titled to all the powers and privileges, and be sub-
ject to all restrictions and liabilities, conferred and
imposed" upon another company, the phrase "for
its government," is held to have been intended, not
as a limitation of its powers, but for its regulation
and control.
833

Tennessee v. Whitworth,

34. The Peoria, Atlanta & Decatur Railroad Com-
pany, the Paris & Decatur Railroad Company, and
the Paris & Terre Haute Railroad Company, three
Illinois corporations, each constructed a certain line
of road and issued bonds secured by mortgage
thereon. Subsequently the other companies con-
veyed all of their property to the Peoria, Atlanta &
Decatur Company, and that company soon there-
after changed its name to that of the "Illinois Mid-
land Railway Company," and issued its bonds se-
cured by a mortgage to the Union Trust Company
covering all of its property, including that pur-
chased from the other companies.

Pending subsequent litigation in a state court and
the court below, to which various stockholders,
judgment creditors, bondholders and others were or
became parties, the property was controlled and
operated under directions of said courts by succes-
sive receivers, who issued eighteen distinct series of
receiver's certificates on account of repairs, taxes,
betterments and operating expenses. Many of the
questions presented here arise out of the issue of
said receiver's certificates, the contest being sub-
stantially one between the Peoria and Decatur
bondholders and those, who as holders of said cer-
tificates or otherwise, claim priority of lien, and
this court holds:

1. That certificates issued for necessary repairs are
entitled to priority.

2. That the bill filed in the state court by Hervey,
the holder of a majority of the stock of the corpora-
tions, and certain judgment creditors, was sufficient
to enable the court to administer the property as a
trust fund and marshal the debts, making proper
parties before adjudging the merits.

3. That the power of a court of equity, having
charge of railroad property, to make necessary re-
pairs does not depend on the consent of those in-
terested, nor on prior notice to them.

4. That a subsequent opportunity to be heard, as
to the propriety of the expenditures and of making
them a first lien, is judicially equivalent to prior
notice, the receiver and those lending money to him,
on certificates issued on orders made without prior
notice, taking the risk of the 'final action of the
court. But such final action will only be affected by
such objections to the merits as would have been
availing if made before.

14. That the legality of the sales by the other
companies of their properties to the Peoria, Atlanta
& Decatur Company cannot now be questioned by
the Paris and Decatur bondholders, their acquies-
cence, pending litigation and the contraction of
debts by the receivers with respect to the whole
line operated as a unit, amounting to an estoppel.
15. That the expenses of the various receiverships,
incurred under the direction of the court for the
benefit of all of the roads, should be borne by each
in proportion to its length, such expenses not being
chargeable to the purchasing company alone.

16. That 994 bonds of the Paris and Decatur issue,
held by Waring Brothers, having been surrendered
and exchanged for Illinois Midland bonds, were
canceled, and are now invalid and cannot be placed
on a footing with other Paris and Decatur bonds
not so exchanged, surrendered and canceled.

17. That no valid objection lies to the clause in the
decree which provides that the several properties
shall be offered for sale separately and then en
masse; that the highest bid received for the entire
properties shall be accepted, if it exceeds the aggre-
gate of the highest bids for them when offered
separately; and that the proceeds shall then be ap-
plied in proportion to said separate bids.

18. That certain claims for terminal facilities,
track rents, traffic balances, stores supplied and
labor performed, are entitled to priority.

19. That claims for certain large amounts bor-
rowed from various banks by one of the receivers,
without previous authority of the court, are not
entitled to priority, although they were applied to-
ward the payment of the proper expenses of the
receivership.

20. That eight receiver's notes aggregating a large
amount, although representing, in the main at
least, proper expenses of the receivership, are not
entitled to priority, the receiver having borrowed
the money for which they were given without pre-
vious authority of the court,

21. That claims for rent and extraordinary de-
preciation of rolling stock, right of way and cer-
tain other claims, are not entitled to priority.

22. That, with the exception of debts for taxes and
receiver's certificates issued to pay taxes, there
should be no priority or preference among the
various debts and claims allowed precedence over
the mortgage bonds of any road, notwithstanding
certain orders made by the court below.

Union Trust Co. v. Ill. Midland R. Co., 963
35. No costs are allowed in this court for or against
any party, and the expense of printing the record
is to be borne equally by certain of the appellants.

963

federal courts. The company is a necessary party
although the citizen of the other State raises a
separate issue as to the validity of the proceedings
under which said sale was had.

and several cause of action, does not create a sepa-
rate controversy so as to entitle him to removal
under the Act of 1875.

