in Kentucky v. Dennison, 24 How. 66 [16:717], | ican ship and a French transport; and Mr. Jus where the State of Kentucky, by her governor, tice Bradley, delivering the judgment of this [289] applied to this court in the exercise of its orig- court sustaining the suit, said: "A foreign sovinal jurisdiction for a writ of mandamus to the ereign, as well as any other foreign person, Governor of Ohio to compel him to surrender a who has a demand of a civil nature against any fugitive from justice, this court, while holding person here, may prosecute it in our courts." that the case was a controversy between two P. 167 [130]. The case of The King of Spain States, decided that it had no authority to grant v. Oliver, although a suit to recover duties imthe writ. And in New Hampshire v. Louisiana, posed by the revenue laws of Spain, was not and New York v. Louisiana, 108 U. S. 76 [27: founded upon those laws, or brought against a 656], it was adjudged that a State, to whom, person who had broken them, but was in the pursuant to her statutes, some of her citizens, nature of an action of assumpsit against other holding bonds of another State, had assigned persons alleged to be bound by their own conthem in order to enable her to sue on and col- tract to pay the duties; and the action failed belect them for the benefit of the assignors, could cause no express or implied contract of the denot maintain a suit against the other State in fendants was proved. Pet. C. C. 286–290. this court. See also Cherokee Nation v. Georgia, 5 Pet. 1, 20, 28, 51, 75 [8:25, 32, 34, 43, 51]. In South Carolina v. Georgia, 93 U. S. 4 [23: 782], this court, speaking by Mr. Justice Strong, left the question open, whether "a State, when suing in this court for the prevention of a nuisance in a navigable river of the United States, must not aver and show that it will sustain some special and peculiar injury therefrom, such as would enable a private person to maintain a similar action in another court;" and dismissed the bill, because no unlawful obstruction of navigation was proved. P. 14 [785]. As to "controversies between a State and the citizens of another State:" The object of vesting in the courts of the United States jurisdiction of suits by one State against the citizens of another was to enable such controversies to be determined by a national tribunal, and thereby to avoid the partiality, or suspicion of partiality, | which might exist if the plaintiff State were compelled to resort to the courts of the State of which the defendants were citizens. Federalist, No. 80; Chief Justice Jay, in Chisholm v. Georgia, 2 Dall. 419, 475 [1:440, 464]; Story, Const. § 1638, 1682. The grant is of "judicial power," and was not intended to confer upon the courts of the United States jurisdiction of a suit or prosecution by the one State, of such a nature that it could not, on the settled principles of public and international law, be entertained by the judiciary of the other State at all. By the law of England and of the United States, the penal laws of a country do not reach [290] beyond its own territory, except when extended by express treaty or statute to offenses committed abroad by its own citizens; and they must be administered in its own courts only, and cannot be enforced by the courts of another country. Wheat. Internat. L. 8th ed. §§ 113, 121. Chief Justice Marshall stated the rule in the most condensed form, as an incontrovertible maxim: "The courts of no country execute the penal laws of another." The Antelope, 10 Wheat. 66, 123 [6:288, 282]. The only cases in which the courts of the United States have entertained suits by a foreign State have been to enforce demands of a strictly civil nature. The Sapphire, 11 Wall. 164 [20:127]; King of Spain v. Oliver, 2 Wash. 429, and Pet. C. C. 217, 276. The case of The Sapphire was a libel in admiralty, filed by the late Emperor of the French, and prosecuted by the French Republic after his deposition, to recover damages for a collision between an Amer The rule that the courts of no country execute the penal laws of another applies not only to prosecutions and sentences for crimes and misdemeanors, but to all suits in favor of the State for the recovery of pecuniary penalties for any violation of statutes for the protection of its revenue, or other municipal laws, and to all judgments for such penalties. If this were not so, all that would be necessary to give ubiquitous effect to a penal law would be to put the claim for a penalty into the shape of a judgment. Whart. Confl. L. § 833; Westlake, Internat. L. 1st ed. § 388; Piggott, Foreign Judg. 209, 210. Lord Kames, in his Principles of Equity, cited and approved by Mr. Justice Story in his Commentaries on the Conflict of Laws, after having said, "The proper place for punishment is where the crime is committed, and no society takes concern in any crime but what is hurtful to itself;" and recognizing the duty to enforce foreign judgments or decrees for civil debts or damages, adds: "But this includes not a decree deceruing for a penalty; because no court reckons itself bound to punish, or to concur in punishing, any delict committed extra