We, therefore, answer the second question by saying that the coupons described are within the prohibition of the statute; the first, that the statute so construed is not in conflict with the Constitution of the United States. The third and fourth we decline to answer. Mr. Justice Gray and Mr. Justice White did not hear the argument, and took no part in the decision of this case. the whole case, even where its decision | 1899, a libel was filed on behalf of the Unitturned upon matter of law only, and even ed States in the district court of the United though it was split up in the form of ques- States for the district of New Jersey against tions.' Fire Ins. Asso. v. Wickham, 128 U. the schooner William H. Davenport, her S. 426, 32 L. ed. 503, 9 Sup. Ct. Rep. 113; tackle, apparel, and furniture, and against Dublin Twp. v. Milford Sav. Inst. 128 U. S. all persons intervening therein, in case of collision, civil and maritime, seeking to re510, 32 L. ed. 533, 9 Sup. Ct. Rep. 148." Neither of these questions presents a dis- cover the sum of $5,000 damages alleged to Each have been sustained by the lighthouse tendtinct point or proposition of law. invites us to search the entire record, and er Azalea in a *collision with that schooner[136] in effect determine whether the judgment of on October 2, 1899, off Cornfield Point lightship in Long Island sound. It was averred [135]the district court *should be affirmed or reversed. But as settled in the cases referred in the libel that the collision was in no way caused by the fault or negligence of those on to in the last quotation, the court of appeals board the lighthouse tender Azalea, but that cannot thus send up a whole case for con- it was solely due to the carelessness and sideration and disposition. negligence of those in charge of the schooner William H. Davenport in certain particulars stated. The libel concluded with the formal prayer that process might issue in due form of law against the schooner, her tackle, apparel, and furniture; that all persons interested might be cited to appear and answer; and that the schooner might be condemned and sold to pay libellant's claim with interest and costs; "and that the court will otherwise right and justice administer in the premises." Process in due form was issued against the schooner, and . on November 8, 1899, the marshal filed his return certifying that on November 4 he had made due attachment of the schooner, and that the vessel was then in his custody. November 22, 1899, F. S. Bowker, managing owner, filed a claim to the schooner on be half of her owners, a stipulation for costs and a stipulation for value, and thereupon the schooner was released from custody and restored to the possession of her owners. The claimant, Bowker, filed his answer to the libel December 11, 1899, denying that the collision was caused or contributed to by those in charge of the schooner, alleging that the collision and the damage resulting therefrom were caused wholly by the fault of the steamer Azalea and of those in charge of her, in certain particulars stated, and concluding with the prayer that the libel be dismissed with costs. December 29, 1899, Bowker, for and on behalf of himself and his co-owners, filed a cross libel against the United States seeking to recover the sum of $6,000 damages alleged to have been sustained by the schooner and by her cargo in Mr. Justice Peckham dissented. F. S. BOWKER, Managing Owner of v. UNITED STATES, Owner of the Light house Tender Azalea. (See S. C. Reporter's ed. 135–142.) ▲ decree of a district court of the United States the lower court was in issue. [No. 247.] Argued April 30, May 1, 1902. Decided said collision. It was alleged in the cross May 19, 1902. ERROR to the District Court of the libel that the collision was wholly due to the negligence and fault of the steamer Aza. lea and of those in charge of her, the par I United States for the District of New ticulars being set forth, and the prayer of Jersey to review a decree dismissing a cross Statement by Mr. Chief Justice Fuller: the cross libel asked "that a citation, ac- of a libel against said schooner, on November 3, 1899, until security be given by said respondent, pursuant to the admiralty rules of the Supreme Court of the United States and the practice of this honorable court, to respond for the damages claimed in this cross libel, and that this honorable court will give to the cross libellants such other and further relief as in law and justice he may be entitled to receive, this said action being a counterclaim arising from the same cause of action for which the original libel was filed against the said William H. Davenport." Citation was issued and served on the United States attorney for the district, who was the proctor of record for the libellant in the original suit. The United States attorney filed a notice of motion to quash the citation, February 14, 1900, and a motion to that effect was argued by counsel. December 17, 1900, the district court filed its written decision, holding that the cross libel could not be maintained because the court had no jurisdiction to entertain the cause or to enter a decree as prayed for against the United States, whereupon and on that day the court entered a decree that the citation be quashed and that the cross libel be dismissed with costs. 