respectively," was in the nature of a con- | court of Minnesota, in effect, in this case, has "The liability of the estate of the deceased The debt then being one due by the estate of Matteson, if the allotment of the shares in indivision be not considered, the question then is, Taking the allotment into view, what was its effect? The argument is that the next of kin to whom the allotment was made can only be held responsible to the extent of the interest which they took in the stock, and therefore there was error committed in enforcing the whole amount of assessinent against the next of kin who were served, to the extent of the distributive share of the property of the estate received by them. But this contention directly conflicts with the interpretation of the statutes of Minnesota by the court of last resort of that state in this case. It is clear that, by necessary implication, it was decided that by the statutes of Minnesota under which the allotment in indivision was made, the heirs or next of kin remained, by operation of law, to the extent to which they received the property of the estate, subject to be sued and to respond to the debts of the estate existing at the time the allotment took place. But the rights held that the statute of that state making the allottees liable, each to the amount of their distributive share, for the debt of the estate, embraced a contract liability to pay an assessment contingent on the happening of insolvency, although that event had not taken place at the time of the allotment. The contention is next made that conceding there was a debt of the estate, and granting that the statute embraced a pre-existing contract obligation which had not ripened into an actual demand because insolvency had not taken place, nevertheless the court below erred, because by the effect of the allotment the estate had ceased to exist and all its property had passed to the allottees. This but reiterates the misconception already disposed of. Whether the effect of the allotment *was to extinguish the estate was[530] wholly dependent on the Minnesota law. That law, as construed by the courts of Minnesota in this case, in substance provides (for the purpose of the enforcement of the debts of the estate then actually existing or resting in contract, and liable to arise from events to take place in the future) that the estate should, in legal effect, continue to exist, to the extent provided, for the purpose of enforcing the debts in question. These considerations would dispose of the case, since they demonstrate that no substantial Federal question was involved but for the fact that it is claimed that as under the statute of the United States each stockholder in a national bank can only be liable to the extent of the amount of his stock therein, at the par value thereof, in addition to the amount invested in such shares, [529]arising *from the allotment, under the stat-therefore the enforcement of the liability for utes of Minnesota, cannot be greater than those which the statutes in question conferred. The contention, therefore, amounts to this, that in so far as the statutes of Minnesota operated in favor of the participants in the allotment the statutes are to be respected, but to the extent that they imposed obligations upon the allottees they are not bound thereby. It is argued, however, that as by law of Minnesota the liability to be called upon to pay a debt of the estate, to the extent of the distributive share received, depended solely upon whether there was such debt existing at the time the allotment was made, and as there was no such debt in the present instance, no duty to respond arose. This is predicated upon the assumption that because the insolvency happened after the allotment, therefore there was no debt at the time of the allotment. This assumes that whether there was a debt depended upon the date of the insolvency. In effect, this is but to argue that the estate was never liable at all. Such, clearly, is the essence of the proposition, for if it be that whether there was a debt is to be alone ascertained by the happening of insolvency, and not by referring to the date of the subscription, then where insolvency occurred after the death of the stockholder there would be no responsibility. The unsoundness of this view has been already demonstrated. Moreover, the supreme ever the whole amount against one of the allottees 530-533 In ing substantially similar provisions. Shellington v. Howland, 53 N. Y. 376, it was said: The never transferred under the allotment, it fol ROBERT JACKSON, Plff. in Err., v. SMITH. [531] *"There may have been a transfer by the See Indeed, this doctrine is so universally settled that it is treated as elementary. Thomp. Corp. §§ 3283, 3284. True it is that exceptions have been en- of the exceptions referred to are cited in the 1. Where a transfer has been fraudulently 246. 2. Where a transfer of stock is made and delivered to officers of a bank, and such officials fail to make entry of it, the acts referred to will operate a transfer on the books, and extinguish the liability as stockholder of the transferrer. Whitney v. Butler, 118 U. S. 655, 30 L. ed. 266, 7 Sup. Ct. Rep. 61. In the case just cited, in applying the exception, the court very carefully and accurately restated the general rule. 3. Where stock was transferred in pledge, These and other cases unnecessary to be and J. PAUL (See S. C. Reporter's ed. 532-535.) Plaintiff's failure to amend his declaration, for [No. 157.] ruary 26, 1900. Decided Feb District of Columbia affirming a decision See same case below, 13 App. D. C. 269. for plaintiff in error: To treat the "leave to amend his declaration as advised” as a mandatory order about which Jackson had no discretion or choice and to finally dismiss his suit, was fatal er Defendant's failure to demand costs