territo rium." 2 Kames, Equity, 3d ed. 326, 366; Story, Conf. L. §§ 600, 622. It is true that if the prosecution in the courts of one country for a violation of its municipal law is in rem, to obtain a forfeiture of specific property within its jurisdiction, a judgment of forfeiture, rendered after due notice, and vesting the title of the property in the State, will be recognized and upheld in the courts of any other country in which the title to the property is brought in issue. Rose v. Himely, 4 Cranch, 241 [2:608]; Hudson v. Guestier, Id. 293 [2: 625]; Bradstreet v. Neptune Ins. Co. 3 Sumn. 600, 605; Piggott, Foreign Judg. 264. But the recognition of a vested title in property is quite different from the enforcement of a claim for a pecuniary penalty. In the one case, a complete title in the property has been acquired by the foreign judgment; in the other, further judicial action is sought to compel the payment by the defendant to the plaintiff of money in which the plaintiff has not as yet acquired any specific right. The application of the rule to the courts of the several States and of the United States is not affected by the provisions of the Constitution and of the Act of Congress, by which the judgments of the courts of any Štate are to have such faith and credit given to them in every court within the United States as they have by law or usage in the State in which [291] 292] [293] they were rendered. Const. art. 4, sec. 1; Act May 26, 1790, chap. 11, 1 Stat. at L. 122; Rev. Stat. § 905. Those provisions establish a rule of evidence, rather than of jurisdiction. While they make the record of a judgment, rendered after due notice in one State, conclusive evidence in the courts of another State, or of the United States, of the matter adjudged, they do not affect the jurisdiction, either of the court in which the judgment is rendered, or of the court in which it is offered in evidence. Judgments recovered in one State of the Union, when proved in the courts of another government, whether State or national, within the United States, differ from judgments recovered in a foreign country in no other respect than in not being re-examinable on their merits, nor impeachable for fraud in obtaining them, if rendered by a court having jurisdiction of the cause and of the parties. Hanley v. Donoghue, 116 U. S. 1, 4 [29:535, 536.] In the words of Mr. Justice Story, cited and approved by Mr. Justice Bradley speaking for this court, "The Constitution did not mean to confer any new power upon the States, but simply to regulate the effect of their acknowledged jurisdiction over persons and things within their territory. It did not make the judgments of other States domestic judgments to all intents and purposes, but only gave a general validity, faith and credit to them as evidence. No execution can issue upon such judgments without a new suit in the tribunals of other States. And they enjoy not the right of priority or lien which they have in the State where they are pronounced, but that only which the lex fori gives to them by its own laws in their character of foreign judgments." Story, Conf. L. § 609; Thompson v. Whitman, 18 Wall. 457, 462, 463 [21: 897, 899.] A judgment recovered in one State, as was said by Mr. Justice Wayne, delivering an earlier judgment of this court, "does not carry with it, into another State, the efficacy of a judgment upon property or persons, to be enforced by execution. To give it the force of a judgment in another State, it must be made a judgment there; and can only be executed in the latter as its laws may permit." Mc Elmoyle v. Cohen, 13 Pet. 312, 325 [10: 177, 183.] The essential nature and real foundation of a cause of action are not changed by recovering judgment upon it; and the technical rules, which regard the original claim as merged in the judgment, and the judgment as implying a promise by the defendant to pay it, do not preclude a court, to which a judgment is presented for affirmative action (while it cannot go behind the judgment for the purpose of examining into the validity of the claim), from ascertaining whether the claim is really one of such a nature that the court is authorized to enforce it. Louisiana v. New Orleans, 109 U. S. 285, 288, 291 [27: 936-938]; Louisiana v. St. Martin's Parish, 111 U. S. 716 [29: 574]; Chase v. Curtis, 113 U. S. 452, 464 [28: 1038, 1042]; Boynton v. Ball, 121 U. S. 457, 466 [30: 985, 986]. The only cases cited in the learned argument | for the plaintiff, which tend to support the view that the courts of one State will maintain an action upon a judgment rendered in another State for a penalty incurred by a violation of her municipal laws, are Spencer v. Brockway, 1 Ohio, 259, in which an action was sustained in Ohio upon a judgment rendered in Connecticut upon a forfeited recognizance to answer for a violation of the penal laws of that State: Healy v. Root, 11 Pick. 389, in which an action was sustained in Massachusetts upon a judg ment rendered in Pennsylvania in a qui tam action on a penal statute for usury; and Indi ana v. Helmer, 21 Iowa, 370, in which an action by the State of Indiana was sustained in the courts of Iowa upon