Missouri, a suit, pending in a Missouri court, may be removed to a court of the United States, because the Missouri court, on a former occasion, construed a public law of Illinois, which is involved, differently from what it should have done. To allow a removal upon such grounds would be to say that a suit arises under the Constitution and laws of the United

Submitted Jan. 3, 1883. Decided Jan. 29, 1883.

APPEAL from the Circuit Court of the Unit

ed States for the Eastern District of Mis

souri.
On motion to dismiss.

The history and facts of the case appear in the opinion of the court.

Messrs. S. T. Glover, J. R. Shepley, S. M. Breckinridge, Clarence A. Seward and F. E. Whitfield, for appellee in support of motion:

An appeal is a matter of statutory right, and in equity lies from final decrees only.

States whenever the public Acts of one State are to be construed in an action pending in a court of another State. Clearly this is not so. Even if it be true, as is contended by the counsel, for the plaintiff in error, that a suit can be removed as soon as a federal question becomes involved, it is sufficient to say that in this case such a question has not arisen. Until the Missouri court fails, in this suit, to give full faith and credit to the public Acts of Illinois, no case has arisen to which the jurisdiction of the courts of the United States can attach, and then only for the correction of the errors that have been committed. It is not enough that in other cases decisions have been made which, if followed in this, will be erroneous. Until the error has actually been committed in this case, a federal question has not become involved. The pre-only the appellee may now move to dismiss the sumption in all cases is that the courts of the appeal, and before the cause is reached in its States will do what the Constitution and laws regular order, if the decree appealed from was of the United States require, and removals can- not a final one. not be effected to the courts of the United States because of fear that they will not.

The order remanding the cause is affirmed.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.

R. S., sec. 692; Barry v. Mercein, 5 How., 119; Durousseau v. U. S., 6 Cranch, 314; U. S. v. Curry, 6 How., 113; Ex parte Vallandigham, 1 Wall., 251 (68 U. S., XVII., 593); U. S. v. Young, 94 U. S., 259 (XXIV., 153). Although the transcript was filed at this Term,

Clark v. Hancock, 94 U. S., 493 (XXIV., 146); Er parte Russell, 13 Wall., 671 (80 U. S., XX., 634).

The fact that an appeal has been allowed by the court below, is of no weight in deciding the question whether such appeal was properly allowed.

Callan v. May, 2 Black, 541 (67 U. S.,XVII.,

Chicago & Alton Railroad Company, Plff. in 281).
Err., v. Wiggins Ferry Company.
[No. 839.

In error to the Circuit Court of the United
States for the Eastern District of Missouri.

This case is in all material respects like that between the same parties just decided, and the order of the Circuit Court remanding the case is affirmed for the reasons there given.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U.S.

ST. LOUIS, IRON MOUNTAIN AND
SOUTHERN RAILWAY COMPANY,
Appt.,

v.

SOUTHERN EXPRESS COMPANY.

(See S. C., Reporter's ed., 24-20.)

Final decree-what is-supplemental order.

1. A decree is final, for the purposes of an appeal to this court, when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been determined.

2. In a suit to compel a railway company to do an express company's business, a decree which requires the carriage, fixes the compensation to be paid, adjudges costs and awards execution, is final, although leave is given the parties to apply for a modification

of the rates.

3. Matters which relate to the administration of

NOTE.-What is final decree or judgment of state or other court from which appeal lies. See, note to Gibbons v. Ogden, 19 U. S. (6 Wheat.), 448.

As to what is and what is not a final judg ment or decree, see the following cases:

Ray v. Law, 3 Cranch, 179; Whiting v. Bank, 13 Pet., 15; Carr v. Hoxie, 13 Pet., 460; Bronson v. R. R. Co., 2 Black, 524 (67 U. S., XVII., 359); R. R. Co. v. Swasey, 23 Wall., 409 (90 U. S., XXIII., 137); Young v. Grundy, 6 Cranch, 51; Houston v. Moore, 3 Wheat., 433; Gibbons V. Ogden, 6 Wheat.,448; The Palmyra, 10Wheat., 502; The Santa Maria, 10 Wheat., 444; Chase v. Vasquez, 11 Wheat.,429; Canter v. Am. Ins. Co., 3 Pet., 318; Brown v. Swann, 9 Pet., 1; Young v. Smith, 15 Pet., 287; Forgay v. Conrad, 6 How., 201; Perkins v. Fourniquet, 6 How., 206; Puliam v. Christian, 6 How., 209; Bar nard v. Gibson, 7 How., 650; U. S. v. Girault, 11 How.,32; Fourniquet v. Perkins, 16 How., &; Craighead v. Wilson, 18 How., 200 (59 U. S., XV., 333); Beebe v. Russell, 19 How., 283 (60 U. S., XV., 668); Farrelly v. Woodfolk, 19 How., 288 (60 U. S., XV., 670); Humiston v. Stainthorp,2 Wall.,106 (69 U. S., XVII.,905); Thomp son v. Dean, 7 Wall., 342 (74 U. S., XIX., 94).

