167 . Tell me, if you can, the amount of stock in the name of M. J. Shoecraft at the date when the mortgage was acknowledged, namely, July 24, 1890? A. One hundred and sixty thousand shares. Q. Shares at what value? A. Five dollars each. Q. What was the entire capital of the company? A. Eight hundred thousand dollars-one hundred and sixty thousand shares. Q. Can you tell me what date this mortgage was acknowledged by the president and yourself? A. I think the date of the acknowledgment. Q. That is what? A. Twenty-fourth day of July, 1890. Q. Do you know why the mortgage was dated the 1st? A. Yes. Q. Can you say why? A. The arrangement with the owner,-the first of July. By agreement the mortgage was to commence when the settlement ended. Cross-examination: Q. You say that on the 24th day of July the whole number of shares were issued to M. J. Shoecraft? A. I do. Q. As appears by certificate No. 1 Yes. A. Q. Certificate No. 1 (showing) is now be fore you? A. Yes. Q. Is that in a book? A. Yes. Q. What is it? A. The stock book. Q. Certificate No. 1 has never been taken out of the book? A. It has not. statute of California prescribed the manner of ratification to be "either in writing signed and acknowledged by such stockholders or by resolution duly passed at a stockholders' meeting called for that purpose." This manner of ratification was held to be necessary as we have seen, in McShane v. Carter, 80 Cal. 310, 22 Pac. 178, and that case has not been limited or varied by any subsequent case. And we have no doubt of the power of the state to so prescribe, not only from its power over the manner of conveyance and the disposition of property situated within the state, but from its power over foreign corporations doing business within the state. Clarke v. Clarke, 178 U. S. 186, 44 L. ed. 1028, 20 Sup. Ct. Rep. 873; Hooper v. California, 155 U. S. 648, 39 L. ed. 297, 5 Inters. Com. Rep. 610, 15 Sup. Ct. Rep. 207. Nor can we contest that power, though we might, if we were permitted to exercise an independent judgment, construe the statute as only illustrative, and not as exhaustive of the manner of ratification. Judgment affirmed. Mr. Justice Harlan concurs in the judg ment. (186 U. S. 135) F. S. BOWKER, Managing Owner of UNITED STATES, Owner of the Lighthouse Tender Azalea. Appeal error to district court-final judg A decree of a district court of the United States 9. It bears date the 24th day of July, Argued April 30, May 1, 1902. Decided 1890? A. It does. Q. Certificate No. 1, marked Exhibit "C," has never been separated from its stub? A. It has not. Q. And certificate No. 2 has never been separated from its stub? A. It has not. Q. All the other certificates about which you have testified, from No. 3 to No. 21, inclusive, have been separated from their stub at some time or other? A. Yes, sir. The witness also testified that shares were issued in certain amounts which were named and to certain persons who were named, "from certificate No. 1." A number of certificates which the witness testified about were introduced in evidence. They all bore date of July 24, 1890. But as to the effect of this testimony and of the contentions of petitioners we are not called upon to express an opinion. The May 19, 1902. I United States for the District of New N ERROR to the District Court of the Statement by Mr. Chief Justice Fuller: The case is stated by the district court, in substance, as follows: On November 3, 1899, a libel was filed on behalf of the United States in the district court of the United States for the district of New Jersey against the schooner William H. Davenport, her tackle, apparel, and furniture, and against all persons intervening therein, in case of collision, civil and maritime, seeking to recover the sum of $5,000 damages alleged to have been sustained by the lighthouse tender Azalea in a collision with that schooner on October 2, 1899, off Cornfield Point light Citation was issued and served on the United States attorney for the district, who was the proctor of record for the libellant in the original suit. The United States attorney filed a notice of motion to quash the citation, February 14, 1900, and a motion to that effect was argued by counsel. December 17, 1900, the district court filed its written decision, holding that the cross libel could not be maintained because the court had no jurisdiction to entertain the cause or to enter a decree as prayed for against the United States, whereupon and on that day the court entered a decree that the citation be quashed and that the cross libel be dismissed with costs. 105 Fed. 398. The cross libellant thereupon appealed to this court and the appeal was allowed on the question of jurisdiction. The district court made a statement of the facts, to which a copy of the record was attached, and certified five questions in respect of jurisdiction under the cross libel to this court for decision. Assistant Attorney General Beck for appellee. Mr. Chief Justice Fuller delivered the opinion of the court: ship in Long Island sound. It was averred | cause of action for which the original libel in the libel that the collision was in no way was filed against the said William H. Davcaused by the fault or negligence of those on enport.' board the lighthouse tender Azalea, but that it was solely due to the carelessness and negligence of those in charge of the schooner William H. Davenport in certain particulars stated. The