observed in the trial of the suit brought against the collector. The uniform course of legislation and practice, in regard both to the mode of selection of the merchant appraiser and as to the conclusive effect of the appraisal, are entitled to great weight. Stuart v. Laird, 1 Cranch, 299, 309; Martin v. Hunter's Lessee, 1 Wheat. 304, 352; Cohens v. Virginia, 6 Wheat. 264, 418, 421; Cooley v. Board, etc., 12 How. 299, 315; Lithographic Co. v. Sarony, 111 U. S. 53, 57, 4 Sup. Ct. Rep. 279; The Laura, 114 U. S. 411, 416, 5 Sup. Ct. Rep. 881.

The plaintiffs complain of the exclusion, as evidence, of a paper, Exhibit No. 14, being a report received by the collector at New York from the United States consul at Horgen, in Switzerland, dated February 25, 1886, and purporting to be a memorandum made by one Schmid, a government silk expert, concerning certain undervaluations of merchandise covered by invoices of goods to C. A. Auffmordt & Co. which embraced the goods in question. The paper was excluded by the court on the objection of the defendant that it was immaterial and irrelevant, and the plaintiffs excepted. It does not appear that the paper was used upon either of the appraisals, and, if it had been, it would have been proper to use it, as advising the officers of the government of the cost of the goods in question. It was properly excluded. The other questions discussed at the bar have been fully considered, but it is not considered necessary to comment on them. Judgment affirmed.

GENERAL REGULATIONS OF 1884, REFERRED TO IN THE OPINION OF THE COURT.

"Art. 459. It is lawful for the appraisers, or the collector and naval officer, as the case may be, to call before them and examine, upon oath or affirmation, any owner, importer, consignee, or other person, touching any matter or thing which they may deem material in ascertaining the true market value or wholesale price of merchandise imported, and to require the production, on oath or affirmation, to the collector, or to any permanent appraiser, of any letters, accounts, or invoices in his possession relating to the same, for which purpose they are authorized to administer oaths and affirmations. Such persons are not entitled to compensation. Section 335. And all testimony in writing or depositions thus taken will be filed in the collector's office, preserved for future use or reference, and transmitted to the secretary of the treasury whenever he may require the same."

Article 462 provides for the giving of a written notice by the collector to the importer of any addition to value made and certified by the appraisers, and provides for the form of such notice.

"Art. 463. If the importer be dissatisfied with the appraisement, he may, if he has complied with the legal requirements, give notice of such dissatisfaction in writing to the collector. This notice must be given in all cases within 24 hours, or before the end of the official day after the day on which the collector gave the notice prescribed in the foregoing article, and may be in the following form, (Rev. St. § 2930:)

"Form No. 102.

Articles 464 and 465 provide for a special report of the local appraisers to be made after such notice claiming a reappraisement is given.

"Merchant Appraisers.

"Art. 466. On the receipt of this report, the collector will select one discreet and experienced merchant, a citizen of the United States, familiar with the character and value of the goods in question, to be associated with an appraiser at large, if the attendance of such officer be practicable, to examine and appraise the same according to law. Rev. St. § 2930. The selection of merchant appraisers should not be confined exclusively to those connected with foreign imports, but, when the requisite knowledge exists, should be extended so as to embrace domestic manufactures and producers, and other citizens acting as merchants, although not dealing in foreign merchandise. Section 6111. The merchant thus selected will be notified by the collector of his appointment, and of the time and place of the re-examination. The appraiser at large will be notified of the appeal, of the time fixed for reappraisement, and of the name of the merchant appraiser. The importer will be notified of the time and place, but not of the name of the merchant selected to assist in the reappraisement. If the attendance of an appraiser at large be impracticable, the collector will select an additional merchant, qualified as aforesaid, for the performance of the service.

"Art. 467. The notice of the appointment of the merchant appraiser will be in the following form: "Form No. 104.

"Appointment of Merchant Appraiser.
"Custom-House
"Collector's Office,

18-.

"Sir: You are hereby appointed to appraise which has been entered at this port, the importer having requested a new appraisement thereof in accordance with the provisions of the several acts of congress providing for and regu lating the appraisement of imported merchandise and you are requested to appear at o'clock on the day of said goods pursuant to law.

at 18-, to appraise th

"Before entering upon the duty indicted ir. the above appointment you will please call at this office to take the requisite oath.

"Very respectfully,

ས་To

Merchant.'

Collector.

"Art. 468. The oath to be taken by the merchant appraiser will be in the following form:

"Form No. 105.

