"the laws of the several states shall be regarded as rules of decision in trials at common law in the courts of the United States; " but it has never been held in construing this section, that the judicial decisions of the several states upon questions of general law, were obligatory upon the federal courts. We are bound by the constitutions and laws of the several states, and by the construction given to such constitutions and laws by the courts of the state. It has also been held that we are bound by the decisions of state courts so far as they establish rules of law affecting the title to lands, or principles which have become a settled rule of property, but no farther. Swift v. Tyson, 16 Pet. 1; Boyce v. Tabb, 18 Wall. 546; Delmas v. The Insurance Company, 14 Wall. 661; Lane v. Vick, 3 How. 464. We had occasion to apply this construction at the last term of this court, where the question arose as to the liability of a city for injuries received from a defective sidewalk. We then held the municipality liable, following the decisions of the supreme court, although the supreme court of the state had held such liability did not exist. The Supreme Court of the United States also held, in numerous early cases, that sec. 721, above quoted, did not extend to the procedure or practice of the federal courts. Robinson v. Campbell, 3 Wheat. 212; Wayman v. Southard, 10 Wheat. 1. It was to remedy what was considered a defect in this particular, that the act of 1872 was passed; and I think the same construction should be given to it. The opinion of the supreme court of the state, that mandamus is the only proper remedy, being simply the enunciation of a general principle of law, running counter to the decisions of the Supreme Court of the United States upon the same subject, is not binding upon this court. See Savings Bank v. United States, 19 Wall. 227. Whether the act of 1872 may not also extend to the rules established by the supreme court of the state, of general application to the common law courts of the state, we are not called upon to decide. It would seem, however, that sections 914, adopting the state practice, and 918, authorizing the circuit courts to regulate their own practice, being contemporaneous acts, should be construed together. This would confine section 914 to the practice established by state statutes, leaving the federal courts still at liberty to adopt any rules not inconsistent therewith.

2. We are required, by the act of 1872, above quoted, R. S., Sec. 914, to conform our practice, pleadings and forms and modes of proceeding as near as may be," to those of the state only " courts, or, as the supreme court has expressed it, as near as may be "practicable." This leaves the act, to a certain extent, mandatory or directory, and vests in this court a limited discretion to reject methods of procedure which are inconsistent with the established and well recognized usages of the federal courts. As observed by the supreme court, in the Indianapolis R. R. Co. v. Horst, 93 U. S. 301,"this indefiniteness may have been suggested by a purpose. It devolved upon the judges to be affected the duty of construing and deciding, and gave them the power to reject, as con

gress undoubtedly expected they would do, any subordinate provision in such state statutes which, in their judgment, would unwisely encumber the administration of the law, or tend to defeat the ends of justice, in their tribunals." This discretion has actually been exercised in a number of cases. In Nudd v. Burrows, 91 U. S. 426, it was held that the practice act of Illinois, which provided that the court should instruct the jury only as to the law, and that they should, on their retirement, take the written instructions of the court, and return them with their verdict, was not binding upon the federal courts sitting in that state. It was said that the personal conduct and administration of the judge, in the discharge of his particular functions, was neither practice, pleading, nor a form or mode of proceeding, within the meaning of the section. So in the Indianapolis R. R. Co. v. Horst, 93 U. S. 291, a motion to instruct the jury to find specially upon particular questions of fact involved in the issue, in event they should find a general verdict, was refused, and the court held that such refusal was right, notwithstanding a statute of the state requiring the court to submit particular questions to the jury, when requested so to do. So in Beardsley v. Littell, 4 Cent. L. J. 270, Judge Blatchford held that the provision of the New York code of procedure, for the examination of witnesses before trial, did not apply to the federal courts. See also Fulton v. Gilmore, 2 Cin. Law Bulletin, 305.

It is scarcely necessary to say that a construction which would oust this court of jurisdiction over a very large class of cases, is not a "practicable conformance" with the mode of procedure in the state courts, within the meaning given to this section by the supreme court. The plea to jurisdiction is therefore overruled.

CONSTITUTIONAL LAW - DOUBLE DAMAGES.

ATCHISON & NEBRASKA R. R. v. BATY.

Supreme Court of Nebraska, October Term, 1877. HON. GEORGE B. LAKE, Chief Justice. 66 DANIEL GANTT,

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SAMUEL MAXWELL, Associate Justices. That part of the statute of June 22, 1867, which gives to the owner of live stock "double the value of his property injured, killed or destroyed" on a railroad track, in case the same is not paid within thirty days after demand therefor is made upon the company, is unconstitutional and void.

GANTT, J., delivered the opinion of the court: In this cause, one question only is raised for determination by this court, and that is this: Whether that part of the statute of June 22d, 1867, which gives to the owner of live stock "double the value of his property injured, killed, or destroyed," on a railroad track, in case the same is not paid within thirty days after demand therefor is made upon the company, is "the law the land."

This question is one of importance. It involves

an inquiry into the individual rights of propertythe inquiry whether the title to the same can be divested without the assent of the owner, and the question of legislative power over such authority.

