kind the maxim is Potior est conditio defendentis.” PECKHAM, J. McMullen v. Hoffman, 174 U. S, 654. No Action Maintainable on Hlegal Con. tract. “No principle is better settled than that no action can be maintained on a contract the consideration of which is either wicked in itself, or prohibited by law.” MARSHALL. C.f. Armstrong wv. Toler, 11 Wheat. 271. “Tf a plaintiff cannot open his case with- out showing that he has broken the law, courts of justice will not assist him to re- cover, whate.er the equities of his case may be.” CuiFForD, J., dissenting. Burbank v. Conrad, 96 U. S. 302. “Tf, on a trial for a homicide, to take an illustration suggested by counsel, it should appear from the opening statement that the accused had been pardoned for the offense charged, it would be a waste of time ta listen to the evidence of his original crim- imality; for if established he would still be entitled to his discharge by force of the pardon. So. in a civil action, if it should ap- pear from the opening statement that it is brought to obtain compensation for acts which the law denounces as corrupt and im- moral, or declares to, be criminal, such as attempts to bribe a public official, or to evade the revenue laws, or to embezzle the pub- lic funds, the court would not hesitate to close the case without delay. Of course, in all such proceedings nothing should be taken, without full consideration, against the party making the statement or admission. He should be allowed to explain and qualify it, so far as the truth will permit; but if, with such explanation and qualification, it should clearly appear that there could be no recov- ery, the court should not hesitate to so de- clare and give such direction as will dispose of the action.” Fretp, J. Oscanyan v. Win- chester Repeating Arms Co., 103 UL S. 263. “History furnishes instances of robbery, arson, and other crimes committed for hire. Hi, after receiving a pardon, or suffering the punishment imposed upon him, the culprit 888 ILLEGAL CONTRACTS. should ste the instigator of the crime for the promised reward--if we may suppose that audacity could go so far—the court would not hesitate a moment in dismissing his case and sending him from its presence, whatever might be the character of the de- fense. It would not be restrained by defects of pleading, nor, indeed, could it be by the defendant’s waiver, if we may suppose that in such a matter it would be offered.” Fret, J. Oscanyan v. Winchester Repeating Arms Co., 103, U. S. 26%. “No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act.” Woovs, J. Higgins v. McCrea, 116 U. S. 686, “While an unlawful contract, the parties to which are in pari delicto, remains execu- tory, its invalidity is a defense in a court of law; and a court of equity will order its cancellation only as an equitable mode of taking that defense effectual, and when necessary for that purpose? Gray, J. St. Louis, etc. R. Co. wv. Terre Haute R. Co. 145 U.S. 407. —— Entire Contract Must Be Looked To. “Upon the point as to the ability of the plaintiff to make out his cause of action with- out referring to the illegal contract, it may be stated that the plaintiff for such purposes cannot refer to one portion only of the contract upon which he proposes to found his right of action, but that the whole of the contract must come in, although the portion upon which he founds his cause of action may be legal.” Prcknam, J. McMullen v. Hoffman, 174 U. S. 656. -—~ Illegal] Contract Will Not Be En- forced, “Tt is an undoubted principle of the com- mon law, that it will not lend its aid to en- force a contract to do am act that is illegal; or which is inconsistent with sound morals or public policy; or which tends to corrupt or contaminate, by improper influences, the in- tegrity of our social or political institutions.” Grier, J. Marshall v. Baltimore, etc., R. Co., 16 How. 334. “Where a contract grows immediately out of and is connected with the illegal or im- moral act of the party claiming the benefit of it, courts of justice will not lend their aid to enforce it.” Cirrrorp, J. Kimbro v. Bul- litt, 22 How. 269. “When a contract is thus connected by its consideration with an illegal transaction a court of justice will not aid its enforce ment.” Fretp, J. Hanauer v. Woodruff, 15 Wall. 443. “Tt is sometimes said that the test whether a demand connected with an illegal transac- tion is capable of being enforced at law, is, whether the plaintiff requires any aid from the illegal transaction to establish his case. But it is too narrow in its terms and excludes many cases where the plaintiff might establish his case independently of the illegal transaction, and yet would find his demand tainted by that transaction.” Fretp, J, Han- auer v. Woodruff, 15 Wall. 443. —— Recovery of Money Paid under Ille- gal Contract. ; “We do not see on what ground a party, who says in his pleading that the money which he seeks to recover was paid out for the accomplishment of a purpose made an offense by the law, and who testifies and insists to the end of his suit that the con- tract on which he advanced. his money was illegal, criminal, and void, can recover it back in a court whose duty it is to give effect to the law which the party admits he intended to violate.” Woops, J. Higgins v. McCrea, 116 U. S. 685. “When the parties are in part delicto, and the contract has been fully executed -on the part of the plaintiff, by the conveyance of property, or by the payment of money, and has not been repudiated by the defendant, it is now well settled that neither a court of law nor a court of equity will assist the plaintiff to recover back the property conveyed or money paid under the contract.” Gray, J. St. Louis, etc, R. Co. v. Terre Haute R. Co., 145 U. S. 407. “Tt has been sometimes said that where a contract, although it be illegal, has been fully executed between the parties so that nothing remains thereof for completion, if the plaintiff can recover from the defendant moneys re- ceived by him without resorting to the con- tract, the court will permit a recovery in such case.” PrecxuHam, J. McMullen wu. Hoffman, 174 U. S. 655. Waiver of Right to Assert Invalidity. “A waiver of all right to question the validity of a contract may be founded upon the claiming and acceptance of a benefit under it after full knowledge of all the facts.” PECKHAM, J. Baker v. Cummings, 181 U. S, 130. 889 IMMIGRATION. Right of Third Person to Set up Defense of Illegality. “But if the party who might set up the illegality chooses to waive it, and pay the money, he cannot afterwards reclaim it. And, if even the money be paid to a third person for the other party, such third person cannot set up the illegality of-the contract on which the payment has been made, and withhold it for himself.” Netson, J. McBlair wv. Gibbes, 17 How. 236. “Where A claims money from B, although due upon an illegal contract, and B acknowl- edges the obligation and waives the defense of illegality and pays the money to a third party upon his promise to pay it to A, the third party cannot successfully defend an action brought by A to recover the money by alleging that the original contract between A and B was illegal.’ Prckuam, J. Mc- Mullen v. Hoffman, 174 U. S. 660. ILLICIT COHABITATION. See Bastarpy; BIcAmMy. ILLUSTRATIONS. See CopyRIcHT. “These chromo-lithographs' are ‘ pictorial illustrations.” The word ‘illustrations’ does not mean that they must illustrate the text of a book, and that the etchings of Rem- brandt or Steinla’s engraving of the Madonna di San Sisto could not be protected to-day if any man were able to produce them.” Hotmes, J. Bleistein v. Donaldson Litho- graphing Co., 188 U. S. 251. “The ballet is as legitimate a subject for illustration as any other.” Hotmes, J. Bliestein v. Donaldson Lithographing Co., 188 U. S. 251. IMMIGRATION. See ALiens; EMIGRATION; NATURALIZA- TION. Power of Congress to Regulate. “The section which restrains Congress from prohibiting the migration or importation of such persons as any of the states may think proper to admit, until the year 1808, has always been considered as an exception from the power to regulate commerce, and certainly seems to class migration with im- portation.” Marsnatt, C. J. Gibbons v. Ogden, 9 Wheat. 216. “The first restraint that nations reserve to themselves is the right to be informed of the name and quality of every foreigner that arrives.” Wayne, J. Passenger Cases, 7 How. 423. —— Delegation of Power. “ The supervision of the admission of aliens into the United States may be entrusted by Congress either to the department of state, having the general management of foreign relations, or to the department of the treas- ury, charged with the enforcement of the laws regulating foreign commerce.” Gray, J. Nishimura Ekiu v. U. S., 142 U. S. 659. Power of States to Regulate. “The states have the right to turn off paupers, vagabonds, and fugitives from jus- tice, and the states where slaves are have a constitutional right to exclude all such as are, from a common ancestry and country, of the same class of men. And when Con- gtess shall legislate —if it be not disrespect- ful for one who is a member of the judiciary to suppose so absurd a thing of another de- partment of the government — to make pau- pers, vagabonds, suspected persons, and fugi- tives from justice subjects of admission into the United States, I do not doubt it will be found and declared, should it ever become a matter for judicial decision, that such persons are not within the regulating power which the United States have over commerce. Paupers, vagabonds, and fugitives never have been subjects of rightful national intercourse, or of commercial regulations, except in the transportation of them to distant colonies to get rid of them, or for punishment as con- victs. They have no rights of national inter- course; no one has a right to transport them, without authority of law, from where they are to any other place, and their only rights where they may be are such as the law gives to all men who have not altogether forfeited its protection.” Waynes, J. Passenger Cases, ? How. 426. “The best writers on national law, as well as our own decisions, show that this power of excluding emigrants exists in all states which are sovereign.” Woopsury, J., dis- senting. Passenger Cases, 7 How. 525. “It has been . . . both in Europe and America, a matter of municipal regulation whether aliens shall or shall not reside in any particular state, or ever cross its bor- ders, it follows that, if a sovereign state pleases, it may, as a matter of clear right, ‘ exclude them entirely, or only when paupers 890 IMPAIRMENT OF OBLIGATION OF CONTRACTS. or convicts or only when slaves.” Woopsury, J., dissenting. Passenger Cases, 7 How. 525. “Except to guard its citizens against dis- ease and paupers, the municipal power of a state cannot prohibit the introduction of for- eigners brought to this country under the authority of Congress. It may deny them a residence, unless they shall give security to indemnify the public should they become paupers.” McLean, J. Passenger Cases, 7 How. 406. Policy of Government to Encourage Im- migration. “To encourage foreign emigration was a cherished policy of this country at the time the Constitution was adopted.” McLean, J. Passenger Cases, 7 How. 401. “From the first day of our separate exist- ence to this time has the policy of drawing hither aliens, to the end of becoming citi- zens, been a favorite policy of the United States; it has been cherished by Congress with rare steadiness and vigor. By this pol- icy our extensive and fertile country has been, to a considerable extent, filled up by a respectable population, both physically and mentally, one that is easily governed and usually of approved patriotism.” Carron, J. Passenger Cases, 7? How. 440. “Tt is the cherished policy of the general government to encourage and invite Chris- tian foreigners of our race to seek an asylum within our borders, and to convert these waste lands into productive farms, and thus add to the wealth, population, and power of the nation.” Grier, J. Passenger Cases, 7 How. 461. ‘ IMPAIRMENT OF OBLIGA- TION OF CONTRACTS. I. INTENTION AND SCoPE oF CONSTI- TUTIONAL PROVISION. II. Contracts PROTECTED. III. Law Part oF Contract. IV. Existence oF Contract FEDERAL QUESTION. V. IMPAIRMENT— WHAT CONSTI- TUTES. CROSS-REFERENCES. As to charters of corporations, see CORPORA- TIONS. See also ConstitutionaL Law; Con- TRACTS; ELEEMOSYNARY CoRPORATIONS; EMI- NENT Domain; INSOLVENCY; INTEREST; LE- GAL TENDER; Limitation oF Actions; Mort- GAGES; MuNIcIPAL CorpoRATIONS; OBLI- GATION — OBLIGATIONS; PAYMENT; SET-OFF AND COUNTERCLAIM. I. INTENTION AND SCOPE OF CON- STITUTIONAL PROVISION. In General. “The inviolability of contracts, and the duty of performing them, as made, are foun- dations of all well-ordered society, and to prevent the removal or disturbance of these foundations was one of the great objects for which the Constitution was framed.” Stronc, J. Murray v. Charleston, 96 U. S. 449, “The provision [of the Constitution] is not, that no state shall pass a law impairing the obligation of contracts, unless compensa- tion be made; but the power is absolutely inhibited to a state. If the act of the state come within the meaning of the provision, the act is void. No condition which may be annexed to it, no compensation that can be made, can give it validity. It is in con- flict with the supreme law of the land, and is therefore a nullity.’ McLean, J. Charles River Bridge v. Warren Bridge, 11 Pet. 577. “No express power is given Congress to enforce, by primary direct legislation, the prohibition upon state laws impairing the obligation of contracts. Authority is, indeed, conferred to enact all necessary and proper laws for carrying into execution the enumer- ated powers of Congress and all other pow- ers vested by the Constitution in the govern- ment of the United States or in any depart- ment or officer thereof. And, as heretofore shown, there is also, by necessary implica- tion, power in Congress, by legislation, to protect a right derived from the national Constitution. But a prohibition upon a state is not a power in Congress or in the national government. It is simply a denial of power to the state. And the only mode in which the inhibition upon stdte laws impairing the obligation of contracts can be enforced, is, indirectly, through the courts, in suits where the parties raise some question as to the con- stitutional validity of such laws. The judi- cial power of the United States extends to such suits for the reason that they are suits arising under the Constitution.” Haran, J., dissenting. Civil Rights Cases, 109 U. S. 45. “The grant of a limited power over the subject of contracts necessarily implies that 891 IMPAIRMENT OF OBLIGATION OF CONTRACTS. the framers of the Constitution did not in- tend that Congress should exercise unlimited power, or any power less restricted. The limitation designated is the measure of con- gressional power over the subject. This fol- lows from the nature of the instrument as one of enumerated powers.” Frexp, J., dis- senting. Legal Tender Cases, 12 Wall. 664. “Although it is true that the prohibition to pass tender laws of a particular descrip- tion, and laws impairing the obligation of contracts, relate, both of them, to contracts, yet the principle which governs each of them, clearly to be inferred from the subjects with which they stand associated, is alto- gether different, that of the first forming part of a system for fixing a uniform stand- ard of value, and, of the last, being founded on a denunciation of retrospective laws.” WasuHincton, J., - dissenting. Ogden vw. Saunders, 12 Wheat. 268. “Clauses in state constitutions, aets of state legislatures, and decisions of state courts, warranted by the Thirteenth and Fourteenth Amendments, cannot be held void as in violation of the original Constitution, which forbids the states to pass any law violating the obligation of contracts.” Cuase, C. }., dissenting. Osborn ». Nich- olson, 13 Wall. 664. *Embarrassments thrown by a statute in the way of enforcing payment of a debt, or a statutory substitution for the obligation and lability of the debtor, of the will of some other person, though that person be a state, have not heretofore been recognized as consistent with the Constitution. The protection afforded by its provisions and its prohibition of certain state legislation relate, not to the mode and form of state statutes, but to their operation or effect.” Srrone, J., dissenting. Meriwether v. Garrett, 102 U. S. 633. “T admit that in the exercise of some of the powers granted, Comgress may enact laws that indirectly affect existing contracts and lessen their obligation, but I deny that it can by any direct action, otherwise than by a bankrupt law, even relieve a debtor to a private party from any duty he has, assumed by his contract.” Srrone, J., dissenting. Sinking-Fumd Cases, 99. U, S. 737. “When the Constitution of the United States declares in art. 1, sec. 10, that the states shall not do certain things, this dec- ‘laration operates not only upom the thirteen original states, but upon all who subsequently ‘become such,” Brown, J. De Lima v. Bid- well, 182 U. S. 197, “There Is No More Important Pro- vision in the Federal Constitution than the one which prohibits states from passing laws impairing the obligation of contracts, and it is one of the highest duties of this eourt to take care the prohibition shall neither be evaded nor frittered away. Com- plete effect must be given to it in all its spirit.” Srronc, J. Murray v, Charleston, 96 U. S. 448. “The Great Principle Intended to Be Established by the Constitution, was the inviolability of the obligation of contracts, as the obligation existed and was recog- _nized by the laws in force at the time the contracts were made.” Trimste, J., dissent- ing. Ogden v. Saunders, 12 Wheat. 327. “Tt Is a Law Which Impairs the Obliga- tion of Contracts, and not the contracts themselves, which is interdicted.’” Wasu- INGTON, J., dissenting. Ogden v. Saunders, 12 Wheat. 257, “The Constitution Nowhere Professes to Give the Law of Contracts, or to de- élare what shall or shall mot be the obliga- tion of contracts.” Trimste, J., dissenting. Ogden v. Saunders, 12 Wheat. 326. “Congress Is Not Subject, as the States Are, to the Inhibition against passing any law impairing the obligation of contracts.” Brantey, J., dissenting. Sinking-Fund Cases, 99 U. S. 747. “While the Constitution forbids the states to pass such laws [impairing the obligation of contracts] it does not forbid Congress.” Miter, J., dissenting. Hepburn v. Gris- wold, 8 Wall. 637%. “There Is No Constitutional Prohibition in Canada against the passage of laws im- pairing the obligation of contracts, and the Parliament of the Dominion had, in 1878, exclusive legislative authority over the cor- poration and the general subjects of bank- tuptcy and insolvency in that jurisdiction. As to all matters within its authority, the Dominion Parliament has ‘plenary legisla- tive powers as large and of the same nature as those of the imperial Parliament.” Warrz, C. J. Canada Southern R. Co. v. Gebhard, 109 U. S. 532, II. CONTRACTS PROTECTED. In General. “The contracts which the Constitution pro- 892 IMPAIRMENT OF OBLIGATION OF CONTRACTS. tects are those that relate to property rights, not governmental.” Waite, C. J. Stone v. Mississippi, 101 U. S. 820. “Contracts, the parties to which have a vested beneficial interest, and those only, it has been said, are the objects about which the Constitution is solicitous, and to which its protection is extended.” MARSHALL, C. J. Dartmouth College v. Woodward, 4 Wheat. 642. “Where a transaction is not based upon any assent of parties, it cannot be said that any faith is pledged with respect to it; and no case arises for the operation of the pro- hibition.” Frey, J. Louisiana v. New Or- leans, 109 U. S. 288. “Now, an exemption from a demand, or an immunity from prosecution in a suit, is as valuable to the one party as the right to the demand or to prosecute the suit is to the other. The two things are correlative, and to say that the one is protected by constitu- tional guaranties and that the other is .not, seems to me almost an absurdity.” BRADLEY, J., dissenting. Campbell v. Holt, 115 U. S. 630. “Tn respect . to grants and con- tracts, it would be far too narrow a con- struction of the Constitution to limit the prohibitory clause to such only where the patties take for their own private benefit.” Story, J. Dartmouth College v. Woodward, 4 Wheat. 697. “Tt needs no argument to demonstrate that a contract must have at least two parties, and that all laws made by a sovereign state are not necessarily contracts, and therefore irrevocable.” Grier, J., dissenting. Wood- ruff v. Trapnall, 10 How. 214. “A Parol Agreement for the Sale of Land is a contract, and if the agreement alone makes the contract, and it derives its obligation solely from such agreement, with- out reference to the existing law, it would seem to follow, that any law which had de- clared such contract void, or had denied a remedy for breach thereof, would impair its obligation.” THompson, J., dissenting. Og- den v. Saunders, 12 Wheat. 299. “ All Incorporeal Hereditaments, wheth- er they be immunities, dignities, offices, or franchises, or other rights, are deemed val- uable in law. The owners have a legal es- tate and property in them, and legal reme- dies to support and recover them in case of any injury, obstruction, or disseisin of them. Whenever they are the subjects of a contract or grant, they are just as much within the reach of the Constitution as any other grant.” Story, J. Dartmouth College v. Woodward, 4 Wheat. 699. “A Grant to a Private Trustee for the Benefit of a Particular Cestui que Trust, or for any special private or public charity, cannot be the less. a contract because the trustee takes nothing for his own benefit. A grant of the next presentation to a church is still a contract, although it limit the grantee to a mere right of nomination or patronage.” Story, J. Dartmouth College v. Woodward, 4 Wheat. 697. “A law which declares that no action shall be brought whereby to charge a person upon his agreement to pay the debt of another, or upon an agreement relating to lands, unless the same be reduced to writing, impairs a contract made by parol whether the law pre- cede or follow the making of such contract.” WasHINGTON, J., dissenting. Ogden vw. Saunders, 12 Wheat. 257. “All Contracts Are Inherently Subject to the Paramount Power of the Sovereign, and the exercise of such power is never un- derstood to involve their violation, and is not within that provision of the national Constitution which forbids a state to pass laws impairing their obligation. The power acts upon the property which is the subject of the contract, and not upon the contract itself.” Swayne, J. Osborn v. Nicholson, 13 Wall. 660. Gratuities. “A captor may be deprived of his share of prize-money, pensioners of their promised bounty, at any time before their payment.” CaMPBELL, J., dissenting. State Bank of Ohio v. Knoop, 16 How. 408. Public Offices. “Salaries may be reduced, offices having a definite tenure, though filled, may be abol- ished, faculties may be withdrawn, the in- ducements to vest capital impaired and de- feated by the varying legislation of a state, without impairing constitutional obligation.” CAMPBELL, J., dissenting. State Bank of Ohio v. Knoop, 16 How. 408. Future Contracts. “The state may legislate as to contracts thereafter made, as they may see fit. It is only those in existence when the hostile law is passed that are protected from its effect.” Swayne, J. Edwards v. Kearzey, 96 U. S. 603. 898 IMPAIRMENT OF OBLIGATION OF CONTRACTS. Obligation of Contract. “This court is, after an experience of near- ly a century, still engaged in defining the ob- ligation of contracts, the regulations of com- merce, and other powers conferred on the federal government or limitations imposed upon the states.” Mutter, J. Davidson v. New Orleans, 96 U. S. 104. “The obligation, and the mode of enforc- ing the obligation [of a contract] are distinct things. The former consists in the acts of the parties, and.is ascertained by the binding words of the contract. The other emanates from the law-making power, which may be exercised at the discretion of the legislature, within the prescribed limits of the Constitu- ‘tion.” McLegan, J. Charles River Bridge v. Warren Bridge, 11 Pet. 573. Necessity for Protection. “Tf contracts are not observed, no prop- erty will in the end be respected; and all history shows that rights of persons are un- safe where property is insecure. Protection to one goes with protection to the other.” Fietp, J., dissenting. Sinking-Fund Cases, 99 U. S. 767. Consideration. “The contract protected by this clause [of the Constitution inhibiting state legislation impairing obligation of contracts] must also be founded upon a good consideration. If it be a mere nude pact, a bare promise to allow a certain thing to be done, it will be construed as a revocable license.’ Brown, J. Pearsall v. Great Northern R. Co. 161 U. S. 667. ‘ Valid Contracts. “Any contract not sanctioned by existing laws creates no civil obligation; and any con- tract discharged in the mode and manner pro- vided by the existing law where it was made, cannot, upon any just principles of reasoning, be said to impair such contract.” THompson, J., dissenting. Ogden v. Saunders, 12 Wheat. 299. “While we have never hesitated to vindi- cate the right of individuals or corporations to enforce the performance of lawful con- tracts as against subsequent legislation de- signed to impair them, we have always ex- acted as a condition that the contract was one which the legislature, or opposite party, had power to make under the Constitution, and that the other party was chargeable with knowledge of all its provisions in that con- nection.” Brown, J. Yazoo, etc. R. Co. v. Adams, 180 U. S. 25. Executory and Executed Contracts. “Both [executed and executory contracts] are equally within the provisions of the Con- stitution of the United States, which forbids the state governments to pass laws impair- ing the obligation of contracts.” WaASHING- ton, J. Dartmouth College v. Woodward, 4 Wheat. 657. “Since . . a grant is a contract exe- cuted, the obligation of which still continues, and since the Constitution uses the general term contract, without distinguishing between those which are executory and those which are executed, it must be construed to com- prehend the latter as well as the former.” MarsHa.tl, C. J. Fletcher v. Peck, 6 Cranch 137. “The constitutional prohibition [art. 1, sec. 10] applies alike to both executory and exe- cuted contracts, by whomsoever made. The amount of the impairment of the obligation is immaterial. If there be any, it is sufficient to bring into activity the constitutional pro- vision and the judicial power of this court to redress the wrong.” Swayne, J. Far- rington v. Tennessee, 95 U. S. 683. “Tf it had not been otherwise laid down in the case of Fletcher v. Peck, 6 Cranch 125, I should have doubted whether the in- hibition [against impairment of the obliga- tions of contracts] did not apply exclusively to executory contracts. This doubt would have arisen as well from the consideration of the mischief against which this provision was intended to guard, as from the language of the provision. itself.” McLran, J. Charles River Bridge v. Warren Bridge, 11 Pet. 573. “When we speak of the obligations of a contract, the mind seems necessarily to refer to an executory contract; to a contract, under which something remains to be done, and there is an obligation on one or both of the parties to do it. No law of a state shall impair this obligation, by altering it in any material part. This prohibition does not apply to the remedy, but to the terms used by the parties to the agreement, and which fix their respective rights and obligations.” McLzan, J. Charles River Bridge v. War- ren Bridge, 11 Pet. 573. Marriage. “Tf under the faith of existing laws a con- tract of marriage be duly solemnized, or a marriage settlement be made (and marriage is always in law a valuable consideration for a contract), it is not easy to perceive why a dissolution of its obligations, without any 894 IMPAIRMENT OF OBLIGATION OF CONTRACTS. default or assent of the parties, may not as well fall within the prohibition as any other contract for a valuable consideration. A man has just as good a right to his wife as to the property acquired under a marriage contract. He has a legal right to her society and her fortune; and to divest such right without his default, and against his will, would be as flagrant a violation of the prin- ciples of justice as the confiscation of his own estate.” Story, J. Dartmouth College v. Woodward, 4 Wheat. 696. “The provision of the Constitution [art. 1, sec. 10] never has been understood to em- brace other contracts than those which respect property, or some object of value, and confer rights which may be asserted in a court of justice. It never has been understood to re- strict the general right of the legislature to legislate on the subject of divorces.” Mar- SHALL, C. J. Dartmouth College v. Wood- ward, 4 Wheat. 629. Judgments. “As the contract clause of the Constitu- tion was intended to secure the observance of good faith in the stipulation of parties against state action, it could not be invoked when no such stipulation existed, and there- fore not against legislation which interfered merely with the enforczment of claims for damages from the violence of mobs or of judgments upon such claims.” Frevp, J. Nelson v. St. Martin’s Parish, 111 U. S. 720. “Tt seems to me that these judgments [against city for damages caused by mobs] are contracts, within any reasonable inter- pretation of the contract clause of the na- tional Constitution. It can hardly be that the framers of that instrument attached less consequence to contracts of record than to simple contracts. If this view be correct, then the withdrawal from the city of New Orleans of the authority which it possessed when they were rendered, to levy taxes suffi- cient for their payment, impaired the obliga- tion of the contracts evidenced by those judg- ments.” Haran, J., dissenting. Louisiana v. New Orleans, 109 U. S. 293. Contracts with Railroads. “In determining whether a statute impairs the obligation of a contract, within the mean- ing of our Constitution, it must be conceded that that instrument protects such obligation against legislative impairment as well in cases of contracts with railway corporations as of contracts between individuals. It is equally clear that debts held against such corpora- tions are property of which the citizen may not be deprived without due process of law.” Hartan, J., dissenting. Canada Southern R. Co. v. Gebhard, 109 U. S. 548. “Railway corporations are, undoubtedly, public instrumentalities employed by govern- ment to accomplish public purposes. But in this country the legislative department may not, under the guise of regulating such cor- porations, arbitrarily deprive creditors of the benefit of their claims against them, or impair the obligation of contracts which individuals have with them.” Haran, J., dissenting. Canada Southern R. Co. v. Gebhard, 109 U.S. 549. : State and Municipal Contracts. “A state can no more impair, by legisla- tion, the obligation of its own contracts, than it can impair the obligation of the contracts of individuals.’ McLean, J. Woodruff v. Trapnall, 10 How. 207. “The clause of the Constitution which de- clares that no state shall pass any law im- pairing the obligation of contracts prohibits legislation thus affecting contracts between the state and individuals equally as it does contracts between individuals. Indeed, the greater number of cases in which the pro- tection of the constitutional provision has been invoked against subsequent legislative impairment of contracts has been of those in which the state was one of the contracting parties.” Fretp, J., dissenting. Antoni v. Greenhow, 107 U. S. 795. “The commonwealth of Virginia has no more authority to enact statutes impairing the obligation of her contracts than statutes impairing the obligation of contracts exclu- sively between individuals.” Haran, J., dis- senting. In re Ayers, 123 U. S. 515. “The inhibition of the Constitution, which preserves against the interference of a state the sacredness of contracts, applies to the lia- bilities of municipal corporations created by its permission.” Fretp, J. Broughton v. Pensacola, 93 U. S. 269. “In respect to these [contracts between individuals and a state] by virtue of the 11th Amendment to the Constitution, there being no remedy by suit against the state, the con- tract is substantially without sanction, except that which arises out of the honor and good faith of the state itself, and these are not subject to coercion. Although the state may, at the inception of the contract, have con- sented as one of its conditions to subject 895 IMPAIRMENT OF OBLIGATION OF CONTRACTS. itself to suit, it may subsequently withdraw that consent and resume its original im- munity, without any violation of the obliga- tion of its contract in the constitutional sense.” Matruews, J. Jn re Ayers, 123 U. S. 505. “The cases in which we have held that the taxing power of a municipality continues, notwithstanding a legislative act of limitation or repeal, are founded upon contracts; and decisions in them do not rest upon the prin- ciple that the party affected in the enforce- ment of his contract rights has been thereby deprived of any property, but upon the prin- ciple that the remedies for the enforcement of his contracts existing when they were made have been by such legislation impaired. The usual mode in which municipal bodies meet their pecuniary contracts is by taxation. And when, upon the faith that such taxation will be levied, contracts have been made, the constitutional inhibition has been held to re- strain the state from repealing or diminishing the power of the corporation so as to deprive the holder of the contract of all adequate and efficacious remedy.” Fretp, J. Louisi- ana v. New Orleans, 109 U. S, 289. Ill. LAW PART OF CONTRACT. “The decisions of this court are numerous that the laws which prescribe the mode of enforcing a contract, which are in existence when it is made, are so far a part of the contract that no change in these laws which seriously interfere with that enforcement are valid, because they impair its obligation with- in the meaning of the Constitution of the United States.” Mutier, J. Brine vw Hart+ ford F. Ins. Co, 96 U. S. 687. “The decisions of this court are numerous in which it has been held that the laws which prescribe the mode of enforcing a contract, which are in existence when it is made, are so far a part of the contract that no changes in these laws which seriously interfere with that enforcement are valid, because they im- pair its obligation within the meaning of the Constitution of the United States.” Simras, J. Barnitz v. Beverly, 163 U. S. 122. “This remedy, which is protected by the contract clause of the Constitution, is some- thing more than the privilege of having a claim adjudicated. Mere judicial inquiry into the rights of parties is not enough. There must be the power to enforce the re- sults of such an inquiry before there can be said to be a remedy which the Constitution deems part of the contract.” Warrz, C. J. Memphis, etc. R. Co. v. Tennessee, 101 U. S. 339. “The obligation of a contract consists in its binding force on the party who makes it. This depends on the laws in existence when it is made; these are necessarily referred. to in all contracts and forming a part of them as the measure of the obligation to perform them by the one party, and the right ac- quired by the other. There can be no other standard by which to ascertain the extent of either, than that which the terms of the con- tract indicate, according to their settled legal meaning; when it becomes consummated, the law defines the duty and the right, compels one party to perform the thing contracted for, and gives the other a right to enforce the performance by the remedies then in force. If any subseqtient law affect to diminish the duty, or to impair the right, it necessarily bears on the obligation of the contract, in favor of one party, to the injury of the cther; hence any law, which in its operation amounts to a denial or obstruction of the rights ac- cruing by a contract, though professing to act only on the remedy, is directly obnoxious to the prohibition of the Constitution.” Baxp- win, J. McCracken v. Hayward, 2 How. 612. “Tt cannot be doubted that the iith Amendment to the Constitution operates to create an important distinction between con- tracts of a state with individuals and con- tract between individual parties. In case of contracts between individuals, the remedies for their enforcement or breach, in existence at the time they were entered into, are a part of the agreement itself, and constitute a stib- stantial part of its obligation.’ Matruews, J. In re Ayers, 123 U. S. 504. “As in a state of civil society property of a citizen or subject is ownership, subject to the lawful demands of the sovereign, so con- tracts must be understood as made in refer- ence to the possible exercise of the right- ful authority of the government, and no obli+ gation of a contract can extend to the defeat of legitimate government authority.” Srroné, J. Legal Tender Cases, 12 Wall, 551, ‘ “The right of defense is just as valuable as the right of action. It is the defendant’s remedy.” Brantey, J., dissenting. Campbell v. Holt, 115 U. S. 631. IV. EXISTENCE OF CONTRACT FEDERAL QUESTION. “This court has always jealously asserted the right, when the question before it was 896 IMPAIRMENT OF OBLIGATION OF CONTRACTS. the impairing of the obligation of a contract by state legislation, to ascertain for itself whether there was a contract to be impaired. If it were not so, the constitutional provisions could always be evaded by the state courts giving such construction to the contract, or such decisions concerning its validity, as to render the power of this court of no avail in upholding it against unconstitutional state legislation.” Minter, J. Delmas wv. Mer- chants’ Ins. Co., 14 Wall. 668. “While it is undoubtedly the general rule of this court to accept the construction placed by the courts of a state upon its statutes and constitution, yet one exception to this rule has always been recognized, and that in refer- ence to the matter of contracts alleged to have been impaired.” Brewer, J. McCul- lough v. Virginia, 172 U. S. 109. “Whether an alleged contract arises from state legislation, or by agreement with the "agents of a state, by its authority, or by stipulations between individuals exclusively, we are obliged, upon our own judgment and independently of the adjudication of the state court, to decide whether there exists a con- tract within the protection of the Constitu- tion of the United States.” Hartan, J. Louisville Gas Co. vw. Citizens Gas Co., 115 Uz S. 697. “We have repeatedly held where a contract is claimed to have been impaired by state legislation, that we would put our own construction upon such contract, and then inquire whether it had been impaired.” Brown, J., dissenting. Cornell v. Green, 163 U.S. 81. “The doctrine that this court possesses paramount authority when reviewing the final judgment of a state court upholding a state enactment alleged to be in violation of the contract clause of the Constitution, to deter- mine for itself the existence or non-existence of the contract set up, and whether its obliga- tion has been impaired by the state enact- ment, has been affirmed in numerous other cases.” Haran, J. Douglas v. Kentucky, 168 U. S. 502. “We have repeatedly held that, where the plaintiff relies for his recovery upon the im- pairment of a contract by subsequent legis- lation, it is for this court to determine whether such contract existed, as well as the question whether the subsequent legislation has impaired. This rule also applies to a contract alleged to be raised by a state statute, although the general principle is un- 1 Os, Dic. —57 doubtedly that the construction put by state courts upon their own statutes will be fol- lowed here.” Brown, J. Walsh v. Colum- bus, etc., R. Co., 176 U. S. 475. “In adjudging whether a contract has been impaired by subsequent legislation, it is ele- mentary that this court determines for itself whether there was a contract. Whilst it is true that in making such inquiry the per- stiasive power of state decisions will be taken into view, nevertheless the duty ever remains to determine independently whether the con- tract existed which it is asserted has been impaired.” Wauure, J., concurring. Stearns v. Minnesota, 179 U. S. 256. “Tt is elementary that where a contract is asserted to have been impaired by subsequent state legislation, this court is constrained to form an independent judgment as to the ex- istence of the contract and its terms.” Waite, J., dissenting. Freeport Water Co. v. Freeport City, 180 U. S. 610. “Tt is a necessary and well settled rule that the exercise of jurisdiction. by this court to protect constitutional rights cannot be de- clined when it is plain that the fair result of a decision is to deny the rights. It is well -known that this court will decide for itself whether a contract was made as well as whether the obligation of the contract has been impaired.” Hotmess, J. Rogers v. Ala- bama, 192 U. S. 230. V. IMPAIRMENT —WHAT CONSTI- TUTES. In General. “A law which alters the terms of a con- tract by imposing new conditions, or dispens- ing with those expressed, is a law which im- pairs its obligation.” Frevp, J. State Tax on Foreign-Held Bonds, 15 Wall. 320. “A power competent to declare a contract shall have no obligation, must necessarily be competent to declare it shall have only a con- ditional, or qualified obligation.” TRIMBLE, J., dissenting. Ogden vw. Saunders, 12 Wheat. 323. “The general powers which still exist under other governments, or might once have prevailed here in the states, to change the tenure and rights over property, and espe- cially the jus disponendi of it, cannot now, under the federal Constitution, be exercised . by our states to an extent affecting the obli- gation of contracts.” Woopzury, J. Plant- ers’ Bank v. Sharp, 6 How. 326, ‘897 IMPAIRMENT OF OBLIGATION OF CONTRACTS. “Any attempt by the legislature to take private property from its grantee, and restore it to its grantor, would be in conflict with the constitutional inhibition against impair- ing the obligation of contracts.” Frexp, J. Tippecanoe County Com’rs v. Lucas, 93 U. S. 114. “Tt 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 en- forcing it, which existed at the time it was contracted, and does not supply an alternative remedy equally adequate and _ efficacious.” Brabiey, J. McGahey v. Virginia, 135 U. S. 693. “A law, declaring that a contract shall not be enforced, upon the happening of a future event, is a law declaring the contract shall have only a qualified or conditional ob- ligation.” TRIMBLE, J., dissenting. Ogden v, Saunders, 12 Wheat. 323. “A law which changes the terms of the contract, either in the time or mode of per- formance, or imposes new conditions, or dis- penses with those expressed, or authorizes for its satisfaction something different from that provided, is a law which impairs its ob- ligation, for such a law relieves the parties from the moral duty of performing the orig- inal stipulations of the contract, and it pre- vents their legal enforcement.’ Fiexp, J., dissenting, Legal Tender Cases, 12 Wall. 661. “Where contracts are impaired, or when operating against the government are sought to be evaded and avoided by legislation, a blow is given to the security of all property.” Fiztp, J., dissenting. Sinking-Fund Cases, 99 U. S. 766. “Contracts are property, and a large por- tion of the wealth of the country exists in that form. Whatever impairs their value diminishes, therefore, the property of the owner, and if that be effected by direct leg-\ islative action operating upon the contract, forbidding its enforcement or transfer, or otherwise restricting its use, the owner is as much deprived of his property without due process of law as if the contract were im- pounded, or the value it represents were in terms wholly or partially confiscated.” Fye.p, J. dissenting. Sinking-Fund Cases, 99 U. S. 766. “Legislation impairing the obligation of contracts impinges upon the provision of the Constitution which declares that no one shall be deprived of his property without due proc- ess of law; and that means by law in its regular course of administration through the courts of justice.’ Fretp, J., dissenting. Sinking-Fund Cases, 99 U. S. 766. “In my judgment no transaction of com- merce or business, or obligation for the pay- ment of money that is not immoral in its character and which is not, in its manifest purpose, detrimental to the peace, good order and general interest of society, can'be de- clared or held to be invalid because enforced or made payable in gold coin or currency when that is established or recognized by the government. And any acts by state author- ity impairing or lessening the validity or negotiability of obligations thus made pay- able in gold coin are violative of the laws and Constitution of the United States.” Freip, J. Woodruff v. Mississippi, 162 U. S. 306. “A large proportion of the property of the world exists in contracts, and the govern- ment has no more right to deprive one of their value by legislation operating directly upon them, than it has a right to deprive one of the value of any visible and tangible prop- erty.” Frerp, J., dissenting. Legal Tender Case, 110 U. S. 460. “Every citizen of the state, for the pro- tection of his vested rights, claims the guar- antee of the Constitution. This, indeed, im- poses the strongest obligation on the legisla- ture not to violate those rights.” McLzan, J. Charles River Bridge v. Warren Bridge, 11 Pet. 576. : “Whenever it is declared that this gov- ernment, ordained to establish justice, has the power to alter the condition of contracts between private parties, and authorize their payment or discharge in something different from that which the parties stipulated, thus disturbing the relations of commerce and the business of the community generally, the doc- trine will not and ought not to be readily accepted.” Frexp, J., dissenting. Legal Ten- der Case, 110 U. S. 451. “States may legislate on the subject of contracts, but the laws must not impair the obligation of such contracts.” THompson, J., dissenting. Ogden v. Saunders, 12 Wheat. 306. “Tt is the motive, the policy, the object, that must characterize the legislative act, to affect it with the imputation of violating the obligation of contracts.” Jounson, J. Og- den v, Saunders, 12 Wheat. 291. 898 IMPAIRMENT OF OBLIGATION OF CONTRACTS. “To give efficacy to a void contract, is not, it is true, violating a contract, but it is doing infinitely worse; it is advancing to the very extreme of that class of arbitrary and despotic acts, which bear upon ‘individual tights and liabilities, and against the whole of which the Constitution must clearly in- tended to interpose a protection commen- surate with the evil.’ JoHNnson, J. Satter lee v. Matthewson, 2 Pet. 414. “The legislature may pass a declaratory act, which, though inoperative on the past, may act in future.” MarsHatt, C. J. Post- master Gen. of U. S. v. Early, 12 Wheat. 148. “This court has had, perhaps, more fre- quent occasion to assert the inviolability of corporate charters in cases respecting the power of taxation than in any other, and ina long series of decisicsis has held that a clause imposing certain taxes in lieu of all other taxes, or of all taxes to which the company or stockholders therein would be subject, is impaired by legislation raising the rate of taxation, or imposing taxes other than those specified in the charter.” Brown, J. Pear- sall v. Northern R. Co., 161 U. S. 662. “TE it be provided in the charter of a bank that the bills and notes of the institution shall be received in payment of taxes or of debts due.to the state, such undertaking on the part of the state constitutes a contract between the state and holders of the notes, which the state is not at liberty to break, although notes issued after the repeal of the act are not within the contract and may be refused.” Brown, J. Pearsall v, Northern R. Co., 161 U. S. 663. “Should a statute declare, contrary to the general principles of Jaw, that contracts founded upon an illegal or immoral consid- eration, whether in existence at the time of passing the statute, or which might hereafter be entered into, should nevertheless be valid and binding upon the parties; all would ad- mit the retrospective character of such an enactment, and that the effect of it was to create a contract between parties where none had previously existed. But it surely cannot be contended, that to create a contract, and to destroy or impair one, mean the same thing.” Wasuinerton, J. Satterlee v. Mat- thewson, 2 Pet. 412. “Neither argument nor authority is nec- essary to prove that a state legislature can- not pass a valid law impairing the obligations of a contract, as that general proposition is universally admitted. Contracts under the Constitution are as sacred as the Constitu- tion that protects them from infraction, Cuirrorp, J. Mount Pleasant v. Beckwith, 100 U. S. 529. “A change of the expressed stipulations of a contract, or a relief of a debtor from strict and literal compliance with its require- ments, can no more be affected by an exer- tion of the taxing power than it can be by the exertion of any other power of a state leg- islature.” Stronc, J. Murray v. Charleston, 9 U.S. 444. * A law which interferes with the contracts of others and compels one of the parties to receive in satisfaction something different from that stipulated, without reference to its actual value in the market, necessarily works z injustice and wrong.” Frexp, J., dissenting, Legal Tender Case, 110 U. S. 468. “An act of the legislature, passed after a contract is made, which withdraws property then liable to be seized and sold, in enforce- ment of the contract, from the power of the courts to seize and sell it, impairs the obli- gation of the contract.” Mutter, J. New Orleans v. Morris, 105 U. S. 603. “No contract can impose a civil obligation beyond that prescribed by the existing law when the contract was made; nor can such obligation be impaired by controlling and dis- charging the contract according to the pro- visions of such law.” THompson, J., dis- senting. Ogden v. Saunders, 12 Wheat. 308. “It cannot, for a moment, be maintained, that a law which, in express terms, varies the construction of an existing contract, or which, repealing a former law, is made to produce the same effect, does not impair the obligation of that contract.” WASHINGTON, J., dissenting. Ogden v. Saunders, 12 Wheat. 262. “Can a state postpone the day fixed in an obligation for payment, or provide that a bend for the payment of money shall be dis- charged by the payment of anything else than money? This no one will contend can be done, because such an act would clearly im- pair the obligation of the contract; and no compensation, which the state could give, would make the act valid.” McLean, J. Charles River Bridge v. Warren Bridge, 11 Pet. 577. “A law which takes from the party his whole contract, and all the rights which it was intended to confer, must be regarded as 899 ; IMPAIRMENT OF OBLIGATION OF CONTRACTS. a law impairing its obligation.” MatTrHEws, J. Poindexter v. Greenhow, 114 U. S. 301. “Tn the nature of things it cannot be said that subsequent rights which are so limited as to prevent them in any degree from inter- fering with prior ones, can as a matter of legal conclusion be held to impair such pre- vious contract rights.” WuHits, J. Board of Liquidation v. Louisiana, 179 U. S. 639. “A law punishing a breach of a contract, by imposing a forfeiture of the rights ac- quired under it, or dissolving it because the mutual obligations were no longer observed, is in no correct sense a law impairing the obligations of the contract.” Story, J. Dartmouth College v. Woodward, 4 Wheat. 