The policy of the law and the decisions of the court are alike adverse to fragmentary appeals.

The Palmyra, 10 Wheat., 502; Canter v. Ins. Crosby v. Buchanan, 23 Wall., 453 (90 U. S., Co., 3 Pet., 318; Young v. Smith, 15 Pet., 287; XXIII.,142); The Santa Maria, 10 Wheat.,444.

Messrs. Broadhead & Haeussler, John F. Dillon, Wager Swayne and Thomas J. Portis, for appellant, contra:

been repeatedly passed upon by this court; and The question of what is a final decree has while this court has several times intimated that

it is greatly to be desired that a decree should not only be final, but complete, before the case is brought up by appeal, yet we think that the authorities are clear, to the effect that a decree such as this, is both final and complete.

Forgay v. Conrad, 6 How., 201; Barnard v. Gibson, 7 How., 657; Whiting v. Bank, 13 Pet., 15; Ray v. Law, 3 Cranch, 179; Thompson v. Dean, 7 Wall., 342 (74 U. S., XIX., 94); French v. Shoemaker, 12 Wall., 86 (79 U. S., XX.,270); Stovall v. Banks, 10 Wall., 586 (77 U. S., XIX., 1037); R. R. Co. v. Swasey, 23 Wall., 405 (90 U. S., XXIII., 136); Green v. Fisk, 103 U. S., 518 (XXVI.,486); Bronson v. R. R.Co., 2 Black, 531 (67 U. S., XVII., 360); Michoud v. Girod, 4 How., 503.

Mr. Chief Justice Waite delivered the opinion of the court:

strained from interfering with or disturbing in any manner the enjoyment by the plaintiff, of the facilities provided for in this decree, to be accorded to it by the said defendant upon its lines of railway, or such as have been heretofore accorded to it for the transaction of the business of the plaintiff and of the express business of the public confided to its care, and from interfering with any of the express matter or messengers of the plaintiff, and from excluding or ejecting any of its express matter or messengers from the depots, trains, cars or lines of the said defendant as the same are by this decree directed to be permitted to be enjoyed and occupied by the said plaintiff, and from refusing to receive and transport in like manner as the said defendant is now transporting, or as it may hereafter transport for itself or for any other express company over its lines of railway, the The Southern Express Company, an express express matter and messengers of the said plaintcarrier, filed its bill in equity against the St. iff, and from interfering with or disturbing the Louis, Iron Mountain & Southern Railway Com- business of the said plaintiff in any manner pany, in the Circuit Court for the Eastern District whatsoever, the said plaintiff paying for the servof Missouri, to enjoin the Railway Company ices performed for it by the defendant monthly, from interfering with or disturbing the Express as herein prescribed, at a rate not exceeding Company in the enjoyment of the facilities it fifty per centum more than its prescribed rates then had for the transaction of its express busi- for the transportation of ordinary freight, and ness over the Railway Company's railroad, so not exceeding the rate at which it may itself long as the Express Company conformed to the transport express matter on its own account, or regulations of the Railway Company and paid all for any other express or other corporation, or lawful charges for the business. A preliminary for private individuals, reserving to either party injunction was asked for and, in this connection, a right, at any time hereafter, to apply to this the bill prayed that if any dispute or disagree-court, according to the rules in equity proceedment should arise between the parties during dings, for a modification of this decree as to the the pendency of the suit, upon the question of measure of compensation herein prescribed. compensation to be paid for transportation, the Express Company might be permitted to bring the same before the court for decision by way of an interlocutory application. On the filing of the bill, the preliminary injunction was granted, which was afterwards modified in some particulars affecting the compensation to be paid and the mode of doing the business.

It is further ordered, adjudged and decreed that the defendant pay the costs to be taxed herein, and that an execution or a fee bill issue therefor."

On the 29th of March the Railway Company prayed an appeal, which was allowed and, on the 15th of May, perfected by the approval of the necessary bond. During the same Term of the court, but after the appeal bond was accepted and approved, the Express Company moved the court to grant it the benefit of a ref

decree, and a master was appointed to inquire into and report on the matters alleged.