when plaintiff took leave to amend was a waiver of their right to any such condition, and they are estopped by their silence at the time from going back afterwards to the occasion and claiming costs as a proper condition of the leave given. Smith v. Powers, 15 N. H. 546. Mr. William F. Mattingly submitted the cause for defendants in error. *Mr. Justice McKenna delivered the[533] opinion of the court: The This is an action for damages. ground of it is injuries to the wife of the plaintiff in error, and to his house by blasting rock near the latter. The allegation is that "by such blasting" the defendant "unlawfully and forcibly, with great and dangerous violence, threw large and heavy pieces of said rocky formation from time to time into the premises and near said ground occupied and held by said plaintiff under a yearly ground rent, with other rights and privileges, and against 176 U. S. the house and habitation on said premises, which house was and is owned by said plain- | of withdrawing a juror and taking the order tiff, and was used and occupied during said period by said plaintiff and his family as a dwelling." Damages are laid at $6,000. The defendant's plea is not guilty; and further, that the cause of action did not accrue within three years. The case came on to trial before a jury, and the record shows that on December 8, 1897, "after a partial hearing of the case, the plaintiff by leave of the court withdraws a juror, and the remaining jurors are discharged from further consideration of the case, with leave to amend his declaration as advised within twenty days, and the case is continued for the term." Subsequently, on motion of the attorney for the defendants, and after notice to plaintiff, the order limiting plaintiff's time to amend was rescinded, and he was given twenty days from the 7th of January, 1898, to amend his declaration, and was ordered to pay the costs of the term in which the juror was withdrawn. On the 27th of January the plaintiff served on the defendants' attorney the following notice: 1225 31st Street, Jan. 27, 1898. Wm. F. Mattingly, Esq., Atty. for Geo. E. Emmons, etc. We intended in good faith to change or "amend" our declaration in the case of Jack [534]son v. Emmons and Smith, so as to avoid unnecessary appeals, but the "amendment" since made to the leave given us (at your request), compelling us to pay unexpected costs, induces us to elect not to amend now, especially as on further investigation we are confirmed in the opinion that Jackson is the legal owner of the house he complains of as damaged; so please notice that we stand upon our declaration now as originally filed. Very respectfully yours, J. J. Waters, Atty. for Robt. Jackson. On March 8, 1898, the defendants gave notice that they would move "the court to dismiss the suit, or to take such other action in the premises as may be lawful and proper." And on the 25th of March the following order was made: "The plaintiff, though granted leave to amend his declaration on the 7th day of January, 1898, within twenty days, and that he pay the costs of the October term, 1897, has not so amended or paid said costs, and it appearing upon the records that the plaintiff declines to so amend, therefore the defendants move the court to dismiss this suit, which is granted; therefore it is considered that the plaintiff take nothing by his suit, and that the defendants go thereof without day and recover against the plaintiff their costs of defense, to be taxed by the clerk, and have execution thereof. Penalty of bond on appeal fixed at $50.00." On March 26, 1898, the plaintiff moved the court to vacate the order of dismissal, and supported it by an affidavit of what had transpired at the trial inducing his action 176 U. S. U. S., Book 44. 37 to amend his declaration. It is also stated that "afterwards, before plaintiff's time to amend had expired, defendants moved to compel him to pay costs of the past term, being $19.70, as given by the clerk of the court, as a condition of amending, and affiant wished time to see if his client could comply with this when required by the court, so as to avoid controversy, but finding his client could not comply in time, as said client is very poor and a colored laborer, and that it was not necessary to his case to[535] amend, affiant elected not to do so, and to avoid misunderstanding so informed defendant's counsel by the letter he exhibits with his motion to dismiss." The motion to vacate the order dismissing the case was denied, and the plaintiff took an appeal to the court of appeals, which affirmed the ruling of the lower court, and this appeal was then taken. The trial court erred in dismissing the case. If the original order granting leave to amend had been made conditional upon the payment of costs the plaintiff might or might not have accepted it. To decline to amend afterwards upon conditions which were not exacted, or even, as far as the records show, were not contemplated, cannot be charged against him as misconduct. Indeed, there is no question of his good faith, and whatever conditions or rights the defendant was entitled to in consequence of the motion should have been asserted and adjudged when the plaintiff's motion was made. If such rights had been asserted the plaintiff would have had a choice of yielding or not yielding to them, which afterwards could not be exercised. We think, therefore, the judgment of the Court of Appeals should be reversed with costs, and the cause remanded with directions to reverse the judgment of the Supreme Court, and it is so ordered. THE PANAMA. (See S. C. Reporter's ed. 535-550.) Prize-exemption of mail steamship from capture-exemption of merchant vessel carrying armament. 1. 