The term right in civil society is defined to mean that which a man is entitled to have, or to do, or to receive from others, within the limits prescribed by law. But what is the law in regard to private property? In a historical examination of the question, we find that man, in the rudest state of nature, was not without some notion of exclusive property, and that jurists in every age, as civilization advanced, have maintained that what a man has obtained by the honest exertion of his own mind, or his own hand, is, by natural right, his own property. Indeed, it may be said that the protection of this right is the main security to the enjoyment of life. Burlamaqui (Politic C. 3 § 15), "defines natural liberty as the right which nature gives to all mankind of disposing of their persons and property, after the manner they may judge most consonant to their happiness, on condition of their acting within the limits of the law of nature, and so as not to interfere with an equal exercise of the same rights by other men; and, therefore, it has been justly said that "absolute rights of individuals may be resolved into the right of personal security-the right of personal liberty-and the right to acquire and enjoy property. These rights have been justly considered, and frequently declared by the people of this country to be natural, inherent and unalienable." Potter's Dwarris, ch. 13, p. 429.

Cooley (Com. Lim. 358), says, that "the right of private property is a sacred right," not introduced as the result of concessions, constitutional compacts, etc., but it is a fundamental law.

Then, if experience can be taken as the guide and expediency as the test in solving the problem of government, it may be laid down as an axiom, that in every advanced step of mankind, from the rudest state of nature to the more polished and refined civilization, the one leading purpose of the functions of government, as applied in each step to a higher civilization, was to secure, in greater degree, the natural rights of each individual in the social compact; and, therefore, in all the changes of government, whether by constitution or otherwise, this ancient law of individual right was the sacred shield of protection to life, liberty and property. It is a fundamental principle lying beneath and behind all edicts, constitutions and statutory law, and has become an established maxim in the doctrine of the common law.

Webster says that "written constitutions sanctify and confirm great principles, but the latter are prior in existence to the former." 2 Webster's Works, 392. Hence, it may be said with great propriety, that a constitution "measures the powers of the rulers, but it does not measure the rights of the governed," so that it is not the origin of rights, nor the fountain of law, but it is the "framework of the political government, and necessarily based upon the pre-existing condition of laws, rights, habits and modes of thought." Cooley

Con. Lim. 37; The People v. Hurlburt, 24 Mich. 107.

The design of the constitution, then, is to protect the absolute rights of individuals, as well as to establish the framework of the political government and define its limitations, wherefore it is called the supreme law of the land. It is nevertheless true that, under the police regulations of civil society, property may be regulated so as to protect others from the injury in the use of it. The maxim is "sic utere tuo ut alienum non lædas; and, therefore, however absolute and unqualified may be the title of the owner of private property, he holds it under the implied liability that his use of it shall not be injurious to others, nor to the rights of the community; but this does not infringe the right or title to property.

"-one

The common law right of property is secured by our constitution. It declares that "no person shall be deprived of life, liberty or property, without due process of law." The terms "due process of law " and "the law of the land,' of the other of which is found in all constitutions of the states-are said to mean the same thing, and it is quite clear that they are indifferently used in constitutions for the same purpose. They are said to refer to a pre-existing rule of conduct, and designed to exclude arbitrary power from every branch of the government. State v. Doherty, 60 Me. 509; Norman v. Heist, 5 W. & S.; The State v. Simmons, 2 Spear, 767. Hence, these terms do not mean merely a legislative enactment, for "if they did every restriction upon the legislative authority would be at once abrogated. For what more can the citizen suffer than to be taken, imprisoned, disseized of his freehold, liberties and privileges; be outlawed, exiled and destroyed, and be deprived of his property, his liberty and his life, without crime. Yet, all this he may suffer, if an act of the assembly simply pronouncing these penalties upon particular persons, or a particular class of persons, be, in itself, a law of the land, within the sense of the constitution." Hoke v. Henderson, 2 Dev. 15.

Webster interprets these terms to mean "that every citizen shall hold life, liberty, property and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not therefore to be considered as the law of the land," and, he says, of these words, "acts directly transferring one man's estate to another, legislative judgments, decrees and forfeitures, in every possible form, would be the law of the land. There would be no general permanent law for the courts to administer, or even to live under. The administration of justice would be an empty form, an idle ceremony. Judges would sit to execute legislative judgments and decrees, and not to declare the law, or administer the justice of the country." 5 Webster's Works, 487; State v. Doherty, 60 Me. 509; James' Heirs v. Perry, 11 Mass. 404; Lane v. Dorman, 3 Scam. 240-1; Commonwealth v. Byrne, 20 Gratt. 165; Bank of Columbia v. O'Keley, 4 Wheat. 243.