On the 25th of March, 1882, the court entered a decree containing the following provisions: "V. That it is the duty of the defendant to carry the express matter of the plaintiff's Com-erence authorized by sections V. and X. of the pany, and the messengers or agents in charge thereof, at a just and reasonable rate of compensation, and that such rate of compensation is to be found and established as a unit and is to include as well the transportation of such messengers or agents as of the express matter in their custody and under their control.

X. Whereas, it is alleged by complainant that since the commencement of this suit and the service of the preliminary order of injunction herein, the defendant has, in violation of said injunction and of the rights of complainant, made unjust discriminations against complainant, and has charged complainant unjust and unreasonable rates for carrying express matter, therefore, it is ordered that complainant have leave hereafter to apply for an investigation of these and similar allegations, and for such order with respect thereto as the facts, when ascertained, may justify, and for the appointment of a master to take proof and report thereon.

XI. That the defendant, its officers, agents, servants and employés and all persons acting under their authority be and they hereby are permanently and perpetually enjoined and re

The cause having been duly docketed here, the Express Company moves to dismiss the appeal, on the ground that the decree appealed from is not a final decree.

As we have had occasion to say at the present Term, in Bostwick v. Brinkerhoff and Grant v. Ins. Co. [ante, 73, 237], a decree is final, for the purposes of an appeal to this court, when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been determined. Under this rule we think the present decree is final. The suit was brought to compel the Railway Company to do the Express Company's business. The controversy was about the right of the Express Company to require this to be done on the payment of lawful charges. It was no part of the object of the suit to have it definitely settled what these charges should be for all time. The point was to establish the liability of the Railway Company to carry. The decree requires the carriage, and fixes the compensation to be paid. It adjudges costs against the Railway Company

and awards execution. Nothing more remains to be done by the court to dispose of the case. Inasmuch as the rates properly chargeable for transportation vary according to circumstances,

and what was reasonable when the decree was rendered may not always continue to be so, leave is given the parties to apply for a modification of what has been ordered in that particular, if they, or either of them, shall desire to do so. In effect, the decree requires the Railway Company to carry for reasonable rates, and fixes for the time being the maximum of

what will be reasonable.

The controversy which the Express Company has had referred to the master, about the compensation to be paid for the transportation during the pendency of the suit, does not enter into the merits of the case. All such matters relate to the administration of the cause, and the accounts to be settled under the present order are of the same general character as those of a receiver who holds property awaiting the final disposition of a suit. They are incidents of the main litigation, but not necessarily a part of it. The supplemental order, made after the decree, relates only to the settlement of the accounts which accrued pending the suit.

The motion to dismiss is denied. True copy. Test:

This motion to dismiss is made because, as is alleged: 1, the decree appealed from is not a final decree; and 2, the transcript is not properly certified."

1. As to the decree:

The case is in some particulars different from that of the R. Co. v. Exp. Co., just decided, [ante, 638], but in our opinion the differences do not materially affect the present question. The decree in this case, as in that, requires the Railway Company to carry for the Express Company and fixes the rate of compensation, "until the further order or decree of this (circuit) court." In this case, the reference to the master "To take and state an account between the parties as to the compensation that should be and has been paid during the litigation, and up to the final termination thereof," was entered before or at the time of the decree from which the appeal was taken. Still, in this, as in that, the reference is in respect to matters affecting the administration of the cause, and does not involve the merits. The reservation of power to change the rates operates only on the future, and was evidently intended for the purpose of enabling the court to act in case a change should be required. As the decree stands, the Express Company can require the Railway Company to

James H. McKenney, Clerk, Sup. Court, U.S. carry at the rate which has been fixed.

Cited-108 U. S., 242.

2. As to the certificate:

The clerk certifies the transcript sent up to be a true, full and perfect copy from the record of all the proceedings in the suit. Certainly this is sufficient for all the purposes of jurisdic

MISSOURI, KANSAS AND TEXAS RAIL- tion. If, in point of fact, the certificate is not

WAY COMPANY, Appt.,

V.

WILLIAM B. DINSMORE, As President of the ADAMS EXPRESS COMPANY, And a Stock

holder Therein.

(See S. C., Reporter's ed., 30, 31.)

Case followed-certificate to transcript-ccrtiorari-when granted.

1. St. Louis, I. M. & S. R. Co. v. Southern Exp. Co., ante, followed.

2. Where the clerk certifies the transcript sent up to be a true, full and perfect copy from the record of all the proceedings in the suit, this is sufficient for all the purposes of jurisdiction.