696. “A contract is property. To destroy it wholly or to destroy it partially is to take it; and to do this by arbitrary legislative action is to do it without due process of law.” BrabLey, J., dissenting. Sinking-Fund Cases, 99 U. S. 747, “Tn this country, no state can pass any law impairing the obligation of contracts; the Constitution of the United States for- bids such legislation. And the principle is founded in justice, independently of this con- stitutional provision.” Haran, J., dissent- ing. Canada Southern R. Co. v. Gebhard, 109 U. S. 542, “Legislation operating directly upon pri- vate contracts, changing their conditions, is forbidden to the states; and no power to alter the stipulations of such contracts by direct legislation is conferred upon Con- gress.” Fretp, J., dissenting. Legal Tender Case, 110 U. S. 468. “The obligation of a contract cannot be substantially impaired in any way by a state law. This restriction is beneficial to those whom it restrains, as well as to others.” Swayne, J. Edwards v. Kearzey, 96 U. S. 603. Test. “One of the tests that a contract has been impaired is, that its value has by legislation been diminished. It is not, by the Constitu- tion, to be impaired at all. This is not a question of degree or manner or cause, but of encroaching in any respect on its obligation, dispensing with any part of its force.” Woopsury, J. Planters’ Bank v. Sharp, 6 How, 327, “The test [whether a contract is uncon- stitutionally impaired] . . . is not the extent of the violation of the contract, but the fact that in truth its obligation is less- ened, in however small a particular, and not merely altering or regulating the remedy alone.” Woopsury, J. Planters’ Bank v. Sharp, 6 How. 330. “ Retrospective Laws which do not im- pair the obligation of contracts, or partake of the character of ex post facto laws, are not condemned or forbidden by any part of that instrument.” WasHiNcTon, J. Satter- lee v. Matthewson, 2 Pet. 413. “A prohibition of the doing of business after a statute goes into effect is not re- troactive with regard to that business, even though the business be done in pursuance of an earlier contract.” Hotmrs, J. Dia- mond Glue Co. v. U. S. Glue Co., 187 U. S. 614. Who May Complain of Impairment. “Where the legal or equitable rights of a party are not in any way touched and he is no way injured, he cannot be heard to com- plain of the impairment of the obligation of his contract, as a mere abstract proposition.” PeckHAM, J. Hooker v. Burr, 194 U. S. 422. What Laws Are Prohibited. “That the constitution of a state is a law of the state within the meaning of the Con- stitution of the United States, prohibiting states from passing laws impairing the ob- ligation of contracts, is not denied.” Brown, J. Bier v. McGehee, 148 U. S. 140. “It is well settled that a provision in a state Constitution may be a law impairing the obligation of a contract as well as one found in an ordinary statute.” Matter, J. Fisk v. Jefferson Police Jury, 116 U. S. 135. “A state can no more impair the obliga- tion of a contract by her organic law than by legislative enactment; for, her Constitu- tion is a law within the meaning of the con- tract clause of the national Constitution.” Haran, J. New Orleans Gas Co. v. Loui- siana Light Co., 115 U. S. 672. “The inhibition of the federal Constitution {against the impairment of contracts] is upon the state and not merely upon her legisla- ture. All the authority which her people can confer, whether by constitutional enactment or legislative provision, is subject to the in- 900 IMPAIRMENT OF OBLIGATION OF CONTRACTS. hibition.” Frievp, J., dissenting. Louisiana v. Jumel, 107 U. S. 733. “A state can no more impair an existing contract by a constitutional provision, than by a legislative act; both are within the pro- hibition of the national Constitution.” Swayne, J. Gunn wv. Barry, 15 Wall. 623. “Contracts [made by enactment of state statute] are so far protected by the provi- sions of the federal Constitution that even a change in the fundamental law of the state, by the adoption of a new Constitution, can- not impair them, though express provisions to that effect are incorporated in the new Constitution.” Mutter, J., dissenting. Washington University v. Rouse, 8 Wall. 442. “Regarding the impairment of any alleged contract, it must be borne in mind that the constitutional provision refers to state legis- lation, or to an enactment of a legislative character, though by a municipal corporation, made subsequent to the contract, and which impairs its obligation.” PrckHAM, J. New Orleans Waterworks Co. v. Louisiana, 185 Uz. S. 350. State Legislation Only Prohibited. “The provision that no state shall pass any law impairing the obligation of contracts applies only to state legislation.” Srrone, J., dissenting. Sinking-Fund Cases, 99 U. S. 736. Judicial. Decisions. “In order to come within the provision of the Constitution of the United States, which declares that no state shall pass any law im- pairing the obligation of contracts, not only must the obligation of a contract have been impaired, but it must have been impaired by some act of the legislative power of the state, and not by a decision of its judicial department only.” Gray, J. Central Land Co. v. Laidley, 159 U. S. 109. “The national Constitution forbids the states to pass laws impairing the obligation of contracts. In cases properly brought be- fore us that end can be accomplished unwar- rantably no more by judicial decisions than by legislation.” Swayne, J. Pine Grove Tp. v. Talcott, 19 Wall. 678. Impairment Federal Question. “Where a contract is claimed to arise from a state law and it is held below that a sub- sequent statute has repealed the alleged con- tract and effect is thereby given to the sub- sequent law, the mere question whether the alleged contract has been repealed by the subsequent law is a state and not a federal question. In such a case this court concerns itself not with the question whether the state law, from which the contract is as- serted to have arisen, has been repealed, but proceeds to determine whether the repeal was void because it produced an impairment of the obligations of the contract within the purview of the Constitution of the United States.” Wuutr, J. Northern Cent. R. Co. v. Maryland, 187 U. S. 266. “Where it is charged that the obligation of a contract has been impaired by a state law and the state courts justify such impairment by the application of some general rule of law to the facts of the case, it is our duty to inquire whether the jus- tification is well grounded. If it is not, the party is entitled to the benefit of the con- situtional protection.” Braptey, J. Given uU. Wright, 117 U. S. 655. “In determining whether a statute of a state impairs the obligation of a contract, this court doubtless must decide for itself the existence and effect of the original con- tract (although in the form of a statute) as well as whether its obligation has been im- paired.” Gray, J. Vicksburg, etc., R. Co. v. Dennis, 116 U. S. 667. Duty of Courts. “The duty not less than the power of this court as well as of every other court in the Union, to declare a law unconstitutional which impairs the obligations of contracts, whoever may be the parties to them, is too clearly enjoined by the Constitution itself, and too firmly established by the decisions of this and other courts, to be now shaken.” Wasuincton, J. Green v. Biddle, 8 Wheat. 92. “Tt is the duty of the state courts as well as of the federal courts to see to it that no act of a state legislature impairing the obli- gation of a contract is sustained, and it is the duty of the federal courts as well as of the state courts to see to it that no act of a state legislature is avoided on the pretext of impairment of the obligations of a con- tract, when in fact there is no contract to impair.” . Futter, C. J., dissenting. Deposit Bank v. Frankfort, 191 U. S. 523. Jurisdiction of United States Supreme Court. “The Constitution prohibited the states from passing any law impairing. the obliga- 901 IMPAIRMENT OF OBLIGATION OF CONTRACTS. tion of contracts. This did not give to Con- gress power to provide laws for the general enforcement of contracts; nor power to in- vest the courts of the United States with jurisdiction over contracts, so as to enable parties to sue upon them in those courts. It did, however, give the power to provide remedies by which the impairment of con- tracts by state legislation might be counter- acted and corrected: and this power was exercised. The remedy which Congress ac- tually provided was that contained in the 25th section of the Judiciary Act of 1789, 1 Stat. 85, giving to the Supreme Court of the United States jurisdiction by writ of error to review'the final decisions of state courts whenever they should sustain the validity of a state statute or authority alleged to be repugnant to the Constitution or laws of the United States. By this means, if a state law was passed impairing the obligation of a con- tract, and the state tribunals sustained the validity of the law, the mischief could be corrected in this court. The legislation of Congress, and the proceedings provided for under it, were corrective in their character. No attempt was made to draw into the United States courts the litigation of con- tracts generally and no such attempt would have been sustained. We do not say that the remedy provided was the only one that might have been provided in that case. Probably Congress had power to pass a law giving to the courts of the United States direct jurisdiction over contracts alleged to be impaired by a state law; and under the broad provisions of the Act of March 3d, 1875, ch. 137, 18 Stat. 470, giving to the Circuit Courts jurisdiction of all cases aris- ing under the Constitution and laws of the United States, it is possible that such juris- diction now exists. But under that, or any other law, it must appear as well by allega- tion, as proof at the trial, that the Constitu- tion had been violated by the action of the state legislature. Some obnoxious state law passed, or that might be passed, is necessary to be assumed in order to lay the foundation of any federal remedy in the case; and for the very sufficient reason, that the constitu- tional prohibition is against state laws im- pairing the obligation of contracts.” Brap- Ley, J. Civil Rights Cases, 109 U. S. 12. State Control over Remedies. : “In modes of proceeding and forms to enforce the contract the legislature has the control and may enlarge, limit, or alter them, provided it does not deny a remedy or so em- barrass it with conditions or restrictions as seriously to impair the value of the right.” Woops, J. Penniman’s Case, 103 U. S. 720. “All the cases in this court, where the question has arisen, agree in holding that ‘the states may change the remedy, pro- vided no substantial right secured by the contract is impaired.’ It is enough if the contract is ‘left with the same force and effect, including the substantial means of enforcement, which existed when it was made.’ The guaranty of the Constitution gives it protection to that extent.” Waltz, C. J. South Carolina v. Gaillard, 101 U. S. 437, “A modification of the remedy for a breach of the contract, does fot, in the sense of the Constitution, impair its obliga- tion. The thing to be done, and the time of performance, remain on the face of the contract in all their binding force upon the parties; and these are shielded by the Constitution, from legislative interference.” McLean, J. Charles River Bridge vw. War- ren Bridge, 11 Pet. 574. “The distinction between the obligation of a contract, and the remedy given by the legislature to enforce that obligation, has been taken at the bar, and exists in the na- ture of things. Without impairing the ob- ligation of the contract, the remedy may cer- tainly be modified as the wisdom of the na- tion shall direct.” Marsuatt, C. J. Sturges v. Crowninshield, 4 Wheat. 200. “Tt is competent for the states to change the form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired. No attempt has been made to fix definitely the line between alter- ations of the remedy, which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances. Whenever the result last mentioned is produced the act is within the prohibition of the Constitttion, and to that extent void.” Swayne, J. Von Hoff- man v. Quincy, 4 Wall. 553. “Modes of procedure in the courts of a state are so far within its control that a particular remedy existing at the time of the making of a contract may be abrogated al- together without impairing the obligation of the contract if another and equally adequate remedy for the enforcement of that obliga- tion remains or is substituted for the one 902 IMPAIRMENT OF OBLIGATION OF CONTRACTS. taken away.” Harian, J. New Orleans City, ete., R. Co. v. New Orleans, 157 U. S. 224, “Tf a particular form of proceeding is prohibited, and another is left or is provided which affords an effective and reasonable mode of enforcing the right, the obligation of the contract is not impaired.” Hunt, J. Tennessee v. Sneed, 96 U. S. 74. “ Changes in the forms of action and modes of proceeding do not amount to an impair- ment of the obligations of a contract, if an adequate and efficacious remedy is left. This limitation upon the prohibitory clause of the Constitution in respect to the legislative power of the states over the obligation of contracts was suggested by Chief Justice Marshall.” Waite, C. J. Antoni v. Green- how, 107 U. S. 774, “The principle that what is apparently mere matter of remedy in some circum- » stances, in others, where it touches the sub- stance of the controversy, becomes matter of right, is familiar in our constitutional jurisprudence in the application of that pro- vision of the Constitution which prohibits the passing by a state of any law impairing the obligation of contracts.” MatrHews, J. Pritchard v. Norton, 106 U. S. 132. “The legislative power of a state over con- tracts is without restriction by the Constitu- tion of the United States; except that their obligation cannot be impaired. With this single exception, a state legislature may reg- ulate contracts, both as to their form and substance, as may be thought advisable.” McLean, J. Craig v. Missouri, 4 Pet. 459. “The states and the United States are continually legislating on the subject of con- tracts, prescribing the mode of authentica- tion, the time within which suits shall be prosecuted for them, in many cases affecting existing contracts by the laws which they pass, and declaring them to cease or lose their effect for want of compliance, in the parties, with such statutory provisions. All these acts appear to be within the most cor- rect limits of legislative powers, and most beneficially exercised.” JoHNson, J., dis- senting. Fletcher v. Peck, 6 Cranch 145. “In placing the obligation of contracts under the protection of the Constitution, its framers looked to the essentials of the con- tract more than to the forms and modes of proceeding by which it was to be carried into execution; annulling all state legislation which impaired the obligation, it was left to the states to prescribe and shape the remedy to enforce it.’ Batpwin, J. Mc- Cracken v. Hayward, 2 How. 612. “In the execution of admitted powers un- necessary proceedings are often required which are cumbersome, dilatory and expen- sive yet, if no discrimination against any one be made and no substantial right be im- paired by them, they are not obnoxious to any constitutional objection. The inconven- jences arising in the administration of the laws from this cause are matters entirely for the consideration of the state; they can be remedied only by the state.” Fievp, J. Bar- bier v. Connolly, 113 U. S. 32. “There are numerous decisions showing that a change of the law which hindered or delayed the creditor in collecting his debt, though it related to the remedy or mode of procedure by which it was to be collected, impaired the obligation of the con- tract within the meaning of the Constitution.” Mrter, J. Kring v. Missouri, 107 U. S. 233. “The only ground on which a change of remedy existing when a contract was made is permissible without impairment of the contract is, that a new and adequate and ef- ficacious remedy be substituted for that which is superseded.” Fietp, J. Louisiana v. Pilsbury, 105 U. S. 301. “The remedy subsisting in a state when and where a contract is made and is to be performed is a part of its obligation, and any subsequent law of the state which so ef- fects that remedy as substantially to impair and lessen the value of the contract is for- bidden by the Constitution, and is, therefore, void.” Swayne, J. Edwards v. Kearzey, 96 U. S. 607. “The legal remedies for the enforcement of a contract, which belong to it at the time and place where it is made, are a part of its obligation, A state may change them, pro- vided the change involve no impairment of a substantial right. If the provision of the Constitution, or the legislative act of a state, fall within the category last mentioned, they are to that extent utterly void. They are, for all the purposes of the contract which they impair, as if they had never existed.” Swayne, J. Gunn v. Barry, 15 Wall. 623. “When we are asked to put . . . [a] -case within the rule of those cases in which we have held that it is competent for the states to change the form of the remedy, or 903, IMPAIRMENT OF OBLIGATION OF CONTRACTS. to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired, we are bound to consider the entire scheme of the new statute, and to have regard to its probable effect on the rights of the parties.” SHzras, J. Barnitz v. Beverly, 163 U. S. 131. “Certainly it would not be claimed that the change of an ordinary statute, which pro- vided a remedy for the enforcement of con- tracts, so as to prevent the recovery of costs when they had been given before, would impair the obligation of contracts between individuals that were affected by what was done.” Watts, C. J. Antoni v. Greenhow, 107 U. S. 781. “Tt certainly is not an impairment of an old remedy to make that imperative which before was discretionary.” Watts, C. J. Antoni v. Greenhow, 107 U. S. 778. “Deprivation of a remedy is equivalent to a deprivation of the right which it is in- tended to vindicate, unless another remedy exists or is substituted* for that which is taken away.” Brapiey, J., dissenting. Campbell v. Holt, 115 U. S. 631. ~ “This court has frequently held that to deprive a man of a remedy for enforcing a contract is itself a mode of impairing the validity of the contract.” Braptey, J., dis- senting. Campbell v. Holt, 115 U. S. 631. “A vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference. Whether it springs from contract or from the principles of the common law, it is not competent for the legislature to take it away. A vested right to an existing defense is equally protected, saving only those which are based on in- formalities not affecting substantial rights, which do not touch the substance of the contract and are not based on equity and justice.” Matruews, J. Pritchard v. Nor- ton, 106 U. S. 132. “The Constitution preserves only such remedies as are required to enforce a con- tract.” Waite, C. J. Memphis, etc., R. Co. v. Tennessee, 101 U.S. 340. “Remedies are the life of rights, and are equally protected by the Constitution.” BraDley, J., dissenting. Campbell v. Holt, 115 U. S. 631. “The power to tax involves the power to destroy. The power to modify at discretion the remedial part of a contract is the same thing.” Swayne, J. Edwards v. Kearzey, 96 U. S. 602. “There are in that instrument [the Con- stitution] grants of power, prohibitions and general reservations of ungranted powers. That in the grant of powers there was no purpose to bind governmental action by the restrictive force of a code of criminal pro- cedure has been again and again asserted.” Brewer, J. Fairbank v. U. S., 181 U. S. 287. “Tf, in professing to alter the remedy only, the duties and rights of a contract itself are changed or impaired, it comes just as much within the spirit of the constitutional prohibition.” Woopsury, J. Planters’ Bank v, Sharp, 6 How. 330. Curative Statutes. “There is nothing in that instrument [the Constitution] which prohibits the legislature of a state or territory from exercising ju- dicial functions, nor from passing an act which divests rights vested by law, provided its effect be not to impair the obligation of a contract. Contracts are not impaired but confirmed by curative statutes.” SWAYNE, J. Randall v. Kreiger, 23 Wall. 147. Divorce Laws. “A general law regulating divorces from the contract of marriage, like a law regulat- ing remedies in other cases of breaches of contracts, is not necessarily a law impairing the obligation of such a contract.” Story, J. Dartmouth College vw. Woodward, 4 Wheat. 695. Rules of Evidence. “Courts of high authority have held that mere rules of evidence do not form part of contracts entered into while they are in force, and that it is competent for the legislature to, from time to time, change the rules of evidence, and to make such change applicable to existing causes of action.” Sxzras, J. Marx v. Hanthorn, 148 U. S. 181. Stay Laws. “Tt is the established law of North Caro- lina that stay laws are void, because they are in conflict with the national Constitu- tion. This ruling is clearly correct. Such laws change a term of the contract by postponing the time of payment. This im- pairs its obligation, by making it less val- uable to the creditor.” Swayne, J. Ed- wards v. Kearzey, 96 U. S. 601. 904 IMPLIED AND QUASI CONTRACTS. IMPEACHMENT. Mode of Impeachment. “The Senate exercises the judi- cial power of trying impeachments, and the House of preferring articles of impeach- ment.” Mutter, J. Kilbourn v. Thompson, 103 U. S. 191. Impeachment of Territorial Judges. “The judges of the Supreme Court of the territory of Nebraska are appointed by the President and confirmed by the Senate of the United States. The people of the territory have no agency in appointing them and no power to remove them. The territorial legis- lature cannot prescribe conditions for the tenure or loss of the office. Such legislation on their part would be a nullity. Impeach- ment and conviction by them would be futile as to removal.” Swayne, J. Nebraska vw. Lockwood, 3 Wall. 239. IMPLIED AND QUASI CONTRACTS. Contracts Implied in Law. “ Although no express contract pe made, yet it cannot be doubted that the law im- plies a contract between every man who transacts business for another at the re- quest of that other and the person for whom it is transacted.” MArsHALL, C. J. Massie v. Watts, 6 Cranch 161. “Persons often contract to manufacture scme particular article and in such cases the law implies a corresponding obligation on the part of the other party to take it when it is completed according to the contract, because if it were not so the party rendering the services and incurring the expense in ful- filling his contract could not claim any re- muneration.” CiiFForD, J. Hudson Canal Co. v. Pennsylvania Coal Co., 8 Wall. 289. “Tf one person covenants or engages by contract to buy an estate of another at a given price, the law will imply a corre- sponding obligation on the part of such other person to sell, although the contract is silent as to any such obligation, as the person con- tracting to purchase cannot fulfil his con- tract unless the other party will consent to sell.” CtiFForp, J. Hudson Canal Co. v. Pennsylvania Coal Co., 8 Wall. 289. —— Necessary Implications. “Undoubtedly necessary implication is as much a part of an instrument as if that which is so implied was plainly expressed, but omissions or defects in written instru- ments cannot be supplied by virtue of that rule unless the implication results from the language employed in the instrument, or is indispensable to carry the intention of the parties into effect.” C.irrorp, J. Hudson Canal Co. v. Pennsylvania Coal Co., 8 Wall. 288. “Where the act to be done by one of the contracting parties can only be done upon something of a corresponding character be- ing done by the opposite party, the law in such a case, if the contract is so framed that it binds the party contracting to do the act, will imply a correlative obligation on the part of the other party to do what is necessary on his part to enable the party so contracting to accomplish his undertaking and fv'"] his contract.” C.irrorp, J. Hud- son Canal Co. v. Pennsylvania Coal Co., 8 Wall. 288. “Tf one person engages to work and ren- der services which require great outlay of money, time, and trouble, and he is only paid according to the work he performs, the con- tract necessarily implies an obligation on the part of the employer to supply the work.” CuirForD, J. Hudson Canal Co. v. Pennsyl- vania Coal Co., 8 Wall. 289. — Assent Often Wanting. “In that large class of transactions des- ignated in the law as implied contracts, the assent or convention which is an essential ingredient of an actual contract is often wanting. Thus, if a-party obtain the money of another by mistake, it is his duty to re- fund it, not from any agreement on his part, but from the general obligation to do justice which rests upon all persons. In such case the party makes no promise on the subject; but the law, ‘consulting the interests of mo- rality,’ implies one; and-the liability thus aris- ing is said to be a liability upon an implied contract.” Frexp, J. Pacific Mail Steamship Co. v. Joliffe, 2 Wall. 457. “Contracts Absolute, and Unconditional, upon Their Face, Are Often Considered Subject to an Implied Condition which the law establishes as applicable to such cases.” Tuompson, J., dissenting. Ogden v. Saun- ders, 12 Wheat. 297. Implied Contract Arises Only When Ex- press Contract Is Silent. “Tt is only when the express contract is silent, that the implied contract can arise.” 905 IMPORTS, EXPORTS, AND CUSTOMS DUTIES. Jounson, J. Gracie v. Palmer, 8 Wheat. 634, “No exception of a private nature, which is not contained in the contract itself, can be engrafted upon it by implication as an excuse for its non-performance.” CAMPBELL, J. Howland v. Greenway, 22 How. 502. “Express stipulations cannot in general be set aside or varied by implied promises; or, in other words, a promise is not implied where there is an express written contract, unless the express contract has been re- scinded or abandoned, or has been varied by the consent of the parties.” CuiFrorp, J. Hawkins v. U. S., 96 U. S. 697. IMPORT. “The word ‘import’ necessarily meant bringing into the county and town from their boundaries.” Futter, C. J. Arkansas wv. Kansas, etc., Coal Co., 183 U. S. 189. IMPORTS, EXPORTS, AND CUSTOMS DUTIES. I. DEFINITIONS AND GENERAL PRIN- CIPLES. II. Power to Lay Duties on Im- PORTS OR Exports. 1. Duties on Imports. a. Power of Congress. b. Power of States. 2. Taxes or Duties on Exports. III. AssessMENT, CoLLECTION, AND PAYMENT OF DUTIES. 1. Dutiable Articles, 2. Designation and Classification of Ar- ticles. 3. Dutiable Value. 4, Appraisal Proceedings. 5. Entry of Goods and Payment of Duties. 6. Action for Duties Illegally Exacted. IV. Powers anp Duties oF OFFICERS. V. EvasIONS OR VIOLATIONS OF THE Customs Laws. CROSS-REFERENCES. That a bill of exchange is not am import or export, see. NecoTiaBLe InstRu- MENTS. : As to liens for fees under inspection laws, see LIENS. See also Bonps; Bounties; Congussts; Exportation; Fines, PeNnauties, anv For- FEITURES; FRuitT; INnFormMATIONS; LiImITA- TION oF ACTIONS; MANUFACTURES; PROBABLE Cause; Revenue Laws; SAuce; SEEDS; SmuccLinG; Tapioca; ToBAcco; VEGETABLES ; WASTE (WOOLEN). I. DEFINITIONS AND GENERAL PRINCIPLES. Import — Importer. “The word import, in a commercial sense, means the goods or other’articles brought into this country from abroad—from ar- other country. In this sense an importer is a petson engaged in foreign commerce.” McLean, J. License Cases, 5 How. 594. “Imported Merchandise is that which arrives in this country, and it is upon that duties are to be paid.” McKenna, J. American Sugar Refining Co. v. U. S., 181 U. S. 613. Import Includes Goods Only, Not Persons. “J think it may be safely affirmed, that, both in England and this country, the words import and importation, in statutes, in statis- tical tables, in official reports, and in public debates, have uniformly been applied to ar- ticles of property, and never to passengers voluntarily coming to the’ country in ships; and in the debates of the convention itself, the words are constantly used.” Taney, C. J., dissenting. Passenger Cases, 7 How. 477. ; “An import is an article of mer- chandise, goods of some kind — property, ‘commodities.’ It does not include persons unless they are brought in as prop- erty—as slaves, unwilling or passive em- igrants.” Woopzsury, J., dissenting. Pas- senger Cases, 7 How. 535. Duties. “The term duty is the most comprehen- sive next to the generical term tax; and practically in Great Britain (whence we take our general ideas of taxes, duties, im- posts, excises, customs, etc,, embraces taxes on stamps, tolls for passage, etc., etc., and is not confined to taxes on importation only.” CuaseE, J. Hylton v. U. S., 3 Dall. 175. “A duty on imports is a tax on the article, which is paid by the consumer.” MarsHAtt, C. J. Brown v. Maryland, 12 Wheat. 440. “Duties are defined by Tomlin to be things due and recoverable by law. The term, in its widest signification, is hardly less 806 IMPORTS, EXPORTS, AND CUSTOMS DUTIES. comprehensive than ‘taxes.’ It is applied, in its most restricted meaning, to custorns; and in that sense is nearly the synonym of ‘im- posts.’” Swayne, J. Pacific Ins. Co. wv. Soule, 7 Wall. 445. “Customs Duties Are Duties Imposed on imports or exports.” FuLer, C. J., dis- senting. Dooley v. U. S., 183 U. S. 168, Duty and Excise. “What is the natural and common, or technical and appropriate, meaning of the words, duty and excise, it is not easy to as- certain.” Parerson, J., concurring. Hylton v. U. S., 3 Dall. 176. Duty Is on Thing Imported or Exported. “A duty on imports,’ then, is not merely a duty on the act of importation, but is a duty on the thing imported.” MarsHaAtt, C. J. Brown v. Maryland, 12 Wheat. 437. “They [exports] are the things exported —the articles themselves. A duty on ex- ports is not merely a duty on the act of exportation, but is a duty on the article ex- ported, and the article exported remains such until it has reached its final destination. The place of collection is purely incidental, and immaterial on the question of power.” Fut- Ler, C. J., dissenting. Dooley v. U. S., 183 U. S. 174. Impost. “An impost, or duty on imports, is a cus- tom or a tax levied on articles brought into a country, and is most usually secured before the importer is allowed to exercise his rights of ownership over them, because evasions of the law can be prevented more certainly by executing it while the articles are in its custody.” Mars#a.t, C. J. Brown v. Mary- land, 12 Wheat. 437. “An impost is usually an ad valorem or specific duty.” Woopsury, J., dissenting. Passenger Cases, 7 How. 535. “Impost is a duty on imported goods and merchandise. In a larger sense, it is any tax or imposition. Cowell says it is dis- tinguished from custom, ‘because custom is rather the profit which the prince makes on goods shipped out.” Mr. Madison consid- ered the terms ‘duties’ and ‘imposts’ in these clauses as synonymous. Judge Tucker thought ‘they were probably intended to comprehend every species of tax or contribu- tion not included under the ordinary terms “taxes and excises.”’” Swayne, J. Pa- cific Ins. Co. v. Soule, 7 Wall. 445. Impost Is Tax, and Not a Regulation of Commerce. “Tt has always been held that the power to regulate commerce does not give to Con- gress the power to tax it, nor prohibit the states from taxing it in their own ports, and within their own jurisdiction. The authority of Congress to lay taxes upon it is derived from the express grant of power, in the eighth section of the first article, to lay and collect taxes, duties, imposts, and excises, and the inability of the states to tax it arises from the express prohibition contained in the tenth section of the same article.’ Taney, C. J., dissenting. Passenger Cases, 7 How. 479, ! “T may .. . safely assume, that, ac- cording to the true construction of the Con- stitution, the power granted to Congress to regulate commerce did not in any degree abridge the power of taxation in the states; and that they would at this day have the right to tax the merchandise brought into their ports and harbors by the authority and under the regulations of Congress, had they not been expressly prohibited.” Taney, C. J., dissenting. Passenger Cases, 7 How. 480. “Tt has been well held in this court that under the Constitution the taxing of im- ports is not a regulation of commerce, nor to be sustained under that grant, but under the grant as to taxation.” Woopgury, J., dissenting. Passenger Cases, 7 How. 549. “Tt has been deliberately held by this court that the laying a duty on imports, . . . is an exercise of the taxing power, and not of that to regulate commerce.” Woopzury, J., dissenting. Passenger Cases, 7 How. 554. — Tax Is Not Necessarily an Impost or Duty. “ Although an impost or duty may be con- sidered a tax in its most enlarged sense, yet every tax cannot be understood to mean an impost or duty in the sense of the Constitu- tion.” THompson, J., dissenting. Brown v. Maryland, 12 Wheat. 456. “Imports” and “Exports” Apply Only to Trade with Foreign Countries. “The terms ‘imports’ and *exports’ ap- ply only to articles imported from foreign countries or exported to them.” Fierp, J. Pittsburgh, etc, Coal Co. vw. Louisiana, 156 U. S. 600. “The words ‘impotts’ and ‘exports,’ as therein [in the U. S. Constitution] used, 907 IMPORTS, EXPORTS, AND CUSTOMS DUTIES. have been held to apply only to articles im- ported from, or exported to, foreign coun- tries.” Futter, C. J. Patapsco Guano Co. v. North Carolina, 171 U. S. 350. “The term import, as used in sect. 10, art. 1, of the Constitution, had reference to ar- ticles imported from foreign countries, and not to such as were brought from one of the states of the Union into another.” Haran, J. Guy v. Baltimore, 100 U. S. 437. “The word ‘export’ as used in the Con- stitution and laws of the United States, generally means the transportation of goods from this to a foreign country.” Brewer, J. Swan, etc., Co. v. U. S., 190 U. S. 145. “Another country or state as the intended destination of the goods is essential to the idea of exportation.” Brewer, J. Swan, etc, Co. v. U. S., 190 U. S. 145. What Constitutes Importation. “Where goods are brought by superior force, or by inevitable necessity, into the United States, they are not’ deemed to be so imported, in the sense of the law, as neces- sarily to attach the right to duties. If, how- ever, such goods are afterwards sold or con- sumed in the country or incorporated into the general mass of its property, they be- come retroactively liable to the payment of duties.” Story, J. The Brig Concord, 9 Cranch 388, “Where the voyage is not ended, and there is no obstruction to prevent its being contin- ued, goods are not regarded as having been imported into the United States until the vessel transporting the same has arrived at some one of our maritime ports with the in- tent to unlade the cargo.” CLiFFoRD, J. War- ing v. Mobile, 8 Wall. 120. Purpose of Tariff Laws. “Whether duties shall be imposed with the view to protect our manufactures, or for purposes of revenue only, has always been a leading subject of discussion in Congress; and also what foreign articles may be ad- mitted free of duty.” McLean, J. Passen- ger Cases, 7 How. 406. “Duties may . . . be imposed at times to regulate commerce, but oftener are im- posed with a view to revenue.” Woopgury, J., dissenting. Passenger Cases, 7 How. 549. “The right to impose a duty for the pur- pose of revenue, produced a war as impor- tant, perhaps, in its consequences to the hu- man race, as any the world has ever wit- nessed.” MarsHA.., C. J. Gibbons v. Og- den, 9 Wheat. 202. Drawback Laws. “Drawback laws relate to an article after it is manufactured. The mere use of im- ported materials in manufacturing does not entitle the manufacturer to a drawback, and it is only when the manufactured goods are imported that the reason for the repayment of duty arises. In such instances the expor- tation and the ascertainment of the character and quality of the imported materials exist- ing in the manufactured article are subjected to regulation, but not the process of manu- facture.” Furier, C. J; Dunlap v. U. S., 173 U. S. 72. Luxuries Should Pay High Tax in Order to Exonerate Necessities. “Champagne is a beverage singularly grateful to the taste, and is indulged in by those who are supposed to be able and will- ing to pay the tax upon it. It is an article of high luxury, and, upon the soundest prin- ciples of economy, should pay a high tax, that articles of necessity may, if possible, gountaxed.” Huwnrt,J. DeBary v. Arthur, 93 U.S. 423. Il. POWER TO LAY DUTIES ON IMPORTS OR EXPORTS. 1. Duties on Imports. a. Power of Congress. Authority to Make Customs Regulations Is Given by the Constitution. “Customs regulations are not determined by the Constitution. The authority to make them is given by that instrument to Con- gress; and it was for Congress to say what should be the nature of the customs regula- tions to be observed in Hawaii.” Haruan, J., dissenting. Hawaii v. Mankichi, 190 U. S. 242. — Power Is Discretionary, Not Manda- tory. “Congress has power to encourage expor- tation by remitting taxes on goods manufac- tured at home as it has power to encourage manufactures by duties on imports, yet the Constitution does not compel it to do either the one or the other.” Brewer, J. Cornell v. Coyne, 192 U. S. 426. Congress Has Exclusive Power. “Congress alone has the power to lay taxes and duties.” Braptey, J. Merritt v. Welsh, 104 U. S. 701. 908 IMPORTS, EXPORTS, AND CUSTOMS DUTIES. “Imports are exclusively within the tax- ing power of Congress.” WduiTtE, J. Knowl- ton v. Moore, 178 U. S. 59. Uniformity of Imports. “Uniformity of imports and excises is re- quired by the Constitution.” Danze, J. Cary v. Curtis, 3 How. 242. “In England, nowhere had the conception of a limitation on the power to levy duties, imposts and excises by an intrinsic rule of uniformity found utterance, and the practice which had obtained, it may be said, was com- monly to the contrary.” WuitTE, J. Knowl- ton v. Moore, 178 U. S. 89. “From the very first Congress down to the present date, in laying duties, imposts, and excises, the rule of inherent uniformity, or, in other words, intrinsically equal and uniform taxes, has been disregarded, and the principle of geographical uniformity consist- ently enforced. Take, for a general example, specific import duties, by which particular specific rates are imposed on enumerated ar- ticles, without reference to their value. It is manifest that all such duties are void, if intrinsic equality and uniformity be the rule, and yet in all the great controversies which have arisen over the policy of impost duties generally, and particularly as to the economic wisdom of specific duties, it never has been contended that the power to impose them did not exist because of the uniformity clause of the Constitution. So, also, mention may be made of the common form of the excises on distilled spirits with the tax per gallon without reference to the value thereof.” Waitt, J. Knowlton v. Moore, 178 U. S. 92. “Tt cannot be . . . framers of the Constitution, in using the words ‘uniform throughout the United States,’ contemplated to confer the power to levy duties, imposts and excises, and yet to accompany this grant of authority with a restriction which had never found expression as to such taxes at that time anywhere, and which was contrary to the practice which had uniformly obtained both in the mother coun- try and in the colonies, and in the states prior to the adoption of the Constitution.” Wuirz, J. Knowlton v. Moore, 178 U. S. 92. supposed that the Discriminating Duties. “Discriminating duties were never laid by Congress, except they were retaliatory, and for the purpose of coercing other nations to a modification or repeal of their restrictions upon commerce and navigation.” Wayne, J. Oldfield v. Marriott, 10 How, 172. Power to Impose Duties on Commerce Between the States. “Tt is settled that the power of Congress to lay an impost duty does not give the right to levy such a duty on merchandise coming from one part of the United States to the other.” Wuute, J., dissenting. Dooley v. Uz. S., 182 U. S. 239. * When, in the exercise of its powers to lay impost duties, Congress specifies such duties are to be collected on merchandise from foreign countries, those words but generally embody the declaration of Congress that it is exerting its taxing power conformably to the Constitution; that is, it is causing the taxes which are levied to be applicable to the entire area to which they may be ex- tended under the Constitution.” Wauurte, J., dissenting. Dooley v. U. S., 182 U. S. 239. “The command . in tariff laws, that impost duties when laid shall be collected on all merchandise coming from ‘foreign coun- tries,’ is but a provision that they are to be levied on merchandise arriving from coun- tries which are not a part of the United States, within the meaning of the tariff laws, and which are hence subject to such duties.” WuitE, J., dissenting. Dooley v. U. S., 182 U.S. 239. “The right to carry legitimate articles of commerce from one state to another state without interference by national or state au- thority was, it has always been supposed, firmly established and secured by the Con- stitution. But that right may be destroyed or greatly impaired if it be true that articles may be taxed by Congress by reason of their being carried from one state to another.” Futter, C. J., dissenting. Dooley v. U. S,, 183 U. S.° 169. Conclusiveness of Tariff Laws. “Tt is not within the province of the treas- ury department or the court to decide upon the reasonableness or unreasonableness of a tariff which it is evident Congress intended to impose.” Taney, C. J. Lawrence v. Cas- well, 13 How. 497. “In the absence of any declaration by Congress affecting the manner in which the provision [penalties on imports] shall be treated, courts must decide the matter in ac- cordance with their views of the nature of the act.” Prcxuam, J. Helwig uv: U. S.. 188 U. S. 613. “Tf it clearly appears that it is the will of Congress that the provision [penalties on 909 IMPORTS, EXPORTS, AND CUSTOMS DUTIES. imports] shall not be regarded as in the na- ture of a penalty, the court must be governed by that will.” Precxuam, J. Helwig v. U.S, 188 U. S. 613. b. Power of States. States Cannot Lay Duties Without Con- sent of Congress. “The Constitution requires that all ‘duties and imposts shall be uniform,’ and declares that ‘no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another.’ Now, it is inexplicable to me how thirteen or more independent states could tax im- ports under these provisions of the Constitu- tion. The tax must be uniform throughout the Union; consequently the exercise of the power by any one state would be unconsti- tutional, as it would destroy the uniformity of the tax. To secure this uniformity was one of the motives which led to the adoption of the Constitution.” McLean, J. Passen- ger Cases, 7 How. 405. “Tt was different between the states as to imposts or duties on imports and tonnage which embarrassed their intercourse with each other and with foreign nations, and which mainly lead to the new Constitution, and not the mere regulation of commerce. It was hence that the states in re- spect to duties and imposts were not left to exercise concurrent powers, and this was prevented, not merely by empowering Con- gress to tax imports, but by expressly for- bidding the states to do the same.” Woop- BurRY, J., dissenting. Passenger Cases, 7 How. 558, “That the power to regulate commerce with foreign nations and among the states is vested in Congress, and that no state with- out the consent of Congress can lay any duties or imposts on imports or exports, ex- cept what may be absolutely necessary for executing its inspection laws, or any duty of tonnage, are familiar provisions of the Con- stitution, which have been frequently and thoroughly examined in former judgments of this court.” Caasg, C. J. New Orleans Southern Steamship Co. v, Portwardens, 6 Wall. 32. “The Constitution provides that no state shall, without the consent of the Congress, lay any imposts of duties on im- ports or exports, except what may be abso- lutely necessary for executing its inspection laws, with a view to raise a revenue for state purposes.” CxirForp, J. Waring v. Mobile, 8 Wall. 121. “They [states] cannot (however) with- out the consent of Congress, lay any duty of tonnage, nor can they levy any imposts or duties on imports or exports, except what may be absolutely necessary for executing the'r inspection. laws, as without the consent of Congress they are unconditionally prohib- ited from exercising any such power.” CLIF- FoRD, J. State Tonnage Tax Cases, 12 Wall. 212. “State power to lay and collect taxes may reach every subject over which the unre- stricted power of the state extends, but the states cannot, without the consent of Con- gress, lay any imposts or duties on imports or exports except what may be absolutely necessary for executing their inspection laws; nor can they, without the consent of Con- gress, lay any duty of tonnage, as they are expressly prohibited from so doing by the Constitution.” CziiFForD, J. Ward v. Mary- land, 12 Wall. 426. “States may, indeed, under the Constitu- tion, lay duties on foreign imports and ex- ports, for the use of the treasury of the United States, with the consent of Congress, ‘but they do not derive the power from the general government. The power pre-existed, and it is its exercise only that is subjected to the discretion of Congress. Congress may lay local taxes in territories, affecting per- sons and property therein, or authorize terri- torial legislatures to do so, but it cannot lay tariff duties on articles exported from one state to another, or from any state to the territories, or from any state to foreign coun- tries, or grant a power in that regard which it does not possess.” Futter, C. J., dissent- ing. Dooley v. U. S., 183 U. S. 175. “The section [of the Constitution] which prohibits the states from laying duties on im- ports or exports, proves that this power might have been exercised, had it not been expressly forbidden.” MarsHatt, C. J. Gibbons v. Ogden, 9 Wheat. 200, —— Importation of Goods Is Subject of National, and Not of State, Regulation. “Tt must be remembered that the impor- tation of goods is a subject of national and not of state regulation, that such power of regulation continues until the final delivery of the imported articles.” Brewer, J. Wa- bash R. Co. v. Pearce, 192 U. S. 188. 910 IMPORTS, EXPORTS, AND CUSTOMS DUTIES. —— Duties on Commerce Between the States. “Tn these two articles [6 and 9] of the Confederation, the words imports, ex- ports, and imposts are used with exclusive reference to foreign trade, because they have regard only to the treaty-making power of the federation.” Mutter, J. Woodruff v. Parham, 8 Wall. 134. “There is nothing in its [the constitution- al clause providing that no state shall with- out consent of Congress lay duties on imports or experts except when necessary for exe- cuting inspecting laws] terms, or connection, that affords the slightest indication that it was intended to be confined to the prohibition of a tax upon foreign imports.” Netson, J., dissenting. Woodruff v. Parham, 8 Wall. 142. “At the time the delegates assembled in 1787 to form the Constitution, they repre- sented states that for all the substantial purposes of government were foreign and independent, and especially so in respect to all commercial relations among them, or with foreign countries, Looking at this condition of things, and to the delegates in the conven- tion representing such constituencies, is it reasonable or consistent with proper rules of construction to suppose, in the absence of any indication from the words of this clause prohibiting the tax on imports or exports, the members used the terms with exclusive reference to foreign countries — that is, coun- tries foreign to the states—and not in ref- erence to the states themselves? . . . if this distinction was intended, why was not the clause so framed as to indicate it on its face, and not left to mere conjecture and speculation?” Netson, J., dissenting. Wood- tuff v. Parham, 8 Wall. 143, ““While the authority of the national gov- ernment to lay duties upon goods brought from foreign countries into this country so as to build up and protect American indus- tries has been recognized, I had not supposed that it was competent for any state of the Union to exert its power of taxation so as to build up and protect its local industries by means of injurious discriminations against the industries of other states. I had sup- posed that the Constitution of the United States had established absolute free trade among the states of the Union, and that free- dom from injurious discrimination in the markets of any state, against goods manu- factured in this country, was a vital princi- ple of constitutional law.” Harvan, J., dis- senting. New York State v. Roberts, 171 U. S. 680. Requiring Importers to Pay License Tax. “A state law, requiring an importer to pay for and take out a license, before he should be permitted to sell a bale of imported goods, is void.” Swayne, J. Gilman vw. Philadelphia, 3 Wall. 730. —— Discrimination Between Sale of For- eign and Domestic Articles. “A license may be required to sell foreign articles, when those of a domestic manufac- ture are sold without one.” McLean, J. License Cases, 5 How. 592. Requiring Exporters to Pay License Tax. “No state can tax an export or import as stich, except under the limitations of the Constitution. But before the article becomes an export, or after it ceases to be an import, . by being mingled with other property in the state, it is a subject of taxation by the state. A cotton-broker may be required to pay a tax upon his business, or by way of license, although he may buy and sell cotton for foreign exportation.” McLean, J. Nathan v. Louisiana, 8 How. 81. Tax on Sales of Imported Goods. “A tax by a state on the amount of goods sold at auction is a tax upon the goods so sold. A law which requires every auctioneer to pay into the state treasury a tax on his sales is, when applied to goods imported and sold in the original packages, in conflict with sects. 8 and 10, art. 1, of the Constitution of the United States, and therefore invalid.” Swayne, J. Howe Mach. Co. v. Gage, 100 U.S. 679. “When the importer has so acted upon the thing imported that it has become incor- porated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the state; but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the Constitution.” Marsuatt, C. J. Brown vw. Maryland, 12 Wheat. 441. “When the merchandise is taken from the ship [in which it is transported], and be- comes mingled with the property of the peo- ple of the state, like other property, it is subject to local law; but until this shall take 911 IMPORTS, EXPORTS, AND CUSTOMS DUTIES. place, the merchandise is an import, and is not subject to the taxing power of the state.” McLean, J. Passenger Cases, 7 How. 405. “The object of importation is sale; it con- stitutes the motive for paying the duties; and if the United States possess the power of conferring the right to sell, as the consid- eration for which the duty is paid, every principle of fair dealing requires that they should be understood to confer it.’ Mar- SHALL, C.J. Brownv. Maryland, 12 Wheat. 442. “Sale is the object of importation, and is an essential ingredient of that intercourse, of which importation constitutes a part. It is as essential an ingredient, as indispensable to the existence of the entire thing, then, as importation itself. It must be considered as a component part of the power to regulate commerce.” MarsHatt, C. J. Brown vw. Maryland, 12 Wheat. 447. “Tf the power to authorize a sale exists in Congress, the conclusion that the right to sell is connected with the law permitting im- portation, as an inseparable incident, is in- evitable.” MarsHALL, C. J. Brown v. Mary- land, 12 Wheat. 448. — Purchaser of Imported Goods Is Not an Importer. “A purchaser of goods coming from abroad, the goods to be at his risk until de- livered to him, is not an importer, and the goods may be taxed while in the original packages.” Swayne, J. Howe Mach. Co. v. Gage, 100 U. S. 677. Imposition of Prohibitive Tax. “Tt is obvious that the same power which imposes a light duty can impose a very heavy one, one which amounts to a prohibition,” MarsHaLL, C. J. Brown v. Maryland, 12 Wheat. 439. —— Tax Applicable Equally to Domestic and Foreign Goods Is Valid. “The provision in the Constitution of the United States that ‘no state shall levy im- posts or duties on imports or exports,’ does not refer to articles brought from one state into another, but exclusively to articles im- ported from foreign countries. Hence, a tax imposed by a state upon all auction sales, whether by citizens of such state or of an- other state, and whether the articles are the products .of such state or of another state, without any discrimination, is valid.” Swayne, J. Howe Mach. Co. v, Gage, 100 U. S. 676, 4 Inspection Laws. “What laws may be properly classed as inspection laws under this provision of the Constitution must be determined largely by the nature of the inspection laws of the states at the time the Constitution was framed.” Miter, J. People v. Compagnie Gen. Trans- atlantique, 107 U. S. 61. “What is an inspection [in the sense of Const. U. S., art. 1, § 10, cl. 2.]? Some- thing which can be accomplished by looking at or weighing or measuring the thing to be inspected, or applying to it at once some crucial test. When testimony or evidence is to be taken and examined, it is not inspec- tion in any sense whatever.” MuLiER, J. People v. Compagnie Gen. Transatlantique, 107 U. S. 62. “There is another view of the subject which has great force. Recognized elements of inspection laws have always been quality of the article, form, capacity, dimensions, and weight of package, mode of putting up, and marking and branding of various kinds, all these matters being supervised by a public officer having authority to pass or not pass the article as lawful merchandise, as it did or did not answer the prescribed require- ments. It has never been regarded as neces- sary, and it is manifestly not necessary, that all of these elements should coexist in order to make a valid inspection law. Quality alone may be the subject of inspection, with- out other requirement, or the inspection may be made to extend to all of the above mat- ters. When all are prescribed, and then in- spection as to quality is dropped out, leaving the rest in force, it cannot be said to be a necessary legal conclusion that the law has ceased to be an inspection law.” Briatcu- ForD, J. Turner v. Maryland, 107 U. S. 55. 2. Taxes or DuTIEs on Exports. Power of Congress. “The requirement of the Constitution is that exports should be free from any gov- ernmental. burden. The language is ‘no tax or duty.’ Whether such provision is or is not wise is a question of policy with which the courts have nothing to do. We know historically that it was one of the compro- mises which entered into and made possible the adoption of the Constitution. It is a restriction on the power of Congress.” Brewer, J. Fairbank v. U. S., 181 U. S. 290. “The prohibition of preference of ports was coupled with the prohibition of taxation 912 IMPORTS, EXPORTS, AND CUSTOMS DUTIES. on articles exported. The citizens of each state were declared ‘entitled to all privileges and immunities of citizens in the several states,’ and that included the right of ingress and egress, and the enjoyment of the privi- leges of trade and commerce.” Futter, C. J., dissenting. Dooley v. U. S., 183 U. S. 171. “Manifestly, so far as any prohibitory ac- tion by Congress is concerned, the object of that provision [Const. U. S., art. 2, § 9] was to open the markets of the world to the products and manufactures of the several states, freed from any tax or burden what- ever imposed by the United States.” Har- LAN, J., dissenting. Cornell v. Coyne, 192 U.S. 436. “Tt is too clear for argument. that if ves- sels bound for a foreign country were com- pelled to stop at an intermediate port and pay into the treasury of the United States a duty upon their cargoes, such duty would be a tax upon an export, and the place of its exaction would be of little significance. The manner in which and the place at which the tax is levied are of minor consequence.” Brown, J. Dooley v. U. S., 183 U. S. 155. “Now while an import into one port al- most mnecessarily involves a prior export from another, still, in determining the char- acter of the tax, it is important to consider whether the duty be laid for the purpose of adding to the revenues of the country from which the export takes place, or for the benefit of the territory into which they are imported.” Brown, J. Dooley v. U. S., 183 U. S. 155. —— Stamp Duty on Bills of Lading. SOT EH Congress may place a stamp duty of ten cents on bills of lading on goods to be exported it is because it has power to do so, and if it has power to impose this amount of stamp it has like power to impose any sum in the way of stamp duty which it sees fit. And it needs but a moment’s re- flection to show that thereby it can as ef- fectually place a burden upon exports as though it placed a tax directly upon the ar- ticles exported. It can, for the purpose of revenue, receive just as much as though it placed a duty directly upon the articles, and it can just as fully restrict the free exporta- tion which was one of the purposes of the Constitution.” Brewer, J. Fairbank v. U.S., 181 U. S. 290. “The power to tax is the power to destroy. And that power can be exercised not only by a tax directly on articles exported, but also 1 Os, Dic.