"Oath of Merchant Appraiser.

"I, the undersigned, appointed by the collector imported per

of from

to appraise

-, the importer having requested a new appraisement thereof in accordance with law, do hereby solemnly swear diligently and faithfully to examine and inspect said lot of , and truly to report, to the best of my knowledge and belief, the actual market value or wholesale price thereof at the period of the exportation of the same to the United States, in the principal markets of the country from which the same was imported into the United States, in conformity with the provis ions of the several acts of congress providing for and regulating the appraisement of imported merchandise. ས‘Port of

"Sworn to and subscribed before me this day of

18-.

Collector.' "Samples, etc., to be Sent to Reappraisers. "Art. 469. At the time fixed for reappraisement the collector will send to the appraiser at large and merchant appraiser the invoice or invoices of the merchandise to be examined and appraised. Tho store-keeper, or other officer having charge, will deliver to them the samples or packages ordered for examination, and they will proceed to examine and appraise in the manner pointed out by law. The importer or his agent will be allowed to be present, and to offer such explanations and statements as may be pertinent to the case. The valuation having been determined, the appraisers will report the same to the collector. "

Article 472 provides for a compensation of five

dollars a day to the merchant appraiser, while so employed, to ne paid by the party taking the appeal.

"Art. 474. Merchants' appraisements should not assume the nature of a judicial inquiry where judgment is rendered in accordance with the preponderance of testimony on either side, but should be conducted as an investigation by experts, to ascertain whether the local appraiser has reported the true and proper market value of the merchandise in question. Section 2655. Application for copies of proceedings on reappraisements should be made to the general appraiser, who will exercise his discretion in regard to furnishing the same.

"Art. 475. It shall be the duty of the appraisers of the United States, and every of them, and every person who shall act as such appraiser, or of the collector and naval officer, as the case may be, by all reasonable ways and means in his or their power, to ascertain, estimate, and appraise the true and actual market value and wholesale price, any invoice or affidavit thereto to the contrary notwithstanding, of the merchandise at the time of exportation, and in the principal markets of the country whence the same has been imported into the United States, and the number of such yards, parcels, or quantities, and such actual market value or wholesale price of every of them, as the case may require."

"Art. 479. The appraisers or the collector and naval officer, as the case may be, may call before them and examine, upon oath, any owner, importer, consignee, or other person, touching any matter or thing which they may deem material in ascertaining the true market value or wholesale price of any merchandise imported, and require the production, on oath, to the collector, or to any permanent appraiser, of any letters, accounts, or invoices in his possession relating to the same. All testimony in writing, or depositions taken by virtue of this section, shall be filed in the collector's office, and preserved for future use or reference, to be transmitted to the secretary of the treasury when he shall require the same. Rev. St. § 2922." "Art. 1407. In cases of appeal, general appraisers shall pursue their inquiry into the question of the actual character and dutiable value of the goods under re-examination in such manner as they may deem most conducive to a just and equitable determination of the question. It is expected that they will arrive at that conclusion from their own knowledge and judgments, as experts, in substantially the same manner as in the case of original appraisements. See Article 474, § 2655."

"Art. 1409. As the examinations of appraisers are made the basis of the general classification of Importations for the imposition and assessment of duty, it becomes necessary that appraisers shall closely inspect the articles ordered for appraisement, and where they retain doubts concerning the quality or denomination of articles they shall submit samples thereof, with their opinions, to collectors, for transmission, in case of disagreement, to the secretary of the treasury. Rev. St. $2949.

"Art. 1410. Appraisers must rigidly exclude unauthorized persons from the rooms where goods are awaiting, or are under examination for appraisement, and forbid their subordinates to hold Communication with interested persons concerning the goods under appraisement. Rev. St. § 2949. "

"Art. 1416. Appraisers are, in cases of reappraisement, to give courteous and due attention to explanations and statements of importers, in person or by representative, relating to the subjectmatter under examination, but they are to limit the privilege so accorded to one person in each single case of reappraisement, to receive only statements of fact, to require all facts to be stated concisely, and not argumentatively, and to pursue their inquiry into the question of the actual character and dutiable value of the goods under re-examination in such manner as they deem most conducive to a just and equitable determination of the question. Merchant appraisers appointed in cases of appeal from the decisions of the customs appraisers are also to be governed by this article. "