libel concluded with the formal prayer that process might issue in due form of law against the schooner, her tackle, apparel, and furniture; that all persons interested might be cited to appear and answer; and that the schooner might be condemned and sold to pay libellant's claim with interest and costs; "and that the court will otherwise right and justice administer in the premises." Process in due form was issued against the schooner, and on November 8, 1899, the marshal filed his return certifying that on November 4 he had made due attachment of the schooner, and that the vessel was then in his custody. November 22, 1899, F. S. Bowker, managing owner, filed a claim to the schooner on be half of her owners, a stipulation for costs and a stipulation for value, and thereupon the schooner was released from custody and restored to the possession of her owners. The claimant, Bowker, filed his answer to Messrs. G. Philip Wardner, Eugene the libel December 11, 1899, denying that P. Carver, Convers & Kirlin, and Carver the collision was caused or contributed to & Blodgett for appellant. by those in charge of the schooner, alleging that the collision and the damage resulting therefrom were caused wholly by the fault of the steamer Azalea and of those in charge of her, in certain particulars stated, and concluding with the prayer that the libel be dismissed with costs. December 29, 1899, section of the judiciary act of March 3, 1891 This appeal is prosecuted under the 5th Bowker, for and on behalf of himself and [26 Stat. at L. 826, chap. 517], providing his co-owners, filed a cross libel against the "that appeals or writs of error may be takUnited States seeking to recover the sum of en from the district courts or from the ex$6.000 damages alleged to have been sus-isting circuit courts direct to the Supreme tained by the schooner and by her cargo in said collision. It was alleged in the cross libel that the collision was wholly due to the negligence and fault of the steamer Azalea and of those in charge of her, the par: ticulars being set forth, and the prayer of the cross libel asked "that a citation, according to the course and practice of this honorable court in causes of admiralty and maritime jurisdiction, may issue to the said respondents above named, citing and admonishing them to appear and answer all and singular the matters aforesaid, and that this honorable court shall pronounce for the damages, with interest and costs, and will grant a stay of all further proceedings in the action of the said respondent brought by it in this honorable court against the schooner William H. Davenport by the filing of a libel against said schooner, on November 3, 1899, until security be given by said respondent, pursuant to the admiralty rules of the Supreme Court of the United States and the practice of this honorable court, to respond for the damages claimed in this cross libel, and that this honorable court will give to the cross libellants such other and further relief as in law and justice he may be entitled to receive, this said action being a counterclaim arising from the same Court in the following cases: In any case in which the jurisdiction of the court is in issue. In such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for deci sion." By the 6th section the circuit court of appeals, in cases within its appellate jurisdiction, may certify to the Supreme Court "any questions or propositions of law concerning which it desires the instruction of that court for its proper decision," and our 37th rule requires in such cases that "the certificate shall contain a proper statement of the facts on which such question or proposition of law arises." The district court has observed that rule in form, but it is under the 5th section that our jurisdiction is invoked, and, as the rec ord accompanies the statement, we are enabled to dispose of the appeal. It was settled, soon after the passage of the act of 1891, that cases in which the jurisdiction of the district or circuit courts was in issue could be brought to this court only after final judgment. McLish v. Roff, 141 U. S. 661, 35 L. ed. 893, 12 Sup. Ct. Rep. 118; Chicago, St. P. M. & O. R. Co. v. Roberts, 141 U. S. 690, 35 L. ed. 905, 12 Sup. Ct. Rep. 123. The subject was carefully 137 *138 *139 considered in the opinion of Mr. Justice La- | cree did not so dispose of the case as to mar in the first of these cases, and the con- enable this court to take jurisdiction. clusion reached was in accordance with the general rule that a case cannot be brought to this court in parcels. Southern R. Co. v. Postal Teleg. Cable Co. 179 U. S. 641, 45 L. ed. 355, 21 Sup. Ct. Rep. 249. The preliminary question is, therefore, whether the decree dismissing this cross libel is a final judgment within the rule upon that subject. It was long ago held that a decree dismissing a cross bill in equity could not be considered, standing alone, as a final decree in the suit, and was not the subject of an independent appeal to this court under the judiciary act of 1789; and that it could only be reviewed on an appeal from a final decree disposing of the whole case. Ayres v. Carver, 17 How. 591, 15 L. ed. 179; Ex parte South & North Ala. R. Co. 95 U. S. 221, 24 L. ed. 355. "It is argued that Ayres v. Carver is distinguishable from the case at bar because the 22d section of the judiciary act of 1789, under which the appeal in that case was taken, provided