Mr. Edward Winslow Paige, for the | NORTH AMERICAN COMMERCIAL COM{110) defendants in error, in favor of motion:

The opinion of the court seems to show that the court intended to reverse the judgment in the two particulars only which are described in it. The mandate, however. commands the reversal of the whole judgment.

The defendants in error move to amend the mandate so that it conform to the opinion.

It is the opinion of the counsel who signs this brief that it is decidedly for the interest of the defendants in error that the motion be denied.

And for the following reasons:—

As

The whole judgment being reversed, there must inevitably, under the laws of New York, be a new trial of the whole action the defendants in error might succeed in the new trial in all matters except those described in the opinion of the court-as to be reversed-there would be a general judgment in favor of the defendants in error like the present judgment, except that it would omit the injunction and the provision about the plaintiffs in error proving their certificates. Under that judgment there would of course be a new sale and the bondholders could then buy through the medium of a trustee other than Mr. Foster, thus relieving the case from the difficulty described in the opinion of the court.

It would also relieve the defendants in error from paying the costs of the court, since there is not any way under the laws of New York by which a successful plaintiff can be made to pay costs to the defendant.

And they can also show, although as we submit the present record shows, that not any of the proceeds of the certificates went into the property. Nevertheless we make the

motion.

Mr. Charles E. Patterson for plaintiffs in error, in opposition to motion.

Per Curiam: The motion to amend the mandate in the above case seems to proceed on a misconception of the meaning of the judgment and mandate.

The judgment of this court does not undertake to affect or reverse the judgment of the

PANY, Piff. in Err.,

v.

UNITED STATES.

(See S. C. Reporter's ed. 110-137.)
Lease by the government of the exclusive
right to take fur seals-maximum number
of seals-reduction of rental-Secretary
of the Treasury—damages.

1. No reduction of the per capita amount to be
paid for each sealskin taken and shipped by a
lessee of the government can be made on ac-
count of the limitation by the Secretary of
the Treasury of the number of seals that may
be killed, although by U. S. Rev. Stat. § 1962,
a proportionate reduction of the rents re-
served may be made, where the lease provides
for an annual rental of $60.000 and in addition
thereto for a certain sum for each skin taken
and shipped, as this is in the nature of a
bonus or addition to the stated consideration.

2.

The original provision for a maximum number of seals to be taken by a lessee and a proportionate reduction of the fixed rental in case of a limitation, made by the act of Congress of 1870, is not done away with by implication by the act of May 24, 1874, which removes the restrictions imposed by U. S. Rev. Stat. §§ 1960, 19€2, concerning the months during which seals may be taken and the number to be taken on or about each island respectively.

3. Assuming that the lessee took all the risk of a catch of seals reduced by natural causes, yet when the number that might be killed was limited by the act of the government or its agent, the Secretary of the Treasury, the lessee was entitled to a reduction of the rental reserved in the same proportion as the number of skins permitted bore to the maximum.

4.

In reducing the number of seals which may
be taken by a lessee of the government in the
Pribiloff islands, in the exercise of the power
reserved to him, it is immaterial whether the
Secretary of the Treasury acts on his own
judgment, or in compliance with the will of
the government as expressed by the treaty
with Great Britain.

5. The right to take fur seals under a so-called
lease from the government, which is expressly
subject to such regulations of the business as
the United States may make, does not entitle
the lessee to any damages for a reduction of
the catch allowed by the regulations, for
which a reduction of rentals is provided.
[No. 431.]

1898.