a judgment rendered in Indiana in a prosecution for the maintenance of a bastard child. The decision in each of those cases appears to have been mainly based upon the supposed effect of the provisions of the Constitution and the Act of Congress as to the faith and credit due to a judgment rendered in another State, which had not then received a full exposition from this court; and the other reasons assigned are not such as to induce us to accept those decisions as satisfactory precedents to guide our judgment in the present case. From the first organization of the courts of the United States, nearly a century ago, it has always been assumed that the original jurisdiction of this court over controversies between a State and citizens of another State, or of a foreign country, does not extend to a suit by a [294] State to recover penalties for a breach of her own municipal law. This is shown both by the nature of the cases in which relief has been granted or sought, and by Acts of Congress and opinions of this court more directly bearing upon the question. The earliest controversy in this court, so far as appears by the reports of its decisions, in which a State was the plaintiff, is that of Georgia v. Brailsford. At February Term, 1792, the State of Georgia filed in this court a bill in equity against Brailsford, Powell and Hopton, British merchants and copartners, alleging that on August 4, 1782, during the Revolutionary War, the State of Georgia enacted a law, confiscating to the State all the property within it (including debts due to British merchants or others residing in Great Britain) of persons who had been declared guilty or convicted, in one or other of the United States, of offenses which induced a like confiscation of their property within the States of which they were citizens; and also sequestering, and directing to be collected for the benefit of the State, all debts due to merchants or others residing in Great Britain, and confiscating to the State all the property belonging and debts due to subjects of Great Britain; and that by the operation of this law all the debts due from citizens of Georgia to persons who had been subjected to the penalties of confiscation in other States, and of British merchants and others residing in Great Britain, and of all other British subjects, were vested in the State of Georgia. The bill further alleged that one Spalding, a citizen of Georgia, was indebted to the defendants upon a bond, which by virtue of this law was transferred from the obligees and vested in the State; that Brailsford was a citizen of Great Britain, and resided there from 1767 till after the passing of the law, and that Hopton's and Powell's property (debts excepted) had been its sovereignty. It asks from the court a proconfiscated by Acts of the Legislature of South | tection of its property on the same ground and Carolina; that Brailsford, Hopton and Powell to the same extent as a corporation or individhad brought an action and recovered judg- ual may ask it." 13 How. 560, 561 [14: 266, ment against Spalding upon this bond, and had 267.] So Chief Justice Taney, who dissented taken out execution against him, in the Circuit from the judgment, said: "She proceeds, and Court of the United States for the District of is entitled to proceed, only for the private and [295] Georgia, and that the parties to that action had particular injury to her property which this confederated together to defraud the State. public nuisance has occasioned." Id. 589 [279.] Upon the filing of the bill, this court, without And Mr. Justice Daniel, the other dissenting expressing any opinion upon the merits of the judge, took the same view. Id. 596 [282]. case, granted a temporary injunction to stay the money in the hands of the marshal of the circuit court, until the title to the bond as between the State of Georgia and the defendants could be tried. 2 Dall. 402 [1: 433]. At February Terin, 1793, upon a motion to dissolve that injunction, this court held that if the State of Georgia had the title in the debt (upon which no opinion was then expressed) she had an adequate remedy.at law, by action upon the bond; but, in order that the money might be kept for the party to whom it belonged, ordered the injunction to be continued till the next term, and if Georgia should not then have instituted her action at common law, to be dissolved. 2 Dall. 415 [1: 438]. Such an action was brought accordingly, and was tried by a jury at the bar of this court at February Term, 1794, when the court was of opinion, and so charged the jury, that the Act of the State of Georgia did not vest the title in the debt in the State at the time of passing it, and that by the terms of the Act the debt was not confiscated, but only sequestered, and the right of the obligees to recover it revived on the treaty of peace; and the jury returned a verdict for the defendants. 