in terms for the revision of final decrees, whereas no specific mention is made of final decrees or judgments in § 5 of the judiciary act of 1891. But that difference was specifically disposed of in McLish v. Roff, as not affecting the principle that the decree must be final in order to be appealable. Generally speaking, the same principles apply to cross libels as to cross bills, and this case affords no ground of exception therefrom. In admiralty, if the respondent desires to obtain entire damages against the libellant, or damages in excess of those claimed by libellant, a cross libel is necessary, although matters of recoupment or counterclaim might be asserted in the answer. The Sapphire, 18 Wall. 51, sub nom. The Sapphire v. Napoleon III. 21 L. ed. 814; The Dove, 91 U. S. 381, sub nom. The Mayflower v. The Dove, 23 L. ed. 354. In The Dove a final decree was entered in favor of the libellants in the original suit, and a decree rendered at the same time dismissing the cross libel. No appeal was taken from the decree of dismissal, but the case was carried to the circuit court from the district court by appeal from the decree on the libel, which was affirmed, and the cause brought to this court. The principal question involved on the appeal to this court was whether the submission to the dismissal of the cross libel in the district court by the parties who had filed it prevented them from making the same defense to the original libel that they might have made if no cross libel had been filed, and it was held that while the parties were bound by the decree of the district court dismissing the cross libel, the issues of law and fact involved in the original suit were not thereby disposed of. Counsel quote the language of Mr. Chief Justice Waite in St. Louis, I. M. & S. R. Co. v. Southern Exp. Co. 108 U. S. 28, 27 L. ed. 639, 2 Sup. Ct. Rep. 8, that "a decree is final, for the purposes of an appeal to this In the course of some general observacourt, when it terminates the litigation be- tions, Mr. Justice Clifford, delivering the tween the parties on the merits of the case, opinion, after remarking that causes of that and leaves nothing to be done but to enforce kind might be heard separately, said: “Usby execution what has been determined;" ually such suits are heard together, and are and insist that the decree on the cross libel disposed of by one decree or by separate has definitely determined the right of re- decrees entered at the same time; but a despondent to affirmative relief. But the liti- cision in the cross suit adverse to the libelgation between the parties on the merits lant, even if the decree is entered before the embraced the right of libellant to recover original suit is heard, will not impair the because of the fault of respondent, as well right of the respondent in the original suit as the right of respondent to recover because to avail himself of every legal and just deof the fault of libellant, and until the ques- fense to the charge there made which is tion as to which of the parties was at fault, regularly set up in the answer, for the plain or whether both were, is determined, that reason that the adverse decree in the cross litigation cannot be said to have terminated. suit does not dispose of the answer in the If the district court had held that it had ju- original suit. Whether the controrisdiction to award affirmative relief against versy pending is a suit in equity or in adthe United States on the cross libel, the miralty, a cross bill or libel is a bill or libel cause would have stood for hearing on the brought by a defendant in the suit against whole case. Its decision that it did not have the plaintiff in the same suit, or against jurisdiction simply prevented respondent other defendants in the original suit, or from obtaining affirmative relief over, as against both, touching the matters in quessuming that the facts justified it. And how- tion in the original bill or libel. It is ever convenient it might be that the question brought in the admiralty to obtain full and of jurisdiction of the cross libel should be complete relief to all parties as to the matadjudicated in advance, it is nevertheless ters charged in the original libel; and in true that when a decree was rendered on the equity the cross bill is sometimes used to original libel, the error, if any, committed obtain a discovery of facts. New and disin dismissing the cross libel, could be recti- tinct matters, not included in the original fied. That this course might result in de- bill or libel, should not be embraced in the lay, and perhaps sometimes in hardship, if cross suit as they cannot be properly examit should turn out that jurisdiction could be ined in such a suit, for the reason that they exercised on the cross libel, is not a sufficient constitute the proper subject-matter of a reason for entertaining an appeal, if the de-new original bill or libel. Matters auxili *142 ary to the cause of action set forth in the original libel or bill may be included in the cross suit, and no others, as the cross suit is, in general, incidental to, and dependent upon, the original suit. Ayres v. Carver, 17 How. 595, 15 L. ed. 181; Field v. Schieffelin, 7 Johns. Ch. 252; Shields v. Barrow, 17 How. 145, 15 L. ed. 163." In this case the cross libel was, as stated therein, "a cross libel brought under admiralty rule 53 of the Supreme Court of the United States, being a counterclaim arising out of the same cause of action as the suit brought by the United States against the said schooner William H. Davenport in a cause of collision, by a libel filed Nov. 3, 1899, in said court." The 53d admiralty rule provides that the respondents in a cross libel shall give security to respond in damages, unless otherwise directed, and that all proceedings on the original libel shall be stayed until such security shall be given. 