898.

354

We are not referred to any decision of the supreme court of Alabama made before the rights involved in this suit arose, or before this suit was brought, determining the questions here involved. Two unreported cases are cited by the defendants in error: Tennessee & C. R. Co. v. East Alabama Ry. Co., decided at December term, 1883; and Hooper v. Columbus & W. Ry. Co., decided at December term, 1884. To these cases, if they were in point, the doctrine always held by this court, and so emphatically repeated in Burgess v. Seligman, 107 U. S. 20, S. C. 2 SUP. CT. REP. 10, would be applicable; namely, that the courts of the United States, in the administration of state laws in cases between citizens of different states, "have an independent jurisdiction co-ordinate with, and not subordinate to, that of the state courts, and are bound to exercise their own judgment as to the meaning and effect of those laws;" and that when contracts and transactions have been entered into, and rights have accrued thereon, in the absence of any authoritative decision by the state courts, the courts of the United States "properly claim the right to adopt their own interpretation of the law applicable to the case, although a different interpretation may be adopted by the state courts after such rights have accrued.

But the cases cited are not in point. In the first one a railroad corporation, having a franchise, and claiming the legal title and ownership of rights of way, and of a line of railroad, which was being operated by the defendant, another railroad corporation, brought ejectment to recover the property. The defendant corporation had a junior franchise, and claimed to have purchased the entire property sued for, under a title emanating from the plaintiff. It was held that the plaintiff could recover. In the second case an individual having the legal title to a strip of land through which a railroad company had been permitted by him to construct its road, was held to be entitled to recover the land in ejectment from the company, which had failed to pay him for the right of way.

This court decided, in Gue v. Tide-water Canal Co. 24 How. 257, that a corporate franchise to take tolls on a canal could not be seized and sold under a fieri facias, unless authorized by a statute of the state which granted the act of incorporation; and that neither the lands nor the works essential to the enjoyment of the franchise could be separated from it and sold under such a writ, so as to destroy or impair the value of the franchise. This decision was put on the ground that the franchise or right to take toll on boats going through the canal, would not pass to the purchaser under the execution on a judgment at law against the corporation because it was an incorporeal hereditament, and, upon the settled principles of the common law, could not be seized on a fieri facias; and was made in a case where the corporation owned in fee the real estate, toll-houses, canal-locks, and wharf seized, all of which were necessary for the uses and working of the canal. But in the view we have taken, as before stated, of the facts of this case, it is not necessary to discuss the general question as to the right to levy an execution at law on property owned by a railroad company in fee.

It is contended for the plaintiffs that the defendant is estopped from denying that they were seized in fee of the property sued for, on the ground that Richards, after the sheriff's sale, abandoned or turned over to the Visschers the line of culverting and grading, as far as he could do so,—that is, he exercised no further authority over it, and the Opelika & Oxford Company made no further claim to it; that the Visschers then made the written contract with the new railroad company to construct the superstructure of the road, except as to the iron materials, for the 20 miles from in or 2 miles north of Opelika to a point beyond Lafayette, for a specified compensation; and that the contract provided that on the completion of the 20 miles, and the payment of the amount agreed, Visscher should transfer to the company "all

right and title vested in him to all franchises, right of way, or other property belonging to or pertaining to the said road under the old organization known as the Opelika & Oxford R. R." The bill of exceptions states that the defendant offered evidence tending to show that the East Alabama & Cincinnati Railroad Company was in possession of the property sued for from the time the Visschers ceased their work on it, as well as of the remainder of its line of railroad, till assignees in bankruptcy took possession of it, from whom it passed to purchasers from them, and then a receiver in the foreclosure suit took possession of it, and held it till it was sold to the persons who conveyed it to the defendant. The Visschers appear not to have been in possession from the time they ceased work. They yielded possession, but not under any provision in the contract. As to the new work done by the Visschers they became merely creditors, out of possession, with such rights as the law gave them, but certainly with no right to eject the company, or its successors or grantees. They were to construct 20 miles of road for $14,750 per mile. When all was done and paid for they were to transfer what right they had to the road under the Opelika and Oxford organization. But they yielded up possession of that with the new work. As to what they obtained by the sheriff's sale and deed, they acquired nothing thereby, formerly belonging to the Opelika & Oxford Company, under the name of right of way, granted to or acquired by that company, which was capable of being conveyed by them; and as to anything else, their right did not lie in ejectment. Whether they were vendors or creditors in respect to what they so agreed to transfer, it is not necessary or proper to determine in this suit. There was nothing in what occurred between the parties, or in the contract, or in the transactions under it, which estopped the defendant from disputing the right of the plaintiffs to recover in ejectment on the strength of their title.