—58 and equally by a stamp duty on bills of lad- ing evidencing the export. To the sugges- tion that a stamp duty is necessarily small in amount, we reply that the fact is to the contrary.” Brewer, J. Fairbank v. U. S.,, 181 U. S. 291. “The question of power is not to be de- termined by the amount of the burden at- tempted to be cast.” Brewer, J. Fairbank v. U. S., 181 U. S. 291. “Tt is true that a stamp tax required upon every instrument evidencing a sale is really and practically a tax upon the property sold, it is equally clear that a stamp duty upon foreign bills of lading is a tax upon articles exported.” Brewer, J. Fairbank v. U. S, 181 U. S. 293. “Tf Congress had graduated the stamp duty according to the quantity or value of the articles exported, there might have been ground for holding that the purpose and the necessary result was to tax the property and not the vellum, parchment or paper on which the bill of lading was written or printed.” Haran, J., dissenting. Fairbank v. U. S, 181 U. S. 317. “No-person, however skilful in the use of words, who attempts to frame a statute im- posing a stamp duty, pure and simple, om vellum, parchment or paper, could possibly employ language expressing that thought more distinctly than Congress has done in the several acts relating to stamp duties of that character. The words of those acts are clear, and are capable of but one construction; and the court determines the case upon the ground alone of want of power in Congress to impose the stamp duty in question.” Haran, J., dissenting. Fairbank v. U. S., 181 U. S. 322. Power of the States. “An existing property tax upon manufac- tured articles which had become a part of a general mass of property and was held in possession of the owner for purposes of sale or use in this country, could not be defeated by reason of the fact that the owner — sub- sequent to manufacture, and after a substan- tial interval of time—found the intention to export it.” Haran, J., dissenting. Cor- nell v. Coyne, 192 U. S. 436. “If an article manufactured for exporta- tion and which was prepared for exportation as soon as manufacture was completed is not an export from the moment such preparation was begun, then a state may impose a tax 913 IMPORTS, EXPORTS, AND CUSTOMS DUTIES. upon it as property and compel the payment thereof before the article is removed from its limits for exportation.” Haran, J., dis- senting. Cornell v. Coyne, 192 U. S. 437. III. ASSESSMENT, COLLECTION, AND PAYMENT OF DUTIES. 1. DutiaBLe ARTICLES. Goods Must Possess Intrinsic or Other Value. “As a general rule duties are intended to be levied only upon the value of goods which possess some intrinsic or other value at the time when ordinarily the duty would attach on an article.’ Wauute, J. Lawder v. Stone, 187 U. S. 286. “The purpose of Congress in enacting tar- iff laws was to exact the payment of duty only upon imported articles which were in truth and in fact, entitled to the appellation of goods, wares and merchandise, articles which were not absolutely worthless but may possess some value for use of consumption.” Waits, J. Lawder v. Stone, 187 U. S. 288. Importation, Not Purchase, Is Test of Dutiability. “Articles are dutiable, not because they have been ptrchased, but because they are actually imported and become the subject of sale and commerce within the country. But if a yacht be dutiable when purchased, and only when purchased by an American citizen, we apply a test of dutiability that we apply to no other article, namely, the test of own- ership.” Brown, J. The Conqueror, 166 U.S. 115. Liquors and Their Receptacles. “The customs acts from the earliest years of the government impose duties on liquors not only, but on the vessels containing them. This is not confined to any particular kind of liquor. The practice has been general and quite uniform.” Hunt, J. DeBary v. Ar- thur, 93 U. S. 423. “Quilts are non-enumerated manufac- tured articles, composed of two or more ma- terials.” Warte, C. J. Hartranft v. Shep- pard, 125 U. S. 338, Wearing Apparel. “As regards citizens of the United States returning from abroad, and foreigners visit- ing this country, it cannot be supposed that Congress intended they should have worn all the weating apparel they bring, or else pay duty on it; or that they shall not bring with them, free of duty, wearing apparel, not worn, bought in good faith for personal use in the immediately coming season, and not unsuitable in quantity or quality or value.” Buatcurorp, J. Astor v. Merritt, 111 U. S. 214. “An article of wearing apparel, bought for use, and appropriated and set apart to be used, by being placed in with, and as a part of, what is called a person’s wardrobe, is, in common parlance, in use, in actual use, in present use, in real use, as well before it is worn as while it is being worn or after- wards.” BLatcHForp, J. Astor v. Merritt, 111 Uz. S. 213. “Tf a person residing in the United States should purchase wearing apparel here, in a condition ready for immediate wear without further manufacture, intended for his own use or wear, suitable for the immediately approaching season of the year, and not ex- ceeding in quantity, quality or value the limit above mentioned, no one would hesitate to say that such wearing apparel was in ‘actual use’ by such person, even though some of it might not have been actually put on or applied to its proper personal use,” BiatcH- FoRD, J. Astor v. Merritt, 111 U. S. 213. Vessels. “Vessels certainly have not been treated as dutiable articles, but rather as the vehicles of such articles, and though foreign built and foreign owned, are never charged with duties when entering our ports, though every arti- cle upon them, that is not a part of the vessel or of its equipment or provisions, is subject to duty, unless expressly exempted by law.” Brown, J. The Conqueror, 166 U.S. 115. “The decisive objection to the taxability of vessels as imports is found in the fact that, from the foundation of the government, vessels have been treated as sui generis, and subject to an entirely different set of laws and regulations from those applied to im- ported articles.” Brown, J. The Conqueror, 166 U. S. 118. “While a vessel is an article of personal property, and may be termed ‘goods, wares and merchandise,’ as distinguished from real estate, it is not within either class, as the words are ordinarily used. In all this class of cases [arising under the revenue laws] the meaning of the words, as used in the particular statute, must be gathered from 914 IMPORTS, EXPORTS, AND CUSTOMS DUTIES. the context and from the evident purpose of the act.” Brown, J. The Conqueror, 166 UL S. 114. Distinction Between Mechanical Imple- ments and Philosophical Instruments. “Tt is somewhat difficult in practice to draw the line of distinction between the two classes [mechanical implements and _philo- sophical instruments or apparatus] inasmuch as many instruments, originally used only for the purpose of observation and experi- ment; have since come to be used, partially or wholly, as implements in the arts; and on the other hand, many implements merely mechanical are constantly used as aids in carrying on observations and experiments of a philosophical character.” Braptey, J. Robertson v. Oelschlaeger, 187 U. S. 438. 2. DESIGNATION AND CLASSIFICATION OF ARTICLES. Scientific Designation of Articles. “We do not wish to be understood as holding that in no case will the scientific designation of an article be of value in fixing its proper classification for duties, but that in a case where the popular idea of an article and its actual use in the arts are so diamet- rically opposed to its scientific designation the latter should not prevail.” Brown, J. Lutz v. Magone, 153 U. S. 109. Commercial Designation of Articles, “The object of the duty laws is to raise revenue, and for this purpose to class sub- stances according to the general usage and known denominations of trade. Whether a particular article were designated by one name or another, in the country of its origin, or whether it were a simple or mixed sub- stance, was of no importance in the view of the legislature. It did not suppose our mer- chants to be naturalists, or geologists, or botanists. It applied its attention to the description of articles as they derived their appellations in our own markets, in our domestic as well as our foreign traffic. And it would have been as dangerous as useless, to attempt any other classification than that derived from the actual business of human life.’ Srory, J. Two Hundred Chests of Tea, 9 Wheat. 438. “Tt is well settled that a designation of an article of commerce by merchants and im- porters, when clearly established, determines the construction of a revenue law when that article is mentioned.” Frexp, J. Arthur v. Butterfield, 125 U. S. 75. “Tariff laws are passed to raise revenue; and, for that purpose, substances are classed according to the general usage and known denominations of trade. Whether a particu- lar article is designated by one name or an- other in the country of its origin, or whether it is simple or mixed substance, is a matter of very little importance in the adjustment of our revenue laws, as those who frame such laws are chiefly governed by the appel- lations which the articles bear in our own markets and in our domestic and foreign trade. Laws regulating the payment of du- ties are for practical application to commer- cial operations, and are to be understood in a commercial sense.” CuirForpD, J. Tyng v. Crinnell, 92 U. S. 470. “Tt has become a settled rule, in the in- terpretation of [revenue] statutes of the de- scription, to construe the language adopted by the legislature, and particularly in the denomination of articles, according to the commercial understanding of the terms used.” Cuiirrorp, J. Tyng v. Grinnell, 92 U. S. 470. “The rule to be followed in the construc- tion of revenue statutes in cases like this is well settled in this court. It is, that the descriptive terms applied to articles of com- merce shall be understood according to the acceptance given to them by commercial men in our own ports at the time of the passage of the act in which they are found.” Swayne, J. Arthur v. Cumming, 91 U. S. 363. “The rule is familiar that in the interpre- tation of laws relating to the revenues the words are to be taken in their commonly received and popular sense, or according to their commercial designation, if that differs from the ordinary understanding of the word.” Prcxuam, J. U. S. v. Buffalo Nat- ural Gas Fuel Co., 172 U. S. 341. “While a customs law taxing an article which every one in the community might be expected to import, such as ‘wearing ap- parel,’ may use words which every one under- stands, and which, unless taken in the ordinary sense, would mislead the whole com- munity, and cannot, therefore, be supposed to be intended in any other sense, unless there is something to indicate such intention, yet, on the other hand, a tariff law may use language not intended for the community at large, but for merchants, or for a particular trade, and such as to mislead those for whom it is intended, if not taken in the commercial or trade sense; and such language is that 915 IMPORTS, EXPORTS, AND CUSTOMS DUTIES. under consideration, speaking of a manufac- tured article in various stages of its con- struction. In such a case the words are to be taken in the sense in which they will be naturally understood by those to whom they are addressed.” Sutras, J. Hedden v. Rich- ard, 149 U. S. 349. “The commercial designation of an article is the first and most important thing to be ascertained, and governs in the construction of the tariff law when that article is men- tioned, unless there is something else in the law which restrains the operation of this tule.” PecKHAM, J. Chew Hing Lung vw. Wise, 176 U. S. 161. Legal Designation Arising from Legisla- tive Usage: “When Congress, in legislating on the subject: of duties, has described an article so as to identify it by a given designation for revenue purposes, and this has been so long continued as to impress on it a particular designation as an article of import, then it must be treated as a distinct article, whether there be evidence that it is so known in com- merce or not. It must be taken as thus known in the sense of the revenue laws, by reason of the legal designation given to it, and by which it has been known and prac- ticed on at the custom-house.” Ne son, J. De Forest v. Lawrence, 13 How. 282. “Tt is well settled that when Con- gress has designated an article by its specific name, and imposed a duty on it by such name, general terms in a later act, or other parts of the same act, although sufficiently broad to comprehend such article, are not applicable to it.” Warre, C. J. Vietor wv. Arthur, 104 U. S. 499. Consideration of Material of Which Arti- cle Is Made. “It is not material that in one kind of suspenders cotton was the component of chief value, and that each contained some propor- tion of silk. If they are technically and commercially braces and suspenders com- posed in part of india-rubber, they take their dutiable character from that source, and not from the fact that they would otherwise fall under the general designation applicable to other subjects.” Hunt, J. Arthur v. Davies, 96 U. S. 136, “Tt has long been a settled rule of con- struction of revenue Jaws, imposing duties on articles of a specified denomination, to construe the article according to the designa- tion of such article, as understood and known in commerce, and not with reference to the materials of which they are made, or the use to which they might be applied. Nor ought such laws to be construed as embrac- ing all articles which might subsequently be applied to the same use and purposes as the specific article’ Taney, C. J. Curtis v. Martin, 3 How. 109. Conclusiveness of Classification. “Questions relating to the classification of imports, and consequently to the rate and amount of duty, are open to review an action at law.” Woops, J. Hilton v. Merritt, 110 U. S. 106. “A common instance of the recognition of the right of a party to review, in an action at law, a question of the classification of imports is to be found in cases where there is no dispute as to the character of the mer- chandise, but the contest is upon the name properly applicable to it, in the meaning of the statute. In such controversies the question to be answered is what the ar- ticle is. The question is the same where there is no dispute over terms, but as to the qualities or characteristics necessary to bring the article within the statutory description. In either case the matter to be decided is the portion of the act under which the article properly falls, and in all cases, eliminating only the question of the value of the mer- chandise, the classification may be reviewed in an action at law.” Sutras, J. Erhardt v. Schroeder, 155 U. S. 131. “Tn the case of customs duties, . . . a party dissatisfied with the classification of imports may apply to the courts to have ex- amined and reviewed everything involving the legality of the demand which has been made upon him by a collector.” Sutras, J. Erhardt v. Schroeder, 155 U. S. 129. “Uncertainty and ambiguity are the bane of commerce. Discretion in the custom-house officer should be limited as strictly as pos- sible. It has been said with much truth, “Where law ends, tyranny begins.’ Brap- Ley, J. Merritt v. Welsh, 104 U. S. 702 3. DUTIABLE VALUE. In General. “Under the old law, the cost or value of the goods at the place of protection was often merged for convenience with the costs of transportation to the place of shipment and the other charges, and the aggregate was called the price or value ‘free on board’ of 916 IMPORTS, EXPORTS, AND CUSTOMS DUTIES. the vessel in which the goods were shipped to the United States. This price or value, free on board, or f. o. b., in the absence of fraud, represented the ‘dutiable value,’ sub- ject, of course, to correction by appraise- ment.” Braptey, J. Robertson v. Bradbury, 132 U. S. 493. “The laws of this country in the assess- ment of duties proceed upon the market value in the exporting country and not upon that market value less such remission or amelioration as that country chooses to al- low in accordance with its own views of public policy.” Futter, C. J. U.S. uv. Pas- savant, 169 U. S. 23. Raw Material Used in Manufacturing. “While it may be true that to a certain extent the government may be at the mercy of the importers’ witnesses in estimating the value of labor put upon the raw material as it goes into the completed article, this dif- ficulty cannot be allowed to defeat the plain object of the enactment.” Brown, J. See- berger v. Hardy, 150 U. S. 423. Importer Should Furnish Invoice. “As a general rule, an invoice is required for an importation. But merchandise may be admitted in certain cases by the secretary of the treasury without invoice.” WHureE, J. Kennedy v. Magone, 158 U. S. 214. “The administration of such laws [the tariff laws] cannot be narrowed to a consid- eration of every case as if it stood alone, and as if the only question was whether there was an actual intention to defraud the gov- ernment. Wide and long experience has re- sulted in the command that all importations of merchandise must be accompanied with a true and correct invoice, stating the cost or market value.” SxHrras, J. Hoeninghaus v. U. S., 172 UL. S. 629. Increased Valuation Due to Voyage. “As the sugars diminished in weight they increased in value, being worth as much here as the original quantity shipped in Brazil. This is always true of Brazilian sugars, and is recognized by the trade and is made a basis of settlement between vendor and vendee.” McKenna, J. American Sugar Refining Co. v. U. S., 181 U. S. 610. Fixing Value of Foreign Money. “It is of the utmost consequence to the government, and it is on the whole, most beneficial to importers, that the value of for- eign moneys should be officially ascertained, and that they should be fixed by a uniform method of rule.” Braptey, J. Cramer wv. Arthur, 102 U. S. 620. “In the estimation of the value of foreign moneys for the purpose of assessing duties, there must be an end to controversy some- where. When Congress fixes the value by a general statute, parties must abide by that. When it fixes the value through the agency of official instrumentalities, devised for the purpose of making a nearer approximation to the actual state of things, they must abide by the values so ascertained. If the currency is a standard one, based on coin, the secre- tary’s proclamation fixes it; if it is a de- preciated currency, the parties may have the benefit of a consular certificate.” BRADLEY, J. Cramer v. Arthur, 102 U. S. 619. 4. APPRAISAL PROCEEDINGS. Proceedings Are of Summary Character. “The proceedings for appraisal [of im- ported goods] must necessarily be to some extent of a summary character.” BLaTCH- ForD, J. Auffmordt v. Hedden, 137 U. S. 324, Conclusiveness of Appraisal. “The uniform course of legislation and practice in regard both to the mode of selec- tion of the merchant appraiser and as to the conclusive effect of the appraisal, are en- titled to great weight.” BLatcurorp, J. Auffmordt v. Hedden, 137 U. S. 329. “After Congress has declared that the ap- praisement of the customs officers should be final for the purpose of levying duties, the right of the importer to take the verdict of a jury upon the correctness of the appraise- ment should be declared in clear and explicit terms. So far from this being the case, we do not find that Congress has given the right to all.” Woops, J. Hilton v. Merritt, 110 U. S. 104. “Tf in every suit brought to recover duties paid under protest, the jury were allowed to review the appraisement made by the cus- toms officers, the result would be great un- certainty and inequality in the collection of duties on imports. It is quite possible that no two juries would agree upon the value of different invoices of the same goods.” Woons, J. Hilton v. Merritt, 110 U. S. 104. “In the tariff legislation of the government, Congress has. generally adopted means and methods for a speedy and equitable adjust- ment of the question as to the market value of imported articles, without allowing an ap- peal to the courts to review the decision 917 IMPORTS, EXPORTS, AND CUSTOMS DUTIES. reached. If dissatisfied importers, after ex- hausting the remedies provided by the statute to ascertain and determine the fair dutiable value of imported merchandise, could apply to the courts to have a review of that sub- ject, the prompt and regular collection of the government’s revenues would be seriously obstructed and interfered with.” Jackson, J. Passavant v. U. S., 148 U. S. 220. “Duties imposed under tariff law are paid in order that goods may be brought into the country, and provisions in respect of their levy and collection are framed in view of the character of the transaction. The finality of the appraisal is a condition attending the importation prescribed by the government as essential to the operation of the system.” Fuurer, C. J. Origet v. Hedden, 155 U. S. 238, —— Appeal from Appraiser’s Decision. “Tn the customs department it [the law of the United States] permits appeals from appraisers to other appraisers, and in proper cases to the secretary of the treasury; and, if dissatisfied with this highest decision of the executive department of the government, the law permits the party, on paying the money required, with a protest embodying the grounds of his objection to the tax, to sue the government through its collector, and test in the courts the validity of the tax.” Miter, J. Cheatham v. U. S., 92 U. S. 88. “The Act of 1890 [26 Stat. at L. 131, c. 407] under which reviews in rela- tion to revenue decisions are to be taken, was passed ‘to simplify the laws in relation to the collection of the revenues.’ It provides a particular system of procedure for obtain- ing a review of the decisions of the collector and of the board of general appraisers in revenue matters. Compliance with the pro- visions of the act is necessary in order that a review may be had on the part and for the benefit of the government as well as on that of the importers.” PrckHam, J. U. S. w. Lies, 170 U. S. 633. —— Grounds on Which Appraisal May Be Attacked. “Though the valuation [of imported mer- chandise] is final and not subject to review and change and reconstruction by the verdict of a jury, it is open to attack for want of power to make it, as where the appraisers are disqualified from acting; or have not examined the goods; or illegal items have been added independent of the value. The principle applied in such cases is analogous to that by which proceedings of a judicial nature are held invalid because of the ab- sence of some strictly jurisdictional fact, or facts essential to their validity.” Futisr, C. J. Muser v. Magone, 155 U. S. 247. Objections to Appraisal. “Persons importing merchandise are re- quired to make their protests distinct and specific, in order to appraise the collector of the nature of the objection, before it is too late to remove it, or to modify the exaction, and that the proper officers of the treasury may know what they have to meet, in case they decide to exact the duties as estimated, notwithstanding the objection, and to expose the United States to the risk of litigation.” CuirFrorD, J. Davies v. Arthur, 96 U. S. 149. 5. ENtry oF Goops AND PAYMENT OF DUuTIES. Who May Make Entry. “Goods imported from a foreign country are required to be entered at the custom- house of the port where the vessel volun- tarily arrives with intent to unload the cargo, and the settled law is that no one but the owner or consignee, or in case of his sickness or absence, his agent or factor, is authorized to discharge that obligation.” Currrorp, J. Waring v. Mobile, 8 Wall. 116. Entry of Goods for Consumption. “Goods imported here from a foreign country may be entered for consumption or for warehousing; but, when entered for con- sumption, the requirement is that the duties shall be paid, or be secured to be paid, be- fore a permit for landing the goods is granted.” Currrorp, J. Fabbri v. Murphy, 95 U. S. 191. “Tmportations of the kind [for consump- tion] are required to be landed in open day; and the collection act provides that the goods shall not be landed or delivered from the ship without a permit from the collector. Examination of the entry is usually made by the entry-clerk; and, if found correct, the collector then proceeds to estimate amount of the duties as shown by the invoice value and quantity, and if the estimated amount of the duties is paid, or secured to be paid, as required by law, the collector is then authorized to grant a permit for the discharge and landing of the cargo.” CLiF- ForD, J. Fabbri v. Murphy, 95 U. S. 192. “We assume that the procedure in esti- mating duties was for the collector, taking the invoice as true, to ascertain the amount which prima facie the importer should pay, 918 IMPORTS, EXPORTS, AND CUSTOMS DUTIES. and this he was compelled to pay in cash forthwith unless he entered the goods for warehousing.” Futter, C. J. Barney w. Rickard, 157 U. S. 359, Entry of Goods for Warehousing. “Merchandise, if duly imported, with cer- tain exceptions not necessary to be noticed, may be entered for warehousing without pay- ing the duties at the time of the entry, in which event the goods are delivered into the possession of the collector, and are deposited, at the option of the owner, importer, con- signee, or agent, at his expense, in any public warehouse or other place provided by law for the storage of such property.” Currorp, J. Fabbri v. Murphy, 95 U. S. 192. “Both the duties and expenses are re- quired to be ascertained at the time of the entry of the goods for warehousing, and the duties and charges are to be secured by the bond of the owner, importer, or consignee, with surety or sureties to the satisfaction of the collector, the goods being at all times subject to the orders of the depositor, upon the payment of the proper duties and ex- penses.” CuiFForp, J. Fabbri v. Murphy, 95 Uz. S.-192. “Depositors of imported goods might with- draw the same for consumption within one year from the date of importation without paying anything beyond the duties and charges.” CziirForp, J. Fabbri v. Murphy, 95 U. S. 194. Conclusiveness of Entry on Importer. “When an entry has been made, it is con- clusive upon the importer as to the contents, and declared value of the invoice; and for all those consequences which the law may impose upon the examination and appraise- ment of it, and for any deficiency or non- compliance with the revenue laws regulating the entries of imported merchandise, or for any violation or substantial departure from directions which may have been given by the secretary of the treasury for the entry and appraisement of foreign goods, and for the collection of duties upon the same.” Wayne, J. Sampson v. Peaslee, 20 How. 580. Duties Must Be Paid at First Port of Entry. “ By the customs acts of the United States, except as otherwise expressly provided, duties on imported goods are to be assessed and paid at the first port of entry.” Gray, J. Saltonstall v. Russell, 152 U. S. 631. 6. AcTION For Duties ILLEGALLY EXACTED. Money for Duties Illegally Exacted May Be Recovered Back. “Moneys paid for import duties, when illegally levied, may be recovered back by the owner, importer, or consignee in an action of assumpsit against the collector by whom the same were exacted, if the payment was made under written protest, as required by law, and the party making the payment failed to obtain redress by appeal seasonably taken to the secretary of the treasury.” CLIFFORD, J. Sturges v. Collector, 12 Wall. 24. “The right of an importer, who has paid money, under a valid protest, to a collector of the customs, for duties illegally assessed, to maintain an action for its return has been acknowledged by Congress and in this court.” CAMPBELL, J. Greely v. Burgess, 18 How. 415. “Tf an action would lie to recover back money paid to obtain possession of goods illegally seized, the same principle will sus- tain an action to recover back money ille- gally exacted, under the penalty of forfeiting all credit at the custom-house, due notice having. been given to the collector not to pay it over to the treasury.” THompson, J., dissenting. Bend uv. Hoyt, 13 Pet. 277. “Due protest at the time of paying custom duties has the effect to give the merchant the right to sue the collector to recover back duties illegally exacted, because the Act of Congress provides that the protest in such a case shall have that effect.” CiFForp, J. Savage v. U. S., 92 U. S. 386. “Customs duties, illegally exacted, may be recovered back by an action in the Circuit Court against the collector for money had and received, provided the payment was made under protest, in writing, signed by the party, as required by the Act of Congress applicable to the case.” CrirFord, J. An- dreae v. Redfield, 98 U. S. 225. Ground on Which Relief Is Granted. “ Actions against collectors for money had and received depended originally on common- law principles. The money was regarded as paid under duress in order to obtain pos- session of the merchandise detained by the collector, and the protest evidenced the fact that the payment was involuntary, and~ warned the collector not to pay the money into the treasury.” Fuuer, C. J. Barney v. Rickard, 157 U. S. 355. 919 IMPORTS, EXPORTS, AND CUSTOMS DUTIES. “The common-law right of action to re- cover back money illegally exacted by a col- lector of customs as duties upon imported merchandise, rested upon the implied promise of the collector to refund money which he had received as the agent of the govern- ment, but which the law had not authorized him to exact; which had been unwillingly paid, and which, before payment to his prin- cipal, he had been notified he would be required to repay; and involved a corre- sponding right on his part to withhold from the government, as an indemnity, the fund in dispute.” Matruews, J. Arnson v. Mur- phy, 109 U. S. 240. IV. POWERS AND DUTIES OF OFFICERS. In General. “Tt may be considered as peculiarly the duty of the officers of the customs, to watch over any maritime infractions of the laws of the United States.” Story, J. The Jo- sefa Segunda, 10 Wheat. 329. ° The President. “As to the denial of the authority of the President to prevent the landing of foreign goods in the United States out of a collection district, it can only be necessary to say, if he did not do so it would be a neglect of his constitutional obligation ‘to take care that the laws be faithfully executed.” Wayne, J. Cross v. Harrison, 16 How. 198. The Secretary of the Treasury. “Tt must be borne in mind that the sec- retary of the treasury [in carrying out the provision of law relating to raising revenue from imports] is an officer of the govern- ment; that his powers are limited by law; that his duty is to protect the revenues of the government and to prevent smuggling or other illegal practices, whereby the govern- ment may be defrauded of its revenue; and that he owes no duty to individuals beyond seeing that their rights are not prejudiced any further than is necessary by the action of the custom officers. He is neither the agent of the vessel nor of the importer, but stands between them, representing only the government and charged only with the col- lection of its revenue.” Brown, J. Con- stable v. National Steamship Co., 154 U. S. 76. Collector of Customs Acts under Instruc- tions of Secretary of Treasury. “The collector of the customs is a minis- terial officer: he acts under the instructions of the secretary of the treasury, who is ex- pressly authorized to give instructions, as to the due enforcement of the revenue laws.” McLean, J. Tracy v. Swartwout, 10 Pet. 94. “We all know that, in all revenue cases, it is the constant practice of the secretary of the treasury to give written instructions to the various collectors of the customs as to what duties are to be collected under par- ticular revenue laws, and what, in his judg- ment, is the proper interpretation of those laws.” Story, J., dissenting. Cary v. Cur- tis, 3 How. 256. ——Superior’s Instructions Do Not Jus- tify Collector in Exacting Illegal Duty. “None other than legal duties are pay- able to the government; and where an officer by his own volition, or acting under the instructions of his superior, demands a higher duty than the law authorizes, he is guilty of a wrong which his instructions cannot jus- tify.” McLean, J., dissenting. Cary v. Cur- tis, 3 How. 262. Power of Collector Appointed by Military Authority. “A collector, though appointed by a mil- itary commander, may be presumed to have the ordinary power of a collector under an Act of Congress, with authority to grant clearances to ports within the United States, though, of course, he would have no power to make a domestic port of what was in reality a foreign port.” Brown, J. DeLima v. Bidwell, 182 U. S. 183. V. EVASIONS OR VIOLATIONS OF THE CUSTOMS LAWS. Obligation of Importers to Comply with Laws. “When foreign merchandise, subject to duties, is imported into the country, the act of importation imposes upon the importer the obligation to pay the legal charges.” Srrone, J. Stockwell v. U. S., 18 Wall. 546. “Importers of foreign merchandise must conform to the requirements of law and the regulations of the treasury department.” Cu1FForD, J. Waring v. Mobile, 8 Wall. 117. “Men Do Not Perpetrate Frauds upon the Revenue from the Mere Love of Mis- chief, or the wanton disregard of duty. There must be some leading interest, some enticing object in view, to lead them to such a violation of social law and moral senti- ment.” Story, J. Two Hundred Chests of Tea, 9 Wheat. 443. 920 IMPROVEMENTS. Presumptions For and Against Importers. “Goods in packages, unaccompanied by certificates of having paid the duties, are always liable to be questioned on that ac- count. Large purchasers therefore, even where re-exportation is not intended, would choose to be furnished with this protection. It is a precaution which costs nothing, and which a prudent merchant will use. The pre- sumption, therefore, is always against the person who is in possession of goods in the original packages without these documents.” MarsuHa.Lt, C. J. Locke v. U. S., 7 Cranch 346, “Almost the whole system of appraisals is founded on the idea, that fraud has been, or is likely to be, practiced. And while this court has nevér been backward in ferreting out and punishing real frauds attempted on the revenue, yet, at the same time, where no dishonesty is pretended, but a disposition ap- pears in the importer to conform to the laws, he is entitled to full legal protection, else fair commerce between us and the rest of the world will be discouraged, and our na- tional character tarnished.” Woopsury, J. Greely v. Thompson, 10 How. 241. “In some case it might be inferred that the importation of goods by one partner, without payment of the duties thereon, was approved by the other partners from the management taken by each partner in the affairs of the firm, and the knowledge which such management must give of the payments made and goods received. A jury might sometimes even be justified in inferring au- thority or approval of the other partners from their silence. But very different evi- dence would be required if, when one partner made the importation, the other was absent from the country or was a silent partner, tak- ing no part in the management of the affairs of the firm.” Frexp, J., dissenting. Stock- well v. U. S., 13 Wall. 562. —— Purpose of Giving Portion of Penalty to Collector. “The purpose of penalties inflicted upon persons who attempt to defraud the revenue, is to enforce the collection of duties and taxes. They are in terrorem upon parties whose conscientious scruples are not suf- ficient to balance their hopes of profit. The offer of a portion of such penalties to the collector is to stimulate and reward their zeal and industry in detecting fraudulent attempts to evade the payment of duties and taxes.” Grier, J. Dorsheimer v. U. S., % Wall. 173. Penalties for Violations of the Laws. “The forfeiture of the thing is not the recovery and receipt of a duty, but a pun- ishment for the nonpayment of it, and is never to be protected by a proviso extending only to remedies given for the recovery of the duty itself.” MarsHALL, C. J. Penning- ton v. Coxe, 2 Cranch 61. “Goods themselves, if the duties be not paid, are subject to seizure and appropria- tion by the government. In a very important sense they become the property of the gov- ernment. Every act therefore which inter- feres with the right of the government to seize and appropriate the property which has been forfeited to it, or which may hinder the exercise of its right to seize and appropriate such property, is a wrong to property rights, and is a fit subject for indemnity.” StTRoNe, J. Stockwell v. U. S., 13 Wall. 546. “The instant that goods are illegally im- ported, the instant that they pass through the custom-house without the payment of duties, the right of the government to seize and appropriate them becomes perfect.” Stronc, J. Stockwell v. U. S., 13 Wall. 546. IMPRESSION. “An impression is an image fixed in the mind, it is belief’ Topp, J. Riggs v. Tay- loe, 9 Wheat. 486. IMPRISONMENT FOR DEBT. Nature and Effect. “Imprisonment for debt is a relic of ancient barbarism. It has descended with the stream of time. It is a punishment rather than a remedy. It is right for fraud, but wrong for misfortune. It breaks the spirit of the honest debtor, destroys his credit, which is a form of capital, and dooms him, while it lasts, to helpless idleness. Where there is no fraud, it is the opposite of a remedy. Every right-minded man must rejoice when such a blot is removed from the statute-book.” Swayne, J. Edwards v. Kearzey, 96 U. S. 602. ‘ “A Lawful Discharge [from imprison- ment for debt], in its general signification, will extend to, and be satisfied by, any dis- charge obtained under the legislative author- ity of the state.” Tompson, J. Mason v. Haile, 12 Wheat. 377. IMPROVEMENTS. See Apverse Possrssion;. Drains AND SEWERS; EJECTMENT; Fixtures; LANDLORD 921 IMPROVEMENTS. AND TENANT; Pusiic Lanps; REMAINDERS, REVERSIONS, AND Executory INTERESTS; Speciat or Loca, AssEssMENTS. “Where a Party Lawfully in Possession under a Defective Title Makes Perma- nent Improvements, if relief is asked in equity by the true owner, he will be com- pelled to allow for such improvements.” BLatTcHForD, J. Canal Bank v. Hudson, 111 VU, S. 83. “ Another principle which we think appli- cable to this case is to be found in a class of cases where a bona fide purchaser, for a valuable consideration, without notice, has enhanced the value of the property by per- manent expenditures, and has been subse- quently evicted by the true owner, on ac- count of some latent infirmity of the title. It is well settled, if the true owner is obliged to come into a court of equity to obtain relief against the purchaser, the court will first require reasonable compensation for such expenditures to be made, upon the principle that he who seeks equity must first do equity.” Netson, J. Williams v. Gibbes, 20 How. 538. “The maxim quicquid plantatur solo, solo cedit, is not of universal application. Struc- tures for the purposes of trade or manu- facture, and not intended to become irrev- ocably part of the realty, are not within the rule, . . nor is it applicable where they are erected under agreement or by con- sent, the presumption not arising that the builder intended to transfer his own im- provements to the owner. And courts of equity, in accord with the principles of the civil law, when their aid is sought by the real owner, compel him to make allowance for permanent improvements made bona fide by a party lawfully in possession under a defective title.” Furter, C. J. Searl v. Lake County School Dist, 133 U. S. 561. “The civil law recognized the principle of reimbursing to the bona fide possessor the expense of his improvements if he was re- moved from his possession by the legal owner, by allowing him the increase in the value of the land created thereby.” Futter, C. J. Searl v. Lake County School Dist., 133 U.S. 561. -—— Bona Fide Purchaser Not Entitled to Relief After Recovery of Property by True Owner. “Courts of equity, it would seem, do not grant active relief in favor of a bona fide purchaser, making permanent meliorations and improvements by sustaining a bill brought by him against the true owner, after he has succeeded in recovering the property at law.” NeLson, J. Williams v. Gibbes, 20 How. 538. Improvements by Possessor Whose Title Originated in Fraud. “To a possessor whose title originates in fraud, or is attended with circumstances of circumvention and deception, no compensa- tion for improvements is ever allowed.” Fisip, J., dissenting. Jackson v. Ludeling, 99 U. S. 537. “Was it ever known that a fraudulent purchaser of property, when deprived of its possession, could recover for his repairs or improvements, or for incumbrances lifted by him whilst in possession?” Brapizy, J. Milwaukee, etc., R. Co. v. Soutter, 13 Wall. §23. \ “By the civil law, the possessor, even in bad faith, may have the value of his im- provements, if the real owner choose to take them. The latter has an option to take them or to require their removal. But this rule has never obtained in the common law, nor in the system of English equity.” Brap- LEY, J. Milwaukee, etc, R. Co. v. Soutter, 13 Wall. 523. Improvements by Occupant Without Title. “In the courts that administer the com- mon law the rights of the owner are para- mount and exclusive. An occupant without title is not recognized as entitled to com- pensation for improvements.” FueE.p, J., dis- senting. Jackson v. Ludeling, 99 U. S. 537. “Courts of chancery do not give to afi occupant compensation for improvements, unless there are circumstances attending his possession which affect the conscience of the owner, and impose an obligation upon him to pay for them or to allow for their value against a demand for the use of the prop- erty.” Frerp, J., dissenting. Jackson vw. Ludeling, 99 U. S. 537. “Tf the entry upon land is a naked tres- pass, buildings permanently attached to the soil become the property of the owner of the latter. The trespasser can acquire no rights by his tortious acts.” Fuuzer, C, J. Searl v. Lake County School Dist., 1383 U. S. 561. —— Removal of Timber Lands. “To hold that when the government finds its own property in hands but one remove from Public 922 INDIANS. from wilful trespassers, and asserts its right to such property by the slow processes of the law, the holder can set up a claim for the value which has been added to the property by the guilty party in the act of cutting down the trees and removing the timber, is to give encouragement and reward to the wrong- doer, by .providing a safe market for what he has stolen and compensation for the labor he has been compelled to do to make his theft effectual and profitable.” MuItLERr, J. Bolles Wooden-ware Co. v. U. S., 106 U. S. 437. Encouragement of Improvement of City Property. “The value of property in a city is much enhanced by the erection of solid and durable buildings, and every proper facility to pro- tect them should be given to the builders.” Davis, J. Chicago v. Robbins, 2 Black 424. INADVERTENCE. See MISTAKE. IN AID OF. “While ‘in aid of’ [in Rev. Stat. U. S., §596] naturally imply some existing judge to be aided, the words ‘in the place of’ do not necessarily carry the same implica- tion.” Brewer, J. McDowell v. U. S., 159 U. S. 600. INCIDENTS. “An incident to one subject cannot be presumed, by the very name of such an in- cident, to be intended to apply to a subject totally different.” Irepett, J., concurring. Penhallow v. Doane’s Adm’rs, 3 Dall. 107. INCLUDING. “Tt has been said that the word ‘includ- ing’ means moreover, or as well as; but if this was the meaning of the legislature it was a very embarrassing mode of expressing the idea.” MarsHatt, C. J. U.S. v. Betsey, 4 Cranch 452. INDEPENDENT CONTRACT- ORS. “ All the cases recognize fully the liability of the principal where the relation of master and servant, or principal and agent exists; but there is a conflict of authority in fixing ‘the proper degree of responsibility where an ind: pendent contractor intervenes.” Davis, J. Chicago v. Robbins, 2 Black 426. “The rule of law is undoubted, that for the acts of a sub-agent the principal is liable, but that for the acts of the agent of an intermediate independent employer he is not liable. It is difficult to lay down a pre- cise rule which will define the distinctions arising in such cases. The application of the rule is full of embarrassment.” Hunt, J. Hoover v. Wise, 91 U. S. 311. INDIANS. I. Crvit anp PouiricaAL STATUS OF INDIANS. 1. Citizenship. 2. Indians Are Wards of the United States. 3. Right of Self-government. 4. Tribes of Indians as Nations or States, II. Ricguts as TO OWNERSHIP AND Possession or LAnp. III. ReGuLATIon or COMMERCE WITH INDIANS, IV. Inpian RESERVATIONS. V. State ContROL oF INDIANS. VI. Aporrion into INDIAN TRIBES. VII. Treaties with INpIANS. VIII. Wars with INDIANS. CROSS-REFERENCES. See CirizeEns AND CITIZENSHIP; GAME; INTERSTATE COMMERCE; NATION; PUBLIC Lanps; Titte sy Discovery; TREATIES* Wuire Persons. I. CIVIL AND POLITICAL STATUS OF INDIANS. 1. CITIZENSHIP. See also infra, VI. Right to Citizenship Dependent on Action or Assent of United States. “The alien and dependent condition of the members of the Indian tribes could not be put off at their own will, without the action or assent of the United States. They were never deemed citizens of the United States, except under explicit provisions of treaty or statute to that effect, either declaring a certain tribe, or such members of it as chose to remain behind on the removal of the tribe westward, to be citizens, or authorizing individuals of particular tribes to become citizens on application to a court of the 923 INDIANS. United States for naturalization, and satis- factory proof of fitness for civilized life.” Gray, J. Elk v. Wilkins, 112 U. S. 100. “The question whether any Indian tribes, or any members thereof, have become so far advanced in civilization, that they should be let out of the state of pupilage, and admitted to the privileges and responsibilities of citi- zenship, is a question to be decided by the nation whose wards they are and whose citi- zens they seek to become, and not by each Indian for himself.” Gray, J. Elk v. Wilk- ins, 112 U. S. 106. —— Citizenship Not Acquired by Merely Living Apart from Tribe. “The recent statutes concerning home- steads are quite inconsistent with the theory that Indians do or can make themselves in- dependent citizens by living apart from their tribe.” Gray, J. Elk v. Wilkins, 112 U. S. 106. Operation of Fourteenth Amendment. “There.is nothing in the history of the adoption of the Fourteenth Amendment which, in our opinion, justifies the conclusion that only those Indians are included in its grant of national citizenship who were, at the time of their birth, subject to the com- plete jurisdiction of the United States.” Harian, J., dissenting. Elk v. Wilkins, 112 U.S. 116. “Tt seems to us that the Fourteenth Amendment, in so far as it was intended to confer national citizenship upon persons of the Indian race, is robbed of its vital force by a construction which excluded from such citizenship those who, although born in tribal relations, are within the complete jurisdic- tion of the United States.” Harzan, J., dis- senting. Elk v. Wilkins, 112 U. S. 120. Naturalization. “ Although Indians are not members of the political sovereignty, many classes of them have been made citizens in that way [col- lective naturalizafion by treaty or by stat- ute].” FuLier, C. J. Boyd v. Thayer, 143 U.S. 162. “They [Indians] may, without doubt, like the subjects of any other foreign government, be naturalized by the authority of Congress and become citizens of a state, and of the United States; and if an individual should leave his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people.” Taney, C. J. Scott v. Sandford, 19 How. 404. 2. InpIANS ARE WARDS OF THE UNITED STATES. In General. “ As often affirmed in the decisions of this court, the Indians are, in a certain sense, the wards of the United States, and the legisla- tion of Congress is to be interpreted as in- tended for their benefit.” Brewer, J. Marks v. U. S., 161 U. S. 303. “The course of events has brought the Indian tribes within the limits of the United States under subjection to the white race; and it has been found necessary, for their sake as well as our own, to regard them in a state of pupilage, and to legislate to a certain extent over them and the territory they occupy.” Taney, C. J. Scott v. Sand- ford, 19 How. 404. Courts Cannot Interfere with Status of Indians. “Tt is undoubtedly true that this govern- ment has always recognized the fact that the Indians were its wards, and entitled to be protected as such, and this court has uni- formly construed all legislation in the light of this recognized obligation. But the obli- gation is one which rests upon the political department of the government, and this court has never assumed, in the absence of Con- gressional action, to determine what would have been appropriate legislation, or to de- cide the claims of the Indians as though such legislation had been had.” Brewer, J. Barker v. Harvey, 181 U. S. 492. “Tt [the relation existing between the United States and the Indians] is not a relation simply of contract, each party to which is capable of guarding his own inter- ests, but the Indians are in a state of de- pendency and pupilage, entitled to the care and protection of the government. When they shall be let out of that state is for the United States to determine without inter- ference ‘by the courts or by. any state.” Hartan, J. U.S. v. Rickert, 188 U. S. 442. “Tt is for the legislative branch of the government to say when these Indians shall cease to be dependent and-assume the re- sponsibilities attaching to citizenship. That is a political question, which the courts may not determine.” Harian, J. U.S. v. Rick- ert, 188 U. S. 445. 924 INDIANS. 3. RIGHT TO SELF-GOVERNMENT, Self-government Permitted by United States. “The Indian tribes were for many years allowed by the United States to make all laws and regulations for the government and protection of their persons and property, not inconsistent with the Constitution and laws of the United States; and numerous treaties were made by the United States with those tribes as distinct political societies.” FULLER, C. J. Stephens v. Cherokee Nation, 174 U. S. 483. “T believe, in one view and in one only, if at all, they [the Cherokee nation] are or may be deemed a state, though not a sover- eign state, at least while they occupy a country within our limits. Their condition is something like that of the Israelites, when inhabiting the deserts. Though without land that they can call theirs in the sense of prop- erty, their right of personal self-government has never been taken from them; and such a form of government may exist though the land occupied be in fact that of another. The right to expel them may exist in that other, but the alternative of departing and retaining the right of self-government may exist in them. And such they certainly do possess; it has never been questioned, nor any attempt made at subjugating them as a people, or restraining their personal liberty except as to their land and trade.” Joun- son, J. Cherokee Nation v. Georgia, 5 Pet. 27, Power of Self-government Is Temporary. “The exercise of the power of self-gov- ernment by the Indians, within a state, is undoubtedly contemplated to be temporary. This is shown by the settled policy of the government, in the extinguishment of their title, and especially by the compact with the state of Georgia. It is a question, not of abstract right, but of public policy.” Mc- Lean, J. Worcester v. Georgia, 6 Pet. 593. Right of Self-government Not Lost by Submission to Protection of United States. “By various treaties, the Cherokees have placed themselves under the protection of the United States: they have agreed to trade with no other people, nor to invoke the protec- tion of any other sovereignty. But such en- gagements do not divest them of the right of self-government, nor destroy their capacity to enter into treaties or compacts.” Mc- Lean, J. Worcester v, Georgia, 6 Pet. 581. Cherokees Govern Themselves, “The Cherokees are governed by their own laws. As a people, they are more advanced in civilization than the other Indian tribes, with the exception, perhaps, of ‘the Choc- taws.” McLean, J. Mackey v. Coxe, 18 How. 102. “The Cherokee nation has many of the rights and privileges of an independent peo- ple. They have their own constitution and laws and power to administer their internal affairs. They are recognized as a distinct political community and treaties have been made with them in that character.” Day, J. Delaware Indians v. Cherokee Nation, 193 U.S. 144. — Right of Congress to Regulate Ex- ercise of Power. “The existence of the right in Congress to regulate the manner in which the local powers of the Cherokee nation shall be ex- ercised does not render such local powers federal powers arising from and created by the Constitution of the United States.” Wuitr, J. Talton v. Mayes, 163 U. S. 384. “The Only Restriction on the Power of the Chickasaw Nation to Legislate in respect to its internal affairs is that such legislation shall not conflict with the Con- stitution or laws of the United States.” Brewer, J. Roff v. Burney, 168 U. S. 222. 