ON WRIT OF CERTIORARI to the United States Circuit Court of Appeals for the Second Circuit in an action brought by the United States in the Circuit Court of the United States for the Southern District of New York against the North American Commercial Company, to recover for rent under a lease made by the Secretary of the Treasury to the company of the right to engage in the

supreme court of the state of New York, ex-Argued April 18, 19, 1898. Decided May 31,
cept in so far as that judgment sought to re-
strain the Central National Bank of Boston
and the other plaintiffs in error from proceed-
ing under and in accordance with the decree
of the circuit court of the United States for
the northern district of New York, and to
compel them to again try in the supreme court
of New York matters tried and determined
in the circuit court. As between the other
parties the judgment of the supreme court
of New York was, of course, left undisturbed,
and it is not perceived that the terms of the
mandate signify anything else, or imply the
consequences suggested by counsel.
The motion is denied.

that of navigation, see note to Wright v. Mul

NOTE.-As to right of fishery; subordinate to

vaney (Wis.) 9 L. R. A. 807.

As to prescriptive rights of fishery; in public navigable waters; in private waters,—see note to Turner v. Hebron (Conn.) 14 L. R. A. 386.

it should be accepted as the fairest criterion | man Company, nor were the shares of the of value."

He accordingly reported the value of the property when received as $58 a share (the par value being $50 per share or a total par value of $2,200,000) making the total market value of the shares $2.552,000, which sum he reported as the value of the property transferred.

When the report came before the court, exceptions having been taken, among other things, to the findings of the value of the property when delivered, the court said:

capital stock of the Central Company, all of which remained in the hands of its original owners. The probable prospective capacity for earnings also enters largely into mar-[155] ket value, and future possible earnings again depend to a great extent upon the skill with which the affairs of the company may be managed. These considerations, while they may enhance the value of the shares in the market, yet do not in fact increase the value of the actual property itself. They are matters of opinion upon which persons selling "It is the value of the property at the time and buying the stock may have different it should have been returned that the Pull-views. A liability to return or make comman Company should be charged with. In-pensation for property received cannot be asmuch as this value would be difficult of properly extended so as to include other conascertainment by the transportation com-siderations than those of the actual value pany except by reference to the value in of that property. 1870, it was considered proper to direct the In this particular case a consideration eninquiry to the latter date. Presumably the tering into the market value of the shares value increased; the evidence fully justifies must have been the probability or possibility the presumption. If it decreased, the Pull-of renewals of the contracts owned by the man Company could and should have shown 154lit. The master's *valuation in 1870 is therefore to be taken as the value in 1885, when the property should have been returned. The payment of this sum, with interest from January 1, 1885, seems necessary to a just settlement, treating the value of the use and the rents paid prior to that date as balancing each other. A decree may be prepared accordingly, dismissing the exceptions and confirming the report."

Judgment based upon the value of the property at $2,552,000 on the 1st of January, 1885, with interest from that time, was therefore entered, and it amounted, as stated, to the sum of $4,235,044.

We are of opinion that the court erred in the manner of ascertaining the value of the property transferred by the Central Company. The market value of its stock was not a proper measure of the value of the property, and such error resulted in largely increasing the supposed value of the property which the cross defendant was under liability

to account for.

company for the use of its cars upon the
railroads of the companies with which it had
such contracts and the possibility of extend-
ing its business in the future under contracts
with other railroads. These considerations,
while they affect more or less the value in
the market of the shares of a corporation, do
not constitute the value of the property
which a party impliedly promises to pay for
upon the agreement being determined void
under which the property was received. The
faith which a purchaser of stock in such a
company has in the ability with which the
company will be managed, and in the capaci-
ty of the company to make future earnings,
may be well or ill-founded. It is but mat
ter of opinion which in itself is not property.
While the value of the property is one of the
material factors going to make up the mar
ket value of the stock, yet it is plainly not
the sole one. Mere speculation has not un-
commonly been known to exercise a potent
influence on the market price of stock. The
capacity to make any future earnings in
this case by the lessee arose out of the trans-
fer of the property to it and grew out of the
lease itself, and that capacity would there-
fore be partly founded upon the illegal con-
tract and could not otherwise exist.

