as it may be fairly presumed, the will of the testator before him, he undertook to set out in his answer, under oath, the provisions of the will in respect to the trust estate and trust in question. There is no pretense that any material word or clause, in relation to the subject of the trust, was omitted from the answer. It is, therefore, too late for the defendant, on final hearing in the appellate court, to object that the provisions of the will were not fully set out in the bill of complaint. If there was any defect in the statement made in the bill, it was rendered immaterial by the statements of the answer, and is not now ground of complaint. Greenleaf's Lessee v. Birth, 5 Pet. 131.

A similar assignment of error to that just noticed is that the court erred in removing the appellee from his office of trustee without having before it the will or declaration of trust for interpretation. But it is clear that a defendant to a bill in equity, who states in his answer under oath the provisions of a writing which is presumed to be in his possession, cannot complain that the court acted upon his admission. The court might in its discretion have refused to interpret the writing without its production. But having acted upon the presumption that the defendant in his answer stated truly the contents of the writing, the latter cannot, on the ground that the writing itself was not put in evidence, ask a reversal of the decree. Courts of equity are frequently required to act on the admissions of the answer without other proof. Thus, when a cause is heard upon bill and answer, the decree is based entirely on the admissions of the answer without other testimony. Reynolds v. Crawfordsville B ink, 112 U.S. 405; S. C., ante, 213; Brinckerhoff v. Brown, 7 Johns. Ch. 217; Grosvenor v. Cartwright, 2 Cas. Ch. 21; Perkins v. Nichols, 11 Allen, 542. At all events, it does not lie in the mouth of a defendant in equity to complain that the court assumed his answer made under oath to be true and decreed accordingly.

•

The next assignment of error is that the decree rendered by the circuit. court is not justified by the law. The decree rests solely on the ground alleged in the bill, of neglect of duty and mismanagement of the trust property. If these grounds are sustained by the proof, the authorities are ample to justify the decree of removal. For, where the acts or omissions of the trustee are such as to show a want of reasonable fidelity, a court of equity will remove him. Ex parte Phelps, 9 Mod. 357; Mayor of Coventry v. Attorney General, 7 Brown P. C. 235; Attorney General v. Drummond, 1 Dru. & W. 353; Attorney General v. Shore, 7 Sim. 309n; Ex parte Greenhouse, 1 Madd. 92; Ex parte Reynolds, 5 Ves. 707; Clemens v. Caldwell, 7 B. Mon. 171; Johnson's Appeal, 9 Pa. St. 416; Ex parte Potts, 1 Ash. 340; Buchanan v. Hamilton, 5 Ves. 722; Ellison v. Ellison, 6 Ves. 663; Portsmouth v. Fellows, 5 Madd. 450; Lathrop v. Smalley's Ex'r, 23 N. J. Eq. 192; Hussey v. Coffin, 1 Allen, 354; Attorney General v. Garrison, 101 Mass. 223.

The averments of the bill sufficiently charge and the proofs establish neglect of duty and mismanagement of the trust estate. The charge of the bill, which is distinctly admitted by the answer, is that the probate court found in the hands of the appellant, executor of John Cavender, as due and belonging to said trust estate, the sum of $17,169.49, and ordered him to pay over that sum to himself, as trustee. The averment of the bill is sufficient to charge, and the admission of the answer sufficient to prove, the receipt by the defendant, as trustee, of the sum of money mentioned. They are conclusive evidence of the fact; for when one person is to pay money and receive the same money, and nothing remains but to enter receipts and payments in their proper accounts accordingly, the law will consider that as done which ought to be done. Thus, where a sole executor sustains the twofold character of executor and guardian, the law will adjudge the ward's proportion of the property in his hands to be in his hands in the capacity of guardian, after the time limited by law for the settlement of the estate, whether the final account has been passed by the orphans' court or not. Watkins v. State, 2 Gill. & J.