From the instructions of June 9, 1885: "The law of reappraisement is precisely the same as that of original appraisement, and there is no authority or justification for the system, which it appears has grown up in your office, of treating a reappraisement as in the nature of a trial in a court of law, wherein the reappraising officers sit as judges, and render decisions according to the preponderance of testimony adduced. The law provides that the merchant appraiser shall be familiar with the character and value of the goods in question, and it is presumed that the general appraiser will have or will acquire such expert knowledge of the goods he is to appraise as to enable him to intelligently perform his official duty with a due regard for the rights of all parties and independently of the testimony of interested witnesses. The functions of the reappraising board are the same as those of the original appraisers. They are themselves to appraise the goods, and not to depend for their information upon the appraisement of so-called 'experts' in the line of the goods in question. I am informed that it is the practice to hold reappraisements on certain days of the week, within the hours of twelve and three, and that, owing to the number of appeals pending, two or more cases are often heard at the same time by different merchant appraisers, all acting in conjunction with the general appraiser: that importers and witnesses are permitted to throng the general appraiser's office, in whose presence the conclusions of the appraising board are often announced; and that, if such conclusions are not satisfactory to the importer, he is allowed to protest and reargue the case, with a view to a modification of the finding, in which he is often successful. It is plain that all this is a wide departure from the methods of reappraisement contemplated by the law and regulations, and must necessarily result in injury to the revenue, and general demoralization among officials and importers. The local appraisers are expected to do their full duty in ascertaining, estimating, and appraising the true and actual market value or wholesale price of imported merchandise at the time of exportation, and in the principal markets of the country whence the same has been imported. When appeals are taken from the valuation so found it is expected that the general appraiser and merchant appraiser selected to act with him will reappraise the merchandise in substantially the same manner as is pursued on original appraisement. Section 2922 of the Revised Statutes authorizes appraisers to call before them and examine under oath any owner, importer, consignee, or other person, touching anything which they may deem material in ascertaining the true market value or wholesale price of any merchandise imported. It is by this law that appraisers are authorized to summon witnesses, but there is no authority for the public examination of such witnesses, or their cross-examination by importers, or counsel employed by such importers. The appraising officers are entitled to all information obtainable concerning the foreign market value of goods under consideration, but such information is not public property. It is due to merchants and others called to give such information that their statements shall be taken in the presence of official persons only. It must often occur that persons in possession of facts which would be of value to the appraisers in determining market values are deterred from appearing or testifying, by the publicity given to reappraisement proceedings. Article 1416 of the regulations enjoins appraisers to give courteous and due attention to the explanations and statements of importers, in person or by representative, relating to the subject-matter under investigation, but they are to limit the privilege so accorded to one person in each single case of reappraisement, to receive only statements of fact, and to require all facts to be stated concisely and not argumentatively. This regulation has been so construed that attorneys at law and custom-house brokers have appeared and acted as representatives of the importer on reappraisement. Such a construction is erroneous. The representative of the importer in such cases should be his employe

or salesman, some person belonging to his house familiar with the facts touching the subject-matter under consideration. There is no office here for the lawyer or custom-house broker, and such persons, as well as all others not officially called before the appraisers, should be excluded. This department expects that all appraising officers, including the general appraisers, will co-operate in all proper measures for the suppression of undervaluations, and be just and uniform in the appraisement of imported merchandise, to the end that the tariff laws may be strictly enforced, and fair and honorable merchants protected from loss by the dishonest practices of unscrupulous importers."

*

From the instructions of June 10, 1885: "Experts have been employed at several of the foreign consulates, for the purpose of enabling the consul to obtain and transmit to appraisers information as to cost of producing silks and other merchandise, so that these officers would have the means of ascertaining the cost or value of the materials composing such merchandise, together with the expense of manufacturing, preparing, and putting up such merchandise for shipment. The law (section 2902, Rev. St.) makes it your duty to ascertain, estimate, and appraise the true and actual market value and wholesale price of the merchandise at the time of exportation, and in the principal markets of the country whence the same has been imported into the United States; and, when it appears that such true and actual market value cannot be ascertained to your satisfaction, you are to ascertain the cost of production, pursuant to the ninth section of the act of 1883, referred to, and in no case to appraise the goods at less than the cost so ascertained. These statutes are plain, and the appraising officers must comply with and enforce them."