4. TRIBES OF INDIANS AS NATIONS OR STATES. Definitions — “ Nation.” “When used in connection with the In- dians, especially in their original state, we must apply to the word ‘nation’ a definition which indicates little more than a large tribe or a group of affiliated tribes possessing a common government, language, or racial origin, and acting for the time being, in con- cert.” Brown, J. Montoya v. U. S., 180 U.S. 265. “The word ‘nation’ as applied to the uncivilized Indians is so much of a mis- nomer as to be of little more than a compli- ment.” Brown, J. Montoya wv. U. S., 180 Uz. S. 265. —— “Nation,” “Tribe,” Used Synonymously. “The North American Indians do not and never have constituted ‘nations’ as that word is used by writers upon international law, although in a great number of treaties they and “Band” 925 INDIANS. are designated as ‘nations’ as well as tribes. Indeed, in negotiating with the Indians the terms ‘nation,’ ‘tribe,’ and ‘band’ are used almost interchangeably.” Brown, J. Mon- toya v. U. S., 180 U. S. 265. — “Tribes” of Indians. “By a ‘tribe’ we understand a body of Indians of the same or a similar race, united in a community under one leadership or gov- ernment, and inhabiting a particular though sometimes ill-defined territory.” Brown, J. Montoya v. U. S., 180 U. S. 266. “Tt is generally understood that every separate body of Indians is divided into bands or tribes, and forms a little community within the nation to which it belongs; and as the nation has some particular symbol by which it is distinguished from others, so each tribe has a badge from which it is denomi- nated, and each tribe may have rights appli- cable to itself,” THompson, J., dissenting. Cherokee Nation v. Georgia, 5 Pet. 62. — “Bands” of Indians. “By a ‘band’ [we understand], a com- pany of Indians not necessarily, though often, of the same race or tribe, but united under the same leadership in a common design. While a ‘band’ does not imply the separate racial origin characteristic of a tribe, of which it is usually an offshoot, it does im- ply a leadership and a concert of action.” Brown, J. Montoya v. U. S., 180 U. S. 266. “To constitute a ‘band’ we do not think it necessary that the Indians composing it be a separate political entity, recognized as such, inhabiting a particular territory, and with whom treaties had been or might be made. These peculiarities would rather give them the character of tribes. The word ‘band’ implies an inferior and less per- manent organization, though it must be of sufficient strength to be capable of initiating hostile proceedings.” Brown, J. Conners v. U. S., 180 U. S. 275. Indians Lack Cohesive Force Necessary to Constitute Nation. “Owing to the natural infirmities of the Indian character, their fiery tempers, impa- tience of restraint, their mutual jealousies and animosities, their nomadic habits, and lack of mental training, they have as a fule shown a total want of that cohesive force necessary to the making up of a nation in the ordinary sense of the word.” Brown, J. Montoya v. U. S., 265. Indians Never Recognized as Holding Sovereignty Over the Territory They Occupied. “Tt cannot be questioned that the right of sovereignty, as well as soil, was notoriously asserted and exercised by the European dis- coverers. From that source we derive our rights, and there is not an instance of a cession of land from an Indian nation, in which the right of sovereignty is mentioned as a part of the matter ceded.” Jounson, J. Cherokee Nation v. Georgia, 5 Pet. 22. Indians as Foreign Nations or States. “ ‘Foreign nations’ is a general term, the application of which to Indian tribes, when used in the American Constitution, is at best extremely questionable.” MarsHatt, C. J. Cherokee Nation v. Georgia, 5 Pet. 19. “T cannot but think that there are strong reasons for doubting the applicability of the epithet state, to a people so low in the grade of organized society as our Indian tribes most generally are.” JoHNsoN, J. Cherokee Nation v. Georgia, 5 Pet. 21. “Tf we look to lexicographers, as well as approved writers, for the use of the term foreign, it may be applied with the strictest propriety to the Cherokee nation.” THomp- son, J., dissenting. Cherokee Nation v. Georgia, 5 Pet. 56. “A foreign state, judicially considered, consists in its being under a different juris- diction or government, without any reference to its territorial position. So far as these states are subject to the laws of the Union, they are not foreign to each other. : a separate and distinct jurisdiction or government is the test by which to decide whether a nation be foreign or not; I am unable to perceive any sound and substantial reason why the Cherokee nation should not be so considered. It is governed by its own laws, usages, and customs: it has no con- nection with any other government or juris- diction, except by way of treaties entered into with like form and ceremony as with other foreign nations.” THompson, J., dissenting. Cherokee Nation v. Georgia, 5 Pet. 57. “The progress made in civilization by the Cherokee Indians cannot surely be considered as in any measure destroying their natural or foreign character, so long as they are per- mitted to maintain a separate and distinct government; it is their political condition that constitutes their foreign character, and in that sense must the term foreign be under- stood as used in the Constitution. It can 926 INDIANS. have no relation to local, geographical, or territorial position. It cannot mean a coun- try beyond sea.” TuHompson, J., dissenting. Cherokee Nation v. Georgia, 5 Pet. 55. “Whether the Cherokee Indians are to be considered a foreign state or not, is a point on which we cannot expect to discover much light from the law of nations. We must derive this knowledge chiefly from the prac- tice of our own government, and the light in which the nation has been viewed and treated by it.’ Tuompson, J., dissenting. Cherokee Nation v. Georgja, 5 Pet. 54. —Not Recognized as Independent Na- tions by Foreign Nations. “As a state they [the Indians] are known to nobody on earth, but ourselves, if to us.” Jounson, J. Cherokee Nation v. Georgia, 5 Pet. 24. “Tn all our intercourse with foreign na- tions, in our commercial regulations, in any attempt at intercourse between Indians and foreign nations, they are considered as within the jurisdictional limits of the United States, subject to many of those restraints which are imposed upon our own citizens.” MARSHALL, C. J. Cherokee Nation v. Georgia, 5 Pet. 17. “They [the Indians] and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connection with them, would be considered by all as an in- vasion of our territory, and an act of hos- tility”’” MarsHatt, C. J. Cherokee Nation v. Georgia, 5 Pet. 17. “The native tribes who were found on this continent at the time of its discovery have never been acknowledged or treated as independent nations by European govern- ments.” Taney, C. J. U. S. v. Rogers, 4 How. 572, — Whether Foreign Nation for Purpose of Suit, “Considerations go far to support the opinion, that the framers of our Constitution had not the Indian tribe in view, when they. opened the courts of the Union to our con- troversies between a state or the citizens thereof, and foreign nations.” MAarsHALL, C. J. Cherokee Nation v. Georgia, 5 Pet. 18. “In no sense can they [the Cherokee na- tion] be deemed a foreign state, under the judiciary article.” Jounson, J. Cherokee Nation vw. Georgia, 5 Pet. 27. “The Cherokees compose a foreign state within the sense and meaning of the Con- stitution, and constitute a competent party to maintain a suit against the state of Georgia.” THompson, J., dissenting. Cherokee Nation v. Georgia, 5 Pet. 80. “We may safely conclude that they [the Cherokee nation of Indians] are not citizens, and must of course be aliens: and, if aliens in their individual capacities, it will be dif- ficult to escape the conclusion, that, as a com- munity, they constitute a foreign nation or state, and thereby become a competent party to maintain an action in this court according to the express terms of the Constitution.” THompson, J., dissenting. Cherokee Nation v. Georgia, 5 Pet. 68. “Tf the executive department does not think proper to enter into treaties or con- tracts with the Indian nations, no case with them can arise calling for judicial cognizance. But when such treaties are found containing stipulations proper for judicial cognizance, I am unable to discover any reasons satisfying my mind that this court has not jurisdiction of the case.” Tuompson, J., dissenting. Cherokee Nation v. Georgia, 5 Pet. 69. Indian Tribes Are Domestic, Dependent, Nations. “The condition of the Indians and the Indian tribes within the limits of the United States is anomalous. The tribes, though in certain respects regarded as possessing the attributes of nationality, are held to be not foreign, but domestic dependent nations.” Brewer, J. Roff v, Burney, 168 U. S. 221. “They have in Europe sovereign and demi- sovereign states, and states of doubtful sov- ereignty. But this state [the Cherokee na- tion], if it be a state, is still a grade below them all: for not to be able to alienate with- out permission of the remainderman or lord places them in a state of feudal de- pendence.” Jounson, J. Cherokee Nation v. Georgia, 5 Pet. 27. : “It must be admitted, that the Indians sustain a peculiar relation to the United States. They do not constitute, as was de- cided at the last term, a foreign state, so as to claim the right to sue in the Supreme Court of the United States: and yet, having the right of self-government, they, in some sense, form a state. In the management of their internal concerns, they are dependent on no power. They punish offenses under: their own laws, and, in doing so, they are responsible to no earthly tribunal, They 927 INDIANS. make war, and form treaties of peace. The exercise of these and other powers, gives to them a distinct character as a people, and constitutes them, in some respects, a state, although they may not be admitted to possess the right of soil.” McLean, J. Worcester v. Georgia, 6 Pet. 581. “Tn the executive, legislative, and judicial branches of our government, we have ad- mitted, by the most solemn sanctions, the existence of the Indians as a separate and distinct people, and as being vested with rights which constitute them a state, or sepa- rate community — not a foreign, but a do- mestic community — not as belonging to the confederacy, but as existing within it, and, of necessity, bearing to it a peculiar rela- tion.” McLean, J. Worcester v. Georgia, 6 Pet. 583. “By numerous treaties with the Indian tribes, we have acquired accessions of ter- ritory, of incalculable value to the Union. Except by compact, we have not even claimed a right of way through the Indian lands. We have recognized in them the right to make war. No one has ever supposed that the Indians could commit treason against the United States. We have punished them for their violation of treaties; but we have in- flicted the punishment on them as a nation, and not on individual offenders among them as traitors.” McLean, J. Worcester v. Georgia, 6 Pet. 583. Power of United States to Organize In- dians into States. ‘ “The project of ultimately organizing them [the Indians] into states, within the limits of those states which had not ceded or should not cede to the United States the jurisdiction over the Indian territory within their bounds, could not possibly have entered into the contemplation of our government. Nothing but express authority from the states could have justified such a view.” Jonson, J. Cherokee Nation v. Georgia, 5 Pet. 24. II. RIGHTS AS TO OWNERSHIP AND POSSESSION OF LAND. Indian Right Merely That of Occupancy —In General. “The only right of Indian tribes to land any where in the United States is that of occupancy. Such has been the uniform rul- ing of this court; and upon its correctness the government has acted from its com- mencement.” Fretp, J., dissenting. Leavens- worth, etc, R. Co. v, U, S., 92 U. S. 754, “Tt has been settled by repeated adjudica- tions of this court that the fee of the lands in this country in the original occupation of the Indian tribes was from the time of the formation of this government vested in the United States. The Indian title as against the United States was merely a title and right to the perpetual occupancy of the land with the privilege of using it in such mode as they saw fit until such right of occupation had been surrendered to the government. When Indian reservations were created, either by treaty or executive order, the Indians held the land by the same character of title, to wit, the right to possess and occupy the lands for the uses and purposes designated.” Wuirte, J. Spalding v. Chandler, 160 U. S. 402. “They [the Cherokee Indians] claimed the principal part of the country now compos- ing the states of North and South Carolina, Georgia, Alabama, and Tennessee. Their title was treated by the governments estab- lished by England, and the governments suc- ceeding them, as merely usufructuary, af- fording protection against individual en- croachment, but always subject to the control and disposition of those governments, at least so far as to prevent, without their con- sent, its acquisition by others. Such superior right rested upon the claim asserted by Eng- land of prior discovery of the country, and was respected by other European nations. There was no nation, therefore, to oppose this assertion of superior right to control the disposition of the lands, and to acquire the title of the Indians, except the Indians them- selves; and by treaties with them from time to time their title and interest were ceded to the United States.” Frerp, J. Cherokee Trust Funds, 117 U. S. 294. — Right of Occupancy Is Sacred. “Tn decisions of this court, the Indian right of occupancy of tribal lands, whether declared in a treaty or otherwise created, has been stated to be sacred, or, as sometimes expressed, as sacred as the fee of the United States in the same lands.” Wuurts, J. Lone Wolf v. Hitchcock, 187 U. S. 564. — Fee Is in the United States. “Tt is conceded that the fee to the lands comprised within Indian reservations is in the United States, subject to a right of oc- cupancy on the part of the Indians.” Brown, J. Pine River Logging Co. v. U. S., 186 U.S. 284, “At no time has the sovereignty of the country been recognized as existing in the 928 INDIANS. Indians, bit they have always been admitted to possess marty of the attributes of sover- eignty. All the rights which belong to self- government have been recognized as vested in them. Their right of occupaney has never been questioned, but the fee in the soil has been considered in the government. This may be called the right to the ultimate domain, but the Indians have a present right of pos- session.” McLean, J. Worcester v. Georgia, 6 Pet. 580. —— Indians Cannot Alienate Lands. “Indians have rights of occupancy to their ‘lands as sacred as the fee simple, absolute title of the whites; but they are only rights of occupancy, incapable of alienation, or be- ing held by any other than common right without permission from the government.” Batpwin, J. Cherokee Nation v. Georgia, 5 Pet. 48. “Undoubtedly, the right of the Indian na- tions or tribes to their lands within the United States was a right of possession or occupancy only; arid the Indian title could not be conveyed by the Indians to any one by the United States, without the consent of the United States.” Gray, J. Jones v. Meehan, 175 U. S. 8. “Under the provisions of the treaty of 1854, between the Shawnee Indians residing within the territory of Kansas and the United States, certain of their lands were alloted to individual members and patented to them, with the express restriction that ‘the said lands shall never be. sold by the grantee, or his heits, without the consent of the secretary of the interior.’” Brewer, J. Stearns v. Minnesota, 179 U. S. 249. «— Indian Right of Alienation Reserved by Treaty. “When the United States acquited and took possession of the Floridas under the Louisiana treaty, the treaties which had been made with the Indian tribes remained in force over all the ceded territories, as the laws which regulate the relations with all the Indians who were parties to them. They were binding on the United States as the fundamental laws of Indian right acknowl- edged by royal orders and municipal regu- lations. By these, the Indian right was not merely of possession, but that of alienation.” Grier, J. Wilson v. Wall, 6 Wall. 87. — Right of Individual Indian Owner to Sell His Interest. “ Although the government alone can pur- chase lands from an Indian nation, it does 1 Ox, Dig.—59 not follow, that when the rights of the nation are extinguished, ah individual of the nation who takes as private owner cannot sell his interest. The Indian title is property, and alienable, unless the treaty had prohibited its sale.” Catron, J. Doe v. Wilson, 23 How. 463. —— United States May Pass Fee, Sub- ject to Indian Occupancy. “While the different nations of Europe respected the rights of the natives as oc- cupants, they asserted the ultimate dominion to be in themselves; and claimed and ex- ercised as a consequence of this ultimate dominion, a powet to grant the soil while yet in the possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indians’ rights of occttpancy. The history of America ftom its discovery to the present day proves, we think, the universal recogni- tion of these principles.” Batpwin, J. Cher- okee Natioti v. Georgia, 5 Pet. 49. “Congress may pass title subject to Indian occupancy.” Futter, C. J., dissenting. U.S. v. California, etc., Land Co., 192 U. S. 362. “All our institutions recognize the abso- lute title of the crown, sttbject only to the Indian right of occupancy, and recognized the absolute title of the crowt to extinguish that right. This is iticompatible with an absolute and complete title in the Indians.” MarsHaLt, C. J. Johnson v, M’Intosh, 8 Wheat. 588. “The United States have unequiv- ocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in them- selves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise.” Marsuau, C. J. Johnson v. M’Iatosh, 8 Wheat. 587. “The power now possessed by the gov- ernment of the United States to grant lands, resided, while we were colonies, in the crown, or its grantees. The validity of the titles given by eithet has never been questioned in ottf courts. It has been exercised uni- formly over tertitory itt possession of the Indians. The existence of this power must negative the existence of any right whictt 929 INDIANS. may conflict with, and control it.’ Mar- SHALL, C. J. Johnson v. M’Intosh, 8 Wheat. 587. “The propriety or justice of their [the United States] action towards the Indians with respect to their lands is a question of governmental policy, and is not a matter open to discussion in a controversy between parties, neither of whom derives title from the Indians.” FreLp, J. Beecher v. Weth- erby, 95 U. S. 525. “The right of the United States to dis- pose of the fee of lands occupied by them [the Indians] has always been recognized by this court from the foundation of the government.” FreLp, J. Beecher v. Wether- by, 95 U. S. 525. For practically the same language see the opinion of Fiexp, J., in Mis- souri, etc, R. Co. v. Roberts, 152 U. S. 117. “In the construction of grants supposed to embrace lands in the occupation of Indians, questions have arisen whether Con- gress intended to transfer the fee, or other- wise; but the powers of the United States to make such transfer has in no instance been denied.” Frerp, J. Beecher v. Weth- erby, 95 U. S. 526. ‘ —— On Abandonment by Indians, Posses- sion Attaches Itself to the Fee. “The right of the Indians to their occu- pancy is as sacred as that of the United States to the fee, but it is only a right of occupancy. The possession, when abandoned by the Indians, attaches itself to the fee without further grant.” Warts, C. J. U. S. v. Cook, 19 Wall. 593. “Tt would seem .. clear that there was nothing in the character of the land as an Indian reservation which could prevent the operation of the grant of Congress, sub- ject to the right of occupancy retained by the Indians; so that, when this right should be relinquished, the possession would inure to the grantee.” Fretp, J., dissenting: Leavensworth, etc., R. Co. v. U. S., 92 U. S. 755. Grant of Lands by United States to In- dian Nations — Power to Make Grant. “There is nothing to prevent the United States if it chooses to convey a fee to the Indian tribes from so doing.” Day, J. Delaware Indians v, Cherokee Nation, 193 U. S. 136, -— Lands Granted to Indian Nation Can- not Be Alienated by Individuals. “From them [the provisions of the Chero- kee Constitution and the statutes passed in pursuance thereof] it is apparent that lands to be held upon the same terms as the Chero- kees hold their lands cannot be alienated by those who occupy and hold them, but the ownership is lodged in the Cherokee nation. The individual has no right to alienate or lease the lands. The nation grants and re- stricts the right of occupancy. The title to the lands is vested in’ the government, to be held and controlled in such wise as to pro- mote the general welfare. Under these re- strictions and conditions the registered Dela- wares held the lands set apart for their oc- cupancy. In the laws of the Cherokee nation we find that the use of the terms ‘ for use and occupancy’ was not an unfamiliar form of expression in describing the character and limitation upon the right of private owner- ship. Thus in the act relating to the public domain, and reserving tracts of lands one mile square along railroads at stations and providing for the sale of town lots, it is provided that the purchaser shall acquire no other rights than those of use and occu- pancy.” Day, J. Delaware Indians v. Cher- okee Nation, 193 U. S. 137. III. REGULATION OF COMMERCE WITH INDIANS. Power of Congress to Regulate. “Congress has the power to regulate com- merce with the Indian tribes.” CLIFFoRD, J. Waring v. Mobile, 8 Wall. 121. “Tt is unquestioned that by the Constitu- tion of the United States Congress is vested with paramount power to regulate commerce with the Indian tribes.” Watts, J. Morris v. Hitchcock, 194 U. S. 388. “Congress has power to regulate com- merce, not only with foreign nations and among the several states, but with the Indian tribes.” Hartan, J. Cherokee Nation wv. Southern Kansas R. Co., 135 U. S. 657. * As long as these [Chippewa] Indians re- main a distinct people, with an existing tribal organization, recognized by the political de- partment of the government, Congress has the power to say with whom, and on what terms, they shall deal, and what articles shall be contraband.” Davis, J. U, S. vw. 43 Gal. of Whiskey, etc., 93 U. S. 195. “By the Constitution, the regulation of commerce among the Indian tribes is given 930 INDIANS. to Congress. This power must be considered as exclusively vested in Congress as the power to regulate commerce with foreign nations, to coin money, to establish post- offices, and to declare war. It is enumerated in the same section, and belongs to the same class of powers. This investiture of power has been exercised in the regulation of com- merce with the Indians, sometimes by treaty, and, at other times, by enactments of Con- gress, In this respect they have been placed by the federal authority, with but few ex- ceptions, on the same footing as foreign na- tions.” McLean, J. Worcester v. Georgia, 6 Pet. 580. “In the regulation of commerce with the Indians, Congress have exercised a more limited power than has been exercised in reference to foreign countries.” McLean, J. Worcester v. Georgia, 6 Pet. 592. — Power of Congress Exclusive. “Does not the Constitution give to the United States as exclusive jurisdiction in regulating intercourse with the Indians, as has been given to them over any other sub- jects? Is there any doubt as to this in- vestiture of power? Has it not been exercised by the federal government, ever since its formation, not only without objec- tion, but under the express Sanction of all the states? McLean, J. Worcester v Georgia, 6 Pet. 591. — State Taxation Does Not Interfere with Exclusive Power of Congress. “The unlimited power of Congress to deal with the Indians, their property and com- mercial transactions, so long as they keep up their tribal organizations, may be con- ceded; but it is not perceived that local taxation, by a state or territory, of property of others than Indians would be an inter- ference with Congressional power.” SHrras, J. Thomas v. Gay, 169 U. S. 274. Policy of Government Open to Criticism. “It may be that the policy of the govern- ment on the subject of Indian affairs has, in some particulars; justly provoked crit- icism.” Davis, J. U.S. v. 43 Gal. of Whis- key, etc., 93 U. S. 192. Intercourse Laws Difficult of Enforce- ment. “Traffic with Indians is so profitable, that white men are constantly encroaching on Indian territory to engage in it. The dif- ficulty of preventing this intrusion, and of procuring convictions for offenses committed on the confines of civilization, are the ob- stacles in the way of carrying into effect the intercourse laws. It is doubtless true that they are as well executed as could be expected under the circumstances.” Davis, J. U.S. uv. 48 Gal. of Whiskey, etc., 93 U. S. 193. IV. INDIAN RESERVATIONS. Mode of Creation. “In order to create a reservation [Indian] it is not necessary that there should be a formal cession of a formal act setting apart a particular tract. It is enough that from what has been done there results a certain defined tract appropriated to certain pur- poses.” Brewer, J. Minnesota v. Hitch- cock, 185 U. S. 390. Power of Congress to Enlarge Boundaries. “The power to define originally the ‘In- dian country,’ within which the unlicensed introduction and sale of liquors were pro- hibited, necessarily includes that of enlarg- ing the prohibited boundaries, whenever, in the opinion of Congress, the interests of In- dian intercourse and trade will be best sub- served.” Davis, J. U. S. vw. 43 Gal. of Whiskey, etc. 93 U. S. 196. Setting Aside Lands for Indian Occupancy Withdraws Their Character as Public Lands. “The setting apart by statute or treaty with them [Indians] of lands for their oc- cupancy is held to be of itself a withdrawal of their character as public lands, and con- sequently of the lands from sale and pre- emption.” Frerp, J. Missouri, etc. R. Co. v. Roberts, 152 U. S. 118. — Indian Lands Not Subject to Pre-emp- tion. “No laws giving to settlers a right to pre- emption, can be so construed as to embrace Indian lands. Such lands have always been protected from settlement and survey by penal enactments.” McLean, J. Thredgill v. Pintard, 12 How. 37. Citizenship in Indian Nation Essential to Enjoyment of Common Property. “If Indians in that state [Mississippi] or in any other state east of the Mississippi wish to enjoy the benefits of the common property of the Cherokee nation, in whatever form it may exist, they must, as held by the Court of Claims, comply with the Constitu- tion. and laws of the Cherokee nation and be readmitted to citizenship as there pro- 931 INDIANS. vided. They cannot live out of its terri- tory, evade the obligations and burdens of citizenship, and at the same time enjoy the benefits of the funds and common prop- erty of the nation.” Fretp, J. The Cher- okee Trust Funds, 117 U. S. 311. Interest of Tribe in Lands Ceases on Re- moval to Another Body. “When the Indian tribe has been removed by treaty from one body of land to another the interest of the tribe in the land from which it has been. removed ceases atid the full obligation of the government to the Indians is satisfied when the pecuniary or real estate consideration for the cession is secured to them.” Brewer, J. Minnesota v. Hitchcock, 185 U. S. 401. Jurisdiction to Punish Offenses Committed on Reservations. “The mere reservation of jurisdiction and control by the United States of ‘Indian lands’ does not of necessity signify a re- tention of jurisdiction in the United States to punish all offenses committed on such lands by others than Indians or against In- dians.” Wuite, J. Draper v. U. S., 164 U. S. 245. V. STATE CONTROL OF INDIANS. In General. “The Indian tribes and individuals are subject to the laws of the United States, and of the states in which they are located.” Hunt, J. Stuart v. U. S., 18 Wall. 87. “The residence of Indians, governed by their own laws, within the limits of a state, has never been deemed incompatible with state sovereignty, until tecently. And yet, this has been the condition of many dis- tinct tribes of Indians, since the foundation of the federal government. How is the question varied by the residence of the In- dians in a territory of the United States? Are not the United States sovereign within their territories? And has it ever been con- ceived, by any one, that the Indian govern- ments, which exist in the territories are incompatible with the sovereignty of the Union? A state claims the right of sov- ereignty, commensurate with her territory; as the United States claim it, in their proper sphere, to the extent of the federal limits. This right or power, in some cases may be exercised, but not in others. Should a hos- tile force tmvade the country, at its most remote boundary, it would become the dutv of the general government to expel the in- vaders. But it would violate the solemn compacts with the Indians, without cause, to dispossess them of rights which they possess by nature, and have been uniformly acknowledged by the federal government.” McLzan, J. Worcester v. Georgia, 6 Pet. 591. “The inquiry may be made, is there no end to the exercise of this power over In- dians within the limits of a state, by the general government? The answer is, that, in its nature, it must be limited by cir- cumstances. If.a tribe of Indians shall be- come so degraded or reduced in numbers, as to lose the power of self-government, the protection of the local law, of necessity, must be extended over them.” McLean, J. Worcester v. Georgia, 6 Pet. 593. Indians Protected by State Laws. “In some of the old states, Massachusetts, Connecticut, Rhode Island, and others, where small remnants of tribes remain, surrounded by white population, and who, by their re- duced numbers, had lost the power of self- government, the laws of the state have been extended over them, for the protection of their persons and property.” McLean, J. Worcester v. Georgia, 6 Pet. 580. “Tf a contingency shall occur, which shall! render the Indians who reside in a. state, incapable of self-government, either by moral degradation or a reduction of their numbers, it would undoubtedly be in the power of a state government to extend to them the zgis of its laws. Under such circumstances, the agency of the general government of necessity, must cease.” McLean, J. Wor- cester v. Georgia, 6 Pet. 594, “That fragment of tribes, having lost the power of self-government, and who lived within the ordinary jurisdiction of a state, have been taken under the protection of the laws, has already been admitted. But there has been no instance, where the state laws have been gerterally extended over a numer- ous tribe of Indians, living within the state, and exercising the right of self-government, until recently.” McLzan, J. Worcester v. Georgia, 6 Pet. 590. VI. ADOPTION INTO INDIAN TRIBES. Presumption of Adoption. “Tf there is any presumption, . . . it rather is that 2 negro found within the In- 932 INDIANS. dian territory, associating with the Indians, is a member of the tribe by adoption.” Sutras, J. Lucas v. U. S., 163 U. S. 616, Citizenship Not Necessarily Lost by Adop- tion. “While the Indians and the territory which may have been specially set apart for their use are subject to the jurisdiction of the United States, and Congress may pass such laws as it sees fit prescribing the rules gov- erning the intercourse of the Indians with one another and with citizens of the United States, and also the courts in which all con- troversies to which an Indian may be a party shall be submitted, . the mere fact that a citizen of the United States has become a member of an Indian tribe by adop- tion may not necessarily cancel his citizen- ship.” Brewer, J. Roff v. Burney, 168 U. S. 222. See also supra, I. 1, VII. TREATIES WITH INDIANS. Power to Make Treaties with the Indians. “The President and Senate, except under the treaty-making power, cannot enter into compacts with the Indians, or with foreign nations. This power has been uniformly ex- ercised in forming treaties with the Indians.” McLean, J. Worcester v. Georgia, 6 Pet. 582. — Power of Executive Department. “Congress did not intend to invest the President or the head of a department, or any officer of the government, with unre- stricted authority in the making of treaties with Indians, or in regulating intercourse with them, to purchase merchandise for them, or to make payments of money or goods to them.” Haran, J. U. S. vu. Mc- Dougall, 121 U. S. 100. Purpose of Indian Treaties. “The acquisition of territory has been the moving cause of all Indian treaties, and will continue to be so, until Indian reservations are confined to very narrow limits.” Davis, J. U. S. vw. 48 Gal. of Whiskey, et- 93 U.S. 196. Binding Force of Treaties. “The question may be asked, is no dis- tinction to be made between a civilized and savage people? Are our Indians to be placed upon a footing with the nations of Europe, with whom we have made treaties? The inquiry is not what station shall now be given to the Indian tribes in our country? 933 but what relation have they sustained to us, since the commencement of our government? We have made treaties with them; and are those treaties to be disregarded on our part, because they were entered into with an un- civilized people? Doés this lessen the ob- ligation of such treaties? By entering into them, have we not admitted the power of this people to bind themselves, and to impose obligations on us?” McLean, J. Worces- ter v. Georgia, 6 Pet. 582, After a lapse of more than forty years since treaties with the Indians have been solemnly ratified by the general government, it is too late to deny their binding force. Have the numerous treaties which have been formed with them, and the ramifications by the President and Senate, been nothing more than an idle pageantry?” McLean, J. Worcester v. Georgia, 6 Pet. 583. “So long-as treaties and laws remain in full force, and apply to Indian nations, ex- ercising the right of self-government, within the limits of a state, the judicial power can exercise no discretion in refusing to give effect to those laws, when questions arise under them, unless they shall be deemed unconstitutional.” McLean, J. Worcester v. Georgia, 6 Pet. 593. “Tt will scarcely be doubted by any one, that, so far as the Indians, as distinct com- munities, have formed a connection with the federal government, by _ treaties, 4 such connection is political, and is equally binding on both parties. This cannot be questioned except upon the ground that in making these treaties, the federal govern- ment has transcended the treaty-making power. Such an objection, it is true, has been stated, but it is one of modern inven- tion, which arises out of local circumstances; and is not only opposed to the uniform prac- tice of the government, but also to the letter and spirit of the Constitution.” McLean, J. Worcester v. Georgia, 6 Pet. 593. “Tf it shall be the policy of the govern- ment to withdraw its protection from the In- dians who reside within the limits of the respective states, and who not only claim the right of self-government, but have uniformly exercised it; the laws and treaties which impose duties and obligations on the general government should be abrogated by the pow- ers competent to do so. So long as those laws and treaties exist, having been formed within the sphere of the federal powers, they must be respected and enforced by the ap- ¥ INDIANS. ” propriate organs of the federal government. McLean, J. Worcester v. Georgia, 6 Pet. 594. Power of Congress to Abrogate Indian Treaties. “The power exists to abrogate the pro- visions of an Indian treaty, though presum- ably such power will be exercised only when circumstances arise which will not only jus- tify the government in disregarding the stipu- lations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into be- tween the United States and a tribe of In- dians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might be availed of from considerations of governmental pol- icy, particularly if consistent with perfect good faith towards the Indians.” Wuute, J. Lone Wolf wv. Hitchcock, 187 U. S. 566. —— Passage of Laws Inconsistent With Treaties, “Until the year 1871 the policy was pur- sued of dealing with the Indian tribes by means of treaties, and, of course, a moral ob- ligation rested upon Congress to act in good faith in performing the stipulations entered into on its behalf. But, as with treaties made with foreign nations, . . . the legislative power might pass laws in conflict with treaties made with the Indians.” Wuirte, J. Lone Wolf v. Hitchcock, 187 U.S. 565. Treaty by State with Indians, “Under the Constitution, no state can en- ter into any treaty; and it is believed that, since its adoption, no state, under its own au- thority, has held a treaty with the Indians.” McLzan, J. Worcester v. Georgia, 6 Pet. 581. “Before the adoption of the Constitution, the mode of treating with the Indians was various. After the formation of the con- federacy, this subject was placed under the special superintendence of the United Col- onies; though, subsequent to that time, trea- ties may have been occasionally entered into between a state and the Indians in its neigh- borhood. It is not considered to be at all important to go into a minute inquiry on this subject.” McLean, J. Worcester v. Geor- gia, 6 Pet. 580. Treaties Should Not Be Construed to Prejudice of Indians. “The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be con- sidered as used only in the latter case.” Brewer, J. Minnesota v. Hitchcock, 185 U. S. 396. “The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of which are susceptible of 2 more extended meaning than their plain import, as connected with the tenor of the treaty, they should be con- sidered as used only in the latter sense. To contend that the word “allotted,” in refer- ence to the land guaranteed to the Indians in certain treaties indicates a favor conferred, rather than a right acknowledged, would, it would seem to me, do injustice to the under- standing of the parties. How the words of the treaty were understood by this unlettered people rather than their critical meaning, should form the rule of construction.” McLean, J. Worcester v. Georgia, 6 Pet. 582. —— Obvious Meaning of Words Cannot Be Disregarded. “Tn no case has it been adjudged that the courts could by mere interpretation or in deference to its view as to what was right under all circumstances, incorporate into an Indian treaty something that was inconsistent with the clear import of its words.” Har- LAN, J. U.S. v. Choctaw, etc., Nations, 179 U. S. 532. “Tf the words used in the treaty of 1866, reasonably interpreted, import beyond ques- tion an absolute, unconditional cession of the lands in question to the United States free from any trust, then the court cannot amend the treaty or refuse to carry out the intent of the parties, as gathered from the words used, merely because one party to it held the relation of an inferior and was politically dependent upon the other, or because in the judgment of the court the Indians may have been overreached.” Haran, J. U.S. v. Choctaw, etc., Nations, 179 U. S. 535. “While the dependent character of the Indians makes it the duty of the court to closely scrutinize the provisions of the treaty and to interpret them ‘in the light of the larger reason and the superior justice. that 934 INDICTMENTS AND INFORMATIONS. constitute the spirit of the law of nations,’ the court must take care, when using its power to ascertain the intention of the parties, not to disregard the obvious import of the words employed, and thereby, in ef- fect, determine questions of mere govern- mental policy.” Hartan, J. U. S. v. Choc- taw, etc., Nations, 179 U. S. 538. “If Congress chose to adopt one course towards the Choctaws and Chickasaws, it is not for the judiciary to defeat the will of the legislative branch of the government by giving to an Indian treaty a meaning not justified by its words.” Haran, J. U. S. v. Choctaw, etc., Nations, 179 U. S. 541. “Tt has never been held that the obvious, palpable meaning of the words of an Indian treaty may be disregarded because, in the opinion of the court, that meaning may in a particular transaction work what it would regard as injustice to the Indians. That would be an intrusion upon the domain com- mitted by the Constitution to the political departments of the government.” Haran, J. U.S. v. Choctaw, etc., Nations, 179 U. S. 532. VIII. WARS WITH INDIANS. Right of Congress to Wage War and Conclude Peace. “Congress assumed the management of Indian affairs; first in the name of these United Colonies; and, afterwards, in the name of the United States. Early attempts were made at negotiation, and to regulate trade with them. These not proving success- ful; war was carried on under the direction and with the forces of’ the United States, and the efforts to make peace by treaty were earnest and incessant. The Confederation found Congress in the exercise of the same powers of peace and war, in our relations with Indian nations, as with those of Eu- rope.” MarsHALL, C. J. Worcester v. Geor- gia, 6 Pet. 558. Declaration of War Unnecessary. “We recall no instance where Congress has made a formal declaration of war against an Indian nation or tribe; but the fact that Indians. are engaged in acts of general hostil- ity to settlers, especially if the government has deemed it necessary to dispatch a mili- tary force for their subjugation, is sufficient to constitute a state of war.’ Brown, J. Montoya v. U. S., 180 U. S. 267. “It is a matter of history that all along our western frontier there has been a suc- cession of Indian wars, with great destruc- tion of life and property, and yet seldom has there been a formal declaration of war on the part of either the government or the Indians.” Brewer, J. Marks v. U. S., 161 U. S. 302. Liability of Indians for Engaging in Hostilities. “Many of the treaties between the United States and Indian tribes contain not only a promise to abstain from hostilities, but also a specific stipulation that, in case of a breach of such promise, compensation shall be made out of the tribal funds, or otherwise.” Brew- ER, J. Leighton v. U. S., 161 U. S. 296. —Amicable Tribes Not Liable for Acts of Independent Bands. “Tt can hardly be supposed that Congress would impose a liability upon tribes in amity with the United States, for the acts of an independent band, strong enough to defy the authority of the tribe, although it would not be inequitable to hold the tribe for in- dividual members whom it was able, but had failed, to control” Brown, J. Montoya v. U. S., 180 U. S. 268. INDIA-RUBBER. “The import of india-rubber, in any form, into this country, does not appear to have attracted attention in the revenue laws, as a separate and specific article, till 1832.” Woapzury, J. Lawrence v. Allen, 7 How. 792. INDICTMENTS AND INFOR- MATIONS. I. DEFINITIONS. II. Necessiry ror INDICTMENT OR INFORMATION, Il]. Time ror Finpinec INDICTMENT. IV. CHARGING THE OFFENSE. 1. Degree of Certainty Required. 2. Accused Must Be Clearly In- formed of Charge. 3. Statement of Offense in Words of Statute. 4, Mere Definition of Offense In- sufficient. 5. Every Ingredient Must Be Clear- ly Set Out. 6. Felonious Intent. . Venue of the Offense. . Time of Commission of Offense. aon 935 INDICTMENTS AND INFORMATIONS, 9. Description of Property Stolen.” 10. Use of Disjunctives. 11. Rule for Testing Sufficiency of Indictment. V. INDICTMENT CONTAINING SEV- ERAL COUNTS. VI. Ricut or Accusep To Copy oF INDICTMENT. VII. Matter Must BE PROVED AS Laip. VIII, OsyEcTIONsS, CROSS-REFERENCES. See CRIMINAL Law; EMBEZZLEMENT; JURY AND Jury TriaL; NationaL Banks. I. DEFINITIONS. Indictment Defined. “ An’ indictment is a technical word pecul- iar to Anglo-Saxon jurisprudence, and im- plies the finding of a grand jury.” Brown, J. Grin v. Shine, 187 U. 8. 192, Information Defined. “When a constitution declares that felo- nies may be prosecuted by information after a commitment by a magistrate, we under- stand exactly what is meant, since informa- tion for the prosecution of minor offenses are said by Blackstone to be as old as the common law itself, and a proceeding before magistrates for the apprehension and com- mitment of persons charged with crime has been the usual method of procedure since the adoption of the Constitution.” Brown, J. Davis v. Burke, 179 U. S. 403. Indictment and Information Distinguished, “In the English courts an information for an offense differs from an indictment, chiefly in the fact that it is presented by the law officer of the crown without the intervention of a grand jury. Whether filed by the at- torney-general or the master of the crown office, and whether it relates to public of- fenses or to the class of private rights speci- fied in the statute of 9 Ann. ch. 20, in relation to which it may be invoked as a remedy, it is brought in the name of the king, and the practice is substantially the same in all cases. Any defect in the structure of the informa- tion may be taken advantage of by demur- rer.” Swayne, J. Nebraska v. Lockwood, 3 Wall. 238. II. NECESSITY FOR INDICTMENT OR INFORMATION. “In most of our legislatures, . . . by the fundamental law, there has been incor- porated into their constitutions prohibitions to make searches for papers or persons with- out a due warrant, and to try for offenses except by indictment, unless in cases arising in the army or navy or militia themselves.” Woopgury, J., dissenting. Luther v. Borden, 7 How. 66. “Tn the eyes of the law a person is charged with crime only when he is called upon in a legal proceeding to answer to such charge. Mere investigation by prosecuting officers, or even the inquiry and consideration by ex- amining magistrates of the propriety of ini- tiating a prosecution, do not of themselves create a criminal charge. The hearing and deciding on a criminal charge is something which takes place only after the criminal charge has been legally made.” Brewer, J. U. S. uv. Patterson, 150 U. S. 68. “Criminal proceedings cannot be said to be brought or instituted until a formal charge is openly made against: the accused, either by indictment presented or information filed in court, or, at the least, by complaint be- fore a magistrate.” Gray, J. Post v. U. S,, 161 U. S. 587. “The proceedings required by the general law for the arrest and detention of a party for a public offense —the charge under oath, the examination of witnesses in the presence of the accused with the privilege of cross- examination, and of producing testimony in his favor, creating the objectionable delays — constitute the shield and safeguard of the honest and loyal citizen.” Frep, J., dissent- ing. Beckwith v. Bean, 98 U. S. 297. “Whether a convict shall be permitted to testify is not governed by a regard to his rights or to his protection, but by the con- sideration whether the law deems his testi- mony worthy of credit upon the trial of the rights of others. But whether a man shall be put upon his trial for crime without a presentment or indictment by a grand jury of his fellow citizens depends upon the con- sequences to himself if he shall be found guilty” Gray, J. Ex p, Wilson, 114 U. S, 423, “Within the last fifteen years, prosecutions by information have greatly increased, and the general current of opinion in the Circuit and District Courts has been towards sus- taining them for any crime; a conviction of which would not at common law have dis- qualified the convict to be a witness.” Gray, J. Ex p, Wilson, 114 U. S. 425. 936 INDICTMENTS AND INFORMATIONS. “T have not been aware that any infor- mation or an indictment could be founded on any statute which was not penal in its character.” Fuiexp, J., dissenting. Stockwell v. U. S., 18 Wall. 555. Il¥. TIME FOR FINDING INDICT- MENT. “There is no prohibition against finding an indictment or bringing on of the trial at any time after the commission of the offense.” Brewer, J. Thiede v. Utah Terri- tory, 159 U. S. 513. “ Accused persons may avail themselves of the statute of limitations by special plea or by evidence under the general issue, but courts of justice, if the statute contains ex- ceptions, will not quash an indictment be- cause it appears upon its face that it was not found within the period prescribed in the limitation, as such a proceeding would de- prive the prosecutor of the right to reply or give evidence, as the case may be, that the defendant fled from justice and was within the exception.” CLiFForD, J. U. S. v. Cook, 17 Wall. 179. IV. CHARGING THE OFFENSE. 1. DEGREE OF CERTAINTY REQUIRED. “At the common law, in certain descrip- tions of offenses, and especially of capital offenses, great nicety and particularity is re- quired, either from the obvious intention of the legislature, or from the application of known principles of law.” Story, J. U. S. v. Gooding, 12 Wheat. 474, “Valuable rights and privileges, almost without number, are granted and secured to citizens by the Constitution and laws of Con- gress; none of which may be, with impunity, invaded in violation of the prohibition con- tained in that section [6th section of En- forcement Act]. Congress intended by that provision to protect citizens in the enjoyment of all such rights and privileges; but in af- fording such protection in the mode there provided Congress never intended to open the door to the invasion of the rule requir- ing certainty in criminal pleading, which for ages had been regarded as one of the great- est safeguards of the citizen against oppres- sive and groundless prosecutions.” WaAlIrTE, C.J. U.S. vw. Cruikshank, 92 U. S. 566. “The general rule requires an indictment to be specific.” Wurtz, J., dissenting, Rosen v. U. S,, 161 U. S. 47. “Manifestly the description in the indict- ment does not need to be any more definite and precise than the proof of the crime,” Brewer, J, Dealy v, U. S., 152 U, S. 543, 2. AccuseD Must Be C.iearty In- FORMED OF CHARGE. Rule Stated. “The general rule is, that in indictments for misdemeanors created by statute, it is sufficient to charge the offense in the words of the statute. There is. not that technical nicety required as to form, which seems to have been adopted and sanctioned by long practice in cases of felony, and with respect to some crimes, where particular words must be used, and no other words, however syn- onymous they may seem, can be substituted. But in all cases the offense must be set forth with clearness, and all necessary certainty, to apprise the accused of the crime with which he stands charged.” THompson, J. U. S. v. Miller, 7 Pet. 142. “A rule so essential to justice and fair proceeding as that which requires a substan- tial statement of the offense upon which the prosecution is founded, must be the rule of every court where justice is the object, and cannot be satisfied by a general reference to the provisions of a statute.” MarsHALt, C. J. Schooner Hoppet v. U. S., 7 Cranch 394. “Tn all proceedings in courts of common law, either against the person or the thing for penalties or forfeitures, the allegation that the act charged was committed in vio- lation of law, or of the provisions of a par- ticular statute will not justify condemnation, unless, independent of this allegation, a case be stated which shows that the law has been violated. The reference to the statute may direct the attention of the court and of the accused, to the particular statute by which the prosecution is to be sustained but forms no part of the description of the offense.” Marsuatt, C. J. Schooner Hoppet v. U, S., 7 Cranch 393. “The rule that a man shall not be charged with one crime and convicted of another, may sometimes cover real guilt, but its ob- servance is essential to the preservation of innocence. It is only a modification of this tule, that the accusation on which the prose- cution is founded, should state the crime which is to be proved, and state such a crime as will justify the judgment to be pro- nounced.” Marsuatt, C. J. Schooner Hop- pet v. U.S. 7 Cranch 394, 987 INDICTMENTS AND INFORMATIONS. ' “The object of an indictment is to apprise the court and the accused of what is charged against him, and the object of a statute is to declare or define the offense intended to be made punishable.” Hunt, J., dissenting. U. S. uv. Reese, 92 U. S. 243. “Due process of law required a specific description of all the offenses for which the defendant was to be put on trial.” Fiexp, J., dissenting. O’Neil v. Vermont, 144 U. S. 365. “Tt is the established rule of the common law, which has prevailed in England and in this country since the revolution of 1688, if not for a period anterior to it, that in all criminal prosecutions the accused must be informed of the nature and cause of the accusation against him. It is the law of every civilized community, and in no case can there be, in criminal proceedings, due process of law where the accused is not thus informed. The information which he is to receive is that which will acquaint him with the essential particulars of the offense, so that he may appear in court prepared to meet every feature of the accusation against him.” Fietp, J., dissenting. O’Neil v. Vermont, 144 U. S. 366. Purpose of Requirement. “Descriptive allegations in criminal plead- ing are required to be reasonably definite and certain, as a necessary safeguard to the accused against surprise, misconception, and error in conducting his offense, and in order that the judgment in the case may be a bar to a second accusation for the same charge.” Warts, C. J. U. S. v. Cruikshank, 92 U. S. 568, “Whether a particular crime be such a one [as is punishable by imprisonment in a state prison] or not, is a question of law. The accused has, therefore, the right to have a specification of the charge against him in this respect, in order that’ he may decide whether he should present his defense by motion to quash, demurrer, or plea; and the court, that it may determine whether the facts will sustain the indictment.” Wakrrte, C. J. U.S. uv. Cruikshank, 92 U. S. 559. “The accused is entitled to be informed of the nature and cause of the accusation against him, and jurisdiction should not be exercised when there is doubt as to the authority to exercise it. All the essential ingredients of the offense charged must be stated in the indictment, embracing with reasonable certainty the particulars of time and place, that the accused may be enabled 938 to prepare his defense and avail himself of his acquittal or conviction against any fur- ther prosecution for the same cause.” FuL- Ler, C. J. Ball v. U. S., 140 U. S.'136. “The general rule that an indictment for an offense purely statutory is sufficient if it pursues substantially the words of the stat- ute, is subject to the qualification, funda- mental in the law of criminal procedure, ‘that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, to the end that he may prepare his defense and plead the judgment as a bar to any subse- quent prosecution for the same offense.’” Hartan, J. Blitz v. U. S., 153 U. S. 315. What Constitutes Sufficiency of Descrip- tion. “A defendant is informed of the nature and cause of the accusation against him if the indictment contains such description of the offense charged as will enable him to make his defense and to plead the judgment in bar of any further prosecution for the same crime.” Hartan, J. Rosen v. U. S., 161 U. S. 34. “These counts embody the , language of the statute [Rev. Stat. U. S., §5209]; they charge every element of the offense created by the statute with sufficient certainty, and give the defendant clear notice of the charge he is called on to defend. They are, there- fore, sufficient.” Woops, J. U.S. v. Britton, 107 U. S. 665. “Tt is urged that these counts are defect- ive, because they do not contain an aver- ment that the false entry was made ‘in an account of and in the due course of business of the bank.’ Neither of these averments is required by the statute [Rev. Stat. sec. 5209]. It is alleged that the false entry was made in a book belonging to and in use by the association in transacting its banking business, and known and designated as ‘profit and loss, number six.’ To hold this insufficient would carry refinement in crim- inal pleading to an impracticable extent. The counts point out to the defendant and the court, with certainty and precision, the book used by the association in which the false entry was made, and this is all that is neces- sary under the statute.” Woops, J. U. S. v. Britton, 107 U. S. 662. Objection for Insufficiency After Con- viction. “Tt is to me a surprising doctrine that a party can be tried for and convicted of a INDICTMENTS AND INFORMATIONS. criminal offense not alleged against him, and afterwards, when the sentence is attempted to be enforced, can be prevented from tak- ing the objection that no offense was charged in the accusation, because no defect of that kind was urged at the trial.” Fretp, J., dis- senting. O’Neil v. Vermont, 144 U. S. 366. 3. STATEMENT OF OFFENSE IN WORDS oF STATUTE. In General. “On indictments at the common law, it is often sufficient to state the offense in the very terms of the prohibitory statute.” Story, J. The Palmyra, 12 Wheat. 13. “Indictments for offenses created and de- fined by statute must in all cases follow the words of the statute: and, where there is no departure from that rule, the indictment is in general sufficient, except in cases where the statute is elliptical, or where, by necessary implication, other constituents are component parts of the offense; as where the words of the statute defining the offense have a com- pound signification, or are enlarged by what immediately precedes or follows the words describing the offense, and in the same con- nection.” Warre, C. J. U. S. wv. Cruik- shank, 92 U. S. 564. “Information for offenses or penalties cre- ated and defined by statute, like indictments, must follow the words of the statute; and where there is no substantial departure from that requirement, the information, like the indictment, is in general sufficient, except in cases where the statute is elliptical or where by necessary implication other constituents are component parts of the offense.” CxiF- ForD, J. U. S. v. Mann, 95 U. S. 583. “With reference to indictments for statu- tory offenses, there are certain rules which govern their construction. It is usually suf- ficient, in such cases, to set forth the offense in the language of the statute, if it be ac- companied by a statement of such facts and circumstances as will inform the accused of the specific offense, coming under the general description of the statute, with which he is charged. He must be apprised by the indict- ment, with reasonable certainty, of the nature of the accusation against him, in order that he may be able to prepare for his defense, and, also, in case of conviction or acquittal, that he may plead the judgment in bar of further proceedings.” Fietp, J., dissenting. Evans v. U. S., 153 U. S. 598. Indictment in Terms of Statute Need Not Be Supplemented by Other Matter. “The general rule still holds good that upon an indictment for a statutory offense the offense may be described in the words of the statute, and it is for the defendant to show that greater particularity is required by reason of the omission of the statute of some element of the offense. Where the statute completely covers the offense, the indictment need not be made more complete by specifying particulars elsewhere obtained.” Brown, J. Ledbetter v. U. S., 170 U. S. 612. “In such case [of statutory offenses] it is generally sufficient to charge the defendant with acts coming within the statutory de- scription in the substantial words of the statute without any further expansion of the matter.’ McKenna, J. Pounds wv. U. S., 171 U. S. 38. Exceptions to General Rule. “As a general rule, an indictment for a statute offense is sufficient, if it describe the offense in the very words of the statute. The exceptions to this rule are, where the of- fenses created by statute are analogous to certain common-law felonies or misdemean- ors, where the precedents require certain technical language, or where special aver- ments are necessary in the description of the particular offense, in order that the defendant may afterwards protect himself under the plea of autrefois acquit or convict.” GRIER, U. S. v. Brig Neurea, 19 How. 94. “Cases wherein. it is held that an indict- ment in the exact language of the statute is not sufficient are those wherein the statute does not contain all the elements of the of- fense, as . . where a statute against passing counterfeit money failed to aver the scienter; but where the statute sets forth every ingredient of the offense, an indict- ment in its very words is sufficient, though that offense be more fully defined in some other section.” Brown, J. Ledbetter v. U. S., 170 U. S. 611. : 4. MrERE DEFINITION OF OFFENSE INSUFFICIENT. Facts and Circumstances Must Be Set Out. “Every offense consists of certain acts done or omitted under certain circumstances ; and, in the indictment for the offense, it is not sufficient to charge the accused generally with having committed the offense, but all 939 INDICTMENTS AND INFORMATIONS. the circumstances constituting the offense must be specially set forth.” Warre, C. J. U.S. v. Cruikshank, 92 U. S. 563. “Tt is essential to a valid indictment that it should set forth the offense, with such par- ticulars of time, place, and person, that the accused may know the nature of the charge, and be able to prepare to meet it. It is not enough to repeat the definition of the of- fense in the general language of the statute, and then aver that the defendant has been guilty of the offense thus defined without other specification. It is not sufficient, for example, to charge in an indictment that the defendant has been guilty of murder, with- out stating the time and place of the offense, and the name of the person murdered, or, if his name be unknown, giving such a de- scription as to identify him. An indictment without such specification would be merely a collection of pointless words. This doc- trine is only common learning; it is found in the hornbooks of the law; it is on the pages thumbed by the student in his first lessons in criminal procedure.” Fie.p, J., dissenting. Ex p. Virginia, 100 U. S. 351. ““An information to recover a penalty created by statute must state all the ma- terial facts and circumstances which consti- tute the offense, so as to bring the party im- pleaded precisely within the provisions of the statute defining the offense.” CLIFFoRD, J. U. S. v. Mann, 95 U. S. 586. “The general rule in reference to an in- dictment is that all the material facts and circumstances embraced in the definition of the offense must be stated, and that, if any essential element of the crime is omitted, such omission cannot be supplied by intend- ment or implication.” Futter, C. J. Petti- bone v. U. S., 148 U. S. 202. “A mere statement [in an indictment] of the offense in the words of the statute, with- out a statement of the accompanying facts and circumstances essential to constitute a specific offense, will be insufficient.” rep, J., dissenting. Evans v. U. S., 153 U, S. 598. “The words ‘wilfully misapplied’ are, so far as we know, new in statutes creating offenses, and they are not used in describ- ing any offense at common law. They have no settled technical meaning like the word “embezzle’ as used in the statutes, or the words ‘steal, take and carry away,’ as used at common law. They do not, therefore, of themselves, fully and clearly set forth every element of the offense charged. It would not ¢ be sufficient simply to aver that the defend-. ant ‘wilfully misapplied’ the funds of thé association. This is well settled by the au- thorities we have already cited. There must be averments to show how the application was made and that it was an unlawful one,” Woops, J. U. S. v. Britton, 107 U. S. 669, For language to the same effect see the opinion of Gray, J. in Batchelor v. U. S,, 156 U. S. 429. — Evidence Need Not Be Set Out, “Tt is never necessary to set forth matters of evidence in an indictment.” Brown, J. Bannon v. U. S., 156 U. S. 469. “The rules of criminal pleading do not require the indictment to set forth the evi- dence, or to negative every possible theory of the defense.” Brown, J. Stokes v. U. S., 157 U. S. 191. —— Setting Out Obscene Matter Relied on. “Where a publication or mailing of ob- scene matter is charged by a grand jury, such matter need not be stated in the in- dictment, provided in that instrument it be referred to and identified.” Whuurte, J., dis- senting. Rosen v. U. S., 161 U, S. 47. “It is unquestioned that the English rule requires, where obscene words are relied upon, that the obscene matter should be set out explicitly in the indictment, and that the averment that it is too obscene to be so stated is insufficient to excuse the omission. < But this is not the doctrine of the American courts.” Wuure, J., dissenting. Rosen vw. U. S., 161 U.S. 44. 5. Every INGREDIENT Must BE CLEARLY SET Out. In General. “Offenses created by statute, as well as offenses at common law, must be accurately and clearly described’ in an indictment, and if they cannot be, in any case, without an allegation that the accused is not within an exception contained in the statute defining the offense, it is clear that no indictment founded upon the statute can be a good one which does not contain such an allegation, as it is universally true that no indictment is sufficient if it does, not accurately and clearly allege all the ingredients of which the offense is composed.” Cxrrrorp, J. U. S. v. Cook, 17 Wall. 174, “Beyond all doubt, the general rule is, that, in an indictment for an offense created 940 ' INDICTMENTS AND INFORMATIONS. by statute, it is sufficient to describe the offense in the words of'the statute; and it is safe to admit that that general rule is stipported by many decided cases of the highest authority; but it is equally certain that exceptions exist to the rule, which are as well established as the rule itself, most of which result from another rule of crim- inal pleading, which, in framing indictments founded upon statutes, is paramount to all others, and is one of universal application, —that every ingredient of the offense must be accurately and clearly expressed; or, in other words, that the indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted.” CuiFForD, J., dissenting. U. S. v. Reese, 92 U.S. 232. “Offenses created “by statute as welf as offenses at common law: consist, with rare exceptions, of more than one ingredient; and the rule is universal, that every ingre- dient of which the offense is composed must be accurately and clearly expressed in the indictment or information, or the pleading will be held bad on demurrer.” Cuirrorp, J. U. S. uv. Mann, 95 U. S. 583. “Offenses created by statute, as well as offenses at common law, must be accurately and clearly described in an indictment; and, if the offense cannot be so described with- out expanding the allegations beyond the mere words of the statute, then it is clear that the allegations of the indictment must be expanded to that extent, as it is universally true that no indictment is sufficient which does not accurately and clearly allege all the ingredients of which the offense is com- posed, so as to bring the accused within the true intent and meaning of the statute de- fing the offense.” Warre, C. J. U.S. w. Cruikshank, 92 U. S. 562. For substantially the same language, see U. S. v. Mann, 95 U. S. 585, CiIFForp, J. “Ingredients or elements not set forth in the information or criminal accusation can- not be incorporated into the charge against the defendant after he is served with proc- ess.” CuiFForD, J. U. S. v. Mann, 95 U. S. 585. Statutory Offenses, “Known principles of law require greater particularity to be observed in order that all the ingredients which constitute a viola- tion of the statutory offense may be accu- rately and clearly alleged.” CLiFForp, J. U. S. v. Mann, 95 U. S. 586. Rule Applies to Misdemeanors, “We have no disposition to qualify what has already been frequently decided by this court, that where the crime is a statutory one it must be charged with precision and- certainty, and every ingredient of which it is composed must be clearly and accurately set forth, and that even in the case of mis- demeanors the indictment must be free from ambiguity, and leave no doubt in the minds of the accused and the court of the exact offense intended to be charged.” Brown, J. Ledbetter v. U. S., 170 U. S. 609, — Exceptions Specified in Statute. “Text-writers and courts of justice have sometimes said, that if the exception is in the enacting clause, the party pleading must show that the accused is not within the exception, but where the exception is in a subsequent section pr statute, that the matter contained in the exception is matter of defense and must be shown by the accused. Undoubt- edly that rule will frequently hold good, and in many cases prove to be a safe guide in pleading, but it is clear that it is not a uni- versal criterion, as the words of the statute defining the offense may be so entirely sep- arable from the exception that all the in- gredients constituting the offense may be accurately and clearly alleged without any reference to the exception.” CuzFrorp, J. U. S. v. Cook, 17 Wall. 174. “Commentators and judges have some- times been led into error by supposing that the words ‘enacting clause’ as frequently employed mean the section of the statute defining the offense, as contradistinguished from a sttbsequent section in the same statute, which is a misapprehension of the tetm, as the only real question in the case is whether the exception is so incorporated with the substance of the clause defitiing the offense as to constitute a material part of the de- scription of the acts, omission, or other in- gredients which constitute the offense. Such an offense must be accurately and clearly described, and if the exception is so incor- porated with the clause describing the offense that it becomes in fact a part of the descrip- tion, then it cannot be omitted in the plead- ing, but if it is not so incorporated with the clause defining the offense as to become a material part of the definition of the offense, then it is a matter of defense and must be shown by the other party, thotigh it be in the same section or even in the succeeding sentence.” CuiFForD, J. U. S. v. Cook, 17 Wall. 176. 944 INDICTMENTS AND INFORMATIONS. Courts Do Not Require Undue Repetition. “While we should hold an indictment to be insufficient that did not charge in definite language all the elements constituting the offense, we have no desire to be hypercritical or to require the pleader [in an indictment for murder] to unduly repeat as to every incident of the offense the allegation of deliberateness and premeditation.” Brown, J. Fitzpatrick v. U. S., 178 U. S. 310. Mode of Objecting to Indictment for In- sufficiency. “With rare exceptions, offenses consist of more than one ingredient, and in some cases of many, and the rule is universal that every ingredient of which the offense is composed must be accurately and clearly alleged in the indictment, or the indictment will be bad, and may be quashed on motion, or the judgment may be arrested, or be reversed on error.” CLIFFORD, J. U.S. v. Cook, 17 Wall. 174, “Offenses created by statute, as well as offenses created at common law, with rare exceptions, consist of more than one in- gredient, and, in some cases, of many; and the rule is universal, that every ingredient of which the offense is composed must be accurately and clearly alleged in the indict- ment, or the indictment will be bad on de- murrer, or it may be quashed on motion, or the judgment may be arrested before sen- tence, or be reversed on a writ of error.” CuiFForp, J., dissenting. U. S. v. Reese, 92 Uz. S. 225. “Discussion is not necessary to show that every ingredient of which an offense is com- posed must be accurately and clearly alleged in the indictment, or the indictment will be bad, and may be quashed on motion, or the judgment may be arrested before sentence, or be reversed on a writ of error.” Wate, C. J. U.S. v. Cruikshank, 92 U. S. 562. 6. FELONIousS INTENT. “Tn all cases of felonies at common law, and some, also, by statute, the felonious in- tent is deemed an essential ingredient in con- stituting the offense; and hence the indict- ment will be defective, even after verdict, unless the intent is averred. The rule has been adhered to with great strictness; and properly so, where this intent is a material element of the crime.” Nezson, J. U. S. v. Staats, 8 How. 44. “The intent to injure and defraud is an essential ingredient to every offense specified in the section [Rev. Stat. sec. 5209], and the failure to aver the intent is a fatal defect in the counts in which it occurs.” Woops, J. U. S. uv. Britton, 107 U. S. 669. “Where the intent is a material ingredient of the crime it is necessary to be averred; but it may always be averred in general terms.” Brown, J. Evans v. U. S. 153 U. S. 594. “Tn their ordinary acceptation, the words ‘unlawfully, wilfully, and knowingly,’ when applied to an act or thing done, import knowledge of the act or thing so done, as well as an evil intent or bad purpose in doing such thing.” Harian, J. Rosen v. U. S., 161 U. S. 33. Y, VENUE OF THE OFFENSE. “ Properly speaking, the indictment should state not only the county, but the township, city or other municipality within which the crime is alleged to have been committed. But the authorities in this particular are much less rigid than formerly. Under the early English law, where the jurymen were also witnesses and were summoned from the vicinage, it was necessary that the locality of the crime should be stated with great particularity in order that the sheriff might inform from what vicinage he should sum- mon the jury. But this requirement was long since abolished in England by statute, and it is not now necessary there ‘to state any venue in the body of an indictment, but the county, city or other jurisdiction named in the margin thereof shall be taken to be, the venue for all the facts stated in the body of such indictment, While in this country it is usual to state the town as well as the county, it has not been generally deemed necessary to do so, and most of the authorities assume that an allegation is suf- ficient after verdict which shows it to have been done within the jurisdiction of the court. Indeed, an indictment charg- ing the offense to have been committed in one town is supported by proof that it was committed in a different town of the same county, and within the jurisdiction of the court.” Brown, J. Ledbetter v. U. S., 170 U.S. 613. 8. TIME oF CoMMISSION OF OFFENSE. “Good pleading undoubtedly requires an allegation that the offense was committed on a particular day, month or year, but it 942 INDICTMENTS AND INFORMATIONS. does not necessarily follow that the omission to state a particular day is fatal upon a mo- tion in arrest of judgment. Neither is it necessary to prove that the omense was com- mitted upon the day alleged, unless a par- ticular day be made material by the statute creating the offense. Ordinarily, proof of any day before the finding of the indictment, and within the statute of limitations, will be sufficient.” Brown, J. Ledbetter wv. U. S., 170 U. S. 612. 9. DESCRIPTION OF PROPERTY STOLEN. “Tt is a crime to steal goods and chattels; but an indictment would be bad that did not specify with some degree of certainty the articles stolen. This, because the accused must be advised of the essential particulars of the charge against him, and the court must be able to decide whether the property taken was such as was the subject of lar- ceny.” Warrz, C. J. U. S. v. Cruikshank, 92 U. S. 558. 10. Use oF DISJUNCTIVES. “Tt may be conceded that an indictment or a criminal information which charges the person accused, in the disjunctive, with be- ing guilty of one or another of several of- fenses, would be wholly insufficient.” StronG, J. Confiscation Cases, 20 Wall. 104. 11. RuLE For TESTING SUFFICIENCY oF INDICTMENT. “There is a very general test applicable to all indictments. If the facts alleged be established or admitted to be true, and their truth is consistent with the defendant’s in- nocence, the indictment is insufficient, how- ever full the description in other respects.” FieLp, J., dissenting. Evans v. U. S., 153 U. S. 598. V. INDICTMENT CONTAINING SEV- ' ERAL COUNTS. “Tt is familiar law that separate counts are united in one indictment, either because entirely separate and distinct offenses are intended to be charged, or because the plead- er, having in mind but a single offense, varies the statement in the several counts as to the manner or means of its commission in order to avoid at the trial an acquittal by reason of any unforeseen lack of harmony between the allegations and the proofs.” Brewer, J. Dealy v. U. S., 152 U. S, 542. “While repetition may be avoided by re- ferring from one count to another, and, therefore, within the principles of the ad- judged cases, a subsequent count of an in- dictment may be sustained, even if it refers to allegations in a previous count or counts which have been adjudged to be insufficient, the reference should be sufficiently full, in effect, ‘to incorporate the matter going before with that in the count in which it is made.’” Hartan, J. Blitz v. U. S, 153 U. S. 317. “While the general rule is that counts for several felonies of the same general nature, requiring the same mode of trial and punish- ment, may be joined in the same indictment, subject to the power of the court to quash the indictment or to compel an election, such joinder cannot be sustained where the par- ties are not the same and where the offenses are in nowise parts of the same transaction and must depend upon evidence of a differ- ent state of facts as to each or some of them. It cannot be said in such case that all the defendants may not have been embarrassed and prejudiced in their defense, or that the attention of the jury may not have been distracted to their injury in passing upon distinct and independent transactions.” Fut- LER, C. J. McElroy v. U. S., 164 U. S. 81. “In cases of felony, the multiplication of distinct charges has been considered so ob- jectionable as tending to confound the ac- cused in his defense, or to prejudice him as’ to his challenges, in the matter of being held out to be habitually criminal, in the distrac- tion of the attention of the jury,.or otherwise, that it is the settled rule in England and in many of our states, to confine the indictment to one distinct offense or restrict the evi- dence to one transaction.” Futter, C. J. McElroy v. U. S., 164 U. S. 80. “It is a well-settled principle, that, if an indictment contain both good counts and bad counts, a judgment of guilty upon the whole indictment will be sustained. Hunt, J., dis- senting. U. S. v. Reese, 92 U. S. 256. “The erroneous theory as to the indivisi- ble union presumed to arise from charging distinct offenses in separate counts of one indictment, took its origin from the case of Rex v. Hayes, 2 Ld. Raym. 1518. . . But it has been held in England that this case did not justify the view which had been sometimes taken of it, and that it was a mistake to apply to the several counts of distinct offenses in one indictment the rule which obtains as to verdicts in civil cases. And the rule in England is generally applied in the American 943 INFANTS. cases.” Wuitr, J. Selvester v. U. S., 170 U.S. 265. VI. RIGHT OF ACCUSED TO COPY OF INDICTMENT. “Persons indicted of murder and other high crimes are entitled to a copy of the indictment and process to compel the attend- ance of witnesses.” C.irForD, J., dissenting. Tennessee v. Davis, 100 U. S. 297. VII. MATTER MUST BE PROVED AS LAID. “Tt is generally true as claimed that where an indictment is unnecessarily descriptive, even the unnecessary description must be proved as laid.” Brewer, J. Potter v. U. S., 155 U. S. 445. VIII, OBJECTIONS. By Whom Made. “An indictment prosecuted by the gov- ernment against an alleged criminal is a cause in which none but the parties can have any coficern, except what is common to all the members of the community.” Strone, J. Blyew v. U. S., 18 Wall. 591. To Whom Made. “A motion to quash an indictment is or- dinarily addressed to the discretion of the court, and therefore a refusal to quash can- not generally be assigned for error.” Gray, J. Logan v. U. S., 144 U. S. 282. “So far as respects technical objections, the sufficiency of the indictment is to be de- termined by the court in which it was found, and is not a matter of inquiry in removal proceedings.” Brewer, J. Beavers v. Hen- kel, 194 U. S. 87. Plea in Abatement. “A plea [in abatement of an indictment] must be pleaded with strict exactness.” Futter, C. J. Agnew v. U. S., 165 U.S. 44. INDORSEMENT. As distinguished from assignment, see As- SIGN MENTS. See also NeGoTIABLE INSTRUMENTS. INEVITABLE ACCIDENT. See CoLtision ; NAVIGATION. INFAMOUS CRIME. See CRIME. INFANTS. See AppreNTIcEes; EstoppeL; INTOXICATING Liquors; JupictAL SALES; LIMITATION OF AcTIONS. Jurisdiction of Equity over Person and Property. “The court of chancery possesses an in- herent jurisdiction, which extends to the care of the persons of infants so far as is neéces~- sary for their protection and education; and also to the care of their property, real and personal, for its due management, and pres- ervation, and proper application for their maintenance.” Netson, J., dissenting. Wil- liamson v. Berry, 8 How. 555. “The court [of chancery] is the gerieral guardian, and, on the institution of proceed- ings therein involving rights of person ot property con¢efning them, they are regatded as wards of the court, and as under its spe- cial cognizance and protection; and no act can be done affecting either person or prop- erty, or the condition of infants, except un- der the express or implied direction of the court itself; and every act done without such direction is treated as a violation of the authority of the court, and the offending party deemed guilty of a contempt and treat- ed accordingly.” Nerson, J., dissenting. Williamson v. Berry, 8 How. 555. “The general authority of courts of equity over the persons and estates of infants, upon which counsel have so much dwelt, is not questioned. It may be exerted, upon proper application, for the protection of both.” Fretp, J. New York L. Ins. Co. v. Bangs, 103 U. S. 438. “The jurisdiction fof the persons and es- tates of infants] possessed by the English courts of chancery from this supposed dele- gation -of the authority of the crown as parens patrie is more frequently exercised in this country by the courts of the states than by the courts of the United States. It is the state and not the federal government, except in the territories and the District of Columbia, which stands, with reference to the persons and property of infants, in the situa- tion of parens patrie. Accorditigly provision is made by law in all the states for the ap- pointment of such guardians, whose duties and powets are carefully defined. The au- thority of the federal courts can only be invoked within the limits of a state for such an appointment where property of the infant is involved in legal proceedings before them, 944 INFANTS. and needs the care and supervision of an officer of that kind. In such a case, to pre- serve the property from destruction or waste, the federal courts may appoint a guardian to take care of it pending the proceedings. And those courts will always see that a proper guardian ad litem has charge of the infant’s interests where his property is in- volved in proceedings before them. This is the extent of their authority.” Frexp, J. New York L. Ins. Co. v. Bangs, 103 U. S. 438. Infants’ Contracts — In General. “That some deeds or instruments under seal of an infant are void, and others voida- ble, and others valid and absolutely obliga- tory, is not doubted. Thus, a single bill under seal, given by an infant for neces- saries, is absolutely binding upon him; a bond with a penalty for necessaries is void, as apparently to his prejudice; and a lease reserving rent is voidable only.” Story, J. Tucker v. Moreland, 10 Pet. 67. —— Contracts Generally Voidable Only. “The contracts of the latter [an infant], it is true, are generally held to be only voidable (his power of attorney being an exception). Unlike a lunatic, he is not desti- tute of reason. He has mind, but it is im- mature, insufficient to justify his assuming a binding obligation. And he may deny or avoid his contract at any time, either during his minority or after he comes of age. This is for him a sufficient protection.” STRONG, J. Dexter v. Hall, 15 Wall. 21. “The result of the American decisions has been correctly stated by Mr. Chancellor Kent, in his learned Commentaries (2 Com., Lect. 31), to be, that they are in favor of constru- ing the acts and contracts of infants gen- erally to be voidable only, and not void, and subject to their election, when they become of age, either to affirm or disallow them.” Story, J. Tucker v. Moreland, 10 Pet. 71. — Grant to Infant Voidable. “While infants cannot make grants, they may accept them. A grant to an infant is voidable, not void.” Warts, C. J. Palmer v. Low, 98 U. S. 16. — Power of Attorney by Infant Void. “Tt has repeatedly been determined that a power of attorney made by an infant is void. . . . In fact we know no case of authority in which the letter of attorney of either an infant or a lunatic has been held merely 1 Os. Dic.—60 voidable.” Stronc, J. Dexter v. Hall. 15 Wall. 26. — Deed by Infant Feme Covert. “The person who takes a deed from an infant feme covert knows that she is not sui juris, and that she will be under the con- trol of her husband while the coverture lasts. He is bound to know, also, that she has the disability of infancy. He assumes, therefore, the risk attending both those disabilities.” Srrone, J. Sims wv. Everhardt, 102 U. S. 311. ——Estoppel of Infant. “A conveyance by an infant is an assertion of his right to convey. A contemporaneous declaration of his right or of his age adds nothing to what is implied in his deed. An assertion of an estoppel against him is but a claim that he has assented or contracted. But he can no more do that effectively than he can make the contract alleged to be con- firmed.” Srtrone, J. Sims v. Everhardt, 102 U.S. 318. —— Disaffrmance of Contracts. “We are aware that the decisions respect- ing the disaffirmance of an infant’s deed are not in entire harmony with each other. While it is generally agreed that the infant to avoid it must disaffirm it within a rea- sonable time after his majority is attained, they differ as to what constitutes disaffirm- ance and as to the effect of mere silence.” Stronc, J. Sims v. Everhardt, 102 U. S. 311. “One who is under a disability to make a contract cannot confirm one that is voidable, or, what is the same thing, cannot disaffirm it. An affirmance or a disaffirmance is in its nature a mental assent, and necessarily im- plies the action of a free mind, exempt from all constraint or disability.” Srrone, J. Sims v. Everhardt, 102 U. S. 312. “The nature of the original act or con- veyance fof an infant] generally governs, as to the nature of the act required to be done in the disaffirmance of it. If the latter be of as high and solemn a nature as the former, it amounts to a valid avoidance of it.” Srory, J. Tucker v. Moreland, 10 Pet. 2. Liability for Conversion. “An infant is chargeable with conversion, although it be of goods which came lawfully to his possession.” Marsuati, C. J. Vasse v. Smith, 6 Cranch 232. 945 INJUNCTIONS. Liability to Taxation. “Children have privileges and protection; but they are not assessed, unless they have goods or property separate from the heads of families.’ Wayne, J. Dobbins v. Erie Co., 16 Pet. 446. Domicil of Infants. “An infant cannot change his own domi- cil. As infants have the domicil of their father, he may change their domicil by chang- ing his own; and after death the mother, while she remains a widow, may likewise, by changing her domicil, change the domicil of the infants; the domicil of the children, in either case, following the independent domicil of their parent. But when a widow, by marrying again, acquires the dom- icil of a second husband, she does not, by taking her children by the first husband to live with her there, make the domicil which she derives from her second husband their domicil; and they retain the domicil which they had, before her second marriage, ac- quired from her or from their father.” Gray, J. Lamar v. Micou, 112 U. S. 470. See also DomIcIL. Infant Defendants Cannot Admit Facts Entitling Complainant to Relief in Equity. “Where there are infant defendants, and it is necessary in order to entitle the com- plainant to the relief he-prays that certain facts should be before the court, such facts, although they might be the subject of ad- mission on the part of the adults, must be proved against the infants.” Sumas, J. White, v. Joyce, 158 U. S. 146. INFECTIOUS. See CoNnTAGIOUS. INFORMATIONS. In criminal prosecutions, see INDICTMENTS AND INFORMATIONS. “In England informations of debt, and exchequer informations for discovery and account, to recover duties on importations, have been of frequent occurrence, though the Acts of Parliament have provided a dif- ferent remedy for enforcing the payment.” Strronc, J. Dollar Sav. Bank v. U. S, 19 Wall. 240. INFORMERS. Right to Reward. “An informer,. to entitle himself to the statutory reward for his services, must in- form against property which is the subject of judicial condemnation. There can be nothing to divide if there is nothing to con- demn.” Waite, C. J. Titus v. U. S, 20 Wall. 483. Prima Facie Evidence of Character of Informer. “Perhaps the better opinion is, that the allegations of the libels, in case of condemna- tion, would afford prima facie evidence that th- person therein named, as the informer, is entitled to be regarded in that character.” CuiFForD, J. Confiscation Cases, 7 Wall. 459. Liability of Unofficial Informer for Costs. “An unofficial informer is liable for costs and damages in case of judgment in favor of the claimants.” Grier, J. Francis wv. U. S., 5 Wall. 340. INHABITANCY. See CirizENsS AND CITIZENSHIP. INHERITED. “The word ‘inherited’ implies taking immediately from the testator upon his death, as heirs take immediately from their ancestor upon his death.” Gray, J. McArthur v. Scott, 113 U. S. 380. INITIALS. “Tnitials are no legal part of a name.” Brown, J. Monroe Cattle Co. v. Becker, 147 U. S. 58. INJUNCTIONS. As to controlling discretion of public officer, see DISCRETION. See also Eguity; JupGMENTs AND DkE- CREES; NUISANCES; PATENTS; RECEIVERS. Nature of the Writ—Is Prohibitory or Preventive. “This [an injunction] is a prohibitory writ, to restrain a party from doing a wrong or injury to the rights of another. It is a beneficial process, for the protection of rights; and is favorably viewed by courts of chancery, as its object is to prevent rather than redress injuries; and has latterly been more liberally awarded than formerly.” Tuomeson, J., dissenting. Cherokee Nation v. Georgia, 5 Pet. 78. “This remedy by injunction is given to prevent a wrong, for which an action at law 946 INJUNCTIONS. can give no adequate redress. In its nature it is preventive justice. Where the wrong has been inflicted before an injunction was applied for, it may be a matter of doubt, in most cases, whether an action at law would not be at first, the appropriate remedy. But whether the relief sought be at law or in chancery, the question of jurisdiction equally applies.” McLean, J. Northern Indiana R. Co. v. Michigan Cent. R. Co., 15 How. 243. —— Does Not Redress Wrongs Already Committed. “The function of an injunction is to af- ford preventive relief, not to redress alleged wrongs which have been committed already. An injunction will not be used to take prop- erty out of the possession of one party and put it into that of another.” BriatcHForp, J. Lacassagne v. Chapuis, 144 U. S. 124. — Injunction May Require Affirmative Action. “A court of equity . . . is not always limited to the restraint of a contemplated or threatened action, but may even require af- firmative action, where the circumstances of the case demand it.” Brown, J. In re Len- non, 166 U. S. 556. “Tf a defendant, . . . after notice of the filing of a bill in equity for an injunction to restrain the building of a house, or of a railroad, or of any other structure, persists in completing the building, the court never- theless is not deprived of the authority, when- ever in its opinion justice requires it, to deal with the rights of the parties as they stood at the commencement of the suit, and to compel the defendant to undo what he has wrongfully done since that time, or to answer in damages.” Gray, J. Mills v. Green, 159 U. S. 654. — Affords Relief Not Attainable at Law. “ Proceedings at law or by indictment can only reach past or present wrongs done by the appellant, and will not adequately pro- tect the public interests in the future.” Har- LAN, J. Coosaw Min. Co. v. S. Carolina, 144 U. S. 567. “The remedy at law for the protection of the state in respect to the phosphate rocks and phosphatic deposits in the beds of its navigable waters is not so efficacious or com- plete as perpetual injunction against inter- ference with its rights by digging, mining and removing such rocks and deposits with- out its consent.” Hartan, J. Coosaw Min. Co. v. South Carolina, 144 U. S. 567. “Bills in equity to enjoin actions at law are not infrequently brought by defendants in such actions to enable them to avail them- selves of defenses which would not be valid at law.” Brown, J. Davis v. Wakelee, 156 Uz S. 686. “Every man is entitled to be protected in the possession and enjoyment of his prop- erty; and the ordinary remedy by action of trespass may generally be sufficient to afford such protection. But, where from the pe- culiar nature and circumstances of the case, this is not an adequate: protection, it is a fit case to interpose the preventive process of injunction. This is the principle running through all the cases on this subject, and is founded upon the most wise and just con- siderations.” THompson, J., dissenting. Cherokee Nation v. Georgia, 5 Pet. 78. — Writ Operates in Personam, Not in Rem. “The writ [of injunction] does not operate in rem, but in personam. If the party is within the jurisdiction of the court, it is all that is necessary to give full effect and opera- tion to the injunction; and it is immaterial where the subject-matter of the suit, which is only affected consequently, is situated.” Tuompson, J., dissenting. Cherokee Nation v. Georgia, 5 Pet. 79. —Injunction Is Due Process of Law. “That the power of a court of equity to grant injunctions is not inhibited by the con- stitutional provision requiring due process of law is clear, although in a particular case a court may disregard the rules of equity and justice in granting the injunction.” Brewer, J. Montana Co. v. St. Louis Min., etc., Co., 152 U. S. 170. Grounds for Relief by Injunction. “Such relief [ by injunction] is granted to prevent irreparable injury or a multiplicity of suits, or where the injury is of such a nature that it cannot be adequately com- pensated by damages at law, or is such, as, from its continuance or permanent mischief, must occasion constantly recurring grievance, which cannot be removed or corrected other- wise than by such a preventive remedy.” Currrorp, J. Phoenix Mut. L. Ins. Co. v. Bailey, 13 Wall. 621. “ Authorities to show that equity will in- terfere to restrain irreparable mischief, or to suppress oppressive and interminable litiga- tion, or to prevent multiplicity of suits, is unnecessary, as that proposition is universally 947 INJUNCTIONS. admitted.” Ciirrorp, J. Phenix Mut. L. Ins. Co, v. Bailey, 13 Wall. 621. — Injunctions Not Granted to Delay, Vex, or Harass Suitors. “Tt [an injunction] never should be per- mitted to issue where it is even suspected that it will be prostituted to the unlawful purpose of delaying, vexing, and harassing suitors at law in the prosecution of their just demands.” Grier, J. Truly v. Wanzer, 5 How. 143. Purposes for Which Injunctions Will Be Granted — Restraining Waste — Infring- ment of Patents. “Such jurisdiction [injunction in equity] also extends to the protection of letters patent against infringement, and is exercised in many cases to prevent waste.” CLIFFORD, J. Phenix Mut. L. Ins. Co. v. Bailey, 13 Wall. 622. —— Restraining Trespass. “ Although it is not according to the course of chancery, to grant injunctions to prevent trespasses when there is a clear and ade- quate remedy at law, yet it will be done when the case is special and peculiar, and when no adequate remedy can be had at law, and particularly when the injury threatens irrep- arable ruin.” THsompson, J., dissenting. Cherokee Nation v, Georgia, 5 Pet, 78. — Quieting Inheritances. “The jurisdiction of a court of chancery to grant perpetual injunctions for quieting inheritances, after the right and matter in question has been fairly settled by concur- ring verdicts, has been long established.” CAMPBELL, J. Wickliffe v. Owings, 17 How. 50. ——Enjoining Collection of Taxes. “We do not abate at all from the strict- ness of the rule that in general an injunction will not be granted against the collection of taxes.” Hoitmes, J. Fargo wv. Hart, 193 U, S. 503. “Now, there are two propositions which have entered into the jurisdiction of this court so thoroughly that they may be re- garded as settled law: First, that equity will not interfere where there is a plain, adequate and complete remedy at law; and, second, that injunction will not issue to restrain the collection of a tax simply on the ground of its illegality.” Brewer, J., dissenting. San Francisco Nat. Bank v. Dodge, 197 U. S. 108. “Tt is quite certain that he can, if he is wrongfully taxed, stay the proceeding for its collection by process of injunction.” MILLER, J. McMillen v. Anderson, 95 U. S. 42. “A valid law may be wrongfully adminis- tered by officers of the state, and so as to make such administration an illegal burden and exaction upon the individual. A tax law, as it leaves the legislative hands, may not be obnoxious to any challenge, and yet the officers charged with the administration of that valid law may so act under it in the matter of assessment or collection as to work an illegal trespass upon the property rights of the individual. They may go beyond the powers thereby conferred, and when they do so the fact that they are assuming to act under a valid law will not oust the courts of jurisdiction to restrain their excessive and illegal acts.” Brewer, J. Reagan v. Farm- ers’ L. & T. Co., 154 U. S. 390, —— Enjoining Commission of Crimes. “It is objected that it is outside of the jurisdiction of a court of equity to enjoin the commission of crimes. This, as a gen- eral proposition, is unquestioned. A chan- cellor has no criminal jurisdiction. Some- thing more than the threatened commission of an offense against the laws of the land is necessary to call into exercise the injunc- tive powers of the court. There must be some interferences, actual or threatened, with property or rights of a pecuniary nature, but when such interference appears the jurisdic- tion of a court of equity arises, and is not destroyed by the fact that they are accom- panied by or are themselves violations of the criminal law.” Brewer, J. In re Debs, 158 U. S. 593. —Enjoining Unconstitutional Acts by Public Officers. “Injunctions against officers proceeding unconstitutionally under color of their office are well known.” Hotes, J. Chandler v. Dix, 194 U. S. 592. * Federal Courts Enjoining Proceedings in State Courts —In Aid of Jurisdiction of Federal Courts. “Tn cases where the federal court acts in aid of its own jurisdiction and to render its decree effectual, it may, notwithstanding sec. 720, Rev. Stat., restrain all proceedings in a state court which would have the effect of defeating or impairing its jurisdiction.” Day, J. Julian v. Central Trust Co., 193 Uz. S. 112. 948 INJUNCTIONS. ——Restraining Proceedings in State Criminal Courts. “The existence of the power in the courts of the United States to discharge upon ha- beas corpus by no means implies that they may, in the exercise of their equity powers, interrupt or enjoin proceedings of a crim- inal character in a state court.” Hartan, J. Fitts v. McGhee, 172 U. S. 532. “That the defendants may be frequently indicted constitutes no reason why a federal court of equity should assume to interfere with the ordinary course of criminal pro- cedure in a state court.” Hartan, J. Fitts v. McGhee, 172 U. S. 532. “In proceeding by indictment to enforce a criminal statute the state can only act by officers or attorneys, and to enjoin the latter is to enjoin the state.’ Surras, J. Hark- rader v. Wadley, 172 U. S. 169. Right to Remedy Must Be Made Out Clearly. “Tt is to be recollected that an injunction is what is termed a transcendent or extraor- dinary power, and is therefore to be used sparingly, and only in a clear and plain case.” Woopsury, J. Irwin v. Dixion, 9 How. 33. “It appears to me to be settled law in England, as well as in this country, that chancery will not interfere by injunction where the evidence is conflicting and the in- jury doubtful.” Taney, C. J., dissenting. Pennsylvania v. Wheeling, etc. Bridge Co., 13 How. 587. “Tf the evidence be conflicting and the injury doubtful, this extraordinary remedy [injunction] will be withheld.” Swayne, J. Parker v. Winnipiseogee Lake Cotton, etc, Co., 2 Black 552. “The case must be one ‘of strong and imperious necessity, or the right must have been previously established at law.’ The tight must be clear and its violation palpa- ble.” Swayne, J. Parker v. Winnipiseogee Lake Cotton, etc., Co., 2 Black 552. “This jurisdiction [of a court of equity] is applied only where the right is clearly established — where no adequate compensa- tion can be made in damages, and where delay itself would be wrong.” Swayne, J. Parker v. Winnipiseogee Lake Cotton, etc., Co., 2 Black 552. ——General Injunction Against All Pos- sible Breaches of the Law Will Not Be Granted, “We are bound by the first prin- ciples of justice not to sanction a decree so vague as to put the whole conduct of the defendants’ business at the peril of a sum- mons for contempt. We cannot issue a gen- eral injunction against all possible breaches of the law.” Hotmes, J. Swift & Co. v. U. S., 196 U. S. 396. Discretion of Court as to Issuancé —In General. “We do not propose to decide whether the grant of a preliminary and temporary in- junction is a matter of discretion merely, rather than a right.” Woopsury, J. U. S. v. Chicago, 7 How. 191. ——— Court Will Consider All the Circum- stances, “After the right has been established at law, a court of chancery will not, as of course, interpose by injunction. It will con- sider all the circumstances, the consequences of such action, and the real: equity of the case.” Swayne, J. Parker v. Winnipiseo- gee Lake Cotton, etc. Co, 2 Black 552. “Where an injunction is granted without a trial at law, it is usually upon the prin- ciple of preserving the property, until a trial at law can be had. A strong prima facie case of right must be shown, and there must have been no improper delay. The court will consider all the circumstances and exercise a careful discretion. Where an injunction in such a case has been granted, and the complainant fails to proceed with diligence in his action at law, the injunction will be dissolved.” Swayne, J. Parker v. Winnipiseogee Lake Cotton, etc., Co. 2 Black 552, —Court May Impose Terms as Con- dition of Granting or Continuing In- junction. “As to the power of a court of equity to impose any terms in its discretion as a condition of granting or continuing an in- junction, there can be no question.” Brap- LEY, J. Meyers v. Block, 120 U. S. 214. “It is a settled rule of the court of chancery, in acting on applications for in- junctions, to regard the comparative in~ jury which would be sustained by the de- fendant, if an injunction were granted, and by the complainant, if it were refused. 949 INLAND NAVIGATION. . . . And if the legal right is doubtful, either in point of law or fact, the court is always reluctant to take a course which may result in material injury to either party; for the damage arising from the act of the court itself is damnum absque injuria, for which there is no redress ex- cept a decree for the cost of the suit, or, in a proper case, an action for malicious prosecution. To remedy this difficulty, the court, in the exercise of its discretion, fre- quently resorts to-the expedient of imposing terms and conditions upon the party at whose instance it proposes to act. The power to impose such conditions is founded upon, and arises from, the discretion which the court has in such cases, to grant, or not to grant the injunction applied for. It is a power inherent in the court, as a court of equity, and has been exercised from time immemorial. The older authorities re-, fer to numerous instances in which it has been exercised.” Braptey, J. Russell v. Farley, 105 U. S. 438. Restraining Person Within Jurisdiction of Court from Performing Act Without Its Jurisdiction. “The jurisdiction of the English court of chancery to restrain persons within its territorial limits and under its jurisdiction from doing anything abroad, whether the thing forbidden be a conveyance or other act, in pais, or the institution or the pros- ecution of an action in a foreign court, js well settled.” Furrer, C. J. Cole uv. Cun- ningham, 133 U. S. 116. “TI do not deny the general principle that a party found within the jurisdiction of a court and subject to its process may be restrained and enjoined from doing certain things in some other jurisdiction because the thing which he might attempt to do is opposed to the principles of equity or to the law of the place where he is found.” Muter, J., dissenting. Cole v. Cunningham, 133 U. S. 135. Injunction Bonds — Courts Not Compelled to Require Bonds, “Tt is familiar knowledge that the Cir- cuit Courts of the United States are not compelled in granting preliminary injunc- tions to take from the plaintiff a bond of indemnity to the defendant, and, frequently they do not take any.” Brewer, J. Mon- tana Co. v. St. Louis Min., etc, Co. 152 U. S. 170. — Courts May Prescribe Penalties and Conditions. “When an injunction is applied for in a Circuit Court of the’ United States sitting in Louisiana, the court grant it or not ac- cording to the established principles of equity, and not according to the laws and practice of the state in which there is no ccurt of chancery, as contradistinguished from a court of common law. And they require a bond, or not, from the com- plainant, with sureties, before the injunc- tion issues, as the court, in the exercise of a sound discretion, may deem it proper for the purposes of justice. And if, in the judgment of the court, the principles of equity require that a bond should be given, it prescribes the penalty and condition also. And the condition prescribed by the court in this case, but which was not followed, is the one usually directed by the court.” Taney, C. J. Bein v. Heath, 12 How. 179. —— Liability of Surety and Principal Measured by Terms of. Bond. “Tt would be against the well-established tule of the chancery court to extend the liability of the surety [in an injunction bond] by any equitable construction, beyond the terms of his contract. And, in a pro- ceeding upon the bond, the liability of the principal obligor cannot be extended beyond that of the surety.” Taney, C. J. Bein wv. Heath, 12 How. 179. Effect of Injunction Restraining Collection of Judgment. ; “Strictly speaking, at the common law an injunction in equity does not operate as a supersedeas; although it may furnish a proper ground for the court of law, in which the judgment is rendered, to inter- fere by summary order to quash or stay the proceedings on the execution. If the in- junction is disobeyed, a court of equity has its own mode of administering suitable -re- dress. But a court of law is under no ob- ligations to enforce it as a matter of right or duty.” Srory, J. Boyle vw. Zacharie, 6 Pet. 658. “The Granting of a Permanent Injunc- tion Is Part of Final Decree, and abides the fate of the decree itself.” Brapviey, J. Buffington v. Harvey, 95 U. S. 100. INLAND NAVIGATION. “What the expression ‘inland navigation’ means must be ascertained from the ge- 950 INQUEST ography of our own country, and the com- merce carried on by vessels on its waters. Lake Erie is inland, and a voyage from Buffalo to Detroit is, in my judgment, ‘in- land navigation.’” Catron, J., dissenting. Jones v. Soulard, 24 Wall. 41. INNOCENT PERSONS. Basis of Rights of Innocent Third Per- sons. “The rights of the innocent third parties, é ‘do not depend upon the actual title or authority of the party with whom they deal directly, but are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title or power which, through a negli- gence or mistaken confidence, he caused or allowed to appear to be vested in the party makin the conveyance.” Fretp, J. Cow- drey v. Vanderburgh, 101 U. S. 576. “One Is Not Usually Said to Permit an Act Which He Is Wholly Ignorant of, nor would he be said to consent to an act of the commission of which he had no knowledge.” PeckHAM, J. McDonald v. Williams, 174 U. S. 406. “When One of Two Innocent Persons Must Suffer, he to whom is imputable negligence, or want of the employment of all the means within his reach to ‘guard against the injury, must bear the loss.” Tuompson, J. The Monte Allegre, 9 Wheat. 