Idem,

388

66

States.

Idem,

St. Louis & S. F. R. Co. v. Wilson,
21. The decision of the questions whether the
5.JA petition, showing a right to removal, signed City of New York has, under its charter, the exclu-
by plaintiff's attorneys, and not sworn to, but ac- sive right to establish ferries between Manhattan
companied by an affidavit by the plaintiff made Island and the shore of Staten Island on the Kill
prior to the commencement of the suit, will sustain Von Kull; and, if so, whether the defendants have,
a removal of the cause, the affidavit being sufficient in law and in fact, interfered with that right by
under sec. 639, R. S. and the absence of an oath to setting up and operating such a ferry, does not de-
the petition being an informality which the defend-pend on the Constitution or the laws of the United
ant waived by not taking the objection on a motion
to remand.
388
Canal and Cl. St. R. R. Co. v. Hart, 226 22. In a suit to foreclose a mortgage under the
6. In a suit in a court of New York against a cor- Connecticut statute brought against the grantee
poration of that State upon a judgment recovered of the mortgagor, the latter is an indispensable
in the Circuit Court of the United States for the party where it is sought to charge him with any in-
Northern District of Ohio, merely alleging in a pe- sufficiency in the appraised value of the property
tition for removal, that the defendant was not an to discharge the debt, and if he and the mortgagee
inhabitant of Ohio, and was not found there, and are citizens of the same State the cause cannot be
was not personally served with process by itself or removed.
its officers, was not sufficient to raise a defense
610
under sec. 739, R. S. of want of jurisdiction in the 23. A joint cause of action cannot be removed by
circuit court, without also negativing service of the defendants unless all join and are citizens of
process on an agent of the defendant in Ohio and different States from the plaintiffs. All are af-
the actual appearance of the defendant to the suit. fected by the loss by one of his right to remove.
Prov. Sav. L. Assur. Soc. v. Ford,
Fletcher v. Hamlet,

Coney v. Winchell,

261
7. Want of jurisdiction set up to avoid a judgment
must be shown with the greatest certainty.

679
24. A suit begun in a state court of Louisiana by
service of process on a firm through one of its mem-
bers, is not so changed in character as to make it a
new suit by subsequent service on another mem-
ber of the firm.

Idem,

Idem,

261
8. The mere fact that a suit in a state court is
brought on a judgment recovered in a federal court
does not entitle the defendant to removal.

Idem,

261

9. The colorable transfer of a right of action from
a person against whom the defendant would have
a right of removal to one against whom he has no
such right, made to deprive the federal court of
jurisdiction is not a ground for removal.

Idem,

261

Union Pac. R. Co. v. Myers,

10. Corporations of the United States are enti-
tled as such to remove into the Circuit Courts of the
United States, suits brought against them in state
courts.
319
11. The Union Pacific Railroad Company and the
Texas Pacific Railway Company are corporations of
the United States though certain state and terri-
torial corporations have been consolidated with
them.
319
12. In proceedings for widening a street a trial
before the mayor is in its nature an inquest of valu-
ations and assessments, not having the character of
a suit, and a petition for removal may be filed after
appeal taken to a state court.

Idem,

Idem,

319
13. Under such proceedings there is a distinct
controversy between the city and the company, al-
though many others are made parties defendant.
Idem,

319
14. A suit brought by citizens of one State
against citizens of the same State and citizens of
another State, is not removable though there be
separate defenses.

Pirie v. Tvedt,

331
15. Where the cause of action is several as well as
Joint, the plaintiff may elect to sue each defendant
separately, or all jointly, and the defendants are
not permitted to object.

Idem,

331

16. The fact that judgment may be rendered
against a part of the defendants only, does not
divide a joint action in tort into separate parts any
more than it does a joint action on contract.
331
17. A suit in equity brought by a citizen of one
State, against a corporation of the same State, and
a citizen of another State, is not removable into the
Circuit Court of the United States under sec. 2 of
the Act of March 3, 1875.

Idem,

Crump v. Thurber,

Stewart v. Dunham,

328
18. After a cause has been properly removed, the
introduction of new parties cannot oust the juris-
diction.
329
19. Where it appears that some title, right, priv-
ilege or immunity on which the recovery depends,
will be defeated by one construction of the Consti-
tution or a law of the United States, or sustained
by the opposite construction, the case is one arising
under the Constitution or laws of the United States.
Starin v. Mayor etc. of N. Y.
388
20. A separate defense by one defendant in a joint
suit against him and others upon a joint or joint

679

25. A suit cannot be removed from a state to a
federal court on the ground of citizenship of par-
ties unless the plaintiff and defendant are citizens
of different States at the time when the suit was
brought as well as at the time when the petition
for removal is filed.