$478

220. So, where the same person is executor of an estate and guardian of a distributee, and there is nothing to show in which capacity*he holds funds after payment of debts and settlement of the estate, he shall be presumed to hold them as guardian. State v. Hearst, 12 Mo. 365. See, also, Johnson v. Johnson, 2 Hill, (S. C. Ch.) 277; Karr's Adm'r v. Karr, 6 Dana, 3. But the proof that the trust fund came to the hands of the trustee does not stop with the order and decree of the probate court finding the money in his hands as executor, and directing its payment to himself as trustee; for it appears that he made and filed in the probate court his receipt, as trustee, for the fund, and upon the strength of that receipt procured his discharge as executor. The record of the probate court, put in evidence, shows these facts. We have, therefore, the admission of record of the appellant, upon which the court of probate acted at his instance, and upon the strength of which it made an order relieving him from liability as executor, and it is binding on him, and he cannot be heard in any controversy with the appellee to deny his admission that the fund came to his hands.

It remains to inquire whether the proof sustains the charge of neglect of duty and mismanagement of the trust funds. Having taken possession of the trust moneys, it became the duty of the appellant to invest them as directed by the will, if it were possible to do so. The proof shows that it was possible. The appellant admits, under oath, that he has made no investments of the trust assets, and placed no funds in securities of any sort, or in bank, and set aside no annuities for the benefit of the cestui que trust or the trust estate. His own admissions show neglect of duty and mismanagement of the trust estate. The neglect to invest constitutes of itself a breach of trust, and is ground for removal. Clemens v. Caldwell, 7 B. Mon. 174; Lathrop v. Smalley's Ex'rs, 23 N. J. Eq. 192.

The only defense set up in the answer of the appellant is a denial that he ever gave a receipt as trustee, or that he had been discharged as executor by the probate court, or that the trust fund ever came to his hands. As the facts thus denied are conclusively established by the evidence, the denial is an aggravation of the misconduct of the appellant. A trustee, into whose hands trust assets are shown to have come, who not only fails to discharge any duty of the trust, but even denies that he has ever received the property, cannot successfully resist an application made to a court of equity for his reinoval.

The counsel for appellant say that they regret that the pleadings and evidence do not permit a full presentation of the case upon its merits. We cannot act on this vague intimatiou. There may be facts not disclosed which, if shown by the record, would entirely change the aspect of the case. But we must try the case as the record reveals it. Upon the cause, as presented, with no explanation vouchsafed by the appellant, it is difficult to conceive of a clearer case for the removal of a trustee and the appointment of another in his stead.

Decree aflirmed.

(114 U. S. 474)

BURTON v. WEST JERSEY FERRY CO.

(April 20, 1885.)

1. PRACTICE-GENERAL EXCEPTION TO CHARGE.

A general exception to the charge to a jury does not direct the attention of the court to the particular portions of it to which the plaintiff objected. It therefore raises no question for review.

2. FERRY COMPANY-NEGLIGENCE-EVIDENCE-FAILURE TO PROVIDE SEAT FOR PASSEN

GER.

Mere failure of a ferry company to provide a seat for a passenger on its boat, is, in law and of itself, no proof of negligence.

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

The plaintiff in error, who was plaintiff below, took passage at Camden,. New Jersey, for Philadelphia, on a ferry-boat belonging to the defendant, a New Jersey corporation engaged in the business of transporting passengers, animals, and vehicles across the Delaware between those cities. On that trip the boat was unusually crowded with passengers. The river at the time was very full of ice, and it was diflicult for the boat to get across and enter the ferry-slip on the Philadelphia side. The wharf on that side was reached only. after repeated efforts. In the attempt to land the boat was driven against the bridge with such force as to throw the plaintiff and a number of other persons (all of whom were standing during the passage across the river) with great violence upon the floor. The fall caused serious and perhaps permanent injury to the plaintiff. In this action she claims damages from the defendant upon the ground that her injuries resulted from the careless and negligent management of the ferry-boat by its agents and servants. The plaintiff made a case entitling her to go to the jury upon the issue as to the defendant's negligence. But there was also proof tending to show that the striking of the boat against the wharf on the Philadelphia side occurred under peculiar circumstances, and could not, perhaps, have been avoided by any diligence upon the part of the agents of the defendant. When the evidence was concluded, and after the parties submitted their requests for instructions, the court delivered its charge upon the whole case, reading to the jury the instructions asked by either party that were approved, and accompanying them with such observations, by way of explanation or qualification, as it deemed necessary.

