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in respect to the pay of naval officers, in the expression found in section 1588 of the Revised Statutes, to-wit, that "the pay of all officers of the navy, who have been retired, * * *shall, when not on active duty, be equal to seventy-five per centum of the sea-pay provided by this chapter for the grade or rank which they held respectively at the time of their retirement." The contention is that by these words congress intended to give, in this roundabout and indirect manner, longevity pay to the retired officers, which, when dealing directly with the subject, it had uniformly refused to give them. To our minds, the section will bear no such construction. Its plain meaning is that the pay of a retired officer shall be three-fourths of the sea-pay to which he was entitled when he was retired. It is contended that, because congress graduated the pay of officers on the active list by the length of their time of service, officers not on the active list are entitled to the same increase. But the contrary is the true construction. By omitting retired officers from the class entitled to longevity pay, congress expressed its purpose not to allow them longevity pay. No other construction can be put upon the law without importing into it words which congress has left out, namely, that, besides the pay to which his grade or rank at the date of his retirement entitled him, the retired officer should also receive, for every period of five years after his retirement, the increased pay allowed officers on the active list. To give the statute this meaning, would be legislation and not interpretation.

The case of United States v. Tyler, 105 U. S. 244, relied on by appellant, brings no support to his suit. The statute allowing longevity pay to officers of the army (section 1262, Rev. St.) declared that there should be allowed and paid to all officers below the rank of brigadier general 10 per cent. of their current yearly pay for every term of five years' service, but it did not restrict the increased pay to officers in active service. The point on which the case turned was the decision of the court, that an officer of the army, though retired, was still in the service, and he was included in the very terms of the statute allowing the increased pay. The statute on which the appellant relies excludes him, by its terms, from its benefits. We are not called on to explain why congress should apply one rule to the officers of the army and another to the officers of the navy. It is sufficient to say that it has clearly done so. If the law is unequal and unjust, the remedy is with congress and

not with the courts.

Judgment atfirmed.

(113 U. S. 316)

BAYLIS, by her Guardian ad litem, etc., v. TRAVELERS' Ins. Co. or
HARTFORD, CONN.

(February 2, 1885.)

PRACTICE-JURY TRIAL-COURT DECIDING QUESTION OF FACT-WAIVER OF JURY. Without a waiver of the right of trial by jury in a United States circuit court, by consent of parties, the court errs if it substitutes itself for the jury, and, passing upon the effect of the evidence, finds the facts involved in the issue and renders judgment thereon; and for such error the judgment will be reversed, and the cause remanded for a new trial. Randall v. Baltimore & O. R. Cb. 109 U. S. 478; S. C. 3 Sup. CT. REP. 322.

In Error to the Circuit Court of the United States for the Eastern District of New York.

John L. Hill, for plaintiff in error. F. E. Mather, for defendant in error. MATTHEWS, J. This was an action brought by the plaintiff in error to recover upon a policy of insurance issued by the defendant, whereby it insured William Edward Parker Baylis, the father of the plaintiff, in the sum of $10,000, to be paid to the plaintiff in case said assured should accidentally sustain bodily injuries which should produce death within 90 days. The complaint alleged that the assured "on or about the twentieth day of November, 1872,

did sustain bodily injuries accidentally, to-wit, in that wholly by accident he took certain drugs and medicines, which, as taken by him, were poisonous and deadly, when, in fact, he intended to take wholly a different thing and in a different manner; and that, in consequence of said accident solely, said assured died on said twentieth day of November, 1872." An issue was made by a denial in the answer of this allegation, so far as it alleged that the poisonous and deadly drugs were taken "accidentally, or by accident, or with the intent, or under the circumstances stated or mentioned in the complaint."