Plaintiff filed his bill against the administrator of his former partner alleging that on dissolution the latter assumed the firm debts and agreed to save plaintiff harmless, but that plaintiff had been compelled to pay certain of such debts. Defendant pleaded the discharge in bankruptcy of his intestate, and also the statute of limitations. The supreme court of the state affirmed the judgment of the trial court for defendant, but filed no written opinion. Plaintiff took the case on error to the supreme court of the United States, but failed to procure the certificate of the state supreme court that it had been disposed of by the decision of the federal question involved. The bill was not filed within six years after the breach of the contract, as required by Code Tenn. 1884, § 3472, nor within two years and six months after letters of administration were issued to defendant, as required by sections 3117, 3454, plaintiff being a resident of Tennessee. Held that, as it does not appear that the decision is erroneous if based on the defense of the statute of limitations, it is not shown that the decision of the federal question was necessary and the writ of error to the supreme court of the state will be dismissed.

In error to the supreme court of the state of Tennessee.

This was a bill filed in the chancery court of Shelby county, Tenn., on October 28, 1885, by John Johnson against Thomas L. Risk, L. Tiff Risk, John D. Milburn, H. C. Warriner, Eben L. Risk, a minor, and his guardian, Alice H. Risk, all residing in Shelby county, and Frank L. Duncan and Jennie, his wife, residing in Cincinnati, Ohio. The bill averred that the complainant and one E. F. Risk, since deceased, were copartners in the city of Memphis, under the styles of Johnson, Risk & Co.,

and Risk & Johnson, doing a foundry and also a mercantile business; and that on the 1st day of February, 1875, the firms were dissolved, and, for $10,000 paid to complainant, he sold and conveyed to Risk his undivided half of the real estate, and also his interest in the machinery, tools, and stock of every kind, belonging to said firms, reserving their bills receivable, bookaccounts, and debts due them, which were to remain the joint property of Risk and complainant, but were to be collected by Risk and by him accounted for to complainant, in the proportion of one-half to complainant, and the other to Risk, "in the manner set forth in the deed of bargain and sale executed at the time, and a copy of which is filed with and is a part of this bill, and marked 'Exhibit A.'" It was further averred that "one condition, of the said sale was that the said E. F. Risk assumed the payment of each and all the debts and liabilities of every kind whatever of each and both of the said firms of Johnson, Risk & Co. and Risk & Johnson, and bound and obligated himself to pay the same and protect and keep the said Johnson harmless from the pay. ment of any part thereof. The bill then stated that among the liabilities of the firms so assumed by Risk was one to his son L. Tiff Risk, who declined to sue his father for the debt, notwithstanding he knew of the contract "by which his father had gotten all the assets of the said firms, and had agreed to pay all their debts and liabilities," but brought suit therefor against the complainant alone in the circuit court of Shelby county, and recovered a judgment therein, April 22, 1878, for $1,260.87, and costs; that E. F. Risk never at any time paid any part of this judgment, and on the 27th of August, 1885, the complainant paid L. Tiff Risk $1,000 in satisfaction thereof, by giving him his note for $150 due at four months, and another of the same date for $850 due at six months, with indorsers; and that no part of said sum had been repaid complainant, but the whole remained due and unpaid. Complainant further stated that on the 11th of July, 1878, E. F. Risk filed his petition in bankruptcy in the district court of the United States for the district of West Tennessee, under and in compliance with the act of congress, entitled "An act to establish a uniform system of bankruptcy throughout the United States," approved on the 3d day of March, 1867, and in such petition asked to be discharged from all his debts and liabilities then existing; that subsequently, on the 20th of December, 1878, a discharge was granted him by the court aforesaid, in manner and form as declared in said act; that E. F. Risk died intestate in Shelby county, Tenn., on the 20th of June, 1882, without ever having paid any part of the debt to L. Tiff Risk, on which the latter had recovered judgment against complainant; that on the 27th of June, 1882, letters of administration on his estate were granted by the probate court of Shelby county to the defendant Thomas L. Risk, who was qualified and became the administrator and executed a bond as such, conditioned according to law, with the defendants

John D. Milburn and* L. Tiff Risk as his sureties; that the administrator, on the 21st of August, 1882, filed an inventory of the assets of the estate, showing certain cash on hand, and giving a list of personal property on which no value was set; that, on the 27th of September, 1882, the said Thomas L. Risk, as such administrator, filed in the probate court his final settlement of the estate of E. F. Risk, without giving the prescribed statutory notice to creditors and others interested in said estate; and that on the same day an order was entered confirming the settlement and discharging Thomas L. Risk as administrator, canceling his bond, and releasing his sureties from further liability. Upon this settlement it was shown by the administrator that the personalty had been disposed of, and that the whole amount with which he should be charged was $1,028.49; and he also showed the debts paid, the expenses of administration, and the sum remaining for distribution, and credited himself with the sums paid the distributees of E. F. Risk, deceased, being as follows: To Mrs. Jennie Duncan, to L. Tiff Risk, to Alice H. Risk as guardian of Eben L. Risk, grandson of E. F. Risk, deceased, and himself, $202.56 each.