3 Dall. 1 [1:483.] It thus appears that in Georgia v. Brailsford the State did not sue for a penalty, or upon a judgment for a penalty, imposed by her municipal law, but to assert a title, claimed to have absolutely vested in her, not under an ordinary act of municipal legislation, but by an act of war, done by the State of Georgia as one of the United States (the Congress of which had not then been vested with the power of legislating to that effect) to assist them against their common enemy by confiscating the property of his subjects; and that the only point decided by this court, except as to matters of procedure, was that the title had not vested in the State of Georgia by the act in question. In Pennsylvania v. Wheeling & B. Bridge Co. 54 U. S. 13 How. 518 [14: 249], this court, upon a bill in equity by the State of Pennsylvania against a corporation of Virginia, ordered the [296] taking down or heightening of a bridge built by the defendant over the Ohio River, under a statute of Virginia, which the court held to have obstructed the navigation of the river, in violation of a compact of the State, confirmed by Act of Congress. P. 561 [267]. See also Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1, 15, 16 [31: 629, 634, 635.] All the judges who took part in the decision in the Wheeling Bridge Case treated the suit as brought to protect the property of the State of Pennsylvania. Mr. Justice McLean, delivering the opinion of the majority of the court, said: "In the present case, the State of Pennsylvania claims nothing connected with the exercise of Mississippi v. Johnson, 4 Wall. 475 [18:437], and Georgia v. Stanton, 6 Wall. 50 [18:721], were cases of unsuccessful attempts by a State, by a bill in equity against the President or the Secretary of War, described as a citizen of another State, to induce this court to restrain the defendant from executing, in the course of his official duty, an Act of Congress alleged to unconstitutionally affect the political rights of the State. Texas v. White, 7 Wall. 700 [19:227]; Florida v. Anderson, 91 U. S. 667 [23:290], and Alabama v. Burr, 115 U. S. 413 [29:435], were suits to protect rights of property of the State. In Texas v. White the bill was maintained to assert the title of the State of Texas to bonds belonging to her, and held by the defendants, citizens of other States, under an unlawful negotiation and transfer of the bonds. In Florida v. Anderson the suit concerned the title to a railroad, and was maintained because the State of Florida was the holder of bonds secured by a statutory lien upon the road, and had an interest in an internal improvement fund pledged to secure the payment of those bonds. In Alabama v. Burr the object of the suit was to indemnify the State of Alabama against a pecuniary liability which she alleged that she had incurred by reason of fraudulent acts of the defendants; and upon the facts of the case the bill was not maintained. In Pennsylvania v. Quicksilver Min. Co. 10 Wall. 553 [19:998], an action brought in this court by the State of Pennsylvania was dismissed for want of jurisdiction, without considering the nature of the claim, because the record did not show that the defendant was a corporation created by another State. In Wisconsin v. Duluth, 96 U. S. 379 [24:668], the bill sought to restrain the improvement of a harbor on Lake Superior, according to a system adopted and put in execution under authority of Congress, and was for that reason dismissed, without considering the general question whether a State, in order to maintain a suit in this court, must have some proprietary interest that has been affected by the defendant. The cases heretofore decided by this court in the exercise of its original jurisdiction have been referred to, not as fixing the outermost limit of that jurisdiction, but as showing that the jurisdiction has never been exercised, or even invoked, in any case resembling the case at bar. The position that the jurisdiction conferred by the Constitution upon this court, in cases to which a State is a party, is limited to controversies of a civil nature, does not depend upon mere inference from the want of any precedent to the contrary, but has express legislative and judicial sanction. [297 The soundness of the definition, given in the Judiciary Act of 1789, of the cases coming within the original jurisdiction of this court by reason of a State being a party, as controversies of a civil nature," was again recognized by this court in Rhode Island v. Massachusetts, decided at January Term, 1838. 12 Pet. 657, 722, 731 [9:1233, 1259, 1263]. Wis. By the Judiciary Act of September 24, 1789, | supreme court cannot take original jurisdicchap. 20, 13, it was enacted that "the supreme tion." Pp. 398, 399 [289, 290]. court shall have exclusive jurisdiction of controversies of a civil nature, where a State is a party, except between a State and its citizens; and except also between a State and citizens of other States, or aliens, in which latter case it shall have original but not exclusive jurisdiction." 