Opinion of the Court.

special rate and rebate is denied, and it is a matter of controversy and conflict of evidence, and it is also insisted in answer to this by plaintiffs that the interstate commerce law does not apply for the reason that the evidence disproves any 'common control' over the river and rail route. We are of opinion, however, and rest our decision upon the ground that if it were assumed that the law was applicable, and the fact of agreement for rebate and special rate proven, it would not prevent liability on the part of the carrier for the freight received and covered by insurance in the hands of the carrier's agent. The law makes such agreements as to rebate, etc., void, but does not make the contract of affreightment otherwise void, and we think there is nothing in the law or the policy of it which requires a construction that would excuse a carrier from all liability when it made such a contract in connection with that for receipt and transportation of freight. Such a construction would encourage rather than discourage such unlawful agreements for rebates. The carrier might prefer them to liability for the freight. Such a contract as to rebate would be void, and . . . could not be enforced; but we think the shipper could nevertheless recover for loss of his freight through the carrier's negligence and, incidentally, of carrier's insurance. No different construction has yet been put upon the interstate commerce law so far as we are advised, and we decline to give it any other." We concur in the correctness of this conclusion of the State Supreme Court.

Jones Brothers & Company were either the agents of the owners or consignees of the cotton, or the sellers thereof to eastern consignees, and the rebates or drawbacks, which they claimed to have been allowed, if allowed at all, according to the testimony of one of the members of the firm, was a private benefit which the firm secured, and, so far as appears, without the knowledge or consent of the owners or consignees of the cotton. Under such circumstances, if such rebates were paid or allowed to the firm by the agent of the railroad company, it is difficult to understand upon what principle such an allowance would vitiate or render void the bills of lading which the railroad company issued to the owners of the cotton. It is

Syllabus.

still more difficult to understand how the compress company, or the fire insurance companies, could avail themselves of the arrangement, even regarding it as illegal, between the agent of the railroad company and Jones Brothers & Company. They were not parties to it, and they were not affected by it. in any way, shape, or form.

There is nothing in the interstate commerce law which, vitiates bills of lading, or which, by reason of such allowance to Jones Brothers & Company, if actually made, would invalidate the contract of affreightment or exempt the railroad company from liability on its bills of lading.

The principles laid down in Interstate Commerce Commission v. Baltimore & Ohio Railroad, 145 U. S. 263, fall far short of establishing that the alleged allowance of rebate to Jones Brothers & Company would render the railroad company's bills of lading invalid and defeat the right of the marine insurance companies, who had paid the losses, to subrogation against the railroad company on bills of lading issued to the owners or consignees of the cotton, who are not shown to have known of, or consented to, the railroad company's agent giving such rebates.

We are, therefore, of opinion that the Federal questions presented by the assignments of error were not well taken and are not sustained, and that the judgment of the Supreme Court of the State of Tennessee in all of the cases must be

Affirmed.

CALIFORNIA POWDER WORKS v. DAVIS.

ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA.

No. 301. Submitted January 8, 1894. Decided January 22, 1894.

Two parties claiming title to the same land in California, each under a Mexican grant made prior to the treaty of Guadalupe Hidalgo, and each under a patent from the United States, one of them filed a bill in equity against the other in a District Court in San Francisco to quiet

Statement of the Case.

title. The cause was transferred to the Superior Court for that city and county, and being heard there, it was decreed that the defendant's title was procured by fraud, and the relief sought for was granted. On appeal to the Supreme Court of the State the judgment was affirmed, the court saying that the question of the genuineness of each original grant was a legitimate subject of inquiry, when the issue was made by the pleadings, and that on the evidence in the case the finding against the genuineness of the defendant's grant would not be disturbed on appeal. Held, that this ruling presented no Federal question for the consideration of this court.

What is necessary to give this court jurisdiction on writ of error to the highest court of a State again stated.

This court does not deem it necessary to examine the question raised under the practice in California, allowing separate appeals to lie from a judgment and from an order granting or refusing a new trial.

THIS was a suit in equity brought by Isaac E. Davis, for whom his administrator, Willis E. Davis, was duly substituted, and Henry Cowell, against the California Powder Works in the District Court of the Fifteenth Judicial District of California in and for the city and county of San Francisco, and subsequently transferred to the Superior Court of said city and county, to quiet plaintiffs' title to certain lands in Santa Cruz County, California. Both parties claimed title under patent from the United States; plaintiffs, through Pedro Sainsevain, patentee of the rancho Cañada del Rincon en el Rio San Lorenzo; defendant, through William Bocle, patentee of the tract called La Carbonera.