2. March 3, 1891 (26 Stat. at L. 851, chap. 538), is not "evidence" within the meaning of 2 of that act, preserving as pending cases those in which evidence had been presented, since the word "evidence" must be considered as referring to the prior act of 1872 (17 Stat. at L. 190, chap. 233), and the regulations authorized thereby, which required claims for such depredations to be accompanied by the depositions of two or more persons having personal cognizance of the facts. A claim for compensation for Indian depredations is not relieved from the conditions of the act of March 3, 1891, § 2 (26 Stat. at L. 851, chap. 538), preserving as pending cases only those in which evidence had been presented, by the provision of § 4 of that act, that in considering the merits of claims presented to the court of claims any testimony, affidavits, or other papers on file in the Department, relating to such claim, shall be considered as competent evidence, as this provision is only applicable to the claim after it is presented to the court of claims. [No. 578.] The cross libel and the answer to the libel were consistent, the subject-matter of the libel and the cross libel was the same, and the latter, in no proper sense, introduced Submitted April 18, 1902. Decided May 19, new and distinct matters. The cross libel occupied the same position as a cross bill in equity, and the general rule is that the or. 1902. iginal bill and the cross bill should be heard APPEAL from the Court of Claims to re together and disposed of by one decree, although, where the cross bill asks affirmative relief, and is therefore not a pure cross bill, the dismissal of the original bill may not dispose of the cross bill, which may be retained for a complete determination of the cause. Holgate v. Eaton, 116 U. S. 33, 29 L. ed. 538, Sup. Ct. Rep. 224, illustrates this. There the bill and cross bill were heard together, and it was held that the original bill must be dismissed, but that relief might be accorded on the cross bill. The cross bill was not filed merely as a means of defense, but of obtaining affirmative relief, and the defeat of the bill sustained the disposition of the cause on the cross bill. Such might be the result here if it turned out on the hearing that the Azalea was in fault, and not the schooner, provided jurisdiction could be maintained to award relief against the United States. But in any point of view, the decree on the cross libel did not so finally dispose of the whole case as to entitle us to take jurisdiction under 5 of the act of 1891. Appeal dismissed. view a judgment sustaining a plea to the jurisdiction of that court of a petition filed under the Indian depredation act. Af. firmed. The facts are stated in the opinion. Mrs. Belva A. Lockwood and Mr. W. H. Robeson for appellants. Assistant Attorney General Thompson and Mr. Lincoln B. Smith for appellees. Mr. Justice McKenna delivered the opinion of the court: This is an appeal from a judgment of the court of claims sustaining a plea to the jurisdiction of the court to hear a petition filed by appellants under the Indian depredation act of 1891. The purpose of the petition was to recover the sum of $7,950 against the United States, for the value of eighteen head of mules and twenty-nine head of horses, alleged to have been taken and driven away by the Sioux Indians on or about the 25th day of July, 1864. The plea to the jurisdiction of the court was based upon the fact that the depredation charged was alleged to have been committed "prior to the 1st of July, 1865, and that no claim for such depredation was ever Mr. Justice White and Mr. Justice presented to the Secretary of the Interior McKenna dissented. (186 U. S. 153) or the Congress of the United States, or any superintendent, agent, subagent, or com JOSEPH A. NESBITT and Charles A. missioner, authorized under any act of Con Moore, Appts., บ. UNITED STATES and the Sioux Indians. Indian depredation act of 1891—preserva tion of pending cases. 1. An affidavit of a claimant, accompanying a claim for compensation for Indian depredations, filed in the Interior Department before the passage of the Indian depredation act of gress to inquire into such claims, within the meaning of the first proviso of the 2d section of the act of March 3, 1891." Section 2 of the act of 1891 reads as follows: "That all questions of limitations as to time and manner of presenting claims are hereby waived, and no claim shall be excluded from the jurisdiction of the court because not heretofore presented to the Secretary of the Interior or other officer or de 154 155 806 22 SUPREME COURT REPORTER. partment of the government: Provided, That no claim accruing prior to July 1, 1865, shall be considered by the court unless the claim shall be allowed or has been or is pending prior to the passage of this act, before the Secretary of the Interior or the Congress of the United States, or before any superintendent, agent, or subagent, or commissioner authorized under any