The third and fourth points submitted in behalf of plaintiff were overruled. They were as follows: "Third. If the jury believe from the evidence that the, defendants received the plaintiff as a passenger, and that they failed to provide her with a seat, or that she was unable to obtain a seat by reason of the crowded condition of the boat, and while standing in the cabin she was, without any fault of her own, thrown down and injured by a sudden shock to the boat, then the defendants are guilty of negligence, and your verdict should be for the plaintiff. Fourth. If the jury believe from the evidence that the defendants received the plaintiff, a woman 67 years of age, as a passenger, and that they failed to provide her with a seat, or that she was unable to obtain a seat by reason of the crowded condition of the boat, and, while standing in the cabin, she was, without any fault of her own, thrown down and injured by a sudden shock to the boat, then the defendants were guilty of negligence, and your verdict should be for the plaintiff."

At the conclusion of the charge, the plaintiff, by counsel, excepted to the overruling of her third and fourth points, and also to "the charge and opinion" of the court. No other exceptions were taken.

ror.

Jerome Carty, B. Frank Clapp, and Mayer Suetzberger, for plaintiff in erSaml. Dickson and Richd. C. Dale, for defendant in error. Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court:

1. The general exception to the charge did not direct the attention of the court to the particular portions of it to which the plaintiff objected. It therefore raises no question for review by this court. Connecticut Life Ins. Co. v. Union Trust Co. 112 U. S. 250, 261; S. C., ante, 119, and authorities there cited.

475

2. The only question for determination relates to the refusal of the court to instruct the jury as indicated by the third and fourth points of the plaintiff, which involve, substantially, the same proposition. Those points were properly overruled. Under the theory of the case which they present, the jury-although the sudden shock to the boat, from which plaintiff's injuries v.58--61

*330

immediately resulted, may have occurred without want of care or skill upon the part of the defendant's servants-would have been required to find for the plaintiff, if the defendant failed to provide her with a seat, or if she was unable, by reason of the crowded condition of the boat, to obtain one. In other words, that the mere failure of the company to provide a seat for a passenger on its boat was, in law, and of itself, proof of negligence. It appeared in evidence that the boat was provided with seats; but it did not appear that a less number was provided than was customary and sufficient for those who ordinarily preferred to be seated while crossing in ferry-boats between Camden and Philadelphia. No circumstances were disclosed that would have justified the jury in finding that a proper degree of care upon the part of defendant required it to provide seats sufficient for the accommodation of all the passengers that its boat could safely carry, or of such number of passengers as ordinarily traveled upon it.

The judgment is affirmed.

(114 U. S. 270)

POINDEXTER v. GREENHOW, Treasurer. etc.

In Error to the Hustings Court of the City of Richmond, State of Virginia.

WHITE . SAME.

CARTER v. SAME.

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

ALLEN, Auditor, etc., and others v. BALTIMORE & O. R. Co. Appeal from the Circuit Court of the United States for the Western District of Virginia.

PLEASANTS v. GREENHOW, Treasurer, etc.

Appeal from the Circuit Court of the United States for the Eastern District of Virginia. CHAFFIN v. Taylor.

In Error to the Supreme Court of Appeals of the State of Virginia.

MARYE, Auditor, etc., and others v. PARSONS.

Appeal from the Circuit Court of the United States for the Eastern District of Virginia.

(April 20, 1885.)

