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Opinion of the Court.

and then transferred on the books to the treasurer of both companies, as treasurer of the Texas Company; that whenever there was a deficit of funds on the part of the Texas Company, such deficit was made up by the Houston Company; and that the latter company received and disbursed everything. Under such circumstances, it cannot be maintained, against the first mortgage bondholders, that a balance of such a running account of five year's duration represents money so applied to the current expenses of the road, or so diverted therefrom to the payment of interest on the bonds, as to carry with it a superior equity for repayment. Penn v. Calhoun, 121 U. S. 251; Kneeland v. American Loan and Trust Co., 136 U. S. 89; St. Louis, Alton &c. Railroad v. Cleveland, Columbus &c. Railway, 125 U. S. 658.

It is to be observed, also, that the Morgan Company counted upon the certificates of the Texas Company, whereby it bound itself to deliver to the Houston Company the third mortgage bonds as soon as executed by the Metropolitan Company as trustee, and asked for a decree against all the defendants, declaring the amount found due to complainant, as holder of such certificates, to be “a full, complete, perfect and equitable mortgage and lien upon said railway and upon all of the property, incomes; tolls and profits in said deed of trust of October 1, 1885, described ” and prayed “that out of the proceeds of any sale which may be made to satisfy any decree of this honorable court your orator's claim for said amount be paid and satisfied.” It is thus seen that the Morgan Company asserted its equities as based on the third mortgage bonds, which renders it still clearer that upon this record no reason exists for the subordination of the first and second mortgages to this claim. Our conclusion is, that the Circuit Court, while it decreed a lien to the Morgan Company, rightfully refused to give it preference over the paramount lien of the first and second mortgage bonds.

Notwithstanding the decree was properly rendered upon the merits, we are urged to reverse it upon the further ground that the bill of the Farmers' Company ought not to have been allowed to be filed, because not in time, and not a cross-bill,

Opinion of the Court.

and that, if treated as an original bill, it cannot be maintained, for want of jurisdiction, the Farmers' and Metropolitan Companies being citizens of New York, the Morgan Company of Louisiana, and the Texas Company of Texas.

Under the original bill filed by the Morgan Company, and on its application, the court had taken possession of the property of the Texas Company, through receivers. The Farmers' and Metropolitan Companies were then brought into court by an amended and supplemental bill, which prayed for an account of all liens and incumbrances on the property of the Texas Company and of all its assets, and for a decree adjudging the sums alleged to be due to the Morgan Company liens upon the net earnings of the Texas Company and all its property, superior in rank to the claims of the said trustees and of the holders of the mortgage bonds issued under the various deeds of trust, the giving of which had been set up in the original bill and copies thereto annexed; and that the amount due to it by reason of its advances to the Houston Company should be paid out of the net earnings, and if they proved insufficient, then that a sale be ordered of the property in bulk, and that the amount decreed to the Morgan Company be paid out of the proceeds in preference to the amounts due on the mortgage bonds. It was also specifically prayed, as has been stated, that the rights of the Morgan Company under the certificates given it by the Houston Company in lieu of the bonds issued under the third mortgage should be decreed to be an equitable mortgage upon the property of the Texas Company, and, inferentially at least, superior to the lien of the first two mortgages.

“A cross-bill,” says Mr. Justice -Story, (Eq. Plead. $ 389,) “ ex vi terminorum, implies a bill brought by a defendant in a suit against the plaintiff in the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill. A bill of this kind is usually brought, either (1.) to obtain a necessary discovery of facts in aid of the defence to the original bill, or (2.) to obtain full relief to all parties, touching the matters of the original bill.” And, as illustrative of cross-bills for relief, he says

Opinion of the Court.

($ 392): “It also frequently happens, and particularly, if any question arises between two defendants to a bill, that the court cannot make a complete decree without a cross-bill or crossbills, to bring every matter in dispute completely before the court, to be litigated by the proper parties, and upon the proper proofs."