3. If the certificate is not true, the remedy is by certinari, to supply deficiencies, and not by motion

to dismiss.

4. A certiorari to bring up the evidence may be granted although it appears that the case was disposed of on demurrer to the bill, if the record has not been printed in full, and the partics do not agree as to what it contains.

[No. 994.]

Submitted Jan. 3, 1883. Decided Jan. 29, 1883.

APPEAL from the Circuit Court of the United

States for the District of Kansas.

On motion to dismiss, or for a certiorari. The history and facts of the case sufficiently appear in the opinion of the court.

Mr. C. A. Seward, for appellee, in support of motion.

Messrs. A. T. Britton J. H. McGowan, Thomas J. Portis and A. L. Williams, for appellant, contra.

true, the remedy is by certiorari to supply deficiencies, and not by motion to dismiss.

營業

* * #

To meet this view of the case, the appellee suggests diminution and asks for a certiorari to bring up "The evidence taken before * William H. Rossington, as examiner remaining on file in the office of the clerk, constituting the exhibits, depositions, and proofs used on the argument of the cause in the * * * circuit court.

Upon the face of the decree it appears that the case was disposed of on demurrer to the bill. If that be the truth, the evidence on file is not necessary for the hearing of the appeal, but as the record, which is here, has not been printed in full, and the parties do not agree in their statements as to chat it contains, we will grant the certiorari asked for, reserving all further questions until the return is made. True copy. Test:

James H. McKenney, Clerk, Sup. Court, U.S.

HARRY STUCKY, Assignee in Bankruptcy of BEN. MELTER, Appt.,

v.

MASONIC SAVINGS BANK AND JACOB
KRIEGER, Sr.,

(See S. C., Reporter's ed., 74, 75.)

Fraudulent preference under bankrupt Act.

A creditor dealing with a debtor whom he may suspect to be in failing circumstances, but of which he has no sufficient evidence, may receive payment or security without violating the bankrupt law: alanxious about his claim and has a strong desire to

Mr. Chief Justice Waite delivered the opin- though he is unwilling to trust him further and is

ion of the court:

This suit originated in a bill in equity brought in the district court by Stucky, as assignee of Melter, a bankrupt, against the Bank and against Jacob Krieger, Sr., for the purpose of having two mortgages made by the bankrupt declared void, and the real estate covered by them sold free of the lien of those mortgages. The ground of this relief is the allegation that the mortgages were made by Melter when insolvent, and were preferences in contemplation of bankruptcy, void by the bankrupt law, and that, by virtue of the bankrupt proceedings commenced within two months after they were made, they are void.

The case was decided in favor of the assignee in the district court, but on appeal the circuit court reversed this decree and dismissed the

bill.

It is shown that both mortgages were taken to secure renewal notes for pre-existing debts, one note and mortgage being made to the Bank directly, and the other to Mr. Krieger, who was president of the Bank, the note being indorsed by him to the Bank. They were for $6,000 each. The whole matter turns upon the question whether Krieger, who acted almost alone for the Bank, had reasonable ground to believe that Melter was insolvent at the time the mortgages were made.

The District Judge, who decided that he had such reasonable ground, does not seem to have given due weight to the principles of the case of Grant v. Nat. Bank, decided by this court, and reported in 97 U. S., 80 [XXIV., 971], a case which was fully considered and which has since been followed by us as a leading one on the subject.

That case establishes the doctrine that a creditor dealing with a debtor whom he may suspect to be in failing circumstances, but of which he has no sufficient evidence, may receive payment or security without violating the bankrupt law. "He may be unwilling to trust him further; he may feel anxious about his claim and have strong desire to secure it, yet such belief as the act requires may be wanting. Obtaining additional security or receiving payment of a debt under such circumstances is not prohibited by

law."

a

In the case before us the testimony of Krieger himself, as the one who best knows the strength of the suspicion, if any, on which he acted, and what evidence was before him, must chiefly control.

fully. We think it bears the impress of candor and it negatives the idea that he had reasonable ground to believe Melter insolvent, or that he actually did believe it.

The evidence, outside of this, as to the various estimates of the value of Krieger's property and

the amount of his debts, while it shows that Melter was probably insolvent, does not show that this was known to Melter himself or to Krieger, or that the latter had reasonable grounds to believe him so.

It would serve no useful purpose to give in this opinion a full examination of all the evidence. It is sufficieni to say that in looking it all over we concur with the Circuit Judge, and his decree dismissing the bill is affirmed.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.

HOWARD STEBBINS, Piff. in Err.,

v.

MARIA L. DUNCAN ET AL., Devisees of
WILLIAM B. MORRIS, Deceased.