act of Congress to inquire into such claims; but no case shall be considered pending unless evidence has been presented therein: And provided further, That all claims existing at the time of the taking effect of this act shall be presented to the court by petition, as hereinafter provided, within three years after the passage hereof, or shall be thereafter forever barred." [26 Stat. at L. 851, chap. 538.] The claim was filed in the Interior Department March 2, 1891, before the passage of the act, but it is contended by the government that it was not "pending" before the Secretary of the Interior because no evidence had been "presented therein." The affidavit of Joseph A. Nesbitt accompanied the claim, and was very full as to the locality and circumstances of the depredation. It also stated the attempts which were made to recover the animals and the failure of the attempts, and gave the names of the witness by whom the depredation could be proved. The question in the case is whether such affidavit constituted the presentation of evidence of the claim so as to bring the claim within the statute. Claims for Indian depredations filed in the Interior Department after 1872 were filed under the act of 1872. 17 Stat. at L. 190, chap. 233. Section 7 of the act reads as follows: "That it shall be the duty of the Secretary of the Interior to prepare and cause to be published such rules and regulations as he may deem necessary or proper, prescribing the manner of presenting claims arising under existing laws or treaty stipulations, for compensation for depredations committed by the Indians, and the degree and character of the evidence necessary to support such claims; he shall carefully investigate all such claims, as may be presented, subject to the rules and regulations prepared by him, and report to Congress at each session thereof the nature, character, and amount of such claims, whether allowed by him or not, and the evidence upon which his action was based: Provided, That no payment on account of said claims shall be made without a specific appropriation therefor by Congress." In pursuance of that act the Secretary of the Interior established the following regu lations: OCT. TERM, "2. The necessary documents and proofs must accompany the application of the claimant, his attorney, or agent, and should be in legal form, and consist "First. Of the sworn declaration of the claimant, setting forth when and where the depredation was committed, and by what Indians, their tribe or nation being named; | describing fully the property stolen or destroyed, and giving the quantity of each article or number, condition, or quality thereof, and the just value of each article or piece of property at the time the same was so taken or destroyed. Should the depredation have been committed while the claimant was in the Indian country, he must state whether he was lawfully there, either having a license to trade with the Indians, a passport, or a permit from the proper Indian authorities, or was en route through said country to a place of ultimate destination at some point within the limits of any state or territory not included within the limits of the reservation for any nation or tribe of Indians set apart by treaty provi sion, or by executive order; and he in such declaration must further state whether any of the property so stolen or destroyed has subsequently been recovered by or for him, the claimant; and whether the claimant has at any time received part compensation therefor; and if so, how much, when, and from what source; and further, that the claimant has in no way endeavored to obtain private satisfaction or revenge. "Second. Of depositions of two or more persons having personal cognizance of the facts or any of them as embraced in the declaration of the claimant, which depositions must set forth the means of knowledge which deponents have as to the fact of the depredation, when, where, by what Indians, and under what circumstances the depredation was committed, of what the property consisted that was so taken or destroyed by the Indians, describing it as fully as practicable, and stating the value thereof. If the deponents, or any of them, were at the time of the depredation in the employment of the claimant it must be so stated, and in what capacity. (Regulations Indian Department 1884, p. 81.)" To the requirements of the act of 1872, and the regulations *authorized by it, the word "evidence," in the act of 1891, must be considered as referring, and the claim of the appellant was not accompanied by such evidence. It was accompanied by the deposition of one of the claimants, but not of "depositions of two or more persons having personal cognizance of the facts or any of them ants." Persons having such knowledge exas embraced in the declaration of the claim "1. Application for indemnity, or satisfac-isted, it was stated, and their affidavits tion for the loss or injury sustained, must promised, but they had not been presented. be made by the claimant, his attorney, or Nor is the petitioner helped by 8 4 of the duly authorized agent, to the act of 1891, which provides thatUnited States, Indian agent, subagent, within whose jurisdiction or charge the nation, tribe, or band is to which the offenders or depredators belong. "In considering the merits of claims presented to the court any testimony, affidavits, and such other papers as are now on file in the Departments relat *156 |