105 Fed. 398. The cross libellant thereupon appealed to this court and the appeal was allowed on the question of jurisdiction. The district court made a statement of the facts, to which a copy of the record was attached, and certified five questions in respect of ju. risdiction under the cross libel to this court for decision. right of the plaintiff in the original cause Dan. Ch. Pl. & Pr. 1st Am. ed. from 2d In the admiralty, on the other hand, the A decree is final, for the purposes of an appeal to this court, when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has beer determined. St. Louis, I. M. & S. R. Co v. Southern Exp. Co. 108 U. S. 24, 27 L. ed. 638, 2 Sup. Ct. Rep. 6. See also Bostwick v. Brinkerhoff, 106 U. S. 3, 27 L. ed. 73, 1 Sup. Ct. Rep. 15: Grant v. Phanix Mut. L. Ins. Co. 106 U. S. 429, 27 L. ed. 237, 1 Sup. Ct. Rep. 414; Rouse v. Letcher, 156 U. S. 47, 39 L. ed. 341, 15 Sup. Ct. Rep. 266; Central Trust Co. v. Grant Locomotive Works, 135 U. S. 207, 34 L. ed. 97, 10 Sup. Ct. Rep. 736; Central Trust Co. v. Marietta & N. G. R. Co. 1 C. C. A. 116, 2 U. S. App. 1, 48 Fed. 850; Gumbel v. Pitkin, 113 U. S. 545, 28 L. ed. 1128, Sup. Ct. Rep. 616; Hamlin v. Toledo, St. L. & K. C. R. Co. 36 L. R. A. 826, 24 C. C. A. 271, 47 U. S. App. 422, 78 Fed. 664; Central Trust Co. v. Madden, 17 C. C. A. 236, 25 U. S. App. 430, 70 Fed. 451; Grant v. East & West R. Co. 1 C. C. A. 681, 2 U. S. App. 182, 50 Fed. 795; InMessrs. G. Philip Wardner and Eu-ternal Improv. Fund v. Greenough, 105 U. gene P. Carver argued the cause, and, with Messrs. Convers & Kirlin and Carver & Blodgett, filed a brief for appellant: A cross bill is so far an independent suit as to authorize an appeal from a decree dismissing it on demurrer before the final disposition of the original bill. Clutton v. Clutton, 106 Mich. 690, 64 N. W. 744. See also Brooks v. Woods, 40 Ala. 538; Lehman v. Ford, 47 Ala. 733; 1 Beach, Modern Eq. Pr. 446. Where the substantial effect of a decree upon a cross bill is a complete determination of the cause, an appeal will lie. Holgate v. Eaton, 116 U. S. 33, 29 L. ed. 538, 6 Sup. Ct. Rep. 224; Blythe v. Hinckley, 84 Fed. 228. In equity the dismissal of the original bill usually ipso facto disposes of a cross bill in the same cause. 1 Beach, Modern Eq. Pr. § 447. On the other hand, in admiralty a cause and a cross cause may be tried separately and separate decrees rendered. The Dove, 91 U. S. 381, sub nom. The Mayflower v. The Dove, 23 L. ed. 354. It follows that the dismissal of the original libel cannot affect the cross libel. S. 527, 26 L. ed. 1157; Jacksonville, T. & K. W. R. Co. v. American Constr. Co. 6 C. C. A. 249, 13 U. S. App. 377, 57 Fed. 66; Klever v. Seawell, 12 C. C. A. 653, 22 U. S. App. 458, 65 Fed. 373; Butler v. Boston & S. S.S. Co. 130 U. S. 527, 32 L. ed. 1017, 9 Sup. Ct. Rep. 612; The Alert, 9 C. C. A. 390, 26 U. S. App. 63, 61 Fed. 113; Forgay v. Conrad, 6 How. 201, 12 L. ed. 404; Blos som v. Milwaukee & C. R. Co. 1 Wall. 655, 17 L. ed. 673; Withenbury v. United States, 5 Wall. 819, 18 L. ed. 613; Standley v. Roberts, 8 C. C. A. 305, 19 U. S. App. 407, 59 Fed. 836. Assistant Attorney General Beck argued the cause and filed a brief for appellee. Mr. Chief Justice Fuller delivered the opinion of the court: *This appeal is prosecuted under the 5th[138] section of the judiciary act of March 3, 1891 [26 Stat. at L. 826, chap. 517], providing "that appeals or writs of error may be taken from the district courts or from the existing circuit courts direct to the Supreme Court in the following cases: In any case in which the jurisdiction of the court is in issue. In such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision." A cross bill in equity is so far auxiliary to, dependent on, and a part of the original cause that it would seem that the filing of the cross bill could not interfere with the' By the 6th section the circuit court of appeals, in cases within its appellate jurisdiction, may certify to the Supreme Court "any questions or propositions of law concerning which it desires the instruction of that court for its proper decision," and our 37th rule requires in such cases that "the certificate shall contain a proper statement of the facts on which such question or proposition of law arises." of the fault of libellant, and until the question as to which of the parties was at fault, or whether both were, is determined, that litigation cannot be said to have terminated. If the district court had held that it had jurisdiction to award affirmative relief against the United States on the cross libel, the cause would have stood for hearing on the whole case. Its decision that it did not have jurisdiction simply prevented respondent from obtaining affirmative relief over, as The district court has observed that rule in form, but it is under the 5th section that our jurisdiction is invoked, and, as the rec-suming that the facts justified it. And howord accompanies the statement, we