The capital stock of this corporation had
been increased from an original amount of
$200,000 in 1862 to $2,200,000 in 1870. Dur-
ing this time it had been doing an increasing
and a profitable business, and it was sup-
posed that such business might increase in
the future. The market price of the shares
of stock in a manufacturing corporation in-
cludes more than the mere value of the
property owned by it, and whatever is in-
cluded in that price beyond and outside of
the value of its property is a factor which in
a case like this cannot be taken into consid-
eration in determining the liability of the
cross defendant. Whatever that something
may be it is not that kind of property which We must therefore take the property that
was delivered or that can be returned or actually was transferred and determine its
compensation made in lieu of its return. It value in some other way than by this resort
is not property at all within the meaning of to the market price of the stock. The prop-
the word as understood in such a case as this. erty transferred consisted (a) of cars, bed-
The value of the franchise for one thing en- ding, etc.; (b) contracts which the Central
ters into the computation of market value. Company owned with railroad companies for
This was, of course, not assigned to the Pull-the use of its cars on their roads; (c) patents

As the market value of the shares of this stock was made up to some extent, at least, of certain factors which the lessee cannot, under the rules of law, be held responsible for in this case, it follows that such value cannot furnish a safe guide in measuring *the respon-[156] sibility of the lessee in an utterly void lease. The court therefore erred in taking the market value of the shares of this stock as a proper or just measure of the value of the property transferred.

"The annual rental, together with all other | ing of one male or bull and many females or payments to the United States provided for cows; that the young or male seals, or bachein this lease, shall be made and paid on or lors as they are called, are not admitted to before the first day of April of each and every the breeding ground, but are driven off by year during the existence of this lease, be- the older males and oftentimes destroyed by ginning with the first day of April, 1891. them; that until such bachelor seals arrive "The said company further agrees to em- at the age of three or four years they occupy ploy the native inhabitants of said islands other portions of the islands and can be to perform such labor upon the islands as driven away from the breeding ground and they are fitted to perform, and to pay therefor killed without disturbing the seals on the[115 a fair and just compensation, such as may be breeding grounds; that a large proportion of fixed by the Secretary of the Treasury; and these young bachelor seals may be so killed also agrees to contribute, as far as in its without diminishing the birth rate of the power, all reasonable efforts to secure the herd, and their skins are a valuable article of comfort, health, education, and promote the commerce and are more valuable than the morals and civilization of said native inhabi- skins of the females or older males; that by tants. protecting the females and restricting the capture to the bachelors the fisheries are capable of a permanent and annual supply of skins which would afford a valuable source of revenue.

"The said company also agrees faithfully to obey and abide by all rules and regulations that the Secretary of the Treasury has heretofore or may hereafter establish or make in pursuance of law concerning the taking of seals on said islands, and concerning the comfort, morals, and other interests of said inhabitants, and all matters pertaining to said islands and the taking of seals within the possession of the United States. It also agrees to obey and abide by any restrictions or limitations upon the right to kill seals that [114]the Secretary of the Treasury shall judge necessary, under the law for the preservation of the seal fisheries of the United States; and it agrees that it will not kill or permit to be killed, so far as it can prevent, in any year a greater number of seals than is authorized by the Secretary of the Treasury."

"The said company further agrees that it will not permit any of its agents to keep, sell, give, or dispose of any distilled spirits or spirituous liquors or opium on either of said islands or the waters adjacent thereto to any of the native inhabitants of said islands, such person not being a physician and furnishing the same for use as a medicine.

"It is understood and agreed that the number of fur seals to be taken and killed for their skins upon said 'slands by the North American Commercial Company during the year ending May 1, 1891, sha'd not exceed sixty thousand.

"Seventh. That after the making of the said lease by the said plaintiff and the said defendant, the said defendant entered upon the enjoyment of the right thereby granted it; but on account of the enforcement by the said plaintiff of the provisions of a convention or agreement made and entered into by the said plaintiff with the government of Great Britain it prohibited and prevented the said defendant, during the years 1890, 1891, and 1892, from taking on the said islands as many seals as might have been taken without diminution of the herd, and far less in each year than the number mentioned in the said lease for the first year; the numbers taken in those years being in 1890, 20,995; in 1891, 13,482; and in 1892, 7,547.