Complainant averred that Thomas L. Risk made the payments to the distributees without taking any refunding bond as required by the statute, and in his own wrong and without the authority of law, and that he and his sureties on his administration bond are now liable to complainant on account of the matters set out in the bill for the full amount of said payments and interest thereon until paid. Complainant further showed that on December 1, 1883, Thomas L. Risk was appointed by the probate court administrator de bonis non of the estate of E. F. Risk, deceased, and at that time gave a bond as such administrator, with defendants L. Tiff Risk and H. C. Warriner as sureties, and thereupon qualified and had since continued to be such administrator, but had filed no inventory of the assets of said estate since his appointment, and had taken no steps in the administration, so far as the complainant knew or believed. The bill then proceeded: "Upon the state of facts aforesaid the plaintiff submits that the discharge in bankruptcy of the said E. F. Risk did not discharge | him or his assets from liability to the plaintiff on the contract of indemnity, a copy of which is marked 'Exhibit A,' and a part of this bill, but such liability remains upon his estate, and the said Thomas L. Risk,as administrator thercof, personally, as if no discharge in bankruptcy had been granted; and the plaintiff further submits that the said distributees to whom the said Thomas L. Risk distributed the sums aforesaid in the manner aforesaid, to-wit, [naming them,] are liable, and are bound by law to refund and pay the said sums so distributed to them, respectively, in order that the same may be applied towards the payment of the demand herein set up by the plaintiff against the estate of the said E. F. Risk, deceased, and the said Thomas L. Risk, as administra

tor." The bill prayed process, and that on the final hearing complainant might have a decree against the defendants and each of them, or such of them as were liable, jointly or severally, for the sums they respectively owed him, and for general relief.

Exhibit A attached to the bill bore date February 1, 1875, and recited that in consideration of $10,000 the receipt of which was thereby acknowledged, and the further consideration thereinafter mentioned, Johnson had that day bargained, sold, and conveyed to E. F. Risk his undivided half or moiety of a certain parcel of land as described, (upon which the firm's foundry building was located,) together with all the tools and machinery of every sort and kind whatever, then on said lot or in said foundry, and then continued: “This instrument further witnesseth that the firms of Johnson, Risk & Co. and of Risk & Johnson are this day dissolved, the said Johnson selling all his interest in the machinery, tools, and stock of every kind on hand belonging to both firms, to the said E. F. Risk, and part of the consideration for said sale and the above conveyance is that the said Risk assumes payment of each and all the debts and liabilities of every kind whatsoever of each and both of said firms, and binds and obligates himself to pay the same and protect and keep said Johnson harmless from the payment of any part thereof;" and it is then provided that the bills receivable, etc., shall be collected by E. F. Risk, and divided as* fast as practicable between himself and Johnson, less necessary costs and charges, one-half to each; that $150 shall be paid to Johnson in cash at the end of each and every month, and whenever the monthly collections amount to $1,000, or more, in excess of the monthly payment of $150 to Johnson, and a like amount retained by Risk, then Risk was to execute his note to Johnson for one-half of said collections, payable eight months after date, with interest. It was further provided that Johnson should retain a lien upon the real estate and machinery conveyed, Risk acknowledging the same, "together with a lien, equal to and like a mortgage upon his other undivided half of said foundry property, both land and machinery, to secure to Johnson the faithful performance of the undertaking herein made by the said Risk, which are that he will pay over to Johnson at the end of each month $150; one-half of all other collections eight months after they are made, with interest thereon at 8 per cent per annum; and pay all the debts outstanding owing by the said two firms or either of them." And, "in the event that Johnson should have to pay any of said debts or be sued thereon, or should not be paid his half of the collections made as stipulated above, then he may proceed forthwith to enforce the liens herein retained and granted by proper proceeding therefor." To this bill Thomas L. Risk in his own right, and as administrator de bonis non of E. F. Risk, deceased, John D. Milburn and H. C. Warriner demurred, assigning as grounds that E. F. Risk was released from the debt sued for by his discharge in bankruptcy, granted

on the 20th of December, 1878, on his petition in bankruptcy filed on the 11th of July 1878; and also that the supposed cause of action was barred by the statute of limitations of two years and six months from the grant of letters of administration, June 27, 1882; and also that the cause of action did not accrue within six years next before the bringing of the suit, and was therefore barred; and a special ground as to Warriner. L. Tiff Risk filed his separate demurrer assigning the same causes. The chancellor sustained the demurrers and dismissed the bill, and* complainant prayed an appeal to the supreme court of the state, which, on the 28th of April, 1887, affirmed the decree. Complainant then sued out this writ of error.