(See S. C., Reporter's ed., 32-51.)

Death of sole plaintiff-proof of loss of instrument -handicriting-insufficient objection-error▬▬ identity-recording deed-effect of record-certified copy, of deed and time of record.

made while both parties were present, and an order

1. The suggestion of the death of a sole plaintiff,

made without objection that the devisees be substituted as plaintiff's, settle prima facie, the fact of the death of such party.

2. Where the existence of an original deed and its destruction is proved, it is competent to prove its contents by secondary evidence. tablish the execution of the deed, proof of the hand3. Where the witnesses to a deed are dead, to eswriting of one of them is sufficient.

4. Objection to copies of depositions that the death

of the witnesses was not shown, nor was it proven an objection that the witnesses were not shown to that they were incompetent to testify, will not cover reside in another State, and more than a hundred miles from the place of trial.

5. When a party excepts to the admission of testimony, he is bound to state his objection specifically, and in a proceeding for error he is confined to the objection so taken.

in tracing titles; identity of names is prima facie 6. Slight proof of identity of a grantor is sufficient evidence of identity of persons.

7. Where, by the laws of a State, a deed may be recorded though not proven or acknowledged, the record will operate as constructive notice to subsequent purchasers and creditors.

8. When the same person has executed two deeds for the same land, the first deed recorded will hoid the title, although not proven or acknowledged, particularly where the first executed deed was not recorded until fifty years from its date, and long after innocent purchasers had bought the lands. knowledged and certified as to make a certified copy 9. Although an original deed had not been so accompetent evidence; yet, where a record of such a deed is by the law of Illinois, notice to subsequent that such deed and memorandum was of record in purchasers, a certified copy from the record is proof the proper office.

10. Every document of a public nature which

there would be an inconvenience in removing, and

NOTE.-Effect of death of parties, on suit. See note to Green v. Watkins, 19 U. S. (6 Wheat.), 260. contents. See note to Bouldin v. Massie, 20 U. S. (7 Evidence of lost paper and secondary evidence of Wheat.), 122.

Effect of refusal to produce, or destruction of paper. See note to Hanson v. Eustace, 43 U. S. (2 How.), 653. Methods of proving death. See note to Mut. Life

We have examined his deposition very care-Ins. Co. v. Tisdale, 91 U. S., XXIII., 314.

which the party has a right to inspect,may be proved | dorsements upon it. The ancientness of the alby a duly authenticated copy. leged deed could not be so proved.

It is not necessary to record a deed so far as the parties to it are concerned. Wood v. Chapin, 13 N. Y., 509; Walker v. Coltraine, 6 Ired. Eq., 79; McCaskle v. Amarine, 12 Ala., 17; Belk v. Massey, 11 Rich., 614; Hill v. Epley, 31 Pa. St., 335; Fitzhugh v. Croghan, 2 J. J. Marsh., 429; S. C., 19 Am. Dec., 139; Phil- An unrecorded deed is void only as to creditors and Lips v. Green, 3 A. K. Marsh.,7; S. C., 13 Am. Dec., 124. subsequent bona fide purchasers without notice. A subsequent purchaser, with notice of an unre- Van Rensselaer v. Clark, 17 Wend., 25; S. C., 31 Am. corded deed, cannot claim title as against it. Jack-Dec., 289; Vance v. M'Nairy, 3 Yerg., 171; M'Conson v. Sharp, 9 Johns., 163; Schutt v. Large, 6 Barb., nell v. Reed, 2 Scam., 374; Derbes v. Romero, 32 La. 373; Watkins v. Edwards, 23 Tex., 443; Martin v. Ann., 927; Snodgrass v. Ricketz, 13 Cal., 359; Bellas Quattlebam, 3 McCord, 205; Morrison v. Kelley, 22 v. McCarty, 10 Watts, 13; Losey v. Simpson, 3 Stockt. Ill., 610; Corliss v. Corliss, 8 Vt., 373; Trull v. Bigelow, Ch., 246. 16 Mass., 418; Morrison v. Wilson, 13 Cal., 494; Draper v. Bryson, 17 Mo., 71; Van Rensselaer v. Clark, 17 Wend., 25; S. C., 31 Am. Dec., 280; McConnel v. Reed, 4 Scam., 117; S. C., 38 Am. Dec., 124.

Notice may be inferred from circumstances, as well as proved by direct evidence. Jones v. Log- A deed duly acknowledged and recorded is congins, 37 Miss., 546; Hunter v. Watson, 12 Cal., 363;structive notice to, and conclusive on, all persons