The cause came on for trial by jury, when, as appears by the bill of exceptions, the plaintiff put in evidence the policy of insurance, proved the fact and circumstances of death, and notice thereof to the defendant, and it was conceded that the question of suicide was not raised by the evidence. The testimony being closed, the counsel for the defendant moved to dismiss the complaint on the ground that the evidence was insufficient to sustain a verdict. This motion was denied, and thereupon the plaintiff's counsel insisted "that the evidence presented questions of fact which ought to be submitted to the jury, and asked that the case be submitted to the jury to determine upon the evidence." The bill of exceptions further states that "the court refused to submit the cause to the jury, and the plaintiff's counsel duly excepted." The court then directed the jury to render a verdict for the plaintiff for the full amount claimed, subject to the opinion of the court upon the question whether the facts proved were sufficient to render the defendants liable upon their policy, and the jury accordingly rendered a verdict for the plaintiff for the amount sued for, with interest. The plaintiff moved for judgment upon the verdict, and the defendant moved for judgment in its favor, on the pleadings and minutes of trial. Judgment was accordingly rendered for the defendant upon the opinion of the judge, a copy of which is set out in the record, and is as follows:

"This action is brought upon a policy of insurance against accident, issued by the defendants, whereby they agree to pay to the plaintiff the sum of $10,000, within ninety days after sufficient proof that the insured, William E. P. Baylis, at any time within the continuance of the policy, shall have∞ sustained bodily injuries effected through external, violent, and accidental means, within the intent and meaning of this contract and the conditions hereunto annexed, and such injuries alone shall have occasioned death within ninety days from the happening thereof.' The contract contained the following proviso: provided, that this insurance shall not extend to any death or disability which may have been caused wholly or in part by any surgical operation, or medical or mechanical treatment for disease.' The cause was tried before the court and a jury, when, upon the evidence adduced, a verdict for the plaintiff was directed, subject to the opinion of the court upon the question whether the facts proved were sufficient to render the defendants liable upon their policy. The following are the facts, as derived from the evidence, and in stating them I adopt the conclusions of fact most favorable to the plaintiff that the evidence will permit to be drawn: The insured died on the twentieth of November, 1872. A week or so previous to his death he was suffering from influenza, the result of a cold, and was then treated therefor by his physician. He began to get better, when, on Friday night before his death, he had an attack of cholera morbus, accompanied with convulsions, which seemed to completely shatter his nervous system, and left him in a wholly nervous state. On Monday following he was again better, proposed to go to business, and asked his physician, on account of restlessness, to give him some opiate for a quiet night's sleep. The physician ordered a preparation of opium, and directed him to take twenty drops of it before going to bed. He was at this time taking chloral, under the same medical advice, and the opium was directed to be taken in addition to a prescribed dose of chloral. That night the insured took the prescribed dose of chloral, and, as may be

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inferred from the facts shown, a dose of opium also. There is no direct evi. dence as to the quantity of opium he took, but I shall treat the case as if the evidence respecting the symptoms that followed, and the actions of the insured, was sufficient to warrant a jury in finding that, through inadvertence, the insured took more opium than he intended to take, and such a quantity that his death was caused thereby. It is by no means clear that such finding would be warranted by the evidence given, and it is certain that no conclusion more favorable to the plaintiff can be drawn from the proofs. I am, therefore, to determine whether, as matter of law, such a death is within the scope of the policy sued on. Upon this question my opinion is adverse to the plaintiff. As I view the evidence, the death was caused by medical treatment for disease,' and, if so, it was excepted by the terms of the policy. "The contention in behalf of the plaintiff is that the opium was not administered by the hand of a physician, and, moreover, was not the dose directed by the physician to be taken, but was a dose taken by the insured upon his own judgment, and that these facts take the case out of the exception in the policy. But it must be conceded that the opium which caused the death was taken by the insured with the object of allaying the nervous excitement from which he was suffering. Certainly, then, this was disease. The advice of a physician had been taken as to its cure. It is equally certain that there was a treatment of this disease, for the remedy prescribed by the physician was taken, although in excessive quantity, and the opium taken was so taken because the physician had prescribed it to remedy the disease. The opium was taken with no other object than to effect the result which the physician had advised should be attained by using opium. Under these circumstances the fact that the patient deviated from the direction given by the physician in the matter of amount, and, upon his own judgment, took a larger dose than had been directed, does not change the character of the act. The object of the insured in taking the opium he did, was to cure or else to kill. The facts repel the idea of an intention to kill and prove the intention to cure. Death caused by such an act, done with such an intent, is, in my opinion, a death caused wholly or in part by medical treatment for disease, and, therefore, is not covered by the policy. I am also of the opinion that the facts do not disclose a case of bodily injury effected through external, violent, and accidental means,' occasioning death, within the meaning of the policy. I do not consider that violence can fairly be said to be an ingredient in the act of taking a dose of medicine, although the medicine be destructive in its action and death the result. These considerations compel to a denial of the motion for judgment in favor of the plaintiff, and a direction that judgment for the defendants be entered.".