"Eighth. That for the said years of 1890, 1891, and 1892, it was agreed between the Secretary of the Treasury and the said defendant that the said defendant should pay to the said plaintiff for the seal skins taken by it on the said islands the tax and such proportionate part of the rental of $60,000 and the per capita sum of seven dollars sixty-two and one half cents, as the number of seals taken bore to one hundred thousand, except that for 1890 the per capita of seven dollars sixty-two and one half cents was not so reduced.

"The Secretary of the Treasury reserves the right to terminate this lease and all rights "Ninth. That by a convention or agreement of the North American Commercial Company with the government of Great Britain, comunder the same at any time on full and satis-monly called the modus vivendi, the United factory proof that the said company has vio- States promised, during the pendency of the lated any of the provisions and agreements of this lease, or in any of the laws of the United States, or any Treasury regulation respecting the taking of fur seals or concerning the islands of St. George and St. Paul or the inhabitants thereof."

The circuit court made eighteen findings, including the following:

arbitration between those two governments relating to the Behring Sea controversy and the preservation of the seals resorting to those waters, to prohibit seal killing on the said islands in excess of 7,500 to be taken from the islands for the subsistence of the natives, and to use promptly its best efforts to insure the enforcement of the prohibition.

"Sixth. The said islands of St. George and St. Paul in the territory of Alaska are the breeding ground of a herd of seals which in the early spring moves northward to Behring Sea, and are the habitat of that herd during the summer and fall of each year; that the ant of the benefit of its said lease. seals land in great numbers upon the said "Eleventh. That the Secretary of the Treas islands and divide into families, each consist-ury did not exercise the discretion conferred

"Tenth. That pursuant to such agreement[116] the United States prohibited and prevented the said defendant from taking any seals whatever from the said islands during the year 1893, and thus deprived the said defend

upon him by section 1962 of the Revised Stat-skins could have been sold, namely, $300,000, utes to limit the right of killing seals when leaves as the net loss sustained by the said necessary for the preservation of such seals, defendant in consequence of the breach of its and did not so limit or restrict the right of the said lease by the said plaintiff, the sum of said defendant to take seals under its said $142,187.50, which is due and owing to the lease for the year 1893, and that during that said defendant by the said plaintiff; and year it was not necessary or even desirable that its claim therefor would he a proper matfor the preservation of such seals to limit the ter of counterclaim or credit in this action, killing of the seals upon the said islands to if the conditions prescribed by § 951 of the the said number of 7,500 specified in the said United States Revised Statutes had been complied with by the said defendant."

modus vivendi.

"Twelfth. That in the year 1893 the United States government itself, through the agents of the Treasury Department, took up on the said islands 7,500 seals; that the said defendant was permitted to co-operate in selecting the seals so killed, and to take, and it did take and retain the skins of those seals, and in this way, and in this way only, the defendant received those 7,500 skins.

The circuit court made these conclusions of law:

"Eighteenth. The defendant did not present to the accounting officers of the Treas ury for their examination any claim for damages by reason of the losses alleged to have been incurred by the defendant by reason of the action of the United States in entering into the said convention or modus vivendi with Great Britain and limiting the catch of seals upon the said islands to 7,500; and such "In accordance with the power reserved to claim was not disallowed by the accounting him in said contract, the Secretary of the officers of the Treasury in whole or in part, Treasury at the commencement of the seal- and it was not proved to the satisfaction of[118] killing season for the year ending April 1, the court that the defendant was at the time 1894, fixed the compensation of the natives of the trial of this action in possession of upon the islands of St. Paul and St. George vouchers not before in its power to procure, to be paid to them by the defendant for kill- or that the defendant was prevented from ing the seals, sorting the skins, and loading exhibiting its said alleged claim at the Treasthem on board the defendant's steamer, at 50 ury by absence from the United States or by cents for each skin taken from the islands dur- unavoidable accident." ing the said season; and defendant paid to the natives said compensation, to wit, the sum of $3,750. "First. That the said defendant, having "Thirteenth. That 20,000 bachelor seals received the said 7,500 seal skins taken from could have been killed upon the said islands the said islands during the year 1893, is liable during the year 1893 in the customary way, to pay the said plaintiff therefor the said without injury to or diminution of the herd, and the said defendant would have taken that number had it been permitted so to do. "Fourteenth. That if the said defendant had been allowed to and had taken in the year 1893. under its said lease, 20,000 seal "Second. That by reason of the breach of 117]*skins, there would have been due to the said the said lease by the said plaintiff, prohibitplaintiff the $60,000 rental and for the per ing the said defendant from taking any seal capita of seven dollars and sixty two and skins during the year 1893, the said plainone half cents and the revenue tax of two dcl-tiff is liable to the said defendant for the said lars per skin, the sum of $192,500, making sum of $142,187.50, with interest thereon together the sum of $252.500-that is, twelve from the first day of December, 1894. dollars and sixty-two and one half cents for each seal skin taken; that for the 7,500 rereived by the said defendant, as above set forth, it owes to the said plaintiff the said sum of twelve dollars and sixty-two and one half cents apiece, amounting to the sum of $94,687.50.

"Fifteenth. The defendant could have sold 12,500 more seal skins if it had been allowed to take the same cn the said islands during the year 1893, at the average market price of twenty-four dollars for each skin; which for the said number of 12,500 which it might have taken, but was prevented from taking by the act of the government of the United States, would amount to $300,000; that for such 12,500 seal skins the said defendant would have been liable to pay, according to the terms of its lease if it had taken 20,000 seal skins during that year, the sum of twelve dollars and sixty-two and one half cents each, amounting to $157,812.50, which, being deducted from the price at which such

sum of $94,687.50, with interest thereon from the first day of April, 1894; and the said plaintiff is entitled to recover in this action said sum, with interest as aforesaid, from the said defendant.

"That on account of the same claim of the said defendant against the said plaintiff for damages for breach of the said lease not having been presented to and disallowed by the accounting officers of the Treasury, it cannot be allowed as a counterclaim or credit in this action, and the said counterclaim is therefore dismissed, but not on the merits thereof, and without prejudice to the right of the said defendant to enforce the same by any other proper legal proceeding."

Mr. James C. Carter for plint in error.

Mr. John W. Griggs, Attorney General, for defendant in error.

Mr. Chief Justice Fuller delivered the opinion of the court:

By the act of July 27, 1868 (15 Stat. at L 240, chap. 273), the laws of the United States relating to customs, commerce, and navigation were extended over all the mainland, is

The 4th section provided that immediately after the passage of the act the Secretary of the Treasury should lease for the rental mentioned in the 6th section of the act, to the best advantage of the United States, having due regard for the interests of the government, the native inhabitants, parties theretofore engaged in trade, and the protection of the seal fisheries, for a term of twenty years from the 1st day of May, 1870, "the right to engage in the business of taking fur seals on the islands of St. Paul and St. George, and to send a vessel or vessels to said islands for the skins of such seals," giving a lease duly executed, and not transferable, and tak. ing from the lessee or lessees a bond, conditioned "for the faithful observance of all the laws and requirements of Congress and of the regulations of the Secretary of the Treasury touching the subject-matter of taking fur seals, and disposing of the same, and for the payment of all taxes and dues accruing to the United States connected therewith; and in making said lease the Secretary of the Treas ury shall have due regard to the preservation of the seal fur trade of said islands, and the comfort, maintenance, and education of the natives thereof."