1 Stat. at L. 80. That Act, which has continued in force ever since, and is embodied in § 687 of the Revised Statutes, was passed by The statute of Wisconsin, under which the the first Congress assembled under the Consti-State recovered in one of her own courts the tution, many of whose members had taken part judgment now and here sued on, was in the in framing that instrument, and is contempo- strictest sense a penal statute, imposing a penraneous and weighty evidence of its true mean-alty upon any insurance company of another ing. Ames v. Kansas, 111 U. S. 449, 463, 464 State, doing business in the State of Wisconsin [28:482, 488]. without having deposited with the proper offi298] In Chisholm v. Georgia, 2 Dall. 419 [1:440], cer of the State a full statement of its property decided at August Term, 1793, in which the and business during the previous year. judges delivered their opinions seriatim, Mr. Rev. Stat. § 1920. The cause of action was not Justice Iredell, who spoke first, after citing the any private injury, but solely the offense comprovisions of the original Constitution, and of mitted against the State by violating her law. 13 of the Judiciary Act of 1789, said: "The The prosecution was in the name of the State, Constitution is particular in expressing the par- and the whole penalty, when recovered, would ties who may be the objects of the jurisdiction accrue to the State, and be paid, one half into in any of these cases, but, in respect to the sub- her treasury, and the other half to her insurance ject matter upon which such jurisdiction is to commissioner, who pays all expenses of prosbe exercised, uses the word 'controversies' only. ecuting for and collecting such forfeitures. The Act of Congress more particularly men- Wis. Stat. 1885, chap. 395. The real nature of tions civil controversies, a qualification of the the case is not affected by the forms provided general word in the Constitution, which I do by the law of the State for the punishment of not doubt every reasonable man will think was the offense. It is immaterial whether, by the well warranted, for it cannot be presumed that law of Wisconsin, the prosecution must be by the general word 'controversies' was intended indictment or by action; or whether, under that to include any proceedings that relate to crim- law, a judgment there obtained for the penalty inal cases, which, in all instances that respect might be enforced by execution, by scire facias, the same government only, are uniformly con- or by a new suit. In whatever form the State sidered of a local nature, and to be decided by pursues her right to punish the offense against its particular laws." Pp. 431, 432 [445]. her sovereignty, every step of the proceeding None of the other judges suggested any doubt tends to one end, the compelling the offender to upon this point; and Chief Justice Jay, in sum- pay a pecuniary fine by way of punishment for ming up the various classes of cases to which the offense. the judicial power of the United States extends, used demands" (a word quite inappropriate to designate criminal or penal proceedings) as including everything that a State could prosecute against citizens of another State in a national court. P. 475 [464]. [299] This court, therefore, cannot entertain an original action to compel the defendant to pay to the State of Wisconsin a sum of money in satisfaction of the judgment for that fine. The original jurisdiction of this court is conferred by the Constitution, without limit of the amount in controversy, and Congress has never imposed (if indeed it could impose) any such limit. If this court has original jurisdiction of the present case, it must follow that any action upon a judgment obtained by a State in her own courts against a citizen of another State for the recovery of any sum of money, however small, by way of a fine for any offense, however petty, against her laws, could be brought in the first instance in the Supreme Court of the United States. That cannot have been the intention of the Convention in framing, or of the people in adopting, the Federal Constitution. In Cohens v. Virginia, 6 Wheat. 264 [5:257], Judgment for the defendant on the demurrer. [300] ARKANSAS VALLEY SMELTING COM- [379] v. BELDEN MINING COMPANY. (See S. C. Reporter's ed. 379-390.) when not assignable-contract to deliver 1. Rights arising out of contract cannot be transferred if they are coupled with liabilities, or if they involve a relation of personal confidence such that the party whose agreement conferred those rights must have intended them to be exercised only by him in whom he actually confided. 2. A contract by a mining company, to deliver lead ore from its mines, the ore to be assayed, after delivery, by the parties and, if they could not agree, by an umpire, and the price to be ascertained and paid according to the result of the assay, no security being given for payment except the character and solvency of the parties to whom the ore was to be delivered,-Held to be within the above rule; and that defendant could not be compelled to accept the liability of any other person or corporation as a substitute for the liability of those with whom it contracted. 