641. “There are undoubtedly cases where a party may be concluded from asserting his original rights to property in consequence of his acts or conduct, in which the presence of fraud, actual or constructive, is wanting; as, where one of two innocent parties must suffer from the negligence of another, he through whose agency the negligence was occasioned will be held to bear the loss; and where one has received the fruits of a transaction, he is not permitted to deny its validity whilst retaining its benefits.” Fietp, J. Brant v. Virginia Coal, etc., Co., 93 U. S. 336. “Where one of two innocent persons must suffer a loss, and one of them has contrib- uted to produce it, the law throws the burden upon him and not upon the other party.” Swayne, J. Pompton v. Cooper Union, 101 U. S. 204. “ Vigilantibus et non dormentibus jura sub- veniunt, Where one of two innocent parties OF OFFICE. must lose, and one of them is in fault, the law throws the burden of the loss upon him.” Swayne, J. Magee v. Manhattan L. Ins. Co., 92 U. S. 98. Person Bound to Make Inquiry Is Chargeable with Knowledge. “Wherever inquiry is a duty, the party bound to make it is affected with knowledge of all he would have discovered had he performed the duty.” Stronc, J. Cordova v. Hood, 17 Wall. 8. “Means of knowledge with the duty of using them are, in equity, equivalent to knowledge itself.” Stronc, J. Cordova v. JHood, 17 Wall. 8. INNS AND INNKEEPERS. Definitions. “The word ‘inn’ has a technical legal signification. It means, in the Act of 1875, just what it meant at common law. A mere private boarding-house is not an inn, nor is its keeper subject to the responsibilities, or entitled to the privileges of a common innkeeper.” Hartan, J., dissenting. Civil Rights Cases, 109 U. S. 40. Public Nature of Employment. “These authorities are sufficient to show that a keeper of an inn is in the exercise of a quasi-public employment. The law gives him special privileges and he is charged with certain duties and responsi- bilities to the public. The public nature of his employment forbids him from discrimi- nating against any person asking admission as a guest on account of the race or color of that person.” Haran, J., dissenting. Civil Rights Cases, 109 U. S. 41. INQUEST OF OFFICE. See ALIENS; ESCHEAT. Nature and Purpose of Proceeding. “By the common law, an alien cannot acquire real property by operation of law, but may take it by act of the grantor, and hold it until office found; that is, until the fact of alienage is authoritatively estab- lished by a public officer, upon an inquest held at the instance of the government. The proceeding which contains the finding of the fact upon the inquest of the officer is tech- nically designated in the books of law as ‘office found.’ It removes the fact, upon se existence of which the law devests the 95 INSANE PERSONS. estate and transfers it to the government, from the region of uncertainty, and makes it a matter of record. It was devised, ac- cording to the old law-writers, as an au- thentic means to give the king his right by solemn matter of record, without which he in general could neither take nor part with anything; for it was deemed ‘a part of the liberties of England, and greatly for the saféty of the subject, that the king may not enter upon or seize any man’s posses- sions upon bare surmises without the in- tervention of a jury.’” Furtp, J. Phillips v. Moore, 100 U. S. 212. “That an inquest of office should be made in cases of alienage, is-a useful and im- portant restraint upon pubtic proceedings.” Story, J. Fairfax v. Hunter, 7 Cranch 622. “There is nothing mystical, nor any- thing of indispensable obligation, in this in- quest of office. It is, in Great Britain, a salutary restraint upon the exercise of arbi- trary power by the crown, and affords the subject a simple and decent mode of con- testing the claim of his sovereign; but the legislative power of that country certainly may assert, and has asserted, the right of dispensing with it, and I see no reason why it was not competent for the legislature of the state of Virginia to do the same.” Jounson, J., dissenting. Fairfax v. Hunter, % Cranch 631. “Tn the case of lands forfeited by alien- age the king could not acquire an interest in the lands except by inquest of office. And so of other instances where the title of the sovereign was derived from forfeiture.” Cuase, C. J. Bennett v. Hunter, 9 Wall. 336. Under the Civil Law. “By the civil law, some proceeding, equivaleht in its substantive features [to the proceeding of ‘office found’] was also essential to take the fact of alienage from being a matter of mere surmise and con- jecture, and to make it a matter of record. Such a proceeding was usually had before the local magistrate or council, and might be taken at the instance of the government, or upon the denouncement of a private citi- zen. The course pursued in the present case seems to ‘have been in conformity with common usage. The fact of alienage and non-residence was thus officially established; it became matter of record, and the subse- quent declaration of the commissioner, that the land was vacant, was the judgment which the law prescribed in such cases. The land was then subject to be regranted by the commissioner, as fully as though no previous grant to Sims had ever been made.” Fietp, J. Phillips v. Moore, 100 U. S. 212. INSANE PERSONS. See EmotionAL INSANITY; EXPERT AND Opinion EvipENCE; JUDICIAL SALES. What Constitutes Mental Weakness or Disease. “When we speak of the ‘mental’ con- dition of a person, we refer to his senses, his perceptions, his consciousness, his ideas. If his mental condition is perfect, his will, his memory, his understanding are perfect, and connected with healthy bodily organ- ization. If these do not concur, his mental condition is diseased or defective.” Hunt, J. Mutual L. Ins. Co. v. Terry, 15 Wall. 588. “Excessive action of the brain whereby the faculties become exhausted, a want of proper action whereby the functions be- come impaired and diminished, the visions, delusions, and mania which accompany irrita- bility, or the weakness which results from an excess of vital functions, indigestion and sleeplessness, are all the result of a dis- turbance of the physical system.” Hunt, J. Mutual L. Ins. Co. v. Terry, 15 Wall. 588. “The intellect and intelligence of man are manifested throught the organs of the brain, and from these, consciousness, will, memory, judgment, thought, volition, and passion, the functions of the mind, do pro- ceed. Without the brain these cannot exist. With an injured or diseased brain, their powers are impaired or diminished.” Hunt, J. Mutual L. Ins. Co. vw. Terry, 15 Wall. 589. “Delirium, fever, tearing away the ban- dages for preserving the life, the taking of poison, are all results of bodily dis- ease.” Hunt, J. Mutual L. Ins. Co. w. Terry, 15 Wall. 589. Impulsive Insanity. “That form of insanity called impulsive insanity, by which the person is irresistibly impelled to the commission of an act, is recognized by writers on this subject. It is sometimes accompanied by delusions, and sometimes exists without them. The in- sanity may be patent in many ways, or it may be concealed. We speak of the im- pulses of persons of unsound mind. They are manifestly in every form—breaking of 952 INSANITY. windows, destruction of furniture, tearing of clothes, firing of houses, assaults, murders, and suicides. The cases are to be carefully distinguished from those where persons in the possession of their reasoning faculties are impelled by passion, merely, in the same direction.” Hunt, J. Mutual L. Ins. Co. v. Terry, 15 Wall. 590. Causes of Insanity Numerous. “The causes of insanity are as varied as the varying circumstances of man.” Hunt, J. Mutual L. Ins. Co. v. Terry, 15 Wall. 588. Cases in Which Questions of Insanity Usually Arise. “The question of sanity has usually been presented upon the validity of an agreement, the capacity to make a will, or upon respon- sibility for crime.’ Hunt, J. Mutual L. Ins. Co. v. Terry, 15 Wall. 590. Lunatic Entitled to Protectiori of Courts of Law and Equity. “A lunatic, equally with an infant, is con- fessedly under the protection of courts of law as well as courts of equity.” Strone, J. Dexter v. Hall, 15 Wall. 21. — Need More Protection than Minors. “A lunatic needs more protection than a minor. The latter is presumed to lack suf- ficient discretion. Reason is wanting in de- gree. With a lunatic it is wanting alto- gether.” Srronc, J. Dexter v. Hall, 15 Wall. 25. Lunatic Not Amenable to Criminal Laws. “Be [a lunatic] is not amenable to the criminal laws, because he is incapable of dis- criminating between that which is right and that which is wrong. The government does not hold him responsible for acts injurious to itself.” Srronc, J. Dexter v. Hall, 15 Wall. 20. Capacity to Contract — Difficulty in De- termining Capacity. “ Difficulty attends the effort to define, with clearness and precision, what degree of men- tal unsoundness in a grantor is sufficient, ii contemplation of law, to render him in- capable of giving a valid and effectual deed of conveyance.” CuiFForD, J., concurring. Johnson v. Harmon, 94 U. S. 372. —— Confirmed Insanity Renders Person Incapable. “Confirmed insanity which deprives a person of mental capacity to distinguish be- tween right and wrong, in respect to the act in question, renders the person irre- sponsible for such an act, though criminal, and disqualifies him to enter into a con- tract or to execute a valid instrument to convey real or personal estate.” CLIFFoRD, J... concurring. Johnson wv. Harmon, 94 U. S. 372. —Imbecility or Weakness of Under- standing Does Not Render Person In- capable per Se. “TImbecility of mind is not itself sufficient to set aside a contract, when there is not an essential privation of the reasoning faculties or an incapacity of understanding and act- ing with ‘discretion in the ordinary affairs of life. Weakness of understanding may be a material circumstance in every case where the charge is that one of the con- tracting parties has taken undue advantage of the other, or has been guilty of unfair prac- tice or imposition.” CLIFForD, J., concur- ring. Johnson v. Harmon, 94 U. S. 379. “Mere weakness of understanding is not of itself any objection to the validity of a contract, if the capacity remains to see things in their true relations, and to form correct conclusions in respect to the subject- matter of the contract.” CLirForD, J., con- curring. Johnson v. Harmon, 94 U. S. 373. Weakness of Understanding May Render Contract Voidable. “When it appears that a contractor or grantor has not strength of mind and rea- son sufficient to understand the nature and consequences of his act in making a con- tract or in executing a deed, the instru- ment may be avoided, on the ground of the mental incapacity of the party to contract or to execute the conveyance.” CtrFForp, J., concurring. Johnson v. Harmon, 94 U. S. 373, Validity of Lunatic’s Contracts. “Tt must be admitted that there are decisions which have treated deeds and conveyances of idiots and lunatics as merely voidable, and not void.” Srrone, J. Dexter v. Hall, 15 Wall. 21. “The doctrine is asserted that as against the heirs of a lunatic his deed is invalid, and this, we think, has been steadily maintained in England.” Stronc, J. Dex- ter v. Hall, 15 Wall. 22. INSANITY. See AccipeNt INSURANCE; EMmorTIONAL IN- SANITY; EXPERT AND OPINION EVIDENCE; INSANE PERSONS. 953 INSOLVENCY. INSOLVENCY. See Banxruprtcy; DEBTOR AND CREDITOR; DIssoLUTION OF CORPORATIONS; IMPAIRMENT oF OBLIGATION OF ContTRACTS; NATIONAL Banks; SET-OFF AND COUNTERCLAIM. Definition. “When a person is unable to pay his debts, he is understood to be insolvent. It is difficult to give a more accurate defini- tion of insolvency.” Braptey, J. Cunning- ham v. Norton, 125 U. S. 90. “The term insolvency is always used in the same sense. It is sometimes used to denote the insufficiency of the entire prop- erty and assets of an individual to pay his debts. This is its general and popular mean- ing.‘ But it is also used in a more restrict- ed sense, to express the inability of a party to pay his debts, as they become due in the ordinary course of his business. It is in this latter sense that the term is used when traders and merchants are said to be insolvent.” Fretp, J. Toof vw. Martin, 13 Wall. 47. What Constitutes Insolvency — Inability to Meet Obligations in the Ordinary Course of Business. “Creditors have reasonable cause to be- lieve that a debtor, who is a trader, is in- solvent when such a state of facts is brought to their notice respecting the affairs and pecuniary condition of the debtor as. would lead a prudent business man to the conclu- sion that he is unable to meet his obligations, as they mature in the ordinary course of business.” CLIFFoRD, J. Wager v. Hall. 16 Wall. 601. “Tnability to pay debts in the ordinary course of business usually accompanies an insufficiency of assets.” McKenna, J. Pirie v. Chicago Title, etc., Co., 182 U. S. 451. — Absolute Inability to Pay Debts at Some Future Time Unnecessary. “Insolvency, as used in the Bankrupt Act, when applied to trades, does not mean an absolute inability of the debtor to pay his debts at some future time, upon a set- tlement and winding up of his affairs, but a present inability to pay in the ordinary course of his business, or, in other words, that a trader is insolvent when he cannot pay his debts in the ordinary course of business as men in trade usually do, and such must be the conclusion, even though his inability be not so great as to compel him to stop business.” CiiFForD, J. Wager v. Hall, 16 Wall. 599. Evidence of Insolvency. “A judgment and execution unsatisfied are evidence of insolvency, of inability to collect. They are, however, evidence only; and the fact may be established as well by other evidence, among other modes, by an assignment and continued suspension of bus- iness, or other notorious indications.” Hunt, J. Terry v. Tubman, 92 U. S. 160. Reasonable Cause to Believe that a Debtor Is Insolvent. “When the condition of a debtor's af- fairs are known to be such that prudent bus- iness men would conclude that he could not meet his obligations as they matured in the ordinary course of business, there is reasonable cause to believe him to be insol- vent. Knowledge is not necessary, nor even a belief, but simply reasonable cause to be- lieve.” Hunt, J. Merchants’ Nat. Bank v. Cook, 95 U. S. 346. State Insolvent Laws — Right of States to . Pass. “State legislatures may pass insolvent laws, provided there be no Act of Congress estab- lishing a uniform system of bankruptcy con- flicting with their provisions, and provided that the law itself be so framed that it does not impair’ the obligation of contracts.” CurForD, J. Gilman v. Lockwood, 4 Wall. 410, —~ Must Not Impair Obligation of Con- tracts. “The plain and simple declaration, that no state shall pass any law impairing the obligation of contracts, includes insolvent laws and all other laws, so far as they infringe the principle the convention in- tended to hold sacred, and no _ further.” MarsHaLt, C. J. Sturges v. Crowninshield, 4 Wheat. 200. “So long as there is no national bank- rupt act, each state has full authority to pass insolvent laws binding persons and property within its jurisdiction, provided it does not impair the obligation of existing contracts; but a state cannot by such a law discharge one of its own citizens from his contracts with citizens of other states, though made after the passage of the law, unless, they voluntarily become parties to the pro- ceedings in insolvency.” Gray, J. Brown v. Smart, 145 U. S. 457. 954 INSOLVENCY. “A provision of the insolvent law of a state, that all conveyances, by way of pref- erence, of any property within its borders, made by a citizen of the state, being insol- vent, and within four months before the commencement of proceedings in insolvency, shall be void, is a usual and a valid exer- cise of the power of the state over prop- erty within its jurisdiction, as to all such conveyances made after the passage of the law, whether to its own citizens or to citi- zens of other states.” Gray, J. Brown wv. Smart, 145 U. S. 458. —— Tender Laws and Insolvent Laws Distinguished. “Independent of the different provisions in the Constitution, there is a distinction ex- isting between tender laws and insolvent laws in their object and policy, which suf- ficiently points out the principle upon which the Constitution acts upon them as several and distinct; a tender law supposes a ca- pacity in the debtor to pay and satisfy the debt in some way, but the discharge of an insolvent is founded in his incapacity ever to pay, which incapacity is judicially determined according to the laws of the state that passes it.” JoHNson, J. Ogden v. Saunders, 12 Wheat. 289. — Debts Contracted Subject to Oper- ation of Insolvent Law. “Tf the law, looking to the contingency of the debtor’s becoming unable to pay the whole debt, should provide for his discharge on payment of a part, this would enter into the law of the contract, and the obligation to pay would, of course, be subject to such contingency.” THompson, J., dissenting. Ogden v. Saunders, 12 Wheat. 302. Only on — Proceedings Conclusive Parties. “Tnsolvent systems of every kind partake of the character of a judicial investigation. Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. Common justice requires that no man shall be condemned in his person or property without notice and an opportu- nity to make his defense.” C.zFForp, J. Baldwin v. Hale, 1 Wall. 233. — Have no Extraterritorial Effect. “The insolvent law could have no ex- traterritorial operation, and the tribunal ad- ministering it would have no jurisdiction ever citizens of other states.” Fuuer, C. J. Cole v. Cunningham, 133 U. S. 115. “Insolvent laws of one state cannot dis- charge the contracts of citizens of other states, because they have no extraterritorial operation, and consequently the tribunal sit- ting under them, unless in cases where a citizen of such other state voluntarily be- comes a party to the proceeding, has no jurisdiction in the case. Legal notice can- not be given, consequently there can be no obligation to appear, and of course there can be no legal default.” Cxirrorp, J. Bald- win v. Hale, 1 Wall. 234. “Insolvent laws of one state cannot dis- charge the contracts of citizens of other states; because such laws have no extra- territorial operation, and consequently the tribunal sitting under them, unless in cases where a citizen of such other state volun- tarily becomes a party to the proceedings, has no jurisdiction of the case.” CLIFFORD, J. Gilman v. Lockwood, 4 Wall. 411. “The objection to the extraterritorial op- eration of a state insolvent law is, that it cannot, like the bankrupt law passed by Congress under its constitutional grant of power, release all debtors from the obliga- tion of the debt. The authority to deal with the property of the debtor within the state, so far as does not impair the obliga- tion of contracts is conceded, but the power to release him, which is one of the usual elements of all bankrupt laws, does not be- long to the legislature where the creditor is not within the control of the court.” Mitier,; J. Denny v. Bennett, 128 U. S. 498. “Where the effect of the insolvent law is to relieve the debtor from liability on his contracts, such discharge, if the creditor and debtor have a common domicil, or the creditor, though non-resident, has volun- tarily become a party to the proceedings, avails the defendant in all courts and places.” Furter, C. J. Cole v. Cunning- ham, 133 U. S. 114. ——Right of Foreign Creditors to Share in Distribution. “The insolvency decree is in the nature of an execution, and though it cannot by its own force attach assets in another state, it takes the assets within its. own. And, while non-resident creditors are entitled to come in pari passu with domestic, if they do not do so they cannot participate in the 955 INSPECTIONS AND PHYSICAL EXAMINATIONS. distribution.” Futter, C. J. Geilinger v. Philippi, 133 U. S. 257, — Binding on Foreign Creditors Who Become Parties to Proceedings. “Tt may be considered as settled that state insolvent laws are not only binding up- on such persons as were citizens of the state at the time the debt was contracted, but also upon foreign creditors if they make themselves parties to proceedings under these insolvent laws, by accepting dividends, be- coming) petitioning creditors, or in some other way appearing and assenting to the jurisdiction.” Futier, C. J. Cole v. Cun- ningham, 133 U. S. 115. — Jurisdiction of United States Courts to Administer. “The courts of the United States have no jurisdiction over the settlement of in- solvencies in the state courts.” WAaAyNE, J. Adams v. Preston, 22 How. 488. Creditor Who Proves Claim Has Vested Interest in Fund. “TThe] assets of an insolvent debtor are held under insolvency proceedings in the trust for the benefit for all his creditors, and . . a creditor, on proof of his claim, acquires a vested interest in the trust fund.” Fuiier, C. J. Merrill v. Jacksonville Nat. Bank, 173 U. S. 136. Creditors Share Ratably Debtor’s Estate. “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.” Lamar, J. Morgan v. Struthers, 131 U. S. 255. in Insolvent Interest on Claims Against Debtor in In- solvency. “As a general rule, after property of an insolvent passes into the hands of a receiver or of an assignee in insolvency, interest is not allowed on the claims against the funds. The delay im distribution is the act of the law; it is a necessary incident to the settlement of the estate.” Swuiras, J. Thomas v. Western Car Co., 149 U. S. 116. Effect of Discharge of Person of Insolvent Debtor. “When the defendant pleads a discharge of his person under an insolvent law, the plaintiff may confess the plea, and have judgment to be levied only of defendant’s effects.” Grier, J. Peck v. Jenness, 7 How. 623. INSPECTIONS AND _ PHYS- ICAL EXAMINATIONS. “Tt is settled in this court that no power to make such an order [for a surgical examination of the plaintiff] exists at com- mon law; in other words, the court has no inherent power to make it.” PrcxuHam, J. Camden, etc., R. Co. uv. Stetson, 177 U. S. 174, “The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow. To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault and a trespass; and no order or process, commanding such an exposure or submission, was ever known to the common law in the administration of justice between individuals, except in a very small number of cases, based upon special reasons, and upon ancient practice, coming down from ruder ages, now mostly obsolete in England, and never, so far as we are aware, introduced into this country.” Gray, J. Union Pac. R. Co. v. Botsford, 141 U. S. 252. “The authority of courts of divorce, in determining a question of impotence as af- fecting the validity of a marriage, to order an inspection by surgeons of the person of either party, rests upon the interest which the public, as well as the parties, have in the question of upholding or dissolving the marriage state, and upon the necessity of such evidence to enable the court to exercise its jurisdiction; and is derived from the civil and canon law, as administer- ed in spiritual and ecclesiastical courts, not proceeding in any respect according to the course of the common law.” Gray, J. Union Pac. R. Co. v. Botsford, 141 U. S. 252. “So far as the books within our reach show, no order to inspect the body of a party in a personal action appears to have been made, or even moved for, in any of the English courts of common law, at any period of their history. The most analo- gous cases in England, that have come un- det our notice, are two in the Common Bench, in each of which an order for in- spection of a building was asked for in 956 INSTRUCTIONS. an action for work and labor done thereon, and was refused for want of power in the court to make or enforce it.” Gray, J. Union Pac. R, Co. v. Botsford, 141 U. S. 253, “Within the last fifteen years, indeed as appears by the cases cited in the brief of the plaintiff in error, practice to grant such orders [for the inspection of the plaintiff’s body in an action for personal injuries] has prevailed in the courts of several of the Western and Southern states, follow- ing the lead of the Supreme Court of Iowa in a case decided in 1877. The consideration due to the decisions of those courts has in- duced us fully to examine, as we have done above, the precedents and analogies on which they rely. Upon mature advisement, we retain our original opinion that such an order has no warrant of law.” Gray, J. Union Pac. R. Co. v. Botsford, 141 U. S. 255. “The end of litigation is justice. Knowledge of the truth is essential thereto. It is conceded, and it is a matter of fre- quent occurrence, that in the trial of suits of this nature the plaintiff may make in the court-room, in the presence of the jury, any not indecent exposure of his person to show the extent of his injuries; and it is conceded, and also a matter of frequent oc- currence, that in private he may call his personal friends and his own physician into a room, and there permit them a full ea- amination of his person, in order that they may testify as to what they see and find. In other words, he may thus disclose the actual facts to the jury if his interest require; but by this decision, if his interests are against such disclosure, it cannot be com- pelled. It seems strange that a plaintiff may, in the presence of a jury, be per- mitted to roll up his sleeve and disclose on his arm a wound of which he testifies; but when he testifies as to the existence of such a wound, the court, though persuaded that he is perjuring himself, cannot require him to roll up his sleeve, and thus make manifest the truth, nor require him in like interest of truth, to step into an adjoining room and lay bare his arm to the inspec- tion of surgeons.” Brewer, J., dissenting. Union Pac. R. Co. v. Botsford, 141 U. S. 258, “So it seems tn us that justice requires, and that the court has the power to order, that a party who voluntarily comes into the court alleging personal injuries, and demanding damages therefor, should per- mit disinterested witnesses to see the nature and extent of those injuries in order that the jury may be informed thereof by other than plaintiff and his friends; and that compliance with such an order may be en- forced by staying the trial, or dismissing the case.” Brewer, J., dissenting. Union Pac. R. Co. v. Botsford, 141 U. S, 259. INSTRUCTIONS. Purpose. “The chief object contemplated in the charge of the judge is to explain the law of the case, to point out the essentials to be proved on the one side and the other, and to bring into view the relations of the par- ticular evidence adduced to the particular issues involved.” Suurras, J. Bird uv. U. S., 180 U. S. 361. , Must Be Correct. “That a party has a right to accept to a misdirection of the jury contained in the charge of the judge who tries the cause, is settled in this court.” Marsuat, C. J Smith v. Carrington, 4 Cranch 72. Must Be Complete. “Tt is well settled that the defendant has a right to a full statement of the law from the court, and that a neglect to give such full statement, when the jury consequently fall into error, is sufficient reason for re- versal.” Surras, J. Bird v. U. S., 180 U. S. 361. Must Be Applicable to the Case. “Correct instructions, if applicable to the case, the court, as a general rule, is required to give, unless the same are in substance and effect embodied in those previously given by the court to the jury; but the court is never required by law to give an instruc- tion to the jury which is not applicable to the case, even though it be correct as an abstract principle or rule of law; and it may be added that no prayer for instruction, whether presented by the plaintiff or the de- fendant, can be regarded as applicable to the case when it is wholly unsupported by the evidence introduced to the jury.” CL1FForD, J. Merchants’ Mut, Ins. Co. v. Baring Bros, & Co., 20 Wall. 161. Must Be Clear, Direct and Positive. “[A] party has a right to a direct and posi- tive instruction; and the jury are not left to believe in distinctions where none exist, or to reconcile propositions by mere argument 957 INSTRUCTIONS. and inference. It would be a dangerous prac- tice, and tend to mislead instead of enlight- ening a jury.” Story, J., dissenting. Liv- ingston v. Maryland Ins. Co., 7 Cranch 544. “Where the charge of the judge to the jury is of a character to mislead the jury, the error is one of law, and may be corrected in an appellate court.” Ciirrorp, J. Railroad Co. v. Varnell, 98 U. S. 485. “Tt is certainly the duty of a party, ask- ing an instruction, to use language of such a definite and legal interpretation, as may not mislead either the court or jury in regard to the precise nature of the application.” Story, J. Winn v. Patterson, 9 Pet. 679. Must Be Based on Evidence. “There must be some evidence on which a charge to the jury is founded, otherwise it cannot be lawfully given.” Catron, J. White v. Burnley, 20 How. 249. “When a prayer for instruction is pre- sented to the court, and there is no evidence in the case for the consideration of the jury, it ought always to be withheld; and as a gen- eral rule, if it is given under such circum- stances, it will be error in the court, for the reason that its tendency may be and often is to mislead the jury, by withdrawing their attention from the legitimate points of in- quiry involved in the issue.” CLirForp, J. Goodman v. Simonds, 20 How. 359. For sub- stantially the same language see Merchants’ Mut. Ins. Co. v. Baring, 20 Wall. 162, per Cuirrort, J. “Competent evidence may be written or oral, direct or circumstantial, but when there is no legal evidence of any kind to support the theory of fact embodied in a prayer for instruction, whether presented by the plaintiff or the defendant, the instruction should al- ways be refused; and such a ruling can never become a good cause for reversing the judgment.” CuirForp, J. Merchants’ Mut. Ins. Co. v. Baring Bros. & Co., 20 Wall. 161. “Tt is undoubtedly the peculiar province of the jury to find all matters of fact, and of the court to decide‘all questions of law aris- ing thereon. But a jury has no right to as- sume the truth of any material fact, without some evidence legally sufficient to establish it. It is, therefore, error in the court to in- struct the jury that they may find a material fact, of which there is no evidence from which it may be legally inferred.” Grirr, J. Parks v, Ross, 11 How. 372, “Tt is error in the court to instruct the jury that they may find a material fact of which there is no evidence.” Grier, J. Rich- ardson v. Boston, 19, How. 268. “Tt is clearly error for the court, in its instruction to the jury, to assume a material fact as proved, of which there is no evi- dence in the case. . And when the finding of the jury accords with the theory of the instruction, thus assumed without evi- dence, the error is of a character to deserve correction.” CLIFFoRD, J. Chaffee v. Boston Belting Co., 22 How. 224. Must Be Consistent With the Evidence. “The courts will not, upon a view of the testimony which is partial or imperfect, give an instruction which the entire evidence in u cause when developed would forbid.” Dantet, J. Rhett v. Poe, 2 How. 483. Statements by the Court as to the Evi- dence — As to Its Weight and Effect. “Tf the court can a priori direct the jury what the evidence, either made out in proof or hypothetically stated, really amounts to, the trial becomes a cumbersome formality, and had as well, nay, had better be dispensed with, inasmuch as in the solemn administra- tion of justice there should be as little that is useless, burdenome, or pretended, as pos- sible.” Dante, J., dissenting. Pennsylvania v. Ravenel, 21 How. 111. ——Reviewing and Analyzing the Evi- dence. “Care must be taken that the jury is not misled into the belief that they are alike bound by the views expressed upon the evi- dence and the instructions given as to the law. They must distinctly understand that what is said as to the facts is only advisory, and in no wise intended to fetter the exer- cise finally of their own independent judg- ment. Within these limitations, it is fhe right and duty of the court to aid them by recalling the testimony to their recollection, by collating its details, by suggesting grounds of preference where there is contradiction, by directing their attention to the most im- portant facts, by eliminating the true points of inquiry, by resolving the evidence, however complicated, into its simplest elements, and by showing the bearing of its several parts and their combined effect, stripped of every consideration which might otherwise mislead or confuse them. How this duty shall be performed depends in every case upon the discretion of the judge.” Swayne, J. Nudd v. Burrows, 91 U. S. 439, 958 INSTRUCTIONS. — Statement that Certain Evidence Is Competent. “Tf the court had been asked to instruct the jury, that the evidence of the plaintiffs, if believed by the jury, was competent in point of law, from which they might infer all the necessary facts to maintain the action, unless it was rebutted on the part of the de- fendant, it would have been unobjection- able.” Srory, J. Chirac v. Reinecker, 2 Pet. 623. —Bearing on the Credibility of a Wit- ness. “A court is always at liberty to refer to any matters, interest, impeachment, contra- diction, feeling, or otherwise, that bear upon the question of the credibility of any wit- ness. When the defendant becomes a wit- ness he subjects himself to the same liabil- ity to criticism.” Brewer, J., dissenting, Hicks v. U. S., 150 U. S. 459. —As to the Judge’s Opinion of the Facts. “Tt has often been held by this court that it is not a reversible error in the judge to express his own opinion of the facts, if the rules of law are correctly laid down and if the jury are given to understand that they are not bound by such opinion.” Surras, J. Doyle v. Union Pac. R. Co., 147 U.S. 430. “ As the jurors are the triers of facts, ex- pressions of opinion by the court should be so guarded as to leave the jury free in the exercise of their own judgments. They should be made distinctly to understand that the instruction is not given as to a point of law by which they are to be governed, but as a mere opinion as to the facts to which they should give no more weight than it was entitled to.” Futter, C. J. Starr v. U.S, 153 U. S. 625. Instruction Based on Hypothetical Ques- tion. : “Though the judge may refuse to declare the law to the jury on a hypothetical ques- tion, yet if he gives the instruction and it is erroneous, it is the proper subject of re- vision.” Ciirrorp, J. Merchants’ Mut. Ins. Co. v. Baring Bros. & Co., 20 Wall. 162. “When we are examining the correctness of a charge given to a jury, that if a given state of facts existed, a particular legal re- sult would follow, we must assume the exist- ence of the facts; because the charge only instructs the jury that such is the law, if the facts exist, of which they are to judge; and if the facts do not exist, then the charge, by its very terms, does not apply.” Bargour, J., dissenting. Pollard v. Kibbe, 14 Pet. 425. Refusal of Instructions Only Partially Correct. “ Any instruction asked, which cannot be given to the whole extent asked, may be sim- ply refused; or it may be modified, at the discretion of the court.” Catron, J. Fowler v. Brantly, 14 Pet. 321. “A party cannot assign for error, the re- fusal of an instruction to which he has not a right to the full extent as stated, and in its precise terms; the court is not bound to give a modified instruction varying from the one prayed.” Batpwin, J. Catts v. Phalen, 2 How. 382. For substantially the same lan- guage see Haffin v. Mason, 15 Wall. 674, per Davis, J. “Tf a request to charge contains one un- sound proposition, it is not error to refuse to make the charge although it contains many sound propositions.” Hunt, J. Transpor- tation Line v. Hope, 95 U. S. 301. “Where instructions are asked in a mass, if one of them be wrong the whole may be rejected.” Swayne, J. Springer v. U. S., 102 U. S. 595. “A general exception taken to a refusal of a series of instructions taken together, and constituting a single request, is improper, and will not be considered if any one of the propositions be unsound.” Brown, J. Bogk v. Gassert, 149 U. S. 26. Refusal of Requests Substantially Em- bodied in Instructions Given. “Where the court charge the jury cor- rectly upon all the ingredients of the cause of action and upon all the matters of the defense, it is not error in the court to refuse to instruct as requested by either party, even though the ptoposition presented is correct as an abstract proposition.” CLiFForp, J. Tweed’s Case, 16 Wall. 516. “Where the instructions given to the jury are sufficient to present the whole contro- versy to their consideration, and the instruc- tions are framed in clear and unambiguous terms, is is no cause-for the reversal of the judgment to show that one or more of the prayers for instruction presented by the los- ing party, and not given by the court, were correct in the abstract, as the refusal of the court to give the instructions as requested under those circumstances could not work 959 INSTRUCTIONS. any injury to the party making the request, and therefore cannot be regarded as error.” CuiFForD, J. Tweed’s Case, 16 Wall. 517. “Tf a judge states the law incorrectly, or refuses to state it at all, on a point material to the issue, the party aggrieved will be en- titled to a new trial. But when he explains the whole law applicable to the case in hand, as we think was done in this case, he can- not be called upon to express it in the cate- gorical form, based upon assumed facts, which counsel choose to present to him.” BRaDLEy, J. Continental Improvement Co. v. Stead, 95 U. S. 166. “It is much better practice to refuse to give instructions to the jury, the substance of which has already been stated in the general charge, than to repeat the same charge in different language, although the charge requested may be technically correct as an abstract proposition of law; for a multitude of instructions, all stated in dif- ferent language and meaning the same thing, tends rather to confuse than to enlighten the minds of the jury.” Lamar, J. New York, etc, R. Co. v. Winter, 143 U. S. 75. Right of Court to Modify Correct Re- quest. “Tt is well settled that there is no error in refusing to give a correct charge pre- cisely as requested, provided the instruction actually given fairly covers and includes the instruction asked.” Wuure, J. Coffin v. U. S.,, 156 U. S. 456. Discretion of Court as to Mode of Giving Instructions. “Tt is impracticable to prescribe the par- ticular mode in which a judge shall express to jurors his views of the case about to be determined by their verdict. That must, of necessity, be left to his discretion. If in charging a jury a judge chooses to employ the words of others in order to convey the exact thought in his own mind, or if he prefers, for purposes merely of illustration, to read from the opinions or judgments of other courts, we cannot hold that such prac- tice, although not to be encouraged, is, in the absence of a statute prescribing a differ- ent rule, ground for the reversal of the judgment of the trial court. If a judgment should in any case be reversed upon such a ground, it should only be where it appears that the jury has been misled by the par- ticular mode in which they were charged to the prejudice of the substantial rights of the accused.” Haran, J. Pointer v. U. S., 151 U. S. 416. Time for Making Requests. “Tt cannot be that after the court has finished its charge, after perhaps the jury have retired to consider of their verdict, and at any time béfore such verdict is re- turned, a party can hand up an instruction to the court and demand as of right that it shall be given to the jury; and then if the court fails to recall the jury, and give such instruction, and it embodies a proposi- tion apparently correct, the judgment must be set aside without any showing as to what the charge of the court really was, or that it did not cover the matter contained in this instruction asked at such late time.” BREWER, J. Nelson wv. Flint, 166 U. S. 279. Instructions Entitled to Reasonable In- terpretation. “Tnstructions given by the court at the trial are entitled to a reasonable interpreta- tion.” CtirForD, J. Castle v. Bullard, 23 How. 189. “Tnstructions given by the court to the jury are entitled to a reasonable interpreta- tion; and they are not, as a general rule, to be regarded as the subject of error on account of omissions not pointed out by the excepting party.” CLiFForD, J. Chicago First Unitarian Society v. Faulkner, 91 U. S. 428. Exceptions to Action of Trial Court — Purpose. “One object of an exception is to call the attention of the circuit judge to the precise point as to which it is supposed he has erred, that he may then and there consider it, and give new and different instructions to the jury if, in his judgment, it should be proper to do so.” Hunt, J. Beaver v. Tay- lor, 93 U. S. 55. — Necessity. “Instructions given by the court at the trial are entitled to a reasonable interpreta- tion, and if the propositions as stated are correct they are not, as a general rule, to be regarded as the subject of error on ac- count of omissions not pointed out by the excepting party, as the party aggrieved, if he supposes the instructions given are either indefinite or not sufficiently comprehensive, is always at liberty to ask that further and more explicit instructions may be given, and if he does not do so he is not entitled to claim a reversal of the judgment for any such supposed error.” Cxrrrorp, J. Tweed’s Case, 16 Wall. 515. “Courts are not inclined to grant a new trial merely on account of ambiguity in the 960 INSURANCE. charge of the court to the jury, where it appears that the complaining party made no effort at the trial to have the point ex- plained.” Cuirrorp, J. Tweed’s Case, 16 Wall. 516. “They [instructions given by the court to the jury] are not as a general rule to be re- garded as the subject of error, on account of omissions not pointed out by the excepting party.” CuirrorpD, J. Castle v. Bullard, 23 How. 189. —— General Exception to Charge Par- tially Correct. “Tt is not the duty of a judge at the Cir- cuit Court, or of an appellate court, to analyze and compare the requests and the charge, to discover what are the portions ex- cepted to.” Hunt, J. Beaver v. Taylor, 93 Uz. S. 55. “Exceptions of a general character to the entire charge of the court are not entitled to much favor, as they fail to inform the presiding justice what the matters are to which the objections apply, and frequently give rise to embarrassment in the appellate court for the same reason. Objections to the charge should be specifically pointed out before the jury retire, in order that the justice presiding may know what the sup- posed errors are, and have an opportunity to make any corrections that the circumstances may require, to enable the jury to determine the issue between the parties according to law and evidence.” CLiFForD, J. Trenier v. Stewart, 101 U. S. 805. “This court should not notice an excep- tion which runs to a page of the court’s charge, which points out no sentence or clause which is objected to, and specifies no ground of objection.” Brewer, J., dissent- ing. Hicks v. U. S., 150 U. S. 459. “There is a reasonable rule that if the entire charge is excepted to, or a series of propositions contained in it is excepted to in gross, the exception cannot be sustained if there were a distinct proposition or in- struction given that was sound.” Suxrras, J. Edgington v. U. S., 164 U. S. 365. “Should one general exception to thirteen different instructions be considered sufficient when each instruction consists of different propositions of law and fact, and many of them are clearly correct? We think not. The wholesale manner of taking exceptions is unfair, both to the judge and the opposite party. After a judge has given a long 1 On, Dig.—61 charge to the jury, consisting of many differ- ent propositions of law and fact involved in the trial, a general exception noted at the end of the charge to each proposition sep- arately of law or fact announced therein is not sufficient if any proposition of law con- tained in the charge is correct. Those propositions in regard to the correctness of which there is a real controversy should be at least called to the attention of the judge, so that if he thought it proper he might correct, modify or explain them.” Prcx- HAM, J. Holloway v. Dunham, 170 U. S. 620. —— For Refusal to Give Instruction. “In England, it is a misdirection, and not non-direction, which is the subject of a bill of exceptions. : . In this country, the tule is somewhat more liberal. and the not giving an instruction upon a point in issue may be excepted to, if one was requested, but not otherwise.” Gray, J. Texas, etc, R. v. Volk, 151 U. S. 78. INSULATION. See Exectriciry. INSURANCE. I. DEFINITIONS AND GENERAL PRIN- CIPLES, II. Construction AND INTERPRETA- TION OF POLICIES. III. Insurasce INTEREST. IV. REPRESENTATIONS, CROSS-REFERENCES. See Accipent InsurANCcE; Fire INsur- ANCE; Lire InsuRANCE; Marine INnsur- ANCE; REINSURANCE. I. DEFINITIONS AND GENERAL PRINCIPLES. “Insurance is a Contract of Good Faith, and is void whenever imposition is prac- ticed.” Jounson, J. Buck v. Chesapeake Ins. Co., 1 Pet. 160. “The Contract of Insurance Is a Volun- tary One, and the insurers have a right to designate the terms upon which they will be responsible for losses. And is not an unrea- sonable term that in case of a controversy upon a loss resort shall be had by the assured to the proper tribunal, whilst the transaction is recent, and the proofs respecting it are accessible.” Fretp, J. Riddlesbarger v, Hartford Ins. Co. 7 Wall. 390, 961 INSURANCE. “The Contract of Insurance Is a Pecul- iar Contract, especially when made with a mutual insurance company, for although in terms a contract with a corporation it is in substance a contract between the insured and all other members of that company.” Brewer, J. Mutual Life Ins. Co. v. Phinney, 178 U. S. 344, Special Contract. “A policy, though construed liberally, is still a special contract.” Marsua.., C. J. Graves v. Boston Mar. Ins. Co., 2 Cranch 440, Preliminary Contract and Executed In- surance. “The law distinguishes between the pre- liminary contract to make insurance or issue a policy and the executed contract or policy.” Frevp, J. Franklin Ins. Co. v. Colt, 20 Wall. 567. Contracts Are in Nature of Wagers. “Contracts of insurance or indemnity, though not literally ‘gaming contracts,’ are nevertheless in the nature of wagers against the happening of a certain event. The cal- culation of chances is greatly in favor of the insurer. In a large number of policies, it is but reasonable to expect that the amount of premiums will exceed that of the losses. The insured are thus made to pay one an- other, and with common good fortune afford an overplus to make a dividend for the in- surers.” Grier, J. Ogilvie v. Knox Ins. Co., 22 How. 387. Contracts of Insurance Are Susceptible of Classification. “Contracts of insurance from their very nature are susceptible of classification, not only apart from other contracts, but from each other.” Wauute, J. Farmers’, etc., Ins. Co. v. Dobney, 189 U. S. 305. “Policies of Insurance Are Generally the Most Informal Instruments which are brought into courts of justice; and there are no instruments which are more liberally con- strued, in order to effect the real intention of the parties, if that intention can be clearly ascertained.” MARSHALL, C. J. Yeaton v. Fry, 5 Cranch 342. “A Contract Varying a Policy [of in- surance] is as much an instrument as the policy itself, and, therefore, can only be executed in the manner prescribed by law [for the execution of policies and other in- struments].” MarsHatt, C. J. Head vw. Providence Ins. Co., 2 Cranch 168, “The Promise of the Insurer is to pay a certain amount of money upon certain con- ditions; and the consideration on the part of the assured is his payment of the whole premium at the inception of the contract, or his payment of part then and his agree- ment to pay the rest at certain periods while it continues in force.” Gray, J. Phoenix L. Ins. Co. vw. Raddin, 120 U. S. 197. “The Theory of a Mutual Insurance Company, is that the premiums paid by each member for the insurance of his prop- erty constitute a common fund, devoted to the payment of any losses that may occur. Now, the cash premium may as well repre- sent the insured in the common fund as the premium note; and this class of com- panies has been so long engaged in the busi- ness of insurance, it may well be that they can determine, with sufficient certainty for all practical purposes, the just difference in the rates of premium between cash and notes.” Netson, J. Union Ins. Co. v. Hoge, 21 How. 64. “Double Insurance exists only in the case of risks upon the same interest in prop- erty and in favor of the same person.” BiatcHForp, J. California Ins. Co. v. Union Compress Co., 183 U. S. 420. “Compensation by the Wrongdoer After Payment by the Insurer Is Not Double Compensation, for the plain reason that insurance is an indemnity; and it is clear that the wrongdoers are first liable, and that the insurers, if they pay first, are entitled to be subrogated to the rights of the insured against the insurers. Support to that proposition is found everywhere; and some of the authorities go further and de- cide, that the suit against the wrongdoer for the benefit of the insurer must be prose- cuted in the name of the injured party.” CuirFrorD, J. The “ Atlas,” 93 U. S. 310. “The Business of Insurance Is Not Commerce. The contract of insurance is not an instrumentality of commerce. The making of such a contract is a mere incident of commercial intercourse, and in this re- spect there is no difference whatever between insurance against fire and insurance against ‘the perils of the sea.’” Wuurs, J. Hooper v. California, 155 U. S. 655. Progress of Insurance— Usage of Mer- chants. “Tt should not be forgotten, that, not only in the introduction of this branch of law [insurance law] into England, by Lord Mans- 962 INSURANCE. field, but in its progress since, both there and here, a constant reference has been had to the usage of merchants, and the science of insurance law has been made and kept a practical and convenient system, by avoiding subtle and refined reasoning, however logical it may seem to be, and looking for safe practical rules.” Curtis, J. General Mut. Ins. Co. v. Sherwood, 14 How. 362. By What Law Contract Governed. “[An] insurance policy contained a stipu- lation that it should not be binding until the first premium had been paid and the policy delivered. The premium was paid and the policy delivered in the state of Mon- tana. Under those circumstances, under the general rule, the contract was a Montana contract, and governed by the laws of that state.” Brewer, J. Mutual L. Ins. Co. wv. Cohen, 179 U. S. 264. “The Assignment of a Policy to a party not having an insurable interest is as objec- tionable as the taking out of a policy in his name. Nor is its character changed because it is for a portion merely of the insurance money. To the extent in which the as- signee stipulates for the proceeds of the policy beyond the sums advanced by him, he stands in the position of one holding a wager policy.” Fretp, J. Warnock v. Davis, 104 U. S. 779. Commencement of Risk. “ Whether a risk be commenced when the contract for insurance is made, or when the policy issues, must depend on the terms of the contract.” Curtis, J. Commercial, etc., Ins. Co. v. Union Mut. Ins. Co., 19 How. 322. Parol Insurance. ‘ “Undoubtedly a valid verbal contract for insurance may be made, and when it is re- lied on, and is unembarrassed by any written contract, for the same insurance, it can be proved and become the foundation of a re- covery as in all other cases where contracts may be made either by parol or in writing.” Miter, J. Merchants’ Mut. Ins. Co. v. Ly- man, 15 Wall. 669. “To avoid misunderstandings in a con- tract of such importance and complexity, it is undoubtedly desirable that it should al- ways be in writing; and such is the require- ment of many codes of commercial law. But the very existence of the requirement shows that it was deemed necessary to make it.’ Braptey, J. Relief Fire Ins. Co. v. Shaw, 94 U. S. 574. “Whilst a statutory regulation requiring a writing may be very expedient, in the ab- sence of such a statute it cannot be held that a parol insurance is void.” Bran ey,- J. Relief Fire Ins. Co. v. Shaw, 94 U. S. 576. Law Part of Contract. “Tt is not doubted that a contract by an insurance company of New York executed elsewhere may by its terms incorporate the law of New York, and make its provisions controlling upon both the insured and the insurer.” Brewer, J. Mutual L. Ins. Co. v. Cohen, 179 U. S. 267. Foreign Insurance Companies. “The state, having the power to impose conditions on the transaction of business by foreign insurance companies within its lim- its, has the equal right to prohibit the trans- action of such business by agents of such companies, or by insurance brokers, who are to some extent the representatives of both parties.” Gray, J. Nutting v. Massachu- setts, 183 U. S. 556. Acts Construed as Acceptance. “Acts of the insurer are sometimes con- strued as an acceptance, when the intention to accept is fairly deducible from particular conduct, in the absence of explicit refusal. Silence may give rise to ambiguity solvable by acts performed.” Futter, C. J. Wash- burn, etc, Mfg. Co. v. Reliance Ins. Co., 179 U. S. 19. “The Conditions in Policies Requiring Notice of the Loss to Be Given, and proofs of the amount to be furnished the insurers within certain prescribed periods, must be strictly complied with to enable the insured to recover.” Firetp, J. Riddlesbarger v. Hartford Ins. Co., 7 Wall. 390. Knowledge Independent of Inquiries. “Tnsurers are always to be expected to possess some general knowledge of such matters as they deal with, independent to inquiries to the assured.” Woopsury, J. Clark v. Manufacturers’ Ins. Co., 8 How. 249. Mistake in Preliminary Proofs. “There are many cases which hold that where a mistake has occurred in the pre- liminary proofs presented, and no corrected statement is furnished the insurers before trial, the insured will not be allowed on the trial to show that the facts were different from those stated.” Fietp, J. Newark Mut. L. Ins. Co. v. Newton, 22 Wall. 36. 