2. A mail steamship carrying mail of the United States is not for that reason exempt from capture as an enemy vessel. The exemption from capture by the President's proclamation of April 26, 1898, of "Spanish merchant vessels" while completing their voyage then begun, if they do not have on board any prohibited article or contraband of war, does not extend to a Spanish vessel owned by a subject of the enemy, when it has an armament fit for hostile use, and is intended in the event of war to be used as a war vessel, and which is destined to a port of the enemy, although the armament is one that the vessel, as a mail steamship, is required by contract with the Spanish government to carry. [No. 127.] 577 Argued November 3, 1899. Decided Febru- | breech-loading Hontoria 9 centimeter guna, A ary 26, 1900. PPEAL from a decree of the District See same case below, 87 Fed. Rep. 927, sub The facts are stated in the opinion. Assistant Attorney General Hoyt argued the cause and, with Messrs. Joseph K. McCammon and James H. Hayden, filed a brief for the United States and the captors. Messrs. George A. King and William B. King filed a brief for certain captors. Contentions of counsel sufficiently appear in the opinion. [536] *Mr. Justice Gray delivered the opinion of the court: one on each side of the ship, with 30 rounds of shot for each; one Maxim rapid-firing gun, on the bridge, with ammunition; and two signal guns, one on each side of the pilot house, with ammunition. She also had on board about twenty Remington rifles, and ten Mauser rifles, with ammunition for each, and about thirty or forty cutlasses. The cannon had been put on board about three years before, and the small arms and ammunition had been on board a year or more. She was so armed in accordance with a contract with the Spanish government, which required all the mail steamships of the company to be armed, and article 26 of which was as follows: "Every ship shall take on board, for her own defense, the following armament: "Two Hontoria 9 centimeter guns, with powder and ammunition for 30 shots for each piece; twenty Remington rifles, with 100 rounds apiece, and bayonet or sword-bayonet; and twenty cutlasses." The master of the Panama moved the court This was a libel for the condemnation of to allow further *proof upon the matters set[5% the steamship Panama as prize of war, and forth in two test affidavits, filed by leave of was heard in the district court upon the libel, the court, in which he testified more distinctthe claim of the master in behalf of the own-ly that the mounted guns and small arms er of the vessel, and the depositions in preparatorio of her master, her supercargo, and her chief engineer, which showed the following state of facts: The Panama was a steamship of 1432 tons register; was owned by the Compania Transatlantica, a corporation of Barcelona in Spain; sailed under the Spanish flag; had a commission as a royal mail ship from the government of Spain; carried a crew of 71 men all told, who had been shipped at different times at Havana; and her usual course of voyage included the ports of New York and Havana, and Progreso, Vera Cruz, and other Mexican ports, with general cargoes, passengers, and mails. [537] *Her last voyage began in Havana, for a round trip by way of New York, and was to have ended in Vera Cruz. She sailed from New York at half past two o'clock in the afternoon of April 20, 1898, with a clearance from the customhouse at that port for Havana, Progreso, and Vera Cruz, having on board the United States mails, twentynine passengers (all Spaniards except one Frenchman), and a general cargo, the produce or manufacture of the United States, shipped at New York, and to be delivered, at the risk of the shippers, to consignees at those ports. She pursued the usual course of ships bound southward along the coast until she passed Alligator Reef light on the coast of Florida, and then bore away for Havana, and sighted the Cuban coast on the morning of April 25; and on that day, when about 25 miles from Havana, was captured by the United States ship of war Mangrove, and was sent in charge of a prize crew into Key West. She had no military or naval officer on board, made no resistance to the capture, and delivered all her papers and mails to the prize master. There were mounted on board the Panama, at the ume of her capture, five guns: Two which the Panama carried had not been shipped for the purpose of war, or in expectation of hostilities between the Spanish government and the United States, but were taken on board pursuant to the requirements of that contract; and also testified that the Spanish government had never taken possession of the Panama under the terms of the contract; and that until the capture he and his officers were ignorant of the existence of the war between Spain and the United States, and of any blockade of the port of Havana. And he asked leave to submit to the court the whole contract, as contained in a printed book, which was in the chart room of the Panama, and in the custody of the prize master, and which has since been sent up to this court as one of the exhibits in the cause. By that contract, concluded between the Spanish government and the Compania Transatlantica on November 18, 1886, and drawn up and printed in Spanish, the company bound itself to establish and to maintain for twenty years various lines of mail steamships, one of which included Havana, New York, and other ports of the United States and of Mexico; and the Spanish government agreed to pay certain subsidies to this company, and not to subsidize other steamship lines between the same points. Among the provisions of the contract, besides article 26, above quoted, were the following: By article 25, new ships of the West Indian line must be of iron, or of the material which experience may prove to be the best; must have double-bottomed hulls, divided into watertight compartments, with all the latest improvements known to the art of naval construction; and "their deck and sides shall have the necessary strength to support the artillery that they are to mount." All the ships of that line must that event shall pay an indemnity estimated by the aforesaid commission. The district court denied the motion of the master to take further proof; restored parts of the cargo to claimants thereof; gave claimants of other parts of the cargo leave to introduce further proof; and entered a final decree of condemnation and sale of the Panama and the rest of her cargo, upon the ground that she was enemy's property, and was upon the high seas at the time of the President's proclamation exempting certain vessels from arrest. 