For majority opinions in above cases see ante, 903, 923, 924, 925, 928, 931, 932. *BRADLEY, J., dissenting. The chief justice, and Justices MILLER, GRAY, and myself, dissent from the opinions and judgments of the majority of the court in which they sustain the claims of the holders of coupons against the state of Virginia, and I have been requested to state the grounds on which our dissent is based. And, first, those which apply to the case of the Baltimore & Ohio Railroad Company. This company is a corporation of the state of Maryland, and operates, as lessee, certain railroads situated in Virginia. It filed a bill in equity in the circuit court of the United States for the Western district of Virginia, alleging a tender of coupons in payment of the taxes due upon the railroads in its possession, and praying for a decree declaring that such tender (with a deposit of the coupons in court) amounted to payment, and that the proceedings of the auditor in imposing a penal assessment for pretended non-payment of the taxes were void, and that an injunction be issued to restrain the treasurer from seizing or selling any of the property of the company for the said taxes.

The fundamental ground of our dissent is that this proceeding, and all the

other proceedings on these coupons brought here for our review, are virtually suits against the state of Virginia to compel a specific performance by the state of her agreement to receive the said coupons in payment of all taxes, dues, and demands. However just such a proceeding may seem in the abstract, or however willing courts might be to sustain it if it were constitutional, yet, looking at the case as it really is, we regard it as directly repugnant to the eleventh amendment of the constitution, which declares that "the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against any one of the United States by citizens of another state, or by citizens or subjects of any foreign state."

The counsel for the bondholders press upon our attention that provision of the constitution which declares that no state shall pass any law impairing the obligation of a contract, and insist that the laws passed by the legislature of Virginia forbidding the receipt of coupons for taxes, since the passage of the act of 1871 by which they were made receivable, are unconstitutional and absolutely void, and that no officer or tax collector of the state is bound to regard, but, on the contrary, each is bound to disregard them. So that we have one provision of the constitution set up against the other, and are asked to enforce that relating to contracts by regarding the individual officers as the real parties proceeded against, and ignoring the fact that, in the matter of receiving coupons in payment of taxes, the officers only represent the state. By this technical device it is supposed that the eleventh amendment may be evaded. In our opinion this is not a sound or fair interpretation of the constitution. If the contract clause and the eleventh amendment come into conflict, the latter has paramount force. It was adopted as an amendment to the constitution, and operates as an amendment of every part of the constitution to which it is at any time found to be repugnant. Every amendment of a law or constitution revokes, alters, or adds something. It is the last declared will of the law-maker, and has paramount force and effect. The states became dissatisfied with certain parts of the constitution as construed by the courts, whereby, in a manner not anticipated, they were subjected to be dragged into court like a common delinquent at the suit of individuals. They demanded that this should be changed, and it was changed by the eleventh amendment. The language of the constitution was not changed, but it became subject and subordinate to the paramount declaration of the amendment. The constitution still declares that no state shall pass any law impairing the obligation of a contract; but the effect of the amendment is that. even if a state should pass a law impairing the validity of its own contract, no redress can be had for the enforcement thereof against the state in the federal courts. In other words, in consequence of the amendment, no state can be coerced into a fulfillment of its contracts or other obligations to individuals by the instrumentality of the federal judiciary. It is true, it cannot proceed against them contrary to its contract; but, on the other hand, it cannot be proceeded against on its contract. All those who deal with a state have full notice of this fundamental condition. They know, or are bound to know, that they must depend upon the faith of the state for the performance of its contracts, just as if no federal constitution existed, and cannot resort to compulsion unless the state chooses to permit itself to be sued.

Moreover, the eleventh amendment is not intended as a mere formula of words, to be slurred over by subtle methods of interpretation, so as to give it a literal compliance, without regarding its substantial meaning and purpose. It is a grave and solemn condition, exacted by sovereign states, for the purpose of preserving and vindicating their sovereign right to deal with their creditors and others propounding claims against them, according to their own views of what may be required by public faith and the necessities of the body politic. We have no right, if we were disposed, to fritter away the substanra