*

To which ruling and conclusion the plaintiff duly excepted.

If, after the plaintiff's case had been closed, the court had directed a verdict for the defendant on the ground that the evidence, with all inferences that the jury could justifiably draw from it, was insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, it would have followed a practice sanctioned by repeated decisions of this court. Rundall v. Baltimore & O. R. Co. 109 U. S. 478; S. C. 3 SUP. CT. REP. 322, and cases there cited. And, in that event, the plaintiff, having duly excepted to the ruling in a bill of exceptions, setting out all the evidence, upon a writ of error, would have been entitled to the judgment of this court, whether, as a matter of law, the ruling against him was erroneous. Or, if in the present case, a verdict having been taken for the plaintiff by direction of the court, subject to its opinion whether the evidence was sufficient to sustain it, the court had subsequently granted a motion on behalf of the defendant for a new trial, and set aside the verdict, on the ground of the insufficiency of the evidence, it would have followed a common practice, in respect to which error could not have been alleged, or it might, with propriety, have reserved the

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question, what judgment should be rendered, and in favor of what party, upon an agreed statement of facts, and afterwards rendered judgment upon its conclusions of law. But, without a waiver of the right of trial by jury, by consent of parties, the court errs if it substitutes itself for the jury, and, passing upon the effect of the evidence, finds the facts involved in the issue, and renders judgment thereon.

This is what was done in the present case. It may be that the conclusions of fact reached and stated by the court are correct, and, when properly ascertained, that they require such a judgment as was rendered. That is a question not before us. The plaintiff in error complains that he was entitled to have the evidence submitted to the jury, and to the benefit of such conclusions of fact as it might justifiably have drawn; a right he demanded and did not waive; and that he has been deprived of it, by the act of the court, in entering a judgment against him on its own view of the evidence, without the intervention of a jury. In this particular, we think error has been well assigned.

The right of trial by jury in the courts of the United States is expressly secured by the seventh article of amendment to the constitution, and congress has, by statute, provided for the trial of issues of fact in civil cases by the court without the intervention of a jury, only when the parties waive their right to a jury by a stipulation in writing. Rev. St. §§ 648, 649. This constitutional right this court has always guarded with jealousy, Doe v. Grymes, 1 Pet. 469; D' Wolf v. Rabaud, Id. 476; Castle v. Bullard, 23 How. 172; Hodges v. Easton, 106 U. S. 408; S. C. 1 SUP. CT. REP. 307.

For error in this particular the judgment is reversed, and the cause is remanded, with directions to grant a new trial.

(113 U. S. 302)

STONE v. CHISOLм and others.

(February 2, 1885.)

CORPORATION-DIRECTORS-THEIR LIABILITY, HOW ENFORced-Statutes of South Caro

LINA.

Under the statutes of South Carolina, the liability imposed upon the directors of a corporation can be enforced by a single aggrieved creditor only in a court of equity.

In Error to the Circuit Court of the United States for the District of South Carolina.

W. E. Earle, for plaintiff in error. Theo. G. Barker and James Lowndes, for defendants in error.

MATTHEWS, J. This is a writ of error prosecuted to reverse a judgment of the circuit court for the district of South Carolina, dismissing the complaint in which the plaintiff asked for a recovery for the sum of $1,050, with interest from July 1, 1883. The jurisdiction of this court depends upon and is limited by a certificate of division of opinion between the circuit and district judges before whom the case was tried, and is confined to the single question so certified, whether the remedy of the plaintiff below was by an action at law or by a suit in equity. The allegations of the complaint are as follows:

“(1) That the plaintiff, Roy Stone, is a citizen of the state of New York.