963 INSURANCE. Extent of Losses Should Be Speedily Adjusted and Paid. “It is clearly for the interest of insurance companies that the extent of losses sustained by them should be speedily adjusted and paid.” Fretp, J. Riddlesbarger v. Hartford Ins. Co., 7 Wall. 390. Effect of Payment of Total Loss. “The payment of a total loss by the in- surer works an equitable assignment to him of the property and all the remedies which the insured had against the carrier for the recovery of its value.” Woops, J. Mobile, etc., R. Co. v. Jurey, 111 U. S. 594. Risks. “The insurer must be supposed, if no special information has been asked or ob- tained, to take the risk, on the hypothesis that nothing unusual exists enhancing the risk.” Woopsury, J. Clark v. Manufactur- ers’ Ins. Co., 8 How. 249. Necessity for Scattering Risks. “The business of insurance, particularly, can only be carried on with entire safety by scattering the risks over large areas of ter- ritory so as to secure the benefit of the most extended average.” Braptey, J., dissenting. Doyle v. Continental Ins. .Co., 94 U. S. 544. Powers and Authority of Agents. “ Agents, if they bind the company, must have authority to waive a compliance with the conditions upon a breach of which the for- feiture is claimed, or to waive the forfeiture when incurred, or their acts waiving such compliance or forfeiture must be subse- quently approved by the company. The law of agency is the same, whether it be applied to the act of an agent undertaking to con- tinue a policy of insurance, or to any other act for which his principal is sought to be held responsible.” Fretp, J. Globe Mutual Life Ins. Co. v. Wolff, 95 U. S. 330. Principal Responsible for Agents’ Acts. “Tt is no doubt true, with respect to pol- icies of insurance, as well as to all other contracts, that the principal is responsible for the acts of his agent; and that any mis- representation, or material concealment by the agent, is equally fatal to the contract, as if it had been the act of the principal himself. But such responsibility must, of necessity, be limited to cases where the agent acts within the scope of his authority.” Tuompson, J. General Interest Ins. Co. v. Ruggles, 12 Wheat, 418. Fraud. “It is well settled that the fraud of the insurer’s agent in the procurement of the policy is binding upon the principal.” Brown, J. Connecticut Mut. L. Ins. Co, v, Hillmon, 188 U. S. 219. Right to Premiums. “Tt is unquestionably true, as a general principle, that where an insurer runs no risk, equity does not consider him entitled to a premium.” Jounson, J. Mutual Assur. Soc. v. Watts, 1 Wheat. 285. Excuse for Not Paying Premiums. “A valid excuse for not paying [a pre- mium note] promptly on the particular day is a different thing from an excuse for not pay- ing at all.” Braptey, J. Thompson v. Knickerbocker L. Ins. Co., 104 U. 5S. 260. Technicalities Premiums Deliberately Left Unpaid. : “Courts have set their faces against an insurance company which, having received its premiums, has sought by technical de- fenses to avoid payment, and in like man- ner should they set their faces against an effort to exact payment from an insurance company when the premiums have deliber- ately been left unpaid.” Brewer, J. Mutual L. Ins. Co. v. Hill, 193 U. S. 559. Waiver of Conditions and Forfeiture. “Tt is always open for the insured to show a waiver of the condition, or a course of conduct on the part of the insurer which gave him just and reasonable ground to infer that a forfeiture would not be exacted. But it must be a just and reasonable ground, one on which the assured has a right to rely.” Brapiey, J. Thompson v. Knickerbocker L. Ins. Co., 104 U. S. 260. ‘A waiver of a stipulation in an agree- ment must, to be effectual, not only be made intentionally, but with knowledge of the circumstances. This is the rule when there is a direct and precise agreement to waive the stipulation. A fortiori is this the rule when there is no agreement either verbal or in writing to waive the stipulation, but where it is sought to deduce a waiver from the conduct of the party. Thus, where a written agreement exists and one of the parties sets up an arrangement of a different nature, alleging conduct on the other side amount- ing to a substitution of this arrangement for a written agreement, he must clearly show not merely his own understanding but that 964 INSURANCE. the other party had the same understanding.” Woops, J. Bennecke v. Connecticut Mut. L. Ins. Co., 105 U. S. 359. “Some . .. decisions hold . . . that a waiver of forfeiture may be inferred from the conduct of the company, and that ‘courts seize hold of any circumstances that indicate an election or intent to waive a for- feiture’” McKenna, J. Iowa L. Ins. Co. v. Lewis, 187 U. S. 353. “An insurance company may waive a for- feiture or may agree not to enforce a for- feiture, but a parol agreement, made at the time of issuing a policy, contradicting the terms of the policy itself, like any other parol agreement inconsistent with a written instrument made contemporary therewith, is void, and cannot be set up to contradict the writing.” Brapitey, J. Thompson v. Khick- erbocker L. Ins. Co., 104 U. S. 259. Waiver Proved by Circumstances. “ A waiver may be proved indirectly by cir- cumstances as well as by direct testimony.” Stronc, J. Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S. 546. Presumptions, “Every underwriter is presumed to know the ordinary course of the trade, and to regulate his proceedings accordingly.” Story, J. Columbian Ins. Co. v. Catlett, 12 Wheat. 389. | “Where the Policy Is Delivered Without Requiring Payment the presumption is, especially if it is a stock company, that a credit was intended, and the rule is well set- tled where a credit is intended that the policy is valid though the premium was not paid at the time the policy was delivered, as where credit is given by the general agent and the amount is charged to him by the com- pany the transaction is equivalent to pay- ment.” Cuirrorp, J. Miller v. Brooklyn L. Ins. Co., 12 Wall. 303. Assured Not Presumed Ignorant of Usage of Insurance Office. : “We do not think the assured can be presumed ignorant of the standing usage of the office, to which he applied for insurance; or be admitted to found upon that igno- rance a claim to exemption from the neces- sity of producing a document required by the policy, as indispensable to his demand of payment for his toss.” MarsHatt, C. J. Columbian Ins. Co. v. Lawrence, 2 Pet. 54. II. CONSTRUCTION AND INTER- PRETATION OF POLICIES. Reasonable Construction. “Policies of insurance, like other con- tracts, must receive reasonable interpreta- tion consonant with the apparent object and plain intent of the parties. This is entirely consistent with the rule that ambiguities should be construed most strongly against the underwriters, and most favorably to the assured.” Stronc, J. Aetna Fire Ins. Co. v. Boon, 95 U. S. 128. Terms Taken in Ordinary Sense. “The rule is well settled that contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unam- biguous, their terms are to be taken and understood in their plain, ordinary, and popular sense.” Jackson, J. Imperial Fire Ins. Co. v. Coos County, 151 U. S. 463. “It Is Dangerous to Change a Settled Construction on policies of insurance.” Marsnat, C. J. Dickey v. Baltimore Ins. Co., 7 Cranch 331. Practical Construction. “In examining for the first time, any question under a policy of insurance, it is necessary to ascertain whether the contract has received a practical construction, by merchants and underwriters; not through any partial or local usages, but by the general consent of the mercantile world. Such a practical construction, when clearly apparent, is of great weight, not only because the parties to the policy may be presumed to have contracted in reference to it, but be- cause such a practice is very high evidence of the general convenience and substantial equity of it, as a rule. This is true of most commercial contracts, but it is especially true of a policy of insurance, which has been often declared to be an ‘obscure, incoherent, and very strange instrument,’ and, ‘ generally more informal than any other brought into a court of justice’; . . . but which, notwith- standing the number and variety of the in- terests which it embraces, and of the events of which it is affected, has been reduced to much certainty, by the long practice of acute and well-informed men in commercial coun- tries; by the decisions of courts in Amer- ica and in England, and by able writers on the subject, in this and other countries.” Curtis, J. General Mut. Ins. Co. v. Sher- wood, 14 How. 362. 965 INSURANCE. Words Construed Most Strongly Against Company. “ As the words of the policy are those of the company, they should be taken most strongly against it, and the interpretation should be adopted which is most favorable to the insured, if such interpretation be not inconsistent with the words used.” HarLan, J. Royal Ins. Co., v. Martin, 192 U. S. 162. “In every case, the fundamental inquiry must be as to the intention of the parties, to be gathered from the words of the policy; always, however, interpreting the policy most favorably for the insured, where it is rea- sonably susceptible of two constructions.” Hartan, J. Royal Ins. Co. v. Martin, 192 U.S. 165. “Tt is, of course, unquestioned that many authorities hold that where there is an am- biguity in a contract of insurance a reason- able doubt as to its construction will be re- solved in favor of the insured, because the policy is presumed to have been drawn by the officers or agents of the insurer.” Har- LAN, J. American Surety Co. v. Pauly, 170 U.S. 181. “When an insurance contract is so drawn as to be ambiguous, or to require interpre- tation, or to be fairly susceptible of two dif- ferent constructions, so that reasonably in- telligent men on reading the contract would honestly differ as to the meaning thereof, that construction will be adopted which is most favorable to the insured.” Jackson, J. Imperial Fire Ins. Co. v. Coos County, 151 U. S. 462. Intention to Be Gathered from Policy. “Tt is as true of policies of insurance as it is of other contracts, that, except when the language is ambiguous, the intention of the parties is to be gathered from the policies alone.” Stronc, J. Home Ins. Co. v. Balti- more Warehouse Co., 93 U. S. 541. Parol Evidence to Ascertain Subject In- sured. “There are cases in which resort may be had to parol evidence to ascertain the sub- ject insured; but they are cases of latent ambiguity.” Stronc, J. Home Ins. Co. vw Baltimore Warehouse Co., 93 U. S. 541. Parol Alterations — Waiver by Agent. “While there is some contrariety of de- cisions, the decided weight of authority is to the effect that a policy of insurance in writ- ing cannot be changed or altered by parol evidence of what was said prior or at the time the insurance was effected; that a condition contained in the policy cannot be waived by an agent, and unless he has ex- press authority so to do; and then only in the mode prescribed in the policy; and that mere knowledge by the agent of an ex- isting policy of insurance will not affect the company unless it is affirmatively shown that such knowledge was communicated to the company.” Surras, J. Northern Assur. Co. v. Grand View Bldg. Ass’n, 183 U. S. 321. Exclusion of Parol Testimony. “Where there is a written contract of in- surance it must have the same effect as the adopted mode of expressing what the con- tract is, that it has in other classes of con- tracts, and must have the same effect in excluding parol testimony in its application to it, that other written instruments have.” Mitter, J. Merchants’ Mut. Ins. Co. v. Ly- man, 15 Wall. 669. III. INSURABLE INTEREST. In General. “Tt is not easy to define with precision what will in all cases constitute an insur- able interest, so as to take the contract out of the class of wager policies. It may be stated generally, however, to be of such interest, arising from the relations of the party obtaining the insurance, either as cred- itor of or surety for the assured, or from the ties of blood or marriage to him, as will justify a reasonable expectation of advantage or benefit from the continuance of his life.” Fietp, J. Warnock v. Davis, 104 U. S. 779. “An owner has an insurable interest in his property to the extent of the value of the building on it, notwithstanding the ex- istence of a mortgage on the property sufh- cient to absorb it. The amount of interest or its character is not material in determining the question whether a party who attempts to recover under a policy has an insurable interest.’ Prcxuam, J. U. S. v. American Tobacco Co., 166 U. S. 479. Disclosure of Interest. “Tt has been held in some cases, that the party applying for insurance need not dis- close his interest, unless asked by the in- surer.” Davis, J. Howard Ins. Co. v. Chase, 5 Wall. 515. Wager Policies Void. “Tt is generally agreed that mere wager policies— that is, policies in which the in- 966 INTENTION. sured party has no interest whatever in the matter insured, but only an interest in its loss or destruction—are void, as against public policy.” Brapitey, J. Connecticut Mut. Ins. Co. v. Schaefer, 94 U. S. 460. “There Is Nothing Illegal in a Wager Policy, in itself.” Jounson, J. Mutual As- surance Soc. v. Watts, 1 Wheat. 285. Disposition of Courts. “The courts of this country, as well as England, are well disposed to maintain [in- surance] policies, where it is clear that the party assured had an interest which would be injured, in the event that the peril in- sured against should happen.” Davis, J. Howard Ins. Co. v. Chase, 5 Wall. 513. IV. REPRESENTATIONS. General Principles. “Representations . . . in insurances, it is well known, almost invariably exist, either written or parol. But they are not usually named or incorporated in the policy, except on the continent of Europe. It is fair to presume, that they took place in all the reported cases on insurance, though often not named, unless the contrary is ex- pressly stated,” Woopsury, J. Clark wv. Manufacturers’ Ins. Co., 8 How. 248. “To Constitute a Representation, there should be an explicit affirmation or denial of a fact, or such an allegation as would ir- resistibly lead the mind to the same con- clusion. If the expressions are ambiguous, or such as the parties might fairly use with- out intending to authorize a particular con- clusion, the insured ought not to be bound by the conjectures, or calculations of proba- bility, of the underwriter. The latter, if in such case he deems the facts material, ought to make further inquiries.” Story, J., dis- senting. Livingston v. Maryland Ins. Co., 7 Cranch 541. Innocent Misrepresentations. “The only cases in which policies have been avoided for innocent misrepresentation are those in which the matter disclosed or concealed has affected the risk so as to render it different from the one understood at the time, and on which the premium was cal- culated.” CusHine, J. Hodgson v. Marine Ins. Co., 5 Cranch 111. “A False Representation, though no breach of the contract, if material, avoids the policy on the ground of fraud, or be- cause the insurer has been misled by it.” MarsHaLt, C. J. Livingston v. Maryland Ins. Co., 7 Cranch 535. “A false representation avoids the policy, because it either misleads or defrauds.” Woopsury, J. Clark v. Manufacturers’ Ins. Co., 8 How. 248. Effect of Misrepresentation — Policy Void- able. “Tt is not true, that because a policy is procured by misrepresentation of material facts, it is therefore to be treated, in the sense of the law, as utterly void ab ditio. It is merely voidable, and may be avoided by the underwriters upon due proof of the facts; but until so avoided, it must be treated for all practical purposes as a subsisting policy.” Story, J. Carpenter v. Providence. etc., Ins. Co., 16 Pet. 509. “ Misrepresentations of material facts, of course, avoid a policy.” CrirForp, J. Lycom- ing Fire Ins. Co. v. Haven, 95 U. S. 248. “Previous Representation Will Be Sunk or Absorbed, or put out of the contract, where the policy is executed in obvious inconsistency with those representations.” Jounson, J. Buck v. Chesapeake Ins. Co, 1 Pet. 160. “When Representations Are Not Asked or Given, and with only this general knowledge the insurer chooses to assume the risk, he must in point of law be deemed to do it at his peril.” Woopsury, J. Clark v. Manufacturers’ Ins. Co., 8 How. 249. Underwriter’s Right to Full Disclosure. “ Even if there be no intentional fraud, still the underwriter has a right to a disclosure of all material facts, which it was in the power of the party to communicate by ordi- nary means, and the omission is fatal to the insurance.” Story, J. M’Lanahan v. Uni- versal Ins. Co., 1 Pet. 185. INTENTION. “It is by acts that the intention of men, in the absence of positive declarations, can best be discovered.” Wasutncrton, J. Craig v. Radford, 3 Wheat. 599. And see Motive. “There can be no more uncertain rule of action than that which is furnished by an intention to do right.” Hunt, J. Allen & Co. v. Ferguson, 18 Wall. 4. 967 INTEREST. INTEREST. As to liability of garnishee, see GARNISH- MENT. See also APPEAL AND Error; BANKRUPTCY ; Bitts oF Crepir; Bonps; JUDGMENTS AND DECREES. Definition. “Tnterest is the compensation allowed by law or fixed by the parties, for the use or forbearance of money, or as damages for its detention.” Fretp, J. Brown v. Hiatts, 15 Wall. 185. Not Recoverable at Common Law. “By the common law, interest could in no case be recovered. As early as the reign of King Alfred, in the ninth century, it was held in detestation. Churchmen and laymen alike denounced it. Glanville, Fleta, and Bracton all speak of it in terms of abhorrence. The first English statute upon the subject was the 37 Hen. VIII. c.. 9.” Swayne, J. Nat. Bank, etc., v. Mechanics’ Nat. Bank, 94 U. S. 438. Compound Interest. “The rate of interest which a man re- ceives is greater when he is allowed to compound than when he is not, the other elements in the case being the same. Even if the compounded interest is less than might be charged directly without compound- ing, a statute may forbid enlarging the rate in that way, whatever may be the rules of the common law.” Homes, J. Citizens’ Nat. Bank v. Donnell, 195 U. S. 374. Interest and Costs Distinguished. “Interest is not costs in any sense, and when allowed, it should be decreed as dam- ages, and be added to the damages award- ed.” C.iFForp, J. The “Wanata,” 95 U. S. 615. Interest May Accrue by Agreement or as Damages. “Interest accrues either by agreement of the debtor to allow it for the use of money, or, in the nature of damages, by reason of the failure of the debtor to pay the prin- cipal when due.” Suiras, J. Shoemaker v. U. S., 147 U. S. 321. Demands on Which Interest is Recover- able — Debt Not Paid According to Con- tract. “Tt is a dictate of natural justice, and the law of every civilized country, that a man is bound in equity, not only to perform his engagements, but also to repair all the damages that accrue naturally from their breach. Hence, every nation, whether gov- erned by the civil or common law, has es- tablished a certain common measure of reparation for the detention of money not paid according to contract, which is usually calculated at a certain and legal rate of interest. Every one who contracts to pay money on a certain day knows, that, if he fails to fulfil his contract, he must pay the established rate of interest as damages for his nonperformance. Hence it may correct- ly be said, that such is the implied con- tract of the parties.” Grrer, J. Curtis v. Innerarity, 6 How. 154. “Where there is a contract to pay money on a day fixed, and the contract is broken, interest, as a general rule, is allowed, and that rule is universal in respect to bills and notes payable on time.” CxirForp, J. Aurora City v. West, 7 Wall. 105. “Tf a debt ought to be paid at a particular time, and is not, owing to the default of the debtor, the creditor is entitled to in- terest from that time by way of compensa- tion for the delay in payment. And if the account be stated . . interest begins to run at once.” Davis, J. Young v. Godbe, 15 Wall. 565, “Where a principal sum is to be paid at a specific time, the law implies an agree- ment to make good the loss arising from a default by the payment of lawful interest.” CuirrorD, J. New Orleans Ins. Co. v. Piag- gio, 16 Wall. 386. “It is no hardship for one who has the use of money owing to another to be re- quired to pay interest thereon from the time when the payment should have been made.” Wuuite, J. Spaulding wv. Mason, 161 U. S. 396. “Interest on a principal sum may be stipulated for in the contract itself, either to run from the date of the contract until it matures, or until payment is made; and its payment in such a case is as much a part of the obligation of contract as the principal, and equally within the protection of the Constitution. But if the contract itself does not provide for interest, then, of course, interest does not accrue during the running of the contract, and whether, after maturity and a failure to pay, interest shall accrue, depends wholly on the law of the 968 INTEREST. states, as declared by its statutes.” SHrRAs, J. Morley v. Lake Shore, etc, Ry. Co, 146 U. S. 168. — Goods Sold Without a Term of Credit. “A sale of goods without a term of credit given is liquidated when contracted, and after the account is presented and im- pliedly admitted, the defendants are in de- fault and chargeable with interest.” Hunt, J. Cooper & Co. v. Coates & Co., 21 Wall. dit. — Debt, Payment of Which Is Unjustly Refused. “Interest, as a general rule, is due on a debt from the time that payment is un- justly refused, but a demand is not neces- sary on a bill or note payable on a given day.” CurFrorp, J. Aurora City v. West, 7 Wall. 105. —— Debts Due to Public Enemy. “It would be manifestly unjust to exact such compensation [interest], or damages, when payment of the principal was inter- dicted. The question whether interest should be allowed on such contracts [debts due to the enemy, contracted prior to the war] was much considered soon after the Revolu- tion.” Fietp, J. Brown v. Hiatts, 15 Wall. 185. —— Unliquidated Damages. “The general practice, where no statute or usage, exists to the contrary, is, not to allow interest on unliquidated damages due in cases of ordinary contracts.” Woopsury, J. Barrow v. Reab, 9 How. 371. Interest as Damages. “Tnterest is given on money demands as damages for delay in payment, being just compensation to the plaintiff for a default on the part of his debtor.” MatrHews, J. Redfield v. Ystalyfera Iron Co., 110 U. S. 176. “Interest, when not stipulated for by con- tract, or authorized by statute, is allowed by the courts as damages for the detention of money or of property, or of compensa- tion, to which the plaintiff is entitled.” Gray, J. U. S. wv. North Carolina, 136 U. S. 216. “Where money is retained by one man against the declared will of another who is entitled to receive it, and who is thus deprived of its use, the rule of courts in ordinary cases is, in suits brought for the recovery of the money, to allow interest as compensation to the creditors for such loss. Interest in such cases is considered as dam- ages, and does not form the basis of the action, but is an incident to the recovery of the principal debt.” Sutras, J. Stewart v. Barnes, 153 U. S. 462. “Damages are often given by way of interest for the illegal seizure and deten- tion of property; and, indeed, in cases of tort, if given at all, interest partakes of the very nature of damages.” Story, J. The Santa Maria, 10 Wheat. 445. “Tf the state declares that, in case of the breach of a contract interest shall accrue, such interest is in the nature of damages, and, as between the parties to the contract, such interest will continue to run_ until payment, or until the owner of the cause of action elects to merge it into judgment.” Sarras, J. Morley v. Lake Shore, etc., Ry. Co., 146 U. S. 168. “In all cases where interest, not stipu- lated for by the terms of the contract, is given by way of damages, the sum demand- ed in the declaration is less than the sum for which judgment is rendered. The plain- tiffs may not recover more, as principal, than the sum demanded as such in the declaration; but the jury have a right to add interest, by way of damages, for the delay.” Story, J. Mills v. U. S. Bank, 11 Wheat. 440. “Where interest is sought by way of damages for delay, courts of equity exer- cise a certain discretion as to its allow- ance.” Futter, C. J. New Orleans wv. Fisher, 180 U. S. 198. Liability of United States. “Unless where the contract is express to that effect, the United States are not liable to pay interest. Interest should never be allowed on old claims, where payment has been deferred because the accounting offi- cers of the treasury were of the opinion that further legislation was necessary to author- ize their allowance, unless the new law clearly provides for the payment of interest as well as principal.” Cx1FForp, J., dissent- ing. U. S. v. McKee, 91 U. S. 452. “Tt has been established, as a general rule, in the practice of the government, that interest is not allowed on claims against it, whether they arise in the ordinary business of administration or under private acts of 969 INTERESTS. relief, passed by Congress on special appli- cation. The only recognized exceptions are, where the government stipulates to pay in- terest and where interest is given expressly by an Act of Congress, either by the name of interest or by that of damages.” BLatcH- ForD, J. Angarica v. Bayard, 127 U. S. 260. “Interest is not to be collected from the government in the absence of language spe- cially provided for its payment.” PreckHaM, J. District of Columbia v. Johnson, 165 Uz. S. 338. “Whenever interest is allowed either by statute or by common law, except in cases where there has been a contract to pay in- terest, it is allowed for delay or default of the debtor. But delay or default cannot be attributed to the government. It is pre- sumed to be always ready to pay what it owes.” Stronc, J. U. S. uv. Sherman, 98 U. S. 567. Liability of States. “Whether interest not stipulated for in a contract is to be awarded as damages for nonperformance of the contract, or on the ground of an implied promise to pay it, a private person is no less chargeable with interest on debts certain and overdue for money or goods, than on promissory notes or bonds obligatory;. and the state is no more chargeable with interest in the one case than in the other.” Gray, J. U. S. w. North Carolina, 136 U. S. 219. Debtor’s Property Liable for Payment for Interest. “Creditors may resort to the body of their debtor’s property for interest as well as principal.” Bratcurorp, J. Warrenv. King, 108 U. S. 399. “In Equity, Interest Goes with the Principal, as the fruit with the tree.” Jounson, J. Himely v. Rose, 5 Cranch 319. Rate — Fixed by Contract. “Where a party desires to exact, from the necessities of a borrower, more than three times as much [interest] as the legis- lature deems reasonable and just, he must take care that the contract is so written, in plain and unambiguous terms; for, with such a claim, he must stand upon his bond.” Taney, C. J. Brewster v. Wakefield, 22 How. 128. “The rule heretofore applied by this court, under the circumstances of this case, has been to give the contract rate [of interest] up to the maturity of the contract, and thereafter the rate prescribed for cases where the parties themselves have fixed no rate. . . . Where a different rule has been furnished, it governs, of course in that locality. The question is always one of local law.” Swayne, J. Holden v. Freed- man’s Sav., etc, Co, 100 U. S. 73. —— Fixed by Law. “Tt is not for the court or for parties to say that the rate of interest fixed by law in the absence of an agreement, is not adequate compensation for delay in the pay- ment of money.” Hartan, J. Memphis, etc, R. Co. v. Dow, 120 U. S. 302. “What compensation is fair or just for the use of money borrowed cannot well be determined upon principles applicable alike to all parts of the country. The risk is much greater for the lender, and the amount the borrower can reasonably pay is larger, in some localities than in others. Laws reg- ulating the rate of interest necessarily de- pend upon the condition of the people in the particular states or communities enact- ing them. Such laws express the policy of the respective states upon that’ subject.” Harxan, J. United States Mortgage Co. wv. Sperry, 138 U. S. 336, — Regulated by Law of Place of Pay- ment. “The place of payment regulates the rate of interest [on a promissory note], and in other respects may become important.” McLean, J. Covington v. Comstock, 14 Pet. 44, Statute Reducing Rate Impairs Obliga- tions of Prior Contracts. “The right which a party has by a judg- ment for money—at least where the cause of action is ex contractu—to collect the sum awarded thereby, with interest until paid, at the rate then established by law, is a right of property of which he cannot be deprived by mere legislative enactment, even to the extent of reducing the interest collectible under such judgment.” Harian, J., dissenting. Morley v. Lake Shore, etc, Ry. Co. 146 U. S. 178. INTERESTS. Interest as Implying Estate or Property. _ “Certainly there is nothing in the term interest incompatible with the meaning of 970 ‘INTERNAL REVENUE. the terms estate or property, for in an or- dinary as well as in a technical acceptation, interest may imply both estate and prop- erty.” Dawniet, J. Ladd v. Ladd, 8 How. 29, INTERNAL REVENUE. See Fines, PENALTIES, AND FORFEITURES} Imports, Exports, AND Customs DutTIEs; Money Hap Anp RECEIVED; PROBABLE CAUSE}; Puts «Dp Cats; REvENUE Laws; Taxa- TION. Existence of Duty Implied from Require- ment that It Shall Be Paid. “ Unquestionably the requisition that a duty shall be levied, collected or paid, implies the existence of that duty; it seems to be as clearly implied by the one term as by the other.” MarsHatt, C. J. Pennington v. Coxe, 2 Cranch 54. Power of Congress to Regulate Business Subject to Internal Revenue Tax. “Tt seems to us that in the rules and regulations for the manufacture and han- dling of goods which are subject to an inter- nal revenue tax, Congress may prescribe any rule or regulation which is not in itself unreasonable.” Brewer, J. Felsenheld vw. U. S., 186 U. S. 132. “The internal revenue laws define the business of a distiller. Congress has the constitutional power to prescribe, as it has done, rules and regulations, in conformity to which that business may be lawfully car- ried on.” Hartan, J. U. S. v. Simmons, 96 U. S. 364. “The Several Laws on the Subject of Internal Revenue Constitute One System, all im pari materia; and if modifications of certain sections by amendment are to have the effect of making those sections absolute law, discharged from all qualifications and exemptions created by other parts of the system, the result will be to derange the harmony of the system as a whole.” Brap- Ley, J., dissenting. New Jersey Steamboat Co. v. Collector, 18 Wall. 492. “There Could Be No Motive for Im- posing a Duty Never to Be Collected, or for imposing it on the article in that con- dition, in which it might remain for ever, without yielding a cent to the treasury.” MarsHALL, C. J. Pennington v. Coxe, 2 Cranch 55. “It can scarcely be imagined that the legislature, if imposing a duty on all sugars refined, should entirely neglect to take any means whatever to secure the collection of that duty, and should postpone those means until a subsequent event should happen, which might never occur.” Marsa tt, C. J. Pennington v. Coxe, 2 Cranch 55, Requiring Security for Payment of Duties. “Tt is unquestionably in the common course of legislative proceedings on the sub- ject of revenue, to obtain security for the payment of duties, at the first convenient time after they shall have accrued.” Mar- SHALL, C. J. Pennington v. Coxe, 2 Cranch 56. Construction of Statute Imposing Duties. “Where the legislature distinguishes be- tween different objects, and in imposing a duty on them evidences a will to charge them in different situations, it is not for the courts to beat down these distinctions on the allegation that they are capriciously made, and therefore to be disregarded.” MarsHALL, C. J. Pennington v. Coxe, 2 Cranch 59. “Tf . . . we find the whole attention of the legislature directed to the article in one state [condition]; if we find it pro- ductive only in one state; there is no reason for supposing, unless the words require that construction, that the duty was imposed upon it in a different state.” MarsHatt, C. J. Pennington v. Coxe, 2 Cranch 55. “It May. Be Conceded that the Govern- ment’s Stamp Is Not a Guaranty of Quan- tity or Quality, and that no responsibility attaches to it, although the manufacturer puts into the package less than the specified quantity of goods or goods of inferior quality.” Brewer, J. Felsenheld v. U. S., 186 U. S. 131. Commissioner’s Decisions Are Not Judi- cial Constructions. “The decisions of the internal revenue commissioner can hardly be denominated judicial constructions.” Stronc, J. Dollar Sav. Bank v. U. S., 19 Wall. 237. Collectors Required to Give Bond. “Collectors of internal revenue taxes are required by law to give bond for the faith- ful discharge of their duties.” Czrrrorp, J. U. S. v. Herron, 20 Wall. 254, 971 INTERNAL REVENUE. Remedy for Taxes Illegally Paid. “Taxes illegally exacted under the rev- enue laws of the United States may be re- covered back, if paid under protest, in an action of assumpsit against the collector from enforcing payment, and very grave doubts are entertained whether trespass against the collector is a proper remedy un- der existing laws.” CLirForD, J. Barnes v. Railroad Cos., 17 Wall. 310. —— Taxes Must Have Been Paid under Protest. “No . . . written notice or protest is required of a party paying illegal taxes under the internal revenue laws. He must pay under protest in some form, it is true, or his payment will be deemed voluntary.” Brabiey, J. Wright v. Blakeslee, 101 U. S. 179. — Money Turned over to United States Treasury by Collector. “Collectors of internal revenue, as well as collectors of import duties, are required to pay all moneys by them collected into the treasury of the United States, and where such moneys have been collected and the payment has been made into the treasury as required by the Act of Congress, the law, in the absence of any other statutory regulations upon the subject, would not imply any promise on the part of the collector to pay back the amount to the taxpayer, even if it appeared that the assessment was erron- eous or illegal, as he could not, in such a case, be under any obligation to pay the money twice, and to have paid it back to the taxpayer in the first place would have been contrary to his official duty as pre- scribed by an Act of Congress.” CLIFFORD, J. Collector v. Hubbard, 12 Wall. 12. “The rule is well settled that the law will not imply a promise by a public officer to pay money in his hands as such officer twice, nor to pay it to a private party in a case where the law requires him to pay it into the public treasury, and he has com- plied with that requirement.” Czirrorp, J. Collector v. Hubbard, 12 Wall. 12. — Jurisdiction of United States Circuit Courts. “Circuit Courts under existing laws have not jurisdiction of suits to recover back moneys illegally exacted for internal revenue duties, unless the parties are citizens of dif- ferent states or the suit is removed into the Circuit Court from a state court.” CiiF- ForD, J. Andreae v. Redfield, 98 U. S. 225. — Reimbursement of Collectors for Judgments Recovered Against Them. “None of the internal revenue acts con- template that the collectors shall reimburse themselves for the amount of any judgment recovered against them on account of duties illegally or erroneously assessed and collect- ed.” CurrForD, J. Collector v. Hubbard, 12 Wall. 13. Power of Secretary of Treasury to Remit Taxes or Inflict Penalties. “As the great object of the act ‘to pro- vide internal revenue’ is to collect the tax, the secretary of the treasury has not power to remit it. When the primary object of collecting the tax is obtained, . . . the further infliction of penalties is submitted en- tirely to the discretion of the secretary. No discretion is given to the courts to act in the case further than to give their judgment; and if the penalties are not mitigated or remitted by the secretary, either before or after judgment, to enforce them by proper process.” Grier, J. Dorsheimer v. U. S, 7 Wall. 173. “A Distiller’s Books and: His Monthly Returns should truly state the quantity of spirits he has produced.” Warts, C. J. Stoll v. Pepper, 97 U. S. 442. Production in Excess of Distillery’s Esti- mated Capacity. “There is nowhere in the internal-revenue law any express prohibition of production in excess of the estimated capacity [of distil- leries].” WartE, C. J. Stoll v. Pepper, 97 U.S. 441. Refunding Tax Paid on Alcohol Used in the Arts. “ Since the peculiar nature of al- cohol itself, the materials capable of being distilled being plentiful, the process of dis- tillation easy, and the profit, if the tax were evaded, necessarily great, had led in the course of thirty years to a minute and strin- gent system of laws, aimed at the protecting government in every particular, it seems clear that when Congress undertook to pro- vide for refunding the tax on alcohol when used in the arts, it manifestly regarded ade- quate regulations to prevent loss through fraudulent claims as absolutely an essential prerequisite; and may reasonably be held to have left it to the secretary to’ determine whether or not such regulations could be framed, and if so, whether further legisla- tion would be required. It is true that the right to the rebate was derived from the 972 INTERNATIONAL LAW. Statute, but it was the statute itself which postponed the existence of the right until the secretary had prescribed regulations if he found it practicable to do so.” Futter, C. J. Dunlap vu U. S, 173 U. S. 74. INTERNATIONAL LAW. See ALiENS; AMBASSADORS AND CONSULS}; BLocKADE; CAPTURE, RECAPTURE, CONFISCA- TION, AND PrizE; CITIZENS AND CITIZENSHIP; Conqugests; DomiciL; GoveERNMENT; HicH Seas; Law or Nature; MARRIAGE AND Mar- RIED WomEN; Nation; NAVIGABLE WATERS; NAVIGATION; Piracy; PRriIvATEERS; Res JupicaTa; TITLE By Discovery; TREATIES; Wak. : Law of Nations Is Law of Nature. “The law of nations is also called the law of nature; it is founded on the common consent as well as the common sense of the world.” Grier, J. Prize Cases, 2 Black 670. Law Is General, Conventional, or Custo- mary. “The law of nations may be considered of three kinds; to wit, general, conventional, or customary. The first is universal, or estab- lished by the general consent of mankind, and binds all nations. The second is founded on express consent, and is not universal and only binds those nations that have as- sented to it. The third is founded on tacit consent; and is obligatory on those nations, who have adopted it.” Cass, J. Ware v. Hylton, 3 Dall. 227. Law Is Partly Conventional and Partly Unwritten. “The law of nations is the great source from which we derive those rules, respect- ing belligerent and neutral rights, which are recognized by all civilized and commercial states throughout Europe and America. This law is in part unwritten, and in part conven- tional. To ascertain that which is unwritten, we resort to the great principles of reason and justice: but, as these principles will be differently understood by different nations under different circumstances, we consider them as being, in some degree, fixed and rendered stable by a series of judicial de- cisions. The decisions of the courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect. The decisions of the courts of every coun- try show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this.” MarsHALL, C. J. Thirty Hogsheads Sugar v. Boyle, 9 Cranch 198. Basis of International Law. “International law is founded in the opin- ions generally received and acted on by civilized nations, and enforced by moral sanctions. It becomes a more authorative system when it results from special compacts, founded on modified rules, adapted to the exigencies of human society; it is in fact an international morality, adapted to the best interests of nations.” McLean, J., dissent- ing. Scott v. Sandford, 19 How. 556. “The world being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, and by an interchange of those good offices which humanity dictates and its wants require, all sovereigns have consented to a relaxation in practice, in cases under certain peculiar cir- cumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers. This consent may, in some instances, be tested by com- mon usage, and by common opinion, growing out of that usage.” Marsuau, C. J. Schooner Exchange v. M’Faddon, 7 Cranch 136. —— No Single Nation Can Make a Law of Nations. “As no nation can prescribe a rule for others, none can make a law of nations.” MarsHalt, C. J. The Antelope, 10 Wheat. 122. “Undoubtedly, no single nation can change the law of the sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the world. Like all the laws of nations, it rests upon the common consent of civilized communi- ties.” Stronc, J. The Scotia, 14 Wall. 187. “Maritime Jurisprudence is a part of the law of nations.” Swayne, J. The China, 7 Wall. 69. Inaccuracy of Definition of Offenses, “Offenses . against the law of na- tions, cannot, with any accuracy, be said to be completely ascertained and defined in any public code recognized by the common con- sent of nations.” Story, J. U.S. v. Smith, 5 Wheat, 159. 973 INTERNATIONAL LAW, Obligation of Nations to Observe Law of Nations. “A nation would justly be considered as violating its faith, although that faith might not be expressly plighted, which should sud- denly and without previous notice, exercise its territorial powers in a manner not con- sonant to the usages and received obliga- tions of the civilized world.” MarsHALt, C. J. Schooner Exchange v. M’Faddon, 7 Cranch 137. : International Law Is Part of the Law of the United States. “Tnternational law, in its widest and most comprehensive sense—including not only questions of right between nations, gov- erned by what hds been appropriately called the law of nations; but also questions aris- ing under what is usually called private inter- national law, or the conflict of laws, and concerning the rights of persons within the territory and dominion of one nation, by reason of acts, private or public, done with- in the dominions of another nation — is part of our law, and must be ascertained and ad- ministered by the courts of justice, as often as such questions are presented in litigation between man and man, duly submitted to their determination.” Gray, J. Hilton v. Guyot, 159 U. S. 163. “Tnternational law has the force of law in our courts, because it is adopted and used by the United States.” Brantey, J., dissenting. New York L. Ins. Co. v. Hen- dren, 92 U. S. 287. “Tnternational law has the force of law in our courts, because it is adopted and used by the United States. It could have no force but for that, and may be modified as the government sees fit. Of course, the gov- érnment would not attempt to modify it in matters affecting other nations, except by treaty stipulations with them.” Braontey, J., dissenting. New York L. Ins. Co. v. Hen- dren, 92 U. S. 287. “The laws which the citizens of the United States are to obey in regard to inter- course with a nation or people with which they are at war are laws of the United States. These laws will be the unwritten interna- tional law, if nothing be adopted or announced to the contrary; or the express regulations of the government when it sees fit to make them. But in both cases it is the law of the United States tor the time being, whether written or unwritten.” Braney, J., dissent- ing. New York L. Ins. Co. v. Hendren, 92 U.S. 288. — Power of Congtess to Pass Statute Protecting Right Secured by Law of Nations. “A right secured by the law of nations to a nation, or its people, is one the United States as the representatives of this nation are bound to protect. Consequently, a law which is necessary and proper to afford this protection is one that Congress may enact, because it is one that is needed to carry into execution a power conferred by the Constitution on the government of the United States exclusively.” Wartg, C. J. U.S. v. Arjona, 120 U. S. 487. —— Power of Government to Adopt Reg- ulations as to Matters ot Internationa Law. ; “In many things that prima facie belong to international law, the government will adopt its own regulations: such as the ex- tent to which intercourse shall be prohibited ; how far property of enemies shall be con- fiscated; what shall be deemed contraband, etc.” Brantey, J., dissenting. New York L. Ins. Co. v. Hendren, 92 U. S. 287. No Nation Can Impose Its Penal Laws on Another Nation. “Tt is a general principle, too, in the policy, if not the customary law of nations, that no nation is bound to enforce the penal laws of another within its own dominions.” Jounson, J., dissenting. Houston v. Moore, 5 Wheat. 69. “Crimes against a government are only cognizable in its own courts, or in those which derive their right of holding jurisdic- tion from the offended government.” JoHN- son, J., dissenting. Houston v. Moore, 5 Wheat. 35. “The course of the American government on the subject of visitation and search, would decide any case in which that right had been exercised by an American cruiser, on the vessel of a foreign nation, not violating our municipal laws, against the captors.’ Mar- SHALL, C. J. The Antelope, 10 Wheat. 123. “No principle of general law is more uni- versally acknowledged than the perfect equal- ity of nations. Russia and Geneva have equal rights. It results from this equality, that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone.” Mar- SHALL, C. J. The Antelope, 10 Wheat. 122. Neutral Nation Cannot Adjudicate Con- troversies Between Belligerents, “We . consider it no part of the 974 INTERNATIONAL LAW, duty of a neutral nation to interpose, upon the mere footing of the law of nations, to settle all the rights and wrongs which may grow out of a capture between belligerents.” Story, J. La Amistad de Rues, 5 Wheat. 389. “Strictly speaking, there can be no such thing as a marine tort between the belliger- ents. Each has an undoubted right to exer- cise all the rights of war against the other; and it cannot be a matter of judicial com- plaint, that they are exercised with severity, even if the parties do transcend those rules which the customary laws of war justify. At least, they have never been held within the cognizance of the prize tribunals of neutral nations. The captors are amenable to their own government exclusively, for any excess or irregularity in their proceedings; and a neutral nation ought not otherwise to inter- fere, than to prevent captors from obtaining any unjust advantage by violation of its neu- tral jurisdiction.” Story, J. La Amistad de Rues, 5 Wheat. 390. “The equality of nations forbids that the conduct of one sovereign, or the correctness of the principles upon which he acts, should be submitted to the jurisdiction of the courts of another.” Jounson, J., dissenting. Roége v. Himely, 4 Cranch 283. “A neutral nation which knows its duty, will not interfere between belligerents, so as to obstruct them in the exercise of their undoubted right to judge, through the medium of their own courts, of the validity of every capture made under their respective commissions, and to decide on every ques- tion of prize which may arise in the progress of such discussion.” Lrivincston, J. The Estrella, 4 Wheat. 308. ——Seizure by Privateer. “The hull, or the owners of the privateer, may, perhaps, under some circumstances, be subject to damages in a neutral court after the courts of the captor have decided that the capture was not sanctioned by his sov- ereign. But, until such a decision, the seiz- ure of a private armed vessel is as much the act of a sovereign, and entitled to the same exemption from scrutiny, as the seizure by a national vessel.” JoHnson, J. L’Invincible, 1 Wheat. 253. “A Violation of the Law of Nations by One Power Does Not Justify Its Vio- lation by Another; but . . . remon- strance is the proper course to be pursued.” MarsHatt, C. J. Talbot v. Seeman, 1 Cranch 40. -of the nation.” Right of Sovereign to Sue in Foreign Courts. “There is nothing in the law of nations which forbids a foreign sovereign, either on account of the dignity of his station, or the nature of his prerogative, from voluntarily becoming a party to a suit in the tribunals of another country, or from asserting there any personal, or proprietary, or sovereign rights, which may be properly recognized or enforced by such tribunals.” Story, J. The Santissima Trinidad, 7 Wheat. 353. Duty of Nation to Keep Ports Open to Vessels of Other Nations. “Tf, for reasons of state, the ports of a nation generally, or any particular ports, be closed against vessels of war generally, or the vessels of any particular nation, notice is usually given of such determination. If there be no prohibition the ports of a friendly na- tion are considered as open to the public ships of all powers with whom it is at peace, and they are supposed to enter such ports and to remain in them while allowed to remain, under the protection of the gov- ernment of the place.’ MarsHALt, C. J. Schooner Exchange v. M’Faddon, 7 Cranch 141, “To the court, it appears, that where, with- out treaty, the ports of a naton are open to the private and public ships of a friendly power, whose subjects have also liberty with- out special license, to enter the country for business or amusement, a clear distinction is to be drawn between the rights accorded to private individuals or private trading ves- sels, and those accorded to public armed ships which constitute a part of the military force MarsHALL, C. J. Schooner Exchange v. M’Faddon, 7 Cranch 143. —Power to Prescribe Conditions on Which Foreign Vessels May Enter Port. “Congress has . . . ‘prescribed condi- tions which attend the entrance of foreign vessels into our ports, and those conditions the courts are not at liberty to dispense with.” Brewer, J. Patterson wv. Bark Eudora, 190 U. S. 178. Rights on the Sea—Governed by One Code, Binding on All Nations. “The sea, being common to all nations, its police and the rights and duties on it should be governed mainly by one code, known to all, and worthy to be respected and enforced by all.” Woopsury, J., dissenting. Waring v. Clarke, 5 How. 472. 975 INTERNATIONAL LAW. — All Vessels Have Equal Rights. “Every ship sails [on the ocean] with the unquestionable right of pursuing her own law- ful business without interruption; but, what- ever may be that business, she is bound to pursue it in such a manner as not to violate the right of others. The general maxim in such cases is, sic utere tuo, ut non alienum ledas.” Story, J. The Mariana Flora, 11 Wheat. 42. “Every vessel undoubtedly has a right to the use of so much of the ocean as she oc- cupies, and as is essential to her own move- ments. Beyond this, no exclusive right has ever yet been recognized, and we see no rea- son for admitting its existence.” Story, J. ‘The Mariana Flora, 11 Wheat. 43. the —Concurrent Jurisdiction of Nations. “The ocean is the common jurisdiction of all sovereign powers; from which it does not result that their powers upon the ocean exist in a state of suspension or equipoise, but that every power is at liberty upon the ocean to exercise its sovereign right, pro- vided it does no act inconsistent with that general equality of nations which exists upon the ocean. Within their jurisdic- tional limits the rights of sovereignty are exclusive; upon the ocean they are concur- rent.” JoHNsON, J., dissenting. Rose v. Himely, 4 Cranch 287. — Right of Nations to Act in Self-de- fense. “Whatever the great principle of self- defense in its reasonable and necessary ex- ercise will sanction in an individual in a state of nature, nations may lawfully per- form upon the ocean. This principle, as well as most others, may be carried to an unreasonable extent; it may be made the pretense instead of the real ground of ag- gression, and then it will become a just cause of war.” JoHNson, J., dissenting. Rose v. Himely, 4 Cranch 287. Rights on River Flowing Between Two Countries. “Upon the general principles of the law of nations, the waters of the whole river [bordering between two countries] must be considered as common to both nations, for all purposes of navigation, as a common highway, necessary for the advantageous use of its own territorial rights and possessions.” Story, J. The Apollon, 9 Wheat, 369. Passage of Foreign Army Through Friendly Territory. “It is obvious that the passage of an army through a foreign territory will probably be at all times inconvenient and injurious, and would often be immediately dangerous to the sovereign through whose dominion it passes. Such a practice would break down some of the most decisive distinctions be- tween peace and war, and would reduce a nation to the necessity of resisting by war an act not absolutely hostile in its charac- ter, or by exposing itself to the stratagems and frauds of a power whose integrity might be doubted, and who might enter the country under deceitful pretexts.” MarsHatt, C. J. Schooner Exchange v. M’Faddon, 7 Cranch 140. “The general license to foreigners to enter the dominions of a friendly power, is never understood to extend to a military force; and an army marching into the dominions of another sovereign, may justly be considered as committing an act of hostility; and, if not opposed by force, acquires no privilege by its irregular and improper conduct. It may, however, well be questioned whether any other than the sovereign power of the state be capable of deciding that such military commander is without a license.” Mar- SHALL, C. J. Schooner Exchange v. M’Fad- don, 7 Cranch 140, —— Exemption from Local Jurisdiction. “Tt is well settled that a foreign army permitted to march through a friendly coun- try, or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place.” Fietp, J. Coleman v. Tennessee, 97 U. S. 515. “A foreign army permitted to march through a friendly country, or to be sta- tioned in it, by permission of its government, is exempt from the civil and criminal juris- . diction of the place.” Gray, J., dissenting. Tucker v. Alexandroff, 183 U. S. 438. — Arresting Deserters. “Even permission to march a foreign armed force through the country does not imply a duty to arrest deserters from that force.” Gray, J., dissenting. Tucker v. Alexandroff, 183 U. S. 460. Effect of Change of Government on Citi- zenship. “Upon principles of national law, the mem- bers of a state or political entity continue 976 INTERPRETATION AND CONSTRUCTION: members of the state notwithstanding a change of government. The relations be- tween the body politic and its members con- tinue the same. The individual member and the national family remain the same, and every member which made up the body, continues in the eye of other nations in his original relation to that body.” JoHNson, J., dissenting. Shanks v. Dupont, 3 Pet. 260. Recognition of Private Rights Acquired Under Foreign Laws. “The rule is universal in this country that private rights acquired under the laws of foreign states will be respected and enforced in our courts unless contrary to the policy or prejudicial to the interests of the state where this is sought to be done; and al- though the source of this rule may have been the comity characterizing the intercourse between nations, it prevails to-day by its own strength, and the right to the applica- tion of the law to which the particular trans- action is subject is a judicial right.” FULLER, C. J., dissenting. Hilton v. Guyot, 159 U. S. 233. INTERPLEADER, BILL OF. Complainant Must Be Disinterested. “The general rule is that a party who has an interest in the subject-matter of the suit cannot file a bill of interpleader, strictly so called. In fact, the assertion of perfect dis- interestedness is an essential ingredient of such a bill.” Wuutre, J. Groves v. Sentell, 153 U. S. 485. Complainant Must Be Doubtful as to Per- son Entitled to Money. “The very nature of a bill of interpleader presupposes that the party by whom it is exhibited would be liable a second time if he should either voluntarily or otherwise pay the money which he owes to a wrong claimant.” Barr, J. Georgia v. Brailsford, 2 Dall. 418. INTERPRETATION AND CON- STRUCTION. J. INTENTION OF Parties Must Be ASCERTAINED. II. Courts Cannot Maxe NEw CONTRACTS FOR PARTIES. Ill. MEANING OF WorDS AND PHRASES. IV. CoNnSIDERATION OF SURROUNDING CIRCUMSTANCES. : e =—t-Os. Dic.