It follows, from these views, that the circuit court erred in its first and third charges to the jury; and, as this conclusion goes to show that the plaintiffs had no title on which they could recover in ejectment, it becomes unnecessary to consider any of the other questions raised by the defendant. The judgment is reversed, and the case is remanded to the circuit court, with a direction to grant a new trial.

*266

(114 U. S. 265)

BOATMEN'S SAVINGS BANK v. STATE SAVINGS ASS'N OF ST. LOUIS.

(April 13, 1885.)

JURISDICTION OF Supreme Court-FEDERAL QUESTION-WRIT OF ERROR TO STATE COURT Upon examination of the facts in the case, held by the court that no federal question was involved sufficient to give jurisdiction to the supreme court on writ of error from a state court.

In Error to the St. Louis Court of Appeals of the State of Missouri. J. W. Noble, J. C. Orrick, and W. Hallett Phillips, for plaintiff in error. John M. Glover, George H. Shields, and Jeff. Chandler, for defendant in error. WAITE, C. J. This suit was brought by the State Savings Association of St. Louis against the Boatmen's Savings Bank to recover the amount of two checks drawn on the bank by the firm of Cobb, Dolhonde & Co., dated respectively September 5, 1874, and October 23, 1874, and presented for payment November 5, 1874. When the checks were presented there was a balance on deposit in the bank to the credit of the firm more than enough to take them up; but the firm had failed between the dates of the checks and the time of their presentation, and had notified the bank to that effect. The bank on that account refused payment. At the time of the presentation of the checks, and also at the time of the failure of the firm, the bank held a draft, not then due, drawn by one Bradley on and accepted by the firm for $3,174, dated October 3, 1874, and payable in 40 days from date. On the same day that the checks were presented and refused, it was arranged between the bank and the savings association that if the bank succeeded in collecting this draft from the drawer, it would pay the checks. The draft was never collected, and the checks still remain unpaid. Cobb, Dolhonde & Co. did not resume payment after their failure, and on the twenty-third of March, 1875, they were duly adjudicated bankrupts on a petition filed January 8, 1875. The bank indorsed on the Bradley draft the amount standing to the credit of the firm at the time of the failure, and proved its claim in the bankruptcy proceeding for the balance remaining due after this indorsement was made. Upon this balance dividends were paid by the assignee in bankruptcy. The savings association also proved its claim in bankruptcy, and received dividends thereon. The total amount of its claim was much more than the amount of the checks.

The ground on which the savings association sought to recover in the suit was that the presentation of the checks to the bank for payment, while there was a balance of deposits to the credit of the firm exceeding the amount drawn for, charged the bank with a liability to pay the checks to the association as the holder thereof. The defenses set up by the bank in its answer were (1) that the failure of the firm, and notice thereof to the bank, was equivalent to instructions from the firm not to pay any checks that might thereafter be presented; (2) that the savings association was not the assignee or indorsee of the checks; (3) that, in consideration of the agreement of the bank to pay the checks if the Bradley draft was collected, the savings association bound itself not to hold the bank liable if the collection was not made; and (4) that, relying on this agreement by the association, the bank credited the full amount of the balance of deposits in favor of the firm upon the Bradley draft, and proved up its demand against the estate of the bankrupts on account of the draft for no more than remained due after this credit was given, and that dividends were paid by the assignee only on the amount proven. Upon the trial, judgment was given in favor of the savings association for the full amount of the checks, and this judgment was affirmed by the St. Louis. court of appeals, which is the highest court of the state in which a decision In the suit could be had.

*We are unable to discover any federal question in the record. No title, right, privilege, or immunity, under the constitution or laws of the United States, was set up in the pleadings, and no claim of that kind was made at the trial. The whole controversy, at and before the trial, seems to have been as to the right of the holder of a banker's check to recover against a bank having funds of the drawer when presentation has been duly made and payment demanded, and as to the effect of the arrangement between the parties when it was agreed that the bank should pay the checks if the Bradley draft was collected.