[lands, and waters of the territory ceded to | due conviction thereof, be punished in the the United States by the Emperor of Russia, same way as provided herein for a violation March 30, 1867, so far as applicable, and by of the provisions of the first and second sec§ 6 of that act it was made unlawful for any tions of this act." person or persons to kill any otter, mink, marten, sable, or fur seal, or other fur-bearing animal within the limits of said territory, or in the waters thereof; provided that the Secretary of the Treasury might authorize the killing of any such fur-bearing animal, except fur seals, under such regulations as he might prescribe, and it was made his duty to prevent the killing of any fur seal, and to provide for the execution of the provisions of the section until otherwise provided by law. On the 3d of March, 1869, a resolution was approved (15 Stat. at L. 348, No. 22), entitled "A Resolution More Efficiently to Protect the Fur Seal in Alaska," declaring the islands of St. Paul and St. George in Alaska "a special reservation for government purposes,' and that, until otherwise provided by law, it should be unlawful for any person to land or remain on either of said islands, except by the authority of the Secretary of the Treasury. July 1, 1870, an act entitled "An Act to Prevent the Extermination of Fur-bearing Animals in Alaska" was approved. 16 Stat. at L. 180, chap. 189. By the 1st section it was made unlawful to kill any fur seal upon the islands of St. Paul and St. George or in the waters adjacent thereto, except during the months of June, July, September, and October in each year, or to kill such seals at any time by the use of firearms, or to use other means tending to drive the seals away from said islands. Provided, that the natives should have the privilege of killing such young seals as might be necessary for their own food and clothing during other months, and also such old seals as might be required for their own clothing and for the manufacture of boats for their own use, which killing should be limited and controlled by such regulations as should be prescribed by the Secretary of the Treasury.

By § 2 it was made unlawful to kill any female seal, or any seal less than one year old, at any season of the year, except as above provided; and also to kill any seal in the waters adjacent to the islands, or on the beaches, cliffs, or rocks where they haul up from the sea to remain.

120] The 3d section read as follows:

"Sec. 3. That for the period of twenty years from and after the passage of this act the number of fur seals which may be killed for their skins upon the island of St. Paul is hereby limited and restricted to seventy-five thousand per annum; and the number of fur seals which may be killed for their skins upon the island of St. George is hereby limited and restricted to twenty-five thousand per annum: Provided, That the Secretary of the Treasury may restrict and limit the right of killing if it shall become necessary for the preservation of such seals, with such proportionate reduction of the rents reserved to the government as shall be right and proper; and if any person shall knowingly violate either of the provisions of this section, he shall, upon

The 5th section read:

*"Sec. 5. That at the expiration of said term[121] of twenty years, or on surrender or forfeiture of any lease, other leases may be made in manner as aforesaid, for other terms of twenty years; and any person who shall kill any fur seal on either of said islands, or in the waters adjacent thereto, without authority of the lessees thereof, and any person who shall molest, disturb, or interfere with said lessees, or either of them, or their agents or employees in the lawful prosecution of their business, under the provisions of this act, shall be deemed guilty of a misdemeanor, and shall for each offense, on conviction thereof, be punished in the same way and by like penalties as prescribed in the second section of this act; and all vessels, their tackle, apparel, appurtenances, and cargo, whose crews shall be found engaged in any violation of either of the provisions of this section, shall be forfeited to the United States; and if any person or company, under any lease herein authorized, shall knowingly kill, or permit to be killed, any number of seals exceeding the number for each island in this act prescribed, such person or company shall, in addition to the penalties and forfeitures aforesaid, also forfeit the whole number of the skins of seals killed in that year, or, in case the same have been disposed of, then said person or company shall forfeit the value of the same.

By the 6th section it was provided that "the annual rental to be reserved by said lease shall not be less than fifty thousand dollars per annum, and in addition thereto, a revente tax or duty of two dollars is hereby laid upon each fur-seal skin taken and shipped from said islands during the con