—62 V. CoNSTRUCTION GIVEN TO IN- STRUMENT BY PARTIES. VI. CoNnSIDERATION OF DIFFERENT Parts oF INSTRUMENT, VII. ConstrucTION IN Favor or IN- STRUMENT. VIII. RuLes For CONSTRUCTION OF VARIOUS CLASSES OF INSTRU- MENTS. IX. PRESUMPTION THAT CONTRACT Was Mabe witH REFERENCE To Existinc Law. X. Law GovERNING CoNTRACTS. 1. In General. 2. In the Absence of an Express Agreement. 3. Under Agreement of the Parties. CROSS-REFERENCES. See Ampicurties; ConsTITUTIONAL Law; Expert AND Opinion EvipENce; Deeps; Fines, PENALTIES, AND FORFEITURES ; JUDICIAL Notice; Lancuace; Paro: Evivence; StTat- utes; REVENUE Laws; TREATIES; WILLS. I. INTENTION OF PARTIES MUST BE ASCERTAINED. Intention of Parties Controls. “Contracts are always to be construed with a view to the real intention of the par- ties.’ MarsHaLt, C. J. U. S. v. Gurney, 4 Cranch 343. “Wherever words [of a contract] admit of a more extensive or more restricted sig- nification, they must be taken in that sense which is required by the subject-matter, and which will best effectuate what it is reasona- ble to suppose was the real intention of the parties.” MarsHati, C. J. Church v. Hub- bart, 2 Cranch 233. “A contract is defined by all to, be an agreement to do, or not to do, some par- ticular act; and in the construction of this agreement, depending essentially upon the will of the parties between whom it is formed, we seek for their intention with a view to fulfil it.” Wasuincton, J., dissent- ing. Ogden v. Saunders, 12 Wheat. 256. “ All contracts are to be construed to ac- complish the intention of the parties; and in determining their different provisions, a liberal and fair construction will be given to the words, either singly or in connection with 977 INTERPRETATION AND CONSTRUCTION. the subject-matter.” Davis, J. The Bing- hamton Bridge, 3 Wall. 74. “As the meaning of the law-maker is the law, so the meaning of the contracting. par- ties is the agreement. Words are merely the symbols they employ to manifest their pur- pose that it may be carried into execution. If the contract be unsealed and the meaning clear, it matters not how it is phrased, nor how it is signed, whether by the agent for the principal or with the name of the prin- cipal by the agent or otherwise. The intent developed is alone material, and when that is ascertained it is conclusive.” Swayne, J. Whitney v. Wyman, 101 U. S. 396. “Tn construing statutes which are binding on states as contracts, the words employed are, if possible, to be given the same meaning they had in the minds of the parties to the contract when the statute was enacted. In this respect there is no difference between a contract of a state and a contract of a natural person. If the words employed are capable of more than one meaning, that mean- ing is to be given them which, taking the whole statute together, it is apparent the par- ties intended they should have.” Warts, C. J. Tennessee v, Whitworth, 117 U. S. 137, “We agree generally that although there are words of conveyance im praesenti in a contract for the purchase and sale of lands, still, if from the whole instrument it is mani- fest that further conveyances were contem- plated by the parties, it will be considered an agreement to convey and not a conveyance. The whole question is one of intention to be gathered from the instrument itself.” Prcx- HAM, J. Williams v. Paine, 169 U. S. 76. Intention Must Be Gathered from Lan- guage Used. “We must judge of the intention of the parties to the compact by their language. I know of no other rule of construction.” McLean, J., dissenting. Searight v. Stokes, 3 How. 176. “Instruments inartificially drafted, or where the language employed is obscure, im- perfect, or ambiguous, are always open to construction, and the primary rule in all such cases, whether the contract is or is not under seal, is the intention of the parties; but the power of a court of common law extends no further than to collect such intention from the language employed as applied to the sub- ject-matter, in view of the surrounding cir- cumstances.” Cxirrorp, J. Hudson Canal Co. v. Pennsylvania Coal Co., 8 Wall. 290. “Ambiguous words and phrases may be reasonably construed to effect the intention of the parties, but the province of construc- tion, except when technical terms are em- ployed, can never extend beyond the lan- guage employed, the subject-matter, and the surrounding circumstances.” CLIFFoRD, J. Moran v. Prather, 23 Wall. 501. “Words are the common signs that man- kind make use of to declare their intention to one another; and when the words of a man express his meaning plainly, distinctly and perfectly, we have no occasion to have recourse to any other means of interpreta- tion.” Lamar, J. Lake County v. Rollins, 130 U. S. 671. “Tt would be dangerous in the extreme to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the different clauses of an in- strument bear upon each other, and would be inconsistent unless the natural and com- mon import of words be varied, construction becomes necessary, and a departure from the obvious meaning of words is justifiable. But if, in any case, the plain meaning of a pro- vision, not contradicted by any other pro- vision in the same instrument, is to be dis- regarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case would be so monstrous that all mankind would, without hesitation, unite in rejecting the application.” Marsuati, C. J. Sturges v. Crowninshield, 4 Wheat. 202. Things Implied as Being Intended by the Parties. “What is implied is as effectual as what is expressed. The intent of the parties, as manifested, is the contract.” Swayne, J. Equitable Ins. Co. v. Hearne, 20 Wall. 496. “What ds implied in a statute, pleading, contract, or will, is as much a part of it as what is expressed.” Swayne, J. U. S. wv. Babbit, 1 Black 61. “What is implied in a record, pleading, will, deed, or contract, is as effectual as what is expressed.” Swayne, J. Cornett v. Wil- liams, 20 Wall. 250. 978 INTERPRETATION AND CONSTRUCTION. “What is implied is as effectual as what is expressed.” Swayne, J. Lynde v. Win- nebago County, 16 Wall. 13. “What is implied in a statute, will, deed, or contract is as much a part of it as what is expressed.” Swayne, J. U.S. v. Babbitt, 95 U. S. 336. —— Implication Is But Another Name for Intention. “That some degree of implication must be given to words, is a proposition of uni- versal adoption; implication is but another term for meaning and intention, apparent in the writing on judicial inspection. In the construction of . . . [a written instru- ment] the words, the subject, the context, the intention of the person using them, are all to be taken into view.” Batpwin, J. Rhode Island v. Massachusetts, 12 Pet. 723. Intention at Time of Execution of Con- tract. “The instrument must be construed with reference to the intention of the parties when it was made, irrespective of any events after- wards occurring.” Bratcurorp, J. Davison v. Von Lingen, 113 U. S. 50. Literal Construction May Defeat Inten- tion. “To assign to contracts, universally, a lit- eral purport, and to exact for them a rigid literal fulfillment, could not have been the intent of the Constitution.” Jonnson;, J. Ogden v. Saunders, 12 Wheat. 286. “Even compared with the principles of ‘natural law, scarcely any contract imposes an obligation conformable to the literal meaning of terms.” Jounson, J. Ogden v. Saunders, 12 Wheat. 291. “ A rigid adherence to the letter often leads to erroneous results, and misinterprets the meaning of the parties.” Brapiey, J. Reed v. Ins. Co., 95 U. S. 30. Interpretation Only When Ambiguity Exists. “It is true that in cases of ambiguity in contracts, as well as in statutes, courts will lean toward the presumed intention of the parties or the legislature, and will so construe such contract or statute as to effectuate such intention; but where the language is clear and explicit there is no call for construction, and this principle does not apply.” Brown, J. Calderon v. Atlas Steamship Co., 170 U, S. 280. “As a general rule in the interpretation of written instruments the intention of the parties must control, and that such intention is to be gathered from the words used — the words being interpreted, not literally nor loosely, but according to their ordinary sig- nification. If the words be clear and explicit, leaving no room to doubt what the parties in- tended, they must be interpreted according to their natural and ordinary significance. If the words are ambiguous, then resort may be had to such evidence, written or oral, as will disclose the circumstances attending the execution of the instrument and place the court in the situation in which the parties stood when they signed the writing to be interpreted.” Harian, J. U.S. v. Choctaw, etc. Nations, 179 U. S. 531. II. COURTS CANNOT MAKE NEW CONTRACTS FOR PARTIES. In General. “Our duty is not to make contracts for the parties, but to administer them as we find them.” Swayne, J. Osborn v. Nichol- son, 13 Wall. 658. “Courts of law cannot incorporate into a sealed instrument what the parties left out of it, even though the omission was occa- sioned by the clearest mistake; nor can they reject what the parties inserted, unless it be repugnant to some other part of the instru- ment and none of the authorities cited by the parties in this case, when properly ap- plied, are inconsistent with the views here expressed.” CiiFForD, J. Hudson Canal Co. v. Pennsylvania Coal Co., 8 Wall. 290. “The court is not at liberty, either to dis- regard words used by the parties, descriptive of the subject-matter, or of any material in- cident, or to insert words which the parties have not made use of.” Gray, J. Harrison v. Fortlage, 161 U. S. 63. Cases in Which Construction Is for Court. “Tt is well-settled law that written instru- ments are always to be construed by the court, except when they contain technical words or terms of art, or when the instru- ment is introduced in evidence collaterally, and where its effect depends not merely on the construction and meaning of the instru- ment, but upon extrinsic facts and circum- stances, in which case the inference to be drawn from it must be left to the jury.” CuiFrrorp, J. Goddard v. Foster, 17 Wall. 142. 979 INTERPRETATION AND CONSTRUCTION. III. MEANING OF WORDS AND PHRASES. Ordinary Meaning Generally to Be Given. “Where the words of a law, treaty, or con- tract, have a plain and obvious meaning, all construction, in hostility with such meaning, is excluded. This is a maxim of law, and a dictate of common sense; for were a differ- ent rule to be admitted, no man, however cautious and intelligent, could safely estimate the extent of his engagements, or rest upon his own understanding of a law, until a judi- cial construction of those instruments had been obtained.” Wasuincton, J. Green v. Biddle, 8 Wheat. 89. “The principal rule to be observed in literal interpretation, is to follow that sense, in respect both of the words, and the construc- tion, which is agreeable to common use.” Cuask, J. Ware v. Hylton, 3 Dall. 240. “In instances in which words or phrases are novel or obscure, as in terms of art, where they are peculiar or exclusive in their signification, it may be proper to explain or elucidate them by reference to the art or sci- ence to which they are appropriate; but if the language which is familiar to all classes and grades and occupations — language, the meaning of which is impressed upon all by the daily habits and necessities of all, may be wrested from its established and popular import in reference to the common concerns of life, there can be little stability or safety in the regulations of society.” Dawnziet, J. Maillard v. Lawrence, 16 How. 261. “Terms of art, in the absence of parol testimony, must be understood in their pri- mary sense, unless the context evidently shows that they were used in the particular case in some other and peculiar sense, in which case the testimony of persons skilled in the art or science may be admitted to aid the court in ascertaining the true intent and meaning of that part of the, instrument, but the words of the instrument which have ref- erence to the usual transactions of life must be interpreted according to their plain, ordi- nary, and popular meaning.” C.irrorp, J. Moran wv. Prather, 23 Wall. 499. “Words which directly and plainly ex- press the cardinal intent, always present themselves to those who are preparing an important instrument, and will always be used by them.” MarsuHatt, C. J. Ogden w. Saunders, 12 Wheat. 356. — Ordinary and Natural Meaning. “For the purposes of construction, lan- guage is to be given, if possible, its ordinary and natural meaning.” Watre, C. J. Cass County v. Johnson, 95 U. S. 379. — Parties Bound by the Language They Have Chosen. “Parties are presumed to know the force and effect of the language in which they have chosen to embody their contracts, and to refuse to give effect to such language might result in artfully misleading others who had relied upon the words being used in their ordinary sense.” Brown, J. Cal- deron v. Atlas Steamship Co., 170 U. S. 280. “In construing contracts words are to re- ceive their plain and literal meaning, even though the intention of the party drawing the contract may have been different from that expressed.” Brown, J. Calderon v. Atlas Steamship Co., 170 U. S. 280. “A party to a contract is responsible for ambiguity in his own expressions, and has no right to induce another contract with him on supposition that his words mean one thing while he hopes the court will adopt a construction by which they would mean an- other thing more to his advantage.” Brown, J. Calderon v. Atlas Steamship Co., 170 Uz. S. 280. ——AInconvenience or Hardship Cannot Control. “The question whether covenants are de- pendent or independent must be determined in each case upon the proper construction to be placed on the language employed by the parties to express their agreement. If the language is clear and unambiguous it must be taken according to its plain meaning as expressive of the intention of the parties, and under settled principles of judicial de- cision should not be controlled by the sup- posed inconvenience or hardship that may follow such construction.” Jackson, J. Loud v. Pomona Land, etc., Co., 153 U. S. 576, — Words Importing Something Exces- sive, “Tt is essential to just construction, that many words which import something exces- sive should be understood in a more miti- gated sense—in that sense which common usage justifies”” Marsuatt, C. J. M’Cul- loch v. Maryland, 4 Wheat. 413. 980 INTERPRETATION AND CONSTRUCTION. —— Technical Legal Terms Taken in Their Established Signification. “Tt is true that technical legal terms are usually taken, in the absence of a counter- vailing intent, in their established common- law signification.” Futrer, C. J. Hutchin- son Investment Co. v. Caldwell, 152 U. S. 68. Words Occurring in Different Parts of Same Instrument—Same Meaning Given. “A settled rule of interpretation that the same term occurring in different parts of the same instrument shall be taken in the same sense, unless there be something in the con- text indicating that .a different meaning was intended.” Firtp, J., dissenting. Legal Tender Case, 110 U. S. 464. “There can be no sound reason for the construction, that the words party of the first part mean one thing, when that party is to do something, and a different thing, when that party is to receive compensation for doing it.” Curtis, J. Philadelphia, etc., R. Co. v. Howard, 13 How. 338. —— Meaning Controlled by Context. “That the same words have not neces- sarily the same meaning attached to them when found in different parts of the same instrument, [and that] their meaning is controlled by the context, . is un- doubtedly true.” MarsHatt, C. J. Chero- kee Nation v. Georgia, 5 Pet. 19. “By every sound rule of construction, an instrument should be interpreted by the con- text, so as if possible to give a sensible meaning and effect to all its provisions; and so as to avoid rendering portions of it con- tradictory and inoperative, by giving effect to some clauses to the exclusion of others.” DanieEL, J. Ladd v. Ladd, 8 How. 28. “Tt is familiar rule in the interpretation of written instruments and statutes that ‘a passage will be best interpreted by reference to that which precedes and follows it.’ So, also, ‘the meaning of a word may be ascer- tained by reference to the meaning of words associated with it.” Hartan, J. Neal v. Clark, 95 U. S. 708. “In construing the instruments of title, reference must be had to all parts .of them. The mere fact that the word ‘grant’ is used many times in them, sometimes, apparently in its general and unrestricted sense of a conveyance of the title, ought not to be per- mitted to outweigh other parts of the instru- ments which clearly negative that idea.” Lamar, J. Interstate Land Co. v. Maxwell Land Grant Co., 139 U. S. 581, — Noscitur a Sociis, “It is a familiar rule in the construction of terms to apply to them the meaning natur- ally attaching to them from their context. Noscitur @ soctis is a rule of construction applicable to all written instruments. Where any particular word is obscure or of doubt- ful meaning, taken by itself, its obscurity or doubt may be removed by reference to associated words. And the meaning of a term may be enlarged or restrained by refer- ence to the object of the whole clause in which it is used.” Fretp, J. Virginia v. Tennessee, 148 U. S. 519. Meaning Formerly Given to Words. “Tt does not follow, that when a word was used in a Statute or a contract seventy years since, that it must be held to include everything to which the same word is applied at the present day. For instance, if a Philadelphia manufacturer had agreed with a company, seventy years ago, to fur- nish all the coaches which might be neces- sary to transport passengers between that city and Baltimore for a hundred years, would he now be required by his contract to build railroad coaches? Or, if a company had then contracted with the government to build and keep up good and sufficient roads, to accommodate mails and passengers be- tween those points, for the same time, would that company be bound to build railroads under that contract?” Mutter, J. Bridge Proprietors v. Hoboken Land, etc., Co., 1 Wall. 148. “The track on which the steam-cars now transport the traveler or his property is called a road, sometimes, perhaps generally, a railroad. The term road is applfed to it, no doubt, because in some sense it is used for the same purpose that roads had been used. But until the thing was made and seen, no imagination, even the most fertile, could have pictured it, from any previous use of the word road. So we call the enclosure in which the passengers travel on a railroad, a coach; but it is more like a house than a coach, and is less like a coach than are sev- eral other vehicles which are rarely if ever called coaches. It does not, therefore, fol- low, that when a word was used in a statute or a contract seventy years since, that it must be held to include everything to which the same word is applied at the present day.” 981 INTERPRETATION AND CONSTRUCTION. Miter, J. Bridge Proprietors v, Hoboken Land, etc. Co., 1 Wall. 148. Affirmative Words Sometimes Exclusive. “ Affirmative words are often, in their op- eration, negative of other subjects than those affirmed.” MarsHatt, C. J. Marbury w. Madison, 1 Cranch 174. —— Enumeration of Certain Powers Ex- cludes Others. “Upon general principles applicable to the construction of written instruments, the enu- meration of certain powers with respect to a particular subject matter is a negation of all other analogous powers with respect to the same subject-matter.” Brown, J. Tucker v. Alexandroff, 183 U. S. 436. Evidence of Usage or Custom. “An express written contract, embodying in clear and positive terms the intention of the parties, cannot be varied by evidence of usage or custom.” Harian, J. Grace wv. American Cent. Ins. Co., 109 U. S. 283. “This brief note of the contract [to sat- isfy the statute of frauds] like all other mercantile contracts, is subject to ex- planation by reference to the usage and cus- tom of the trade, with a view to get at the true meaning of the parties, as each is pre- sumed to have contracted in reference to them. And although specific and express provisions will control the usage, and exclude any such explanation, yet, if the terms are technical, or equivocal on the face of the instrument, or made so by reference to ex- traneous circumstances, parol evidence of the usage and practice in the trade, is ad- missible to explain the meaning. Extraneous evidence is also admissible, te show that a person whose name is affixed to the contract, acted only as an agent, thereby enabling the principal either to sue or be sued in his own name; and this, though it purported on its face to have been made by the agent himself, and the principal not named.” Netson, J. Salmon Falls Mfg. Co. v. Goddard, 14 How. 454. “Tn mercantile contracts, evidence is ad- missible to prove that the words in which the particular contract is expressed, in the particular trade to which the contract refers, are used in a peculiar sense, and different from that which they ordinarily import, and to annex incidents to written contracts, in respect to which they are silent, but which both parties probably contemplated, because usual in such contracts.” CAMPBELL, J. ‘Garrison v. Memphis Ins. Co., 19 How. 316. Consideration of Character of Instrument in Which Words Are Used. “The same words may require a different construction when used in different docu- ments, as, for instance, in a contract, and a statute; and identity of words is not decisive ‘of identity of meaning where they are used in different connections and for different purposes. In a contract, the technical rights of the parties only are involved —in a stat- ute, an important question of public policy.” Brown, J. Knights Templars’ Indemnity Co. v. Jarman, 187 U. S. 201. ‘ Words Construed Against Party Employ- ing Them. “The words of an instrument are to be taken .most strongly against the party em- ploying them.” Harran, J. Grace v. Amer- ican Cent. Ins. Co., 109 U. S. 282. “Such being the contract, the courts must give effect to its provisions according to the fair meaning of the words used, leaning, however,— where the words do not clearly indicate the intention of the parties,—to that interpretation which is most favorable to the insured.” Hartan, J. Travellers’ Ins. Co. v. McConkey, 127 U. S. 666. Weight of Words Used Out of Abundant Caution. “Generally speaking, when words are used simply out of abundant caution, the fact’ car- ries little weight.” Futter, C. J., dissenting, Downes v. Bidwell, 182 U. S. 358. IV. CONSIDERATION OF SUR- ROUNDING CIRCUMSTANCES, General Rule. “Courts, in the construction of contracts, look to the language employed, the subject- matter, and the surrounding circumstances. They are never shut out from the same light which the parties enjoyed when the contract was executed, and, in that view, they are entitled to place themselves in the same Situation as the parties who made the con- tract, so as to view the circumstances as they viewed them, and so to judge the meaning of the words and of the correct application of the language to the things described.” CurF- ForD, J. Nash v. Towne, 5 Wall. 699. “Whenever a written contract is presented for construction, and its terms are ambigu- ous or indefinite, it is always allowable to weigh its language in connection with the surrounding circumstances and the subject- 982 INTERPRETATION AND CONSTRUCTION. matter.” CLirrorp, J. Rey v. Simpson, 22 How. 350. “Tn construing contracts, words must have the sense in which the parties understood them. And, to understand them as the par- ties understood them, the nature of the con- tract, the objects to be attained, and all the circumstances must be considered.” Strone, J. Aetna Fire Ins. Co. v. Boon, 95 U. S. 128. “Parol evidence is [not] admissible to contradict or vary the language of a valid written instrument, by which is meant that the language by the parties in making it, and no other, must be used in ascertaining its meaning. Argument to support that proposition is unnecessary, and it universally admitted that it may be read in view of the subject-matter and the attendant circum- stances, in order more perfectly to under- stand the meaning and intent of the parties.” Cuirrorp, J. West v. Smith, 101 U. S. 271. “The general rule is that it is the province of the court to construe written instruments; but it is equally well settled that where the effect of the instrument depends not merely on its construction and meaning, but upon collateral facts and extrinsic circumstances, the inferences to be drawn from it are in- ferences of fact and not of law, and of course are open to explanation.” CLIFForRD, J. West v. Smith, 101 U. S. 270. “Tf the meaning of these [written] in- struments be in any respect doubtful, refer- ence may be had to the surrounding circum- stances for the purpose of interpretation; but, when interpreted, the writings. which constitute the contract determine the rela- tive rights.’ Brewer, J. Gibson v. Char- ter Oak Ins. Co., 142 U. S. 332. “The inhabitants [of the Confederate states] must be regarded as under the au- thority of the insurgent belligerent power actually established as the government of the country, and contracts made with them must be interpreted and enforced with reference to the condition of things created by the acts of the governing power.” Cuasg, C. J. Thorington v. Smith, 8 Wall. 13. “A contract, for example, to pay $50 for a night’s lodging at a house of public enter- tainment, where similar accommodation was usually afforded for one-twentieth of that sum in coin, accompanied by proof of a corresponding depreciation of Confederate notes, would leave little doubt that the par- ‘when the contract was made.” ties had Confederate money in contemplation FieLp, J. The Confederate Note Case, 19 Wall. 559. — Purpose of Rule. “General rule is, that the terms of a con- tract are to be understood in their plain, ordinary and popular sense, unless they have, in respect to the subject-matter, as by the known usage of trade, or the like, acquired a peculiar sense; but courts of justice are not denied the same light and information the parties enjoyed when the contract was executed. On the contrary they may ac- quaint themselves with the persons and cir- cumstances that are the subjects of the state- ments in the written agreement, and are entitled to place themselves in the same sit- uation as the parties who made the con- tract, so as to view the circumstances as they viewed them, and so to judge of the meaning of the words and of the correct application of the language to the things described.” Cxirrorp, J., dissenting. Low- ber v. Bangs, 2 Wall. 743. “All the facts and circumstances may be taken into consideration, if the language be doubtful, to enable the court to arrive at the real intention of the parties, and to make a correct application of the words of the contract to the subject-matter and the ob- jects professed to be described, for the law concedes to the court the same light and information that the parties enjoyed, so far as the same can be collected from the lan- guage employed, the subject-matter, and the surrounding facts and circumstances.” CuiF- ForD, J. Moran v. Prather, 23 Wall. 501. “A reference to the actual condition of things at the time, as they appeared to the parties themselves, is often necessary to prevent the court, in construing their lan- guage, from falling into mistakes and even absurdities.” Brapitey, J. Reed v. Ins. Co., 95 U. S. 30. “Courts of justice may acquaint -them- selves with the facts and circumstances that are the subjects of the statements in the written agreement, and are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and so to judge of the meaning of the words and of the correct application of the lan- guage to the things described.” CLiFForD, J. Good v. Martin, 95 U. S. 95. “All the terms of the contract must be examined, in connection with the attendant 988 INTERPRETATION AND CONSTRUCTION. circumstances, to ascertain what law was in the view of the parties when the contract was executed.” Hartan, J. Coghlan wv. South Carolina R. Co., 142 U. S. 109. Consideration of Subject-Matter. “Every law, and every contract, must be construed with a reference to the subject of that law or contract, and which it is designed to answer.” JoHNson, J. Mutual Assur. Soc. v. Watts, 1 Wheat. 283. “Every contract must be considered with reference to the subject in respect to which it is.made, and its language construed ac- cordingly.” Fretp, J. U. S. vw. Dix Island Granite Co., 105 U. S. 39. Parol Evidence of Surrounding Circum- stances. “Tn giving effect to a written contract, by applying it to its proper subject matter, extrinsic evidence may be admitted to prove the circumstances under which it was made; whenever, without the aid of such evidence, such application could not be made in the particular case.” ‘BarBour, J. Bradley vw. Washington, etc., Steam Packet Co., 13 Pet. 99. “The rule which admits extrinsic evidence, for the purpose of applying a written con- tract to its proper subject-matter, extends beyond the mere designation of the thing on which the contract operates; and embraces within its scope the circumstances under which the contract concerning that thing was made; when, without the aid of such extrinsic evidence, such application of the written contract to its proper subject-mat- ter could not be made.” Barpour, J. Brad- ley v. Washington, etc., Steam Packet Co., 13 Pet. 102. “Facts and circumstances attendant at the time the contract was made are competent evidence for the purpose of placing the court in the same situation, and giving the court the same advantages for construing the contract which were possessed by the actors.” C.LirForD, J. Good wv. Martin, 95 U.S. 95. “Where the indorsement is in blank, if made before the payee, the liability must be either as an original promisor or guar- antor; and parol proof is admissible to show whether the indorsement was made before the indorsement of the payee and before the instrument was delivered to take effect, or after the payee had become the holder of the same; and, if before, then the party so indorsing the note may be charged as an original promisor, but if after the payee became the holder, then such a party can only be held as guarantor, unless the terms of the indorsement show that he intended to be liable only as second indorser, in which event he is entitled to the privileges ac- corded to such an indorser by the commer- cial law.” C.irForD, J. Good v. Martin, 95 Uz 5S. 97. V. CONSTRUCTION GIVEN TO IN- STRUMENT BY PARTIES. “Contracts, where their meaning is not clear, are to be construed in the light of the circumstances surrounding the parties when they were made, and the practical interpre- tation which they, by their conduct, have given to the provisions in controversy.” Swayne, J. Lowber v. Bangs, 2 Wall. 737. “It is always competent for parties capable of entering into a business arrangement to fix the terms of it, and to declare what shall be their respective rights and: liabili- ties under it. If the court can in any case see that this has been done, it is required to give the effect to the contract which the parties choose to make for themselves, al- though in the absence of a special agree- ment on the subject, the rule to determine the rights of the parties might be different.” Davis, J. Baltimore v. Baltimore, etc, R. Co., 10 Wall. 552. “Tt must be conceded, that, in a case where the interpretation of an instrument is doubtful, the practical construction given to it by the parties is of weight.” Srrone, J. Union Pacific R. Co. v. Hall, 91 U. S. 352, “The practical interpretation of an agreement by a party to it is always a consideration of great weight. The con- struction of a contract is as much a part of it as anything else. There is no surer way to find out what parties meant, than to see what they have done.” Swayne, J. Brooklyn Life Ins. Co. v. Dutcher, 95 U. S. 273. “The understanding of a party to a con- tract has always been regarded as of some importance in its interpretation.” Srrone, J. Goodyear Dental Vulcanite Co. v. Davis,. 102 U. S. 227. “Tt is well settled that the practical con- struction placed by parties interested upon doubtful or ambiguous terms in a contract 984 INTERPRETATION AND CONSTRUCTION. will exercise great and sometimes controlling influence in determining its proper mean- ing.” JacKkson, J., dissenting. Constable wv. National Steamship Co., 154 U. S. 95. “While the doctrine of contemporaneous construction is doubtless of great value in determining the intentions of parties to an, instrument ambiguous upon its face, yet to justify its application to a particular case such contemporaneous construction must be shown to have been as broad as the ex- igencies of the case require.” Brown, J. Louisville, etc, R. Co. v. Kentucky, 161 U. S. 690. VI. CONSIDERATION OF DIFFER- ENT PARTS OF INSTRUMENT. Every Part to Be Given Effect. “There is no artificial rule in construing a contract, and effect, if possible, is to be given to every part of it, in order to ascer- tain the meaning of the parties to it.” Davis, J. Nicolson Pavement Co. v. Jen- kins, 14 Wall. 456. Written Matter Controls Printed. “A printed bill-head can have little or no influence in changing the clear and explicit language of the letters, and it in no way controls, modifies, or alters the terms of the contract.” Jackson, J. Sturm wv. Boker, 150 U. S. 326. Transaction Incorporated in Several Writ- ings. “ “When a contract is entered into by cor- respondence, the whole correspondence must be considered in determining what the par- ties have agreed to.” Warts, C. J. U. S. v. Bostwick, 94 U. S. 65. “Tt is well-settled law that several writ- ings executed between the same parties sub- stantially at the same time and relating to the same subject-matter may be read to- gether as forming parts of one transaction, nor is it necessary that the instruments should in terms refer to each other if in point of fact they are parts of a single transaction.” CLiFForD, J. Bailey v. Hani- bal, etc. R. Co., 17 Wall. 108. “Authorities are plentiful to the effect that papers attached together even by a pin are to be treated as a unit constituting one entire contract of memorandum.” Brown, J. Schell v. Fauche, 138 U. S. 566. “Tf . . . the papers are not connected together in fact, they are not considered as connected in law, unless, at least, the paper signed refers in some way to the other, which may then be construed as forming a part of it. The proper test is, whether a person reading these papers Would be deceived or misled as to the actual in- tention of the writer.” Brown, J. Schell v. Fauche, 138 U. S. 567. VII. CONSTRUCTION IN FAVOR OF INSTRUMENT. “It is not the duty of a court, by legal subtlety, to overthrow a contract, but rather to uphold it and give it effect; and no strained or artificial rule of construction is to be applied to any part of it. If there is no ambiguity, and the meaning of the parties can be clearly ascertained, effect is to be given to the instrument used, whether it is a legislative grant or not.” Davis, J. The Binghamton Bridge, 3 Wall. 74. “Universal rule is that where an instru- ment will bear two constructions equally consistent with its language, one of which will render it operative and the other void, the former will be preferred.” CirFForpD, J. Ewing v. Howard, 7 Wall. 506. “Nothing could be more inconsistent with that candor and good faith which ought to mark the transactions of mercantile men, than to favor the revocation of an explicit contract on the construction of a corre- spondence nowhere avowing that object.” Jounson, J. Lanusse v. Barker, 3 Wheat. 143. “When the good faith of all the parties is unquestionable the courts will lean to that construction of the statute which will up- hold the transaction as consummated. Especially will that be so in a case in which the question of construction having been raised the one party commences preparations to perform work which will put the matter beyond question and desists therefrom only upon the representations of the other party that it is satisfied the work has been com- pleted according to the terms of the con- tract.” Brewer, J. Provident Life, etc., Co. v. Mercer County, 170 U. S. 600. “Tt is not to be doubted that the rule is that contracts are not to be so violently. construed as to destroy rights in conse- quence of suspensive conditions, but it is also equally obvious that they are not to be so interpreted as to relieve one of the parties to a contract from the obligations resulting therefrom and thereby destroy the suspensive 985 INTERPRETATION AND CONSTRUCTION. condition plainly written therein.” FULLER, C. J. New Orleans v. Texas, etc., Ry. Co., 171 UL S. 343. “Courts do not favor forfeitures, but they can not avoid enforcing them when the party by whose default they are incurred can not show some good and stable ground in the conduct of the other party, on which to base a reasonable excuse for the default.” Brapiey, J. Thompson v. Knickerbocker L. Ins. Co., 104 U. S. 260. VIII. RULES FOR CONSTRUCTION OF VARIOUS CLASSES OF IN- STRUMENTS. “The rule for the construction of all written contracts is the same.” Strona, J. Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S. 541. “The technical rules of common-law con- veyances and transfers of property have never been applied to mercantile contracts made in the usual course and forms of business.” Taney, C. J. Gibson v. Stevens, 8 How. 400. “The general want of precision in the language of maritime contracts, is an end- less source of litigation among mercantile men. Courts of justice are therefore obliged to resort to such reasons as the nature, object and terms of the contract present, to determine the precise extent of the obli- gation of the parties.” Jounson, J. Mary- land Ins. Co. v. Le Roy, 7 Cranch 31. “This is a contract; and although a state is a party, it ought to be construed accord- ing to those well established principles which regulate contract generally.” Mar- SHALL, C. J. Huidekoper v. Douglass, 3 Cranch 70. “A contract binding the state is only created by clear language, and is not to be extended by implication beyond the terms of the statute.” Brewer, J. Williams wv. Wingo, 177 U. S. 603. “The words of a contract stated in a declaration, must have the same legal con- struction as they would have in the contract itself.” ‘Story, J. Ferguson v. Harwood, 7 Cranch 414. IX. PRESUMPTION THAT CON- TRACT WAS MADE WITH REF- “ERENCE TO EXISTING LAW. “The law makes a part of every contract.” Grier, J. U.S. uv, Price, 9 How. 94, “Parties must be understood as making their contracts with reference to existing laws, and impliedly assenting that such con- tracts are to be construed, governed, and controlled, by such laws.” THompson, J., dissenting. Ogden v. Saunders, 12 Wheat. 297, y “No agreement or contract can create more binding obligations than those fastened by the law, which the law creates and attaches to contracts; the express power which a mortgagor confers on the mort- gagee to sell as his agent is not more potent than that which the law delegates to the marshal, to sell and convey the property levied on, under an execution. He is the constituted agent of the defendant, invested with all his powers for these purposes. The marshal can do under the authority of the law whatever he could do under the fullest power of attorney from the execution debtor; and no state law can prohibit it.” Batpwin, J. McCracken v. Hayward, 2 How. 614. “Contracts are usually made with refer- ence to the established law of the land, and should be so understood and construed, unless otherwise clearly indiéated by the terms of the agreement.” NeEtson, J Wil- son v. Rousseau, 4 How. 685. “When the operation of a contract is clearly settled by general principles of law, it is taken to be the true sense of the contracting parties. This is not only a posi- tive rule of the common law, but it is a general principle in the construction of con- tracts.” Grier, J. Brown v. Wiley, 20 How. 447. “The laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly re- ferred to or incorporated in its terms. This principle embraces alike those which affect its validity, construction, discharge, and en- forcement. Illustrations of this proposition are found, in the obligation of the debtor to pay interest after the maturity of the debt, where the contract is silent; in the liability of the drawer of a protested bill to pay exchange and damages, and in the right of the drawer and indorser to require proof of demand and notice. These are as much incidents and conditions of the contract as if they rested upon the basis of a distinct agreement.” Swayne, J. Von Hoffman uv. Quincy, 4 Wall. 550. 986 INTERPRETATION AND CONSTRUCTION. “The remedies for the collection of a debt are essential parts of the contract of in- debtedness, and those in existence at the time it is incurred must be substantially preserved to the creditor. Thus a statute ‘ prohibiting the exercise of its taxing power by the ‘city to raise money for the payment of these bonds would be void. But it is otherwise of statutes which are in existence at the time the debt is contracted. Of these the creditor must take notice, and if all the remedies are preserved to him which were in existence when his debt was contracted he has no cause of complaint.” Hunt, J. Rees v. Watertown, 19 Wall. 120. “All laws in existence when the contract is made are necessarily referred to in it and form a part of the measure of the obligation of the one party, and of the right acquired by the other.” Hunt, J. Rees v. Water- town, 19 Wall. 121. “The laws which subsist at the time and place of making a contract enter into and form a part of it, as if they were expressly referred to or incorporated in its terms. This rule embraces alike those which affect its validity, construction, discharge, and en- forcement.” Swayne, J. Edwards v. Kear- zey, 96 U. S. 601. “Tt cannot be denied that, as a general tule, laws applicable to the case which are in force at the time and place of making a contract enter into and form part of the contract itself.’ Wiarrz, C. J. Antoni v. Greenhow, 107 U. S. 774. “The law existing when a mortgage is made enters into and becomes a part of the contract.” PeckHAmM, J. Hooker v. Burr, 194 U. S. 420. “An act of the legislature does not enter into the contract, and become one of the conditions stipulated by the parties; nor does it act externally on the agreement, unless it have the full force of law.” MarsHALL, C. J. Ogden v. Saunders, 12 Wheat. 354. X. LAW GOVERNING CONTRACTS. 1. In GENERAL. “Tn every government of laws there must be a power somewhere to regulate civil con- tracts.” THompson, J., dissenting. Ogden v. Saunders, 12 Wheat. 308. “Societies exercise a positive control as well over the inception, construction, and fulfillment of contracts, as over the form, and measure of the remedy to enforce them.” Jounson, J. Ogden v. Saunders, 12 Wheat. 286, “It is, then, the municipal law of the state, whether that be written or unwritten, which is emphatically the law of the con- tract made within the state, and must gov- ern it throughout, wherever its performance is sought to be enforced.” WasuincrTon, J., dissenting. Ogden v. Saunders, 12 Wheat. 259, “Tf the positive law of the state declares the contract shall have no obligation, it can have no obligation, whatever may be the principles of natural law in relation to such a contract.” Trimste, J., dissenting. Ogden v. Saunders, 12 Wheat. 320. “As a general proposition of law, it can- not be maintained that the obligation of contracts depends upon, and is derived from, universal law, independent of, and against, the civil law of the state in which they are made.” TrimBLe, J., dissenting. Ogden v. Saunders, 12 Wheat. 321. “Obligations purely moral, are to be en- forced by the operation of internal and in- visible agents, not by the agency of human laws.” MarsHaiz, C. J. Ogden wv. Saund- - ers, 12 Wheat. 338. “Whenever an individual enters into a contract, I think his assent is to be inferred, to abide by those rules in the administra- tion of justice which belong to the juris- prudence of the country- of the contract. And when compelled to pursue his debtor in other states, he is equally bound to acqui- esce in the law of the forum to which he subjects himself.” Jounson, J. Ogden v. Saunders, 12 Wheat. 285. “Whatever relates merely to the remedy and constitutes part of the procedure is de- termined by the law of the forum, for mat- ters of process must be uniform in the courts of the same country; but whatever goes to the substance of the obligation and affects the rights of the parties as growing out of the contract itself, or inhering in or attaching to it, is governed by the law of the contract.” Mattuews, J. Pritchard v. Norton, 106 U. S. 129. 2. In THE ABSENCE OF AN EXPRESS AGREEMENT. Lex Loci Contractus Governs — General Rule. “The contract is a law which the parties impose upon themselves, subject, however, 987 INTERPRETATION AND CONSTRUCTION. to the paramount law, . . the law of the country where the contract is made. And when to be enforced by foreign tribu- nals, such tribunals aim only to give effect to the contracts, according to the laws which give them validity.” THompson, J., dissent- ing. Ogden v. Saunders, 12 Wheat. 298. “In a legal sense, all contracts, recognized as valid in any country, may be properly said to be matters of civil institution, since they obtain their obligation and construc- tion jure loci contractus.” Story, J. Dart- mouth College v. Woodward, 4 Wheat. 695. “The law of the state where a contract is made and carried into effect, seems to me to be the law which must control its obli- gation; and until evidence of the common law of that state more imposing than the solemn decision of its Supreme Court is furnished me, I feel it my duty to respect and adopt it: believing in doing so, I violate no principle which has ever been sanctioned by this court.” Batpwin, J., dissenting. Winship v. U. S. Bank, 5 Pet. 572. “In determining the nature and effect of a contract, we look to the lex loci where it was made or where it was to be performed. And bills of exchange, foreign or domestic, constitute, it would seem, no exception to this rule.’ McLean, J. Nathan v. Louis- jana, 8 How. 82. “The contract in question having been made within the state of Alabama, and de- signed to be performed within that state, the lex loci contractus must justly be under- stood as entering into and controlling the effect of its stipulations, and having been sued upon within the same state, the lex fort must, in a great degree, regulate the mode of its enforcement.” Danie, J. Withers v. Greene, 9 How. 221. “The law, where a contract is made and is to be executed, governs it. This does not depend upon comity, but upon the law of the contract.” McLean, J., dissenting. Scott v. Sandford, 19 How. 558. “The validity of the contract is deter- mined by the law of the place where it is entered into. Whether void or valid there, it is so everywhere.” Swayne, J. Miller v. Tiffany, 1 Wall. 310. “Infancy, if a valid defense by the lex loct contractus, will be a valid defense every- where.” Matruews, J. Pritchard v. Nor- ton, 106 U. S. 132. “Where a payment by negotiable bills or notes is, by the lex loci, held to be condi- tional payment only, it will be so held even in states where such payment under the domestic law would be held absolute.” MartrHews, J. Pritchard wv. Norton, 106 U.S. 133. “The general rule, well established in this court [is], that contracts are to be gov- erned, as to their nature, their validity and their interpretation, by the law of the place where they are made, unless the contracting parties appear to have had some other in view.” Gray, J. U. S. v. North Carolina, 136 U. S. 222. “A state may determine the conditions, the meaning and limitations of contracts ex- ecuted within its borders.” Brewer, J. Mutual L. Ins. Co, v. Cohen, 179 U. S. 265. Exceptions to General Rule. “Tt is true, as a general rule, that the lex loci governs, and it is also true that the intention of the parties to a contract will be sought out and enforced. But both these elementary principles are subordinate to and qualified by the doctrine that neither by comity nor by the will of contracting parties can the public policy of a country be set at naught.” Wurtz, J. The Kensington, 183 U. S. 269. © “Contracts permissible by other countries are not enforceable in our courts, if they contravene our laws, our morality, or our policy.” Fretp, J. Oscanyan v. Winchester Repeating Arms Co., 103 U. S. 277. “The general rule undoubtedly is that the validity of a contract is to be decided by the law of the place where it is made, unless it is to be performed in another country; but to this, as to all general rules, there are exceptions, and among these Story mentions contracts made in a foreign country to promote or reward the commis- sion of crime, to corrupt or evade the due administration of justice, to cheat public agents, or to affect the public rights, and other contracts which in their nature are founded in moral turpitude, and are incon- sistent wifh the good order and solid inter- est of society.” Fierp, J. Oscanyan vw. Winchester Repeating Arms Co., 103 U. S. 2v%. Law of Place of Performance. “All contracts are to be governed by the law of the place where they are to be per- formed; and this law may be, and usually 988 INTERPRETATION AND CONSTRUCTION. is, proved as a matter of fact. The rule is adopted for the purpose of carrying into effect the intention and understanding of the parties.” THompson, J. Renner v. Bank of Columbia, 9 Wheat. 588. “A contract void by the local law on the ground of usury, or because it is against the policy of the law, can be enforced no- where. There is no exception to the prin- ciple that where a contract is entered into under the sanctions of a state law, that law governs the contract in whatever jurisdic- tion suit may be brought on it. And so where a contract is made in one state to be performed in another, the place of perform- ance gives the law of the contract.” Mc- Lean, J., dissenting. Bronson v. Kinzie, 1 How. 329. “ All contracts between private parties are made with reference to the law of the place where they are made or to be performed. Their construction, validity, and effect are governed by the place where they are made and are to be performed.” Mutter, J. Brine v. Hartford F. Ins. Co., 96 U. S. 637. “Generally speaking, the law of the place where the contract is to be performed is the law which governs as to its validity and interpretation.” PeckHAM, J. London As- surance wv. Companhia De Moagnes, 167 U. S. 160. “Tt has often been stated that the law of the place of performance determines the validity of a contract.” Brewer, J. Pat- terson v. Bark Eudora, 190 U. S. 176. “The law of the expected place of per- formance, should there be a difference, yields to the lex fori and lex loci contractus.” Hunt, J. Scudder v. Union Nat. Bank 91 U.S. 411. 3. UNDER AGREEMENT OF THE PARTIES. Selection of Controlling Law by Agree- ment. “Tt is not unusual for the place to which the parties look for fulfilling their duties to be not only different from the place of mak- ing the contract, but for the parties to regard other laws and other courts, apply- ing to the place of performance, as con- trolling and as having jurisdiction over it.” Woopsury, J., concurring. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 421, “Generally, the law of the place where a contract is made governs its nature, inter- pretation and obligation. While this is so, it is also true that parties in making a con- tract may have in view some other law than that of the place, and when that is so that other law will control. . That the parties have some other law in view and contract with reference to it is shown by an express declaration to that effect. In the absence of such declaration it may be disclosed by the terms of the contract and the purpose with which it is entered into.” Brewer, J. Pin- ney v. Nelson, 183 U. S. 148. “As . . . a corporation can have no legal existence outside of the state in which it is incorporated, the contract of the stock- holders with one another, by which the cor- poration is created, is presumed to have been made with reference to the laws of that state, nothing being said in the charter to the contrary. But as comity permits a cor- poration to enter another state and do business therein, it is competent for the stockholders in making their charter to con- tract with reference to the laws of a state in which they propose the corporation shall do business.” Brewer, J. Pinney v. Nel- son, 183 U. S. 150. “Parties may contract with special refer- ence to carrying on business in separate ‘states, and when they make an express con- tract thérefor the business transacted in each of the states will be affected by the laws of those states, and may result in a difference of liability.” Brewer, J. Pinney v. Nelson, 183 U. S. 151. “Parties contracting outside of the state of New York may by agreement incorporate into the contracts the laws of that state and make its provisions controlling upon both parties, provided such provisions do not con- flict with the laws or the public policy of the state in which the contract is made.” Brewer, J. Mutual L. Ins. Co. v. Hill, 193 UL S. 554. “The applicability of other laws than those of the state of the place of contract is a matter of agreement, and the agreement may select laws and also limit the extent of the applicabiltty.” Brewer, J. Mutual L. Ins. Co. v. Hill, 193 U. S. 554. — Presumption in Favor of Lex Loci Contractus. “The presumption is in favor of the law of the place of contract. He who asserts the contrary has the burden of proof.” Brewer, J. Mutual L. Ins. Co. v. Cohen, 179 U. S. 265. 989 ate 3 Seto a als iene g er ceaeerey ae eee ea Se ie ) econo sar