are enabled to dispose of the appeal. It was settled, soon after the passage of the act of 1891, that cases in which the jurisdiction of the district or circuit courts was in issue could be brought to this court only after final judgment. McLish v. Roff, 141 U. S. 661, 35 L. ed. 893, 12 Sup. Ct. Rep. 118; Chicago, St. P. M. & O. R. Co. v. Roberts, 141 U. S. 690, 35 L. ed. 905, 12 Sup. Ct. Rep. 123. The subject was carefully considered in the opinion of Mr. Justice Lamar in the first of these cases, and the conclusion reached was in accordance with the general rule that a case cannot be brought to this court in parcels. Southern R. Co. v. Postal Teleg. Cable Co. 179 U. S. 641, 45 L. ed. 355, 21 Sup. Ct. Rep. 249. ever convenient it might be that the question of jurisdiction of the cross libel should be adjudicated in advance, it is nevertheless true that when a decree was rendered on the original libel, the error, if any, committed in dismissing the cross libel, could be rectified. That this course might result in delay, and perhaps sometimes in hardship, if it should turn out that jurisdiction could be exercised on the cross libel, is not a sufficient reason for entertaining an appeal, if the decree did not so dispose of the case as to enable this court to take jurisdiction. Generally speaking, the same principles apply to cross libels as to cross bills, and 140 this case affords no ground of exception therefrom. In The Dove a final decree was entered in In admiralty, if the respondent desires to The preliminary question is, therefore, obtain entire damages against the libellant, whether the decree dismissing this cross li- or damages in excess of those claimed by libel is a final judgment within the rule upon bellant, a cross libel is necessary, although that subject. It was long ago held that a matters of recoupment or counterclaim decree dismissing a cross bill in equity might be asserted in the answer. The Sapcould not be considered, standing alone, as a phire, 18 Wall. 51, sub nom. The Sapphire final decree in the suit, and was not the sub-v. Napoleon III. 21 L. ed. 814; The Dove, ject of an independent appeal to this court 91 U. S. 381, sub nom. The Mayflower v. under the judiciary act of 1789; and that The Dove, 23 L. ed. 354. it could only be reviewed on an appeal from a final decree disposing of the whole case. Ayres v. Carver, 17 How. 591, 15 L. ed. 179; Ex parte South & North Ala. R. Co. 95 U. S. 221, 24 L. ed. 355. [139] *It is argued that Ayres v. Carver is distinguishable from the case at bar because the 22d section of the judiciary act of 1789, under which the appeal in that case was taken, provided in terms for the revision of final decrees, whereas no specific mention is made of final decrees or judgments in § 5 of the judiciary act of 1891. But that difference was specifically disposed of in McLish v. Roff. as not affecting the principle that the decree must be final in order to be appealable. favor of the libellants in the original suit, and a decree rendered at the same time dis missing the cross libel. No appeal was taken from the decree of dismissal, but the case was carried to the circuit court from the district court by appeal from the decree on the libel, which was affirmed, and the cause brought to this court. The principal question involved on the appeal to this court was whether the submission to the dismissal of the cross libel in the district court by the parties who had filed it prevented them from making the same defense to the original libel that they might have made if no cross libel had been filed, and it was held that while the parties were bound by the decree of the district court dismissing the cross libel, the issues of law and fact involved in the original suit were not thereby disposed of. Counsel quote the language of Mr. Chief Justice Waite in St. Louis, I. M. & S. R. Co. v. Southern Exp. Co. 108 U. S. 28, 27 L. ed. 639, 2 Sup. Ct. Rep. 8, that "a decree is final, for the purposes of an appeal to this In the course of some general observacourt, when it terminates the litigation be- tions, Mr. Justice Clifford, delivering the tween the parties on the merits of the case, opinion, after remarking that causes of that and leaves nothing to be done but to enforce kind might be heard separately, said: "Usby execution what has been determined;"ually such suits are heard together, and are and insist that the decree on the cross libel has definitely determined the right of respondent to affirmative relief. But the litigation between the parties on the merits embraced the right of libellant to recover because of the fault of respondent, as well as the right of respondent to recover because disposed of by one decree or by separate decrees entered at the same time; but a decision in the cross suit adverse to the libellant, even if the decree is entered before the original suit is heard, will not impair the right of the respondent in the original suit to avail himself of every legal and just de fense 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. . . . Whether the contro versy pending is a suit in equity or in admiralty, a cross bill or libel is a bill or libel brought by a defendant 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 ques14]tion in the original bill or libel. It is vided jurisdiction could be maintained to Mr. Justice White and Mr. Justice v. EDWARD JOSLIN. (See 8. C. Reporter's ed. 142–153.) brought in the admiralty to obtain full and complete relief to all parties as to the mat- HENRY L. WARD, Treasurer, Petitioner, ters charged in the original libel; and in equity the cross bill is sometimes used to obtain a discovery of facts. 