The case having been heard, the Superior Court made special findings of fact, and found as a conclusion of law that the plaintiffs were entitled to a decree according to the prayer

of the bill.

From the findings it appeared that Sainsevain's patent was based on a concession of July 10, 1843, the grant being duly approved June 10, 1846; that the archives of the Mexican government contained a full record of the proceedings; that the claim was confirmed January 17, 1854, by the land commissioners of the United States, duly organized under acts of Congress in that behalf, and their decree made final by the dismissal of an appeal therefrom by the District Court of the United States for the District of California; that a survey

Statement of the Case.

was duly had, and that the patent issued June 4, 1858. As to Bocle's patent, it appeared that the grant to him bore date February 3, 1838; that it was confirmed January 23, 1855, and that a patent subsequently issued, (July 7, 1873,) but it was found that the grant had been falsely antedated, and that it was made in the year 1848; that "there is not and never has been any paper, document, writing, or entry in any book or record in the Mexican archives pertaining to California relating to said alleged grant or concession to said Bocle; nor is the same noted in a book called the Jimeno's Index, nor has said purported grant any map or diseño attached to it, nor is any such map or diseño referred to. And at the said date, the 3d of February, 1838, said Bocle was not a naturalized citizen of Mexico, but was a subject of the Kingdom of Great Britain and Ireland;" that the decree of confirmation by the land commissioners of the alleged grant to Bocle was obtained by fraud, "the said fraud consisting of the fact that no such grant was made to said Bocle for said land, and said paper purporting to be such grant was false, simulated and fabricated, and made after the conquest of California by the United States from the Republic of Mexico, and in or about the year 1848, and was fraudulently imposed upon said board of land commissioners as valid and genuine. And the dismissal of the appeal therefrom to the United States District Court was likewise procured by the same fraud and by the concealment of said facts of the fabrication of said pretended grant from the United States authorities acting in that behalf. And said land commissioners and said authorities were each and all ignorant of any such fraud, and of the fact that said alleged grant was false and simulated, and were misled and deceived by the false allegations of the said Bocle in that behalf."

A decree in plaintiffs' favor having been entered, defendant moved for a new trial, which was denied, and an appeal was thereupon taken to the Supreme Court of California from the order denying said motion, by which that order and the judgment were affirmed.

The Supreme Court of California, (84 California, 617,) among other things, held: "Where both parties to an action to quiet

Statement of the Case.

title claim the land in dispute under patents confirming Mexican grants, the question of the genuineness of each original grant is a legitimate subject of inquiry in the action, provided such inquiry is admissible under the pleadings; and it may be shown in such case that the grant bearing the oldest date was not made during the term of office of the Mexican governor whose signature it bears, and that it was fraudulently antedated. When the evidence in such action shows that there is no official paper appertaining to an alleged Mexican grant, nor any record or trace thereof, which appears anywhere in the archives of California when a part of Mexican territory, a strong presumption arises against the genuineness of the grant, which can only be overcome by the clearest proof of its genuineness; and when the oral testimony of witnesses, offered in support of such genuineness, is of an inconclusive or suspicious character, a finding against the genuineness of the grant will not be disturbed upon appeal."

Application for a rehearing was made and overruled, and thereupon a petition for the allowance of a writ of error from this court was presented in which it was set forth that petitioner claimed the land in controversy under the treaty of Guadalupe Hidalgo, and under a certain statute of the United States entitled "An act to ascertain and settle private land claims," approved March 3, 1851; that such lands were ceded to the grantor of petitioner by the Republic of Mexico in 1838; that such concession was confirmed by the government of the United States, and a patent therefor issued to the petitioner's grantor under the laws of the United States; that such concession and the patent thereon issued were attacked by the bill in equity alleging that the concession was not actually made until 1848; that on issue joined on that allegation, trial was had and plaintiffs below secured the entry of a judgment that theirs was the better title; that the decision of the Supreme Court of the State of California in the cause, was and is against a title and right claimed by petitioner under the treaty and the statute of the United States, approved March 3, 1851. The writ of error was allowed and the case came on on a motion to dismiss.