Smith v. Akers,

888

26. Where the Circuit Court has acquired juris.
diction of a cause by removal because of citizenship,
it is not devested by the introduction, under a state
statute, of the defendant's landlord, who is a citi-
zen of the same State as the plaintiff, as a code-
fendant.
888
27. Under sec. 914, R. S., a court of the United
States is not required to conform its practice to
that of the state courts where the effect would be
to defeat its jurisdiction once lawfully attached
under an Act of Congress.
888

Phelps v. Oaks,

Idem,

28. It was proper in this case for the court below
to admit the landlord as codefendant with the ten-
ant, but this did not arrest or interfere with the
jurisdiction already established by the plaintiffs
against the tenant in possession.
883

Idem,

29. Removals of actions from state to federal
courts on the ground of local prejudice can only be
had where all the parties on one side are citizens of
different States from those on the other side.
897

Jefferson v. Driver,

30. A person who purchases property pendente
lite, and who is made a party, comes into the suit
subject to the disabilities of the other parties, in re-
spect to a removal of the cause, at the time he came
in.

Idem,

897
31. A creditor's bill to subject incumbered prop-
erty to the payment of a judgment by sale and dis-
tribution of the proceeds among lien holders ac-
cording to their respective priorities, constitutes
but a single cause of action. Though separate de-
fendants have separate defenses this does not create
separate controversies within the meaning of the
Removal Act.

Fidelity Ins. Trust & Safe Deposit Co. v.
Huntington,
898
32. An action of tort against several defend-
ants for a wrongful seizure of the property of the
plaintiff is not removable, though separate answers
are filed, if a necessary defendant and the plaintiff
are citizens of the same State.

Sloane v. Anderson,

899

33. The right to remove a suit on the ground of
separable controversy is, by the statute, confined to
the parties to that controversy.
Rand v. Walker,

907

RULES.

764

Under the Ohio Code a counterclaim stands on

1. Custody of prisoner on habeas corpus pending the same footing and is to be tested by the same
appeals.
rules as if it were an independent action.
Idem,

764

CRIMINAL LAW, passim.
EVIDENCE, passim.
GARNISHMENT, passim.
GUARDIAN AND WARD, passim.
JURISDICTION, 1-3, 30, 31.
LIMITATIONS, 3, 4, 6, 7.
MORTGAGES, 1, 4, 9, 10, 15.
PRACTICE, 6, 9, 16.

RAILROADS, 9, 10, 15, 16, 18-25, 31, 33.
REMOVAL OF CAUSES, 22, 42.

REPLEVIN, 3.
SET-OFF, 2.

STREETS, 4.
TAXES, 1, 4, 15.

Idem,

449

5. This court cannot consider an objection raised
by the appellee to the decree appealed from.

1. The decision of the Supreme Court of the State,
though single, is entitled to peculiar respect, the
questions involved arising upon the local law of the
State; but it is not conclusive in the courts of the
United States unless it has become a rule of prop-to
erty.
440

Idem,

633

8. Where such rights have accrued before the
state court has announced its construction, the fed-
eral court although leaning to an agreement with
the state court, must determine the question upon
their own independent judgment.

Idem,

633

9. The Act of the Legislature of Illinois of Febru-
ary 28, 1867, is held by this court to be valid as with-
in the principle that the Legislature may, by retro-
active statutes when not restricted by the Constitu-
tion, legalize the unauthorized acts and proceedings
of subordinate municipal agencies, where such acts
and proceedings might have been previously au-
thorized by the Legislature.

Iden

633

STATES.

SEE CONSTITUTIONAL LAW, 5, 8, 10, 17, 33.
STATE LAWS AND DECISIONS, passim.
LANDS, 12, 13.

LIMITATIONS, 1.

RAILROADS, 14, 15.

REMOVAL OF CAUSES, 40.
TAXES, 9.

TERRITORIES, 1.

STATUTES.

SEE CONSTITUTIONAL LAW, 22.

POLYGAMY, 1.

RAILROADS, passim.

A parol agreement that one of the parties to it
shall purchase a tract of land on the best terms pos-
sible, and then convey an interest therein to the
other, is within the Statute of Frauds and cannot
be enforced.

Dunphy r. Ryan,

703

STATUTE OF LIMITATIONS.

Idem,

449
6. Where the liability of a municipal corporation
upon negotiable securities, depends upon a local
statute, the rights of the parties are to be deter-.
mined according to the law as declared by the state
-courts at the time such securities were issued.