In the court of appeals it was, among other things, assigned for error that "the judgment was against the right of the defendant to a judgment in his, favor under the provisions of the act of congress of the United States, establishing and providing for a uniform system of bankruptcy, in force at the time of the transaction between the parties, out of which the controversy arises," and, from the opinion of the court, section 5073 of the Revised Statutes seems to have been relied on. That section provides: "In all cases of mutual debts or mutual credits between the parties, the account between them shall be stated, and one debt set off against the other, and the balance only shall be allowed or paid." No rights under this section were set up in the pleadings or claimed at the trial; and, besides, the right of the bank to apply whatever credit there may be in its accounts in favor of the bankrupt firm to the reduction of the amount due on the draft is not denied. The only dispute is as to the amount of the credit, and we are unable to see that the bankrupt law is involved in the determination of that question. The court of appeals decided that the presentation of the checks on the fifth of November operated as an equitable assignment at that date of an amount of the fund then standing to the credit of the firm equal to the amount of the checks, and made the savings association from that time, in equity, the creditor of the bank to that extent. Debts are provable against a bankrupt's estate as of the date of the commencement of the proceedings in bankruptcy. Rev. St. § 5067. As section 5073 relates to the amount which may be allowed upon such proof, it is clear that the mutual debts or mutual credits there referred to must be such as are in existence at the same date. In the present case, the question was whether, on the fifth of November, 1874, more than two months before the commencement of the proceedings in bankruptcy, a part of the balance standing to the credit of Cobb, Dolhonde & Co. on the books of the bank had been assigned to the plaintiff in this action. That did not depend on the bankrupt law, but on the legal effect of what was done at and before that time by the parties, and when, so far as appears from the record, no proceedings in bankruptcy were contemplated. The point for determination was whether the presentation of a check, drawn on a banker by a customer having funds to his credit, transferred in equity to the holder of the check so much of the debt due from the bank to the drawer as was sufficient to pay the check. This clearly is not a federal question.

It follows that we have no jurisdiction of the case, and it is dismissed.

*267

(114 U. S. 262)

THE BRADSTREET Co. v. HIGGINS.
(April 13, 1885.)

COSTS UPON MOTION TO DISMISS APpeal.

Upon a motion to dismiss an appeal the right of the supreme court to decide, implies the right to adjudge as to all costs which are incident to the motion.

In Error to the Circuit Court of the United States for the Western District of Missouri. Motion for an order that the plaintiff in error be required to pay the costs of printing the record, and the clerk's fee for supervising the

same

W Hallett Phillips, for the motion. W. Wise Garnett, in opposition. WAITE, C. J. This writ of error was dismissed at a former day in this term, on motion of the defendant in error, for want of jurisdiction, because the value of the matter in dispute did not exceed $5,000. 112 U. S. 227; S. C. ente, 117. In order to present his motion to dismiss, it became necessary for the defendant in error to cause the record to be printed, and to do that he was compelled to pay the cost of printing and the fee of the clerk for superviving. The judgment, as entered on the motion to dismiss, made no order as to costs, and the defendant in error now moves that the cost of printing and the clerk's fee for supervising be taxed against the plaintiff in error. I; has been often decided that if a suit is dismissed for want of jurisdiction in this court, no judgment for the costs of the suit can be given. Inglee v. Coolidge, 2 Wheat. 368; McIver v. Wattles, 9 Wheat. 650; Strader v. Graham, 18 How. 602; Hornthall v. Collector, 9 Wall. 566. A different rule prevails when there has been a reversal here because the circuit court did not have jurisdiction, as this court has authority to correct the error of the circuit court in taking jurisdiction. Turner v. Enrille, 4 Dall. 7; Winchester v. Jackson, 3 Cranch, 514; Montalet v. Murray, 4 Cranch, 47; Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 387; S. C. 4 SUP. CT. REP. 510.

Here, however, the question is not as to the right of the defendant in error to recover his costs in the suit, but only such as are incident to his motion to dismiss. It has been decided that the writ of error was wrongfully sued out by the plaintiff in error. To get rid of the writ and the supersedeas which had been obtained thereunder, the defendant in error was compelled to come to this court and move to dismiss. That motion we had jurisdiction to hear and decide. The right to decide implies the right to adjudge as to all costs which are incident to the motion. Under rule 10, § 2, of this court, it was the duty of the plaintiff in error to cause the record to be printed, and to pay all the costs and fees incident thereto in time for use when required in the progress of the cause. If it failed in this, the defendant in error might pay the costs and fees, and thus secure the printing. Under section 7, in case of reversal, affirmance, or dismissal with costs, the amount of the cost of printing the record and the clerk's fee are to be taxed to the party against whom the costs were given.

In this case the plaintiff in error neglected to have the record printed by the time it was wanted by the defendant in error on his motion to dismiss. Under these circumstances we do not doubt our authority to adjudge the costs incident to the printing against the plaintiff in error as part of the costs of the motion to dismiss. It is accordingly ordered that the judgment heretofore entered be amended so as to charge the plaintiff in error with all the costs of the motion to dismiss, which shall include the cost of printing the record, and the clerk's fee for supervising.