87 Fed. Rep. 927. The court also, on the application of the commodore commanding at Key West, and on the recommendation of the prize commissioners, ordered all the mounted guns and the ammunition therefor to be appraised by two officers of the Navy, and delivered to the commodore for the use of the Navy Department. The master of the Panama appealed to this court from the decree condemning the vessel. have a capacity for 500 enlisted men on the orlop deck, and a convenient place for them on the main deck. The company, when beginning to build a new ship, shall submit to the minister of the Colonies her plans as prepared for commercial and postal service; "the minister shall cause to be studied the [539]measures *that should be taken looking to the rapid mounting in time of war of pieces of artillery on board of said vessel; and may compel the company to do such strengthening of the hull as he may deem necessary for the possible mounting of that artillery; said strengthening shall not be required for a greater number than six pieces whose weight and whose force of recoil do not exceed those of a piece of 14 centimeters." The plans of ships already built shall be submitted to the minister of marine, in order that he may cause to be studied the measures necessary to adapt them to war service; and any changes that he may deem necessary or possible for that end shall be made by the com- The recent war with Spain, as declared by pany. But in both old and new ships the the act of Congress of April 25, 1898, chap. changes proposed by the ministry must be 189, and recognized in the President's procsuch as not to prejudice the commercial pur-lamation of April 26, 1898, existed on and poses of the vessels. By article 35, the vessels, with their engines, armaments, and other appurtenances, must be constantly maintained in good condition for service. By article 41, the officers and crews of the vessels, and, as far as possible, the engineers, shall be Spaniards. By article 49, the company may employ its vessels in the transportation of all classes of passengers and merchandise, and engage in all commercial operations that will not prejudice the services that it must render to the state. By article 60, when by order of the government munitions of war shall be taken on board, the company may require that it shal! be done in the manner and with the precautions necessary to avoid explosions and dis after April 21, 1898. 30 Stat. at L. 364, 1770. This proclamation declared, among the rules on which the war would be conducted, the following: "4. Spanish merchant vessels, in any ports or places within the United States, shall be allowed till May 21st, 1898, inclusive, for loading their cargoes and departing from such ports or places; and such Spanish merchant vessels, if met at sea by any United States ship, shall be permitted to continue their voyage, if, on examination of their papers, it shall appear that their cargoes were above term: Provided, that nothing herein taken on board before the expiration of the contained shall apply to Spanish vessels hav-[541] naval service of the enemy, or any coal (exing on board any officer in the military or cept such as may be necessary for their voyBy article 64, in case of the suspension of age), or any other article prohibited or conthe mail service by a naval war, or by hos-traband of war, or any despatch of or to the tilities in any of the seas or ports visited Spanish government." by the company's ships, the government may take possession of them with their equipment and supplies, having a valuation of the whole made by a commission composed of two persons selected by the government, two by the company, and a fifth person chosen by those four; at the termination of the asters. war, the vessels with their equipment are to be returned to the company, and the government is to pay to the company an indemnity for any diminution in their value, according to the opinion of the commission, and is also, [540]for *the time it has the vessels in its service, to pay 5 per cent on the valuation aforesaid. By article 66, at the end of the war the government may relieve the company of the per formance of the contract if the casualties of with strict regard for the rights of neutrals, "6. The right of search is to be exercised and the voyages of mail steamers are not to be interfered with except on the clearest grounds of suspicion of a violation of law in respect of contraband or blockade." It has been decided by this court, in the S. 384, sub nom. The Buena Ventura v. recent case of The Buena Ventura, 175 U. United States, 20 Sup. Ct. Rep. 148, ante, had sailed before April 21, 1898, from a port 206, that a Spanish merchant vessel, which of the United States on a voyage to a foreign port, not having on board any officer in the military or naval service of Spain, nor any article contraband of war, nor any despatch of or to the Spanish government, was protected by the fourth clause of the President's proclamation of April 26, 1898, from condemnation while on that voyage; but that her capture, before that proclamation was issued, was with probable cause; and that she should therefore be ordered to |