Anderson v. Santa Anna,

633

216

7. While the courts of the United States accept
and apply the construction of the courts of a State 3. The said company was not organized under the
of its Constitution and statutes, it is the settled doc-general corporation law of the District of Columbia
trine of this court, that rights accruing under one and it derives no authority under that Act to use
construction will not be lost merely by a change of the streets of the City of Washington.
opinion in the state court.

Idem,

STATE LAWS AND DECISIONS, passim.
UNION PACIFIC RAILWAY COMPANY, passim.

1. In the Revised Statutes, sec. 699 stands separate
from the other parts of the "Civil Rights" Acts, and
is to be construed accordingly, but with reference
to the general rules of interpretation applicable to
the revision.

Bowman v. Chicago & N. W. R. R. Co., 502
2. The Constitution and a statute under it will be
construed together as one law.

Cincinnati, N. O. & T. P. R. Co. v. Kentucky,

414
3. Statutes must be interpreted, if possible, so as
make them consistent with the Constitution and
the paramount law.

Presser v. Illinois,

615

4. Statutes that are constitutional in part only
will be upheld so far as they are not in conflict with
the Constitution, provided the parts are separable.
Idem,

615

5. In construing statutes which are binding on
States as contracts, the words employed, if capable
of more than one meaning, are to be given that
meaning which it is apparent the parties intended
them to have.

Tennessee v. Whitworth,

830

STREETS.

1. The title to the streets of Washington is in the
United States, and the right to use them for any
other than the ordinary use of streets should pro-
ceed from Congress.
216

Edmonds v. Baltimore & P. R. R. Co.,

The Baltimore & Potomac Railroad Company
can occupy only such streets in the City of Wash-
ington as have been expressly designated by Con-
gress for that purpose.

Idem,

216

4. The Maryland charter of the said company does
not confer any power to use the streets of a city as
an incident of its right to run to or from such city.
Idem,

216

LANDS, 22.

LICENSE, passim.
MANDAMUS, 4, 5.

MUNICIPAL CORPORATIONS.
RAILROADS, 25-27, 31, 32, 34.

STATE LAWS AND DECISIONS, 3, 4.

of the Covington & Ohio Railroad Company, granted
1. The exemption from taxation of the property
by the Act of the Legislature of West Virginia of
March 1, 1866, incorporating said company, was a
privilege personal to the corporation, which did not
pass to the purchaser of the property under fore-
closure proceedings.

Chesapeake and O. R. Co. v. Miller,
121
2. Under the Act of the Legislature of West Virgin-
ia of February 18, 1871, amended February 20, 1877,
relating to sales under trust deeds and mortgages,
and to judicial sales of the property of railroad or
other internal improvement companies, the pur-
chaser does not take any exemption or immunity
from taxation which belonged to the old company.
Idem,

121

3. Immunity from taxation is not a franchise.
Idem,

121

poration is taxable notwithstanding the payment | tle of every species of property owned by a territo
by the corporation of a tax on its property situated ry passes to the State upon its admission to the
in the State.
Union.

Sturges v. Carter,

240
5. The law of Louisiana requiring the court, when
rendering a judgment against a parish to order the
levy of a tax to pay it, is properly construed with
reference to the tax limit fixed by the Act of 1872.
Stewart v. Police Jury of Jefferson. 588

6. A judgment creditor, upon a judgment ob-
tained on a contract made subsequent to the pass-
age of the Act of 1872,is not entitled to a mandamus
to compel the levy of a tax in excess of the limit
fixed by that Act.

Idem,

588

7. Land, owned by a religious corporation or so-
ciety in the District of Columbia, which is neither
actually occupied for a church building, nor rea-
sonably needed and actually used for the convenient
enjoyment of such building as a church, is not ex-
empt from taxation, whether used for any other
purpose or not.

Gibbons v. District of Columbia,

680

8. In the exercise of its power to levy taxes in the
District of Columbia for district purposes, Congress
may exempt certain classes of property, or tax
them at different rates.

Idem,

680

9. The right of a State in which personal property
is situated to tax it is not affected by the fact that
the owner resides in another State, which taxes
him for the same property as a part of his general
estate attached to his person.

Coe v. Town of Errol,

715

10. Products of a State, though intended for
port to another State and partially prepared for
that purpose by being deposited at a place or port
of shipment within the State, are liable to be taxed
like other property within the State.
715

Idem,

11. Exportation is not begun until they are com-
mitted to the common carrier for transportation
out of the State to the State of their destination,
or have started on their ultimate passage to that
State. Until that time they are taxable as a part
of the general mass of property in the State, though
they are not taxable as exports.
715

Idem,

12. The carrying of property in carts or vehicles,
or even floating it, to the depot where the journey
is to commence is no part of the journey.