It seems to us that in order that a decree might be made upon the whole matter in dispute, brought completely before the court, the bill in question was necessary and was correctly styled a cross-bill. In no proper sense were new and distinct matters introduced by it, which were not embraced in the original and amended and supplemental bills, and while it sought equitable relief, it was such as, in point of jurisdiction over the subject matter, the court was competent to administer. It may be that, so far as it sought the further aid of the court beyond the purposes of defence to the original bill, it was not a pure cross-bill, but that is immaterial. The subject matter was the same, although the complainant in the cross-bill asserted rights to the property different from those allowed to it in the original bill, and claimed an affirmative decree upon those rights. A complete determination of the matters already in litigation could not have been obtained except through a cross-bill, and different relief from that prayed in the original bill would necessarily be sought. This bill was filed, on leave, before the testimony was taken, and though there should be as little delay as possible in filing bills of this kind, yet that was a matter entirely within the discretion of the court, which could bave directed it to be filed even at the hearing. And whether this bill be regarded as a pure cross-bill, as an original bill in the nature of a cross-bill, or as an original bill, there is no error calling for the disturbance of the decree because the court proceeded upon it in connection with the other pleadings. The jurisdiction of the Circuit Court did not depend upon the citizenship of the parties, but on the subject matter of the litigation. The property was in the actual possession of that court, and this drew to it the right to decide upon the conflicting claims to its ultimate possession and control. Minnesota Co. v. St. Paul Co., 2 Wall. 609; Peo


ple's Bank v. Calhoun, 102 U. S. 256; Krippendorf v. Hyde; 110 U. S. 276. The decree of the Circuit Court is





No. 1143. Argued October 29, 1890. - Decided November 24, 1890.

The Guano Islands Act of August 18, 1856, c. 164, reënacted in Rev. Stat.

$S5570-5578, is constitutional and valid. Section 6 of the act of August 18, 1856, c. 164, reënacted in Rev. Stat.

$ 5576, does not assume to extend the admiralty jurisdiction over laud, but merely extends the provisions of the statutes of the United States for the punishment of offences upon the high seas to like offences upon guano islands which the President has determined should be considered as

appertaining to the United States. Under Rev. Stat. $$ 730, 5339, 5576, murder committed on a guano island

which has been determined by the President to appertain to the United States, may be tried in the courts of the United States for the district

into which the offender is first brought. By the law of nations, when citizens or subjects of one nation, in its name,

and by its authority or with its assent, take and hold actual, continuous and useful possession (although only for the purpose of carrying on a particular business, such as catching and curing fish, or working mines,) of territory unoccupied by any other gov«nment or its citizens, the nation to which they belong may exercise such jurisdiction and for such

period as it sees fit over territory so acquired. Who is the sovereign, de jure or de facto, of a territory is not a judicial,

but a political question, the determination of which by the legislativo and executive departments of any government conclusively binds the judges, as well as all other officers, citizens and subjects of that gov

ernment. Courts of justice are bound to take judicial notice of the terrritorial extent

of the jurisdiction exercised by the government whose laws they administer, or of its recognition or denial of the sovereignty of a foreign power, as appearing from the public acts of the legislature and executive, although those acts are not formally put in evidence, nor in accord

with the pleadings. In the ascertainment of facts of which judges are bound to take judicial

Opinion of the Court.

notice, as in the decision of matters of law which it is their office to kuow, they may refresh their memory and inform their conscience from such sources as they deem most trustworthy, and as to international

affairs may inquire of the Department of State. The determination of the President, under the act of August 18, 1856,

c. 164, § 1, (Rev. Stat. $ 5570,) that a guano island shall be considered as appertaining to the United States, may be declared through the Department of State, whose acts in this regard are in legal contemplation the

acts of the President. The Island of Navassa in the Caribbean Sea must, by reason of the action

of the President, as appearing in documents of the Department of State,

be considered as appertaining to the United States. Under the act of August 18, 1856, c. 164, § 2, (Rev. Stat. § 5574,) a breach of

condition of the bond given by the discoverer of a guano island forfeits his private rights only, and does not affect the dominion of the United States over the island, or the jurisdiction of their courts.

This cause

was argued with No. 1142, Smith v. United States, and No. 1144, Key v. United States, post, 224. On the application of the counsel for the several plaintiffs in error it was ordered, that three counsel for plaintiffs in error be allowed to make oral argument herein. The case is stated in the opinion.

Mr. E. J. Waring, Mr. John Henry Reene, Jr., and Mr. Archibald Stirling for plaintiffs in error. Mr. Joseph S. Davis and Mr. J. Edward Stirling were with them on the brief.

Mr. Attorney General for defendants in error.

MR. JUSTICE Gray delivered the opinion of the court.

This was an indictment, found in the District Court of the United States for the District of Maryland, and remitted to the Circuit Court under Rev. Stat. $ 1039, alleging that Henry Jones, late of that district, on September 14, 1889, “at Navassa Island, a place which then and there was under the sole and exclusive jurisdiction of the United States, and out of the jurisdiction of any particular State or district of the United States, the same being, at the time of the committing of the

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