3. Assignment by operation of law, as in the case of an executor, is quite different from assignment [No. 197.] by act of the party. Submitted April 2, 1888. Decided May 14, 1888. IN ERROR to the Circuit Court of the review Statement by Mr. Justice Gray: This was an action brought by a smelting company, incorporated by the laws of Missouri, against a mining company, incorporated by the laws of Maine, and both doing business in Colorado by virtue of a compliance with its laws, to recover damages for the breach of a contract to deliver ore, made by the defendant with Billing and Eilers, and assigned to the plaintiff. The material allegations of the complaint were as follows: On July 12, 1881, a contract in writing was made between the defendant of the first part and Billing and Eilers of the second part, by which it was agreed that the defendant should sell and deliver to Billing and Eilers at their smelting works in Leadville 10,000 tons of carbonate lead ore from its mines at Red Cliff, at the rate of at least 50 tons a day, beginning upon the completion of a railroad from Leadville to Red Cliff, and continuing until the whole should have been delivered, and that "all ore so delivered shall at once upon the delivery thereof become the property of the second party;" and it was further agreed as follows: "The value of said ore and the price to be [380] paid therefor shall be fixed in lots of about one hundred tons each; that is to say, as soon as such a lot of ore shall have been delivered to said second party, it shall be sampled at the works of said second party, and the sample assayed by either or both of the parties hereto, and the value of such lots of ore shall be fixed by such assay; in case the parties hereto cannot agree as to such assay, they shall agree upon some third disinterested and competent party, whose assay shall be final. The price to be paid by said second party for such lot of ore shall be fixed on the basis hereinafter agreed upon by the closing New York quotations for silver and common lead, on the day of the delivery of sample bottle, and so on until all of said ore shall have been delivered. "Said second party shall pay said first party at said Leadville for each such lot of ore at once, upon the determination of its assay value, at the following prices," specifying, by reference to the New York quotations, the price to be paid per pound for the lead contained in the ore, and the price to be paid for the silver contained in each ton of ore, varying according to the proportions of silica and of iron in the ore. The complaint further alleged that the railroad was completed on November 30, 1831, and thereupon the defendant, under and in compliance with the contract, began to deliver ore to Billing and Eilers at their smelting works, and delivered 167 tons between that date and January 1, 1882, when "the said firm of Billing and Eilers was dissolved, and the said contract and the business of said firm, and the smelting works at which said ores were to be delivered, were sold, assigned and transferred to G. Billing, whereof the defendant had due notice;" that after such transfer and assignment the de fendant continued to deliver ore under 1, 1999, tract, and between January 1 and April 21, 1882, tons; that on May 1, 1882, the contract, together delivered to Billing at said smelting works 894 with the smelting works, was sold and conveyed by Billing to the plaintiff, whereof the defendant had due notice; that the defendant then ceased to deliver ore under the contract, and afterwards refused to perform the contract, and gave notice to the plaintiff that it considered the contract canceled and annulled; that all the [381] ore so delivered under the contract was paid for according to its terms; that "the plaintiff and its said assignors were at all times during their respective ownerships ready, able and willing to pay on the like terms for each lot as delivered, when and as the defendant should deliver the same, according to the terms of said contract; and the time of payment was fixed on the day of delivery of the 'sample bottle,' by which expression was, by the custom of the trade, intended the completion of the assay or test by which the value of the ore was definitely fixed;" and that "the said Billing and Eilers, and the said G. Billing, their successor and assignee, at all times since the delivery of said contract, and during the respective periods when it was held by them respectively, were able, ready and willing to and did comply with and perform all the terms of the same, so far as they were by said contract required; and the said plaintiff has been at all times able, ready and willing to perform and comply with the terms thereof, and has from time to time, since the said contract was assigned to it, so notified the defendant." The defendant demurred to the complaint for various reasons, one of which was that the contract therein set forth could not be assigned, but was personal in its nature, and could not, by the pretended assignment thereof to the plaintiff, vest the plaintiff with any power to sue the defendant for the alleged breach of contract. The circuit court sustained the demurrer, and gave judgment for the defendant; and the plaintiff sued out this writ of error. Messrs. R. S. Morrison, T. M. Patterson and C. S. Thomas, for plaintiff in error: The court below erred in holding this agreement to be nonassignable. Devlin v. Mayor of N. Y. 63 N. Y. 8; Hyde v. Dean of Windsor, Cro. Eliz. 552; Hambly v. |