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 subject-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. Ayres v. Carver, 17 How. 595, 15 L. ed. 181; Field v. Schieffelin, 7 Johns. Ch. 252; Shields v. Barrow, 17 How. 145, 15 L. ed. 163." In this case the cross libel was, as stated therein, "a cross libel brought under admiralty rule 53 of the Supreme Court of the United States, being a counterclaim arising out of the same cause of action as the suit brought by the United States against the said schooner William H. Davenport in a cause of collision, by a libel filed Nov. 3, 1899, in said court." The 53d admiralty rule provides that the respondents in a cross libel shall give security to respond in damages, unless otherwise directed, and that all proceedings on the original libel shall be stayed until such security shall be given. Corporations-loan and investment companies-acts ultra vires-guaranty of notes of third parties-individual liability of stockholders of foreign corporation -conclusiveness of judgment against corporation appeal-review of denial of motion for new trial. 1. 2. 3. A guaranty by a loan and trust company, for a valuable consideration, of a promissory note given by one third party to another, and not negotiated by it, is ultra vires such a corporation organized under Kan. Comp. Laws 1885, p. 210, chap. 23, for the purpose of transacting the business of a loan and trust company and of buying and selling personal property, including commercial paper, with power to enter into "any obligation or contract essential to the transaction of its ordinary affairs," but forbidden to employ its property for any other purpose than to "accomplish the legitimate objects of its creation." Obligations which a corporation had no right to incur because ultra vires are not dues from the corporation, within the meaning of Kan. Const. art. 12, § 2, providing that "dues from corporations shall be secured by individual liability of the stockholders," although the corporation may be estopped from denying the validity of such obligations. A judgment against a corporation is not so conclusive on a stockholder, in an action to enforce his individual liability for a corporate obligation under the Kansas Constitution and laws, as to prevent his showing that because such corporate obligation was ultra vires he was not liable under such Constitution and laws. The discretion of a trial court in denying a motion for a new trial cannot be reviewed by the Supreme Court of the United States. [No. 245.] The cross libel and the answer to the libel were consistent, the subject-matter of the libel and the cross libel was the same, and the latter, in no proper sense, introduced new and distinct matters. The cross libel occupied the same position as a cross bill in equity, and 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,| 4. the dismissal of the original bill may not dispose of the cross bill, which may be retained for a complete determination of the cause. Holgate v. Eaton, 116 U. S. 33, 29 L. ed. 538, 6 Sup. Ct. Rep. 224, illustrates Argued April 30, 1902. Decided May 19, this. There the bill and cross bill were heard together, and it was held that the original bill must be dismissed, but that relief might be accorded on the cross bill. The cross bill was not filed merely as a means of defense, but of obtaining affirmative relief, and the defeat of the bill sus142]tained the disposition of the cause on the cross bill. Such might be the result here if On the right to enforce a stockholder's liait turned out on the hearing that the Azalea bility outside of the state of incorporation-see was in fault, and not the schooner, pro-note to Cushing v. Perot (Pa.) 34 L. R. A. 737. 1902. NOTE. As to what is a Federal question; when considered--see note to Re Buchanan, 39 L. ed. U. S. 884. On Federal jurisdiction over state courts; to necessity of Federal question-see notes Hamblin v. Western Land Co. 37 L. ed. U. S. 267; and Kipley v. Illinois ex rel. Akin, 42 L ed. U. S. 998. N WRIT of Certiorari to the United ness;" that judgment was recovered and O`States Circuit Court of Appeals for the execution returned nulla bone, and that First Circuit to review a judgment which affirmed a judgment of the Circuit Court for the District of New Hampshire in favor of defendant in an action to enforce the statutory liability of a stockholder in a Kansas corporation. Affirmed. See same case below, 44 C. C. A. 456, 105 Fed. 224. Statement by Mr. Chief Justice Fuller: September 12, 1888, S. S. Hite and Mary L. Hite executed and delivered to one J. E. Ethell their promissory notes in writing of that