66

The following are sections of the Code of Tennessee of 1884, the numbers being given of that and the preceding edition: 3087, (2249.) That all creditors may be duly apprised of the death of any person indebted to them, the executor or administrator of the deceased shall, within two months after qualification, advertise at the court-house of the county where the deceased usually dwelt at the time of his death, and other public places in the county, for all persons to bring to him their accounts and demands." 3112, (2274.) Executors and administrators shall have six months from the date of their qualification to ascertain the situation of the deceased's estate, and to arrange and settle it, without being liable to suit and costs; and all suits commenced within that period may be abated and dismissed at the plaintiff's cost, except suits brought by sureties of the deceased, which may be brought without delay. "3117, (2279.) The creditors of deceased persons, if they reside within this state, shall, within two years, and if without, shall within three years, from the qualification of the executor or administrator, exhibit to them their accounts, debts, and claims, and make demand, and bring suit for the recovery thereof, or be forever barred in law and equity." "3222, (2377.) Creditors whose debts are not due shall be under the same obligation to present their claims as those whose debts are due, and, upon failure to do so, shall be barred in like manner; but a creditor shall not be bound to present his claim before due, except where the estate is represented to be insolvent as herein provided." 3454, (2760.) The time between the death of a person and the grant of letters testamentary, or of administration on his estate, not exceeding six months, and the six months within which a personal representative is exempt from suit, is not to be taken as a part of the time limited for commencing actions which lie against the personal representative." “3466, (2769.) All civil actions, other than those for causes embraced in the foregoing article, shall be commenced after the cause of action has accrued, within the periods prescribed in this chapter, unless otherwise expressly provided.' "3472, (2775.) Actions for the use and occupation of land, and for rent; actions against the sureties of guardians, executors and administrators, sheriffs, clerks, and other public officers, for nonfeasance, misfeav.lls.c.-8

66

"

sance, and malfeasance in office; actions on contracts not otherwise expressly provided for, within six years after the cause of action accrued. "3481, (2784.) Actions against the personal representatives of a deceased person shall be commenced by a resident of the state within two years, and by a non-resident within three years, after the qualification of the personal representative, if the cause of action accrued in the life-time of the deceased, or, otherwise, from the time the cause of action accrued."

W. M. Randolph, for plaintiff in error. B. M. Estes, for defendant in error.

Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.

The defendant below demurred upon two general grounds, one of which in. volved the construction of the provisions of the bankrupt act of March 2, 1867, and the other, the bar of the statutes of limitation of the state of Tennessee. So far as we are advised, no opinion was given by the supreme court of that state, upon rendering the judgment of affirmance, and the record discloses no specific statement of the ground upon which the court proceeded. Inasmuch as one of the defenses called for the construction and application of a state statute in a matter purely local, in respect to which great weight, if not conclusive effect, should be given to the decis ions of the highest court of the state. (Gormley v. Clark, 134 U. S. 338, 348, 10 Sup. Ct. Rep. 554,) the plaintiff in error, if he wished to claim that this cause was disposed of by the decision of a federal question, should have obtained the certificate of the supreme court to that effect, or the assertion in the judgment that such was the fact.

In De Saussure v. Gaillard, 127 U. S. 216, 8 Sup. Ct. Rep. 1053, the general rule is stated that, to give this court jurisdiction of a writ of error to a state court, "it must appear affirmatively, not only that a federal question was presented for decision to the highest court of the state having jurisdiction, but that its decision was necessary to the determination of the cause, and that it was actually decided, or that the judgment as rendered could not have been given without deciding it." Where there is a federal question, but the case may have been disposed of on some other independent ground, and it does not appear on which of the two grounds the judgment was based, then if the independent ground was not a good and valid one, sufficient of itself to sustain the judginent, this court will take jurisdiction of the case, because, when put to inference as to what points the state court decided, we ought not to assume that it proceeded on ground clearly untenable. Klinger v. Missouri, 13 Wall. 257. But where a defense is distinct. ly made, resting on local statutes, we should not, in order to reach a federal question, resort to critical conjecture as to the action of the court in the disposition of such defense. Was the defense of the statute of limitations so palpably unfounded that we must presume that the state court overruled it? The decisions