Idem,

715

13. A lawful tender of payment, as well as an actu-
al payment, of taxes deprives the collecting officer
of all authority for further action to enforce pay;
ment, and renders every subsequent step illegal

and void.

Royall v. Virginia,

735

Hagood v. Southern,

14. The taxes of the Blue Ridge Railroad Compa-
ny are not payable in the revenue bond scrip issued
by the State of South Carolina in exchange for the
bonds of the company guarantied by the State.
805
15. The holder of revenue bond scrip, issued un-
der the Act of the Legislature of South Carolina of
March 2, 1872, has no legal right to have such scrip
received for taxes, unless he owes taxes for which
it is receivable. There is no breach of contract
until a tender for taxes due from the holder has
been refused.
Idem,
805
16. The charter exemption from taxation of the
capital stock of the Nashville, Chattanooga & St.
Louis Railroad Company, applies to its shares of
stock in the hands of individual stockholders.
830
17. The capital stock of the Nashville & Decatur
Railroad Company is exempt from taxation in Ten-
nessee, although it resulted from the consolidation
of two corporations of Tennessee with a corpora-
tion of Alabama.
833

Tennessee v. Whitworth,

Tennessee v. Whitworth,
18. The relinquishment of taxing power is never
to be presumed.

Idem,

1. Where the acts or omissions of a trustee are
such as to show a want of reasonable fidelity, a
court of equity will remove him.
Cavender v. Cavender,

212

2. Where trust funds are to be invested by the
ex-breach of trust, and is ground for removal.
trustee, neglect to invest constitutes of itself a
212

Idem,

3. Where one person is to pay and receive the
same money, and nothing remains but to make
proper entries in his accounts, the law will consider
that as done which ought to be done.

Idem,

833

19. Exemption from taxation, being a special priv-
ilege granted by the government to an individual, is
a franchise; and acquiescence by the grantee or
his successors for a long period of time (in this case
sixty years), in the imposition of taxes, raises a pre-
sumption that such franchise has been surren-
dered.

1021

New Jersey v. Wright,
TERRITORIES.

Brown v. Grant,
598
2. Lands conveyed to a territory, "its successors
and assigns forever," and duly accepted as the site
for its capitol, pass to the State when admitted, al-
though the territory may not have occupied them,
there being no condition requiring the erection of
buildings thereon within any specified time.

Idem,

598

3. The question whether the grantor has been de-
prived of his property without due process of law,
is within the jurisdiction of this court.

Idem,

598

TREATIES.

212

4. A demurrer to a bill setting up a trust will not
be sustained on the ground that the nature of the
trust is not sufficiently set forth, when the facts
stated are sufficient, if true, to enable the court to
act intelligently.

Idem,

212

by a trust deed on two lots, the trustee having
5. Where the payee of a promissory note secured
power under the trust deed to sell the lots at private
sale on direction of the payee, accepted the lots in
satisfaction of his debt, which was of thrice their
value, and directed their conveyance in trust for
the children of the maker of the note as a gift to
them, it is held that such conveyance is valid as
against other creditors.

Van Riswick v. Spalding,

913-

UNION PACIFIC RAILWAY COM-
PANY.

1. In a controversy between the Union Pacific
Railway Company and the United States arising un-
der the Act of July 1, 1862, it is immaterial whether
the amount actually found to be due for transpor-
tation of the mails, at fair and reasonable rates of
compensation, not to exceed the amounts paid by
private parties for the same kind of service." as re-
quired by said section, is ascertained upon evi-
dence comparing them with the rates previously
determined and fixed by the company, or with
those allowed by the accounting officers of the gov-
ernment. The only material thing is to adjudge
what is due according to the rule prescribed by the
statute.

Union Pac. R. Co v. United States,
920
2. The bridge of the Union Pacific Railway Com-
pany between Council Bluffs and Omaha is subject
to the provisions of the Act of July 1, 1862, as to the
rates to be paid by the government for transporta-
tion service over it.

Idem,

920

USURY.

1. To constitute usury, there must be an intention
knowingly to contract for or to take usurious inter-
est.

Call v. Palmer,

559

2. When an agent who is authorized by his prin-
cipal to lend money for lawful interest exacts for
his own benefit more than the lawful rate, without
authority or knowledge of his principal, the loan is.
not thereby rendered usurious.

559