“(2) That the plainants, Robert de Chiszem, Samu of York, L

66

D. Mowry, Alfred Ravenel, and Sallie E. Conner as executrix of James Conner, deceased, are citizens of the state of South Carolina.

"(3) That heretofore, to-wit, on the February, 1881, the Marine & River Phosphate Mining & Manufacturing Company of South Carolina was a corporation under the laws of the state of South Carolina, with a paid-up capital stock of fifty thousand dollars, and no more; that said company was, by the terms v.5s-32

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of the charter, authorized to increase its capital stock, in the manner provided by law, to an amount not exceeding two hundred and fifty thousand dollars, and, by an act amendatory of its charter passed December, 1882, the said company was further authorized to increase its capital stock to an amount not exceeding four hundred thousand dollars in the whole, inclusive of the stock then existing; that the company did, from time to time, between the said February, 1881, and twenty-first of March, 1883, increase its capital stock to the sum of three hundred thousand dollars; that is to say, scrip for shares of capital stock to the par value of three hundred thousand dollars were issued; but, as the plaintiff is informed and believes, and so alleges and charges, of the additional amount of stock issued after February, 1881, only the sum of twenty-five thousand dollars, or thereabouts, was ever actually paid in; making the entire aggregate of capital stock actually paid in not to exceed, in all, the sum of seventy-five thousand dollars.

-

"(4) That by an act amendatory of its charter, passed twenty-first December, 1882, the name of said Marine & River Phosphate Mining & Manufacturing Company was changed to the Marine & River Phosphate Company.

"(5) That on the twenty-first day of March, 1883, the said Robert G. Chisolm, Samuel Lord, A. Canale, L. D. Mowry, Alfred*Ravenel, and James Conner were directors of said company; that thereafter, to-wit, July, 1883, the said James Conner departed this life, leaving a last will, whereof he appointed his wife, Sallie E. Conner, executrix, who has duly qualified thereon. "(6) That on said twenty-first March, 1883, the said Marine & River Phosphate Company was indebted in an amount not less in the aggregate than seventy-five thousand dollars.

"(7) That on said twenty-first March, 1883, in the administration of the aforesaid directors, there were issued the following bonds, being a debt contracted by the said company additional to the debt existing as aforesaid, towit: Sixty bonds or obligations of said company, bearing date the twentyfirst day of March, 1883, and each conditioned for the payment to bearer of the sum of five hundred dollars on the first day of January, 1893, with intererest thereon, payable semi-annually, at the rate of seven per cent. per annum on the presentment of the interest coupons therefor, attached to said bonds, and payable on the first days of July and January of each year; that an interest coupon for the sum of $17.50 became due on each of said bonds on the first day of July last past, and the same were, at maturity, duly presented for payment and payment refused, and no part of the same has been paid.

"(8) That plaintiff is the lawful owner and holder of said bonds and coupons.

"(9) That the said bonds, so conditioned, for the aggregate sum of thirty thousand dollars, was in addition to the debt already existing as aforesaid, and constituted an indebtedness in excess of the capital stock of said company actually paid in as aforesaid.

"(10) That by the 1367th section of the General Statutes of the state of South Carolina, and by the provisions of an act of the said state, approved tenth December, 1869, entitled 'An act to regulate the formation of corporations,' (under which act the said Marine & River Phosphate Mining & Manufacturing Company of South Carolina was incorporated,) and by sundry other laws of said state, the said defendants are jointly and severally liable to the plaintiff for the payment of the said bonds and coupons.

"(11) That the said Marine & River Phosphate Company is totally insolvent; that all its property is mortgaged to an extent far in excess of its value; that, as plaintiff is advised, its property, consisting of personalty so mortgaged, is not subject to levy under execution; and that, even if it were, plaintiff alleges and charges that there is no unincumbered property of said company subject to levy, and that judgment and execution would be wholly nu