date, whereby for value received they promised to pay to the order of Ethell on September 12, 1892, the principal sum named in each, with interest thereon at the rate of 7 per cent per annum, payable semiannually, according to the tenor of eight interest coupons bearing interest and attached to each of the notes; and afterwards and before the maturity of the notes, Ethell in[143]dorsed, transferred, and delivered *them to Ward. At that time the Western Investment Loan & Trust Company, a corporation of Kansas, guaranteed in writing the pay ment of the notes in the following words indorsed on each: "For a valuable consideration the Western Investment Loan & Trust Company hereby guarantees payment of the within obligation, both principal and interest, at maturity." The notes not having been satisfied, Ward brought suit against the Western Investment Loan & Trust Company on the guaranties in the district court of Smith county, Kansas, and recovered judgment against the company by default; and execution having been issued on the judgment and returned nulla bona, Ward brought this action December 15, 1896, against Edward Joslin in the circuit court of the United States for the district of New Hampshire to recover of him as a stockholder in said Western Investment Loan & Trust Company, an amount equal to the amount of stock owned by him in said corporation. The declaration contained two counts. The first alleged the recovery of judgment; by reason of the premises and by virtue of the Constitution, statutes, and laws of the state of Kansas in such case made and provided," the right of action had accrued. *Among other special matters set up in de [144] fense was "that the claim against the Western Investment Loan & Trust Company, upon which a judgment in favor of the plaintiff against said company was founded, was not a due from or debt of said corporation, for which the defendant as a stockholder in said corporation was liable under the Constitution and laws of Kansas." And that the Western Investment Loan & Trust Company "never had any authority to indorse the said promissory notes and obligations in the second count in plaintiff's dec laration described, or to guarantee the pay ment of said notes and obligations." A jury was waived and the cause submitted to the circuit court for trial, and the court made and filed its findings of fact and conclusions of law. After finding that the defendant was a stockholder of one hundred shares of the par value of $50 each in the company in question, the findings thus continued: "I find as a matter of fact, upon the evidence contained in the record and upon the arguments, that Ward's claim against the trust company was upon a guaranty given upon a valuable consideration, of the payment of certain promissory notes from one third party to another, and was not a guaranty of the payment of securities negotiated by the company. "I find that the plaintiff brought an action at law in the district court of Smith county, in the state of Kansas, against the trust company, on December 23, 1892, on these guaranties, by a writ served upon the president of said corporation, and on March, 1893, recovered judgment thereon against the company for $9,787.50, with interest at 12 per cent, and as shown in the record on De cember 11, 1893, $4,924.75 was paid thereon, and on September 14, 1896, an execution issued for the balance and was returned wholly unsatisfied as shown by the officer's return printed in the record. the issue of execution and return nulla bona; insolvency of the company July 1, 1894, and "I also find that the trust company was its want of "property or assets of any kind or value whatever;" that defendant was the not a railway, religious, or charitable corowner of one hundred shares of stock; and poration, and the business which the corthat, "by reason of the premises and by vir-poration was authorized to do was to buy tue of the Constitution and statutes of the and sell personal property, including stocks, state of Kansas, in such case made and pro- bonds, bills, notes, real and chattel mort-[145) vided, a right of action hath accrued" to gages, and choses in action of every kind plaintiff. and description, and to transact the business The second count alleged that the loan and of a loan and trust company;" that some trust company "was a corporation chartered time after the organization of the company, and organized for the purpose of transact- and before the defendant became a stocking a general investment loan and trust holder, the directors thereof resolved 'that business, and under its charter, as it was the president and secretary of the company authorized to do, indorsed and guaranteed be, and they hereby are, authorized to guarthe payment of notes and obligations nego-antee the payment of all securities negotiated by it;" that these notes and coupons tiated by the company by indorsing upon any "were in fact negotiated by said corpora- such security one of the following forms of tion, the Western Investment Loan & Trust a guaranty,'-and the resolution of the corCompany, in the regular course of its busi-poration and the forms of guaranties print |