It is, however, true that subject to the qualified

negative of the governor, the legislature possesses all the legislative power of the state; but as it is said, in Taylor v. Botter, 4 Hill, 144: "Under our system of government, the legislature is not supreme. It is only one of the organs of absolute sovereignty which resides in the whole body of the people," and, therefore, as the "security of life, liberty and property lay at the foundation of the civil compact, to say that the grant of legislative power included the right to attack private property would be equivalent to saying that the people had delegated to their servants the power of defeating one of the great ends for which government was established." Smith's Const. Law, 484. This one great end of government is the protection of the absolute rights of individualsthe life, liberty and property of each citizen of the state,

Now, from a review of the law in respect to private property and the limitations of the constitution, it seems clear that, when a legislative act interferes with the title to the property of a citizen, or with his enjoyment or disposal of such property, and such act is called in question as unconstitutional and void, its authority and binding force must be tested by the fundamental principles, in respect to the rights of private property, the constitutional limitations and the maxims of the common law which constitute the basis of our system of laws; and it also seems clear that, from the earliest history of civil society down through all ages, one of the leading functions of government has been to protect life, liberty and private property of the individual as sacred.

Then, upon what principle or theory can these absolute rights of individuals be infringed or affected by legislative act, or the title to private property be divested and be appropriated by the government without the assent of the owner? The answer to the question is that, when demanded by the public exigencies, private property may be taken, either by right of eminent domain, or by way of taxation, and this modification of the law of natural right becomes an absolute necessity in the maintenence and administration of the government; but in exchange for this sacrifice of property, the individual receives the protection and security guaranteed to him by the government; and when property is taken by right of eminent domain, it is said to be "an universal and permanent proposition, in every way well regulated and properly administered government, whether embodied in a constitution or not, that private property can not be taken for strictly private purposes at all, nor for public, without just compensation." The People v. Morris, 13 Wend,

and, therefore, in the Superior Courts of England, fines were frequently denominated ransoms. Broom & Hadley's Com. 630.

The above seems to be the only instance in which the government justly has the right to divest title to the property of the citizen, and, therefore, it may be stated as an established maxim in the polity of the state, that the legislative authority can not reach the life, liberty or property of the individual, except where he is convicted of crime, or where the sacrifice of his property is demanded by a just regard for the public welfare. Taylor v. Porter, 4 Hill, 145; Wilkinson v. Leland, Peters, 658.

Again, it seems clear that the statute in question is incompatible with another provision of the constitution. It will not be pretended that the act was intended to define a statutory criminal offense. Still it is impossible to regard the excess beyond the value of the property in any other light than a penalty, not resting in contract, but a penalty or fine for the purpose of punishment; but this penalty or fine is by the statute given to the party claiming damages for the accidental loss of his property, and, hence, the act must come in conflict with that provision of the constitution which declares that "all fines and penalties," etc., "shall be appropriated exclusively to the use and support of common schools."

The statute seems to be obnoxious to another just rule in the administrative policy of the government. It may be considered a well settled rule, in respect to the operation of the laws, that corporate companies and natural persons are placed precisely upon the same ground; and "this is the true ground and the only one upon which equal rights and just liabilities and duties can be fairly based." Now, the statute in question is partial. It applies to one class only; but it is said that the law-makers" are to govern by promulgated, established laws, not to be varied in particular cases, but to have one rule for the rich and poor, for the favorite at court and the countryman at plough," and this rule is said to be a maxim in constitutional law, and by it we may test the authority and binding force of legislative enactments." Cooley Const. Lim. 392.

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In Walley's Heirs v. Kentucky, 2 Yerg. 554, it is held that "the rights of every individual must stand or fall together by the same rule or law that governs every member of the body politic, or the land under similar circumstances; and every private or partial law which directly proposes to destroy or affect individual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitutional and void."

Hence," that is not legislation which prescribes a rule contrary to the general law, and orders it to be enforced. Such power assimilates itself more closely to despotic rule than any other attribute of government." Erwine's Appeal, 16 Pa. St. 266.

If, however, the legislature has authority by enactment to declare that for an injury of the kind in question the injured party shall be entitled to receive "double the value" of the prop

erty injured, then, does not the authority imply the power in the legislature to make it a hundred times the value of the property; and the excess beyond the damages sustained, whatever it may be, is so much property taken from one person and given to another. If this legislative power exists, in respect to the case under consideration, why shall it not upon the same principle apply to simple debt; and, therefore, if upon demand by the creditor, the debtor fails to pay within a certain time, he may by legislative decree be compelled to pay double, treble, or a hundred times the amount of the debt, according as the legislature may decree by legislative enactment. And whatever the object of such legislation may be, it eventuates in a decree taking property from one man and giving it to another; but such legislation is repugnant to the fundamental principles of individual rights, the maxims of the common law, and the constitutional limitations, and, therefore, it can not be "the law of the land." Bay City & Sag. R. R. Co. v. Austin, 21 Mich. 401; Lewis v. Webb, 3 Greenl. 326, 330; Holden v. James, 11 Mass. 396; James v. Reynolds, 2 Texas, 251

It may be observed, in conclusion, that although the inquiry, whether a legislative act is unconstitutional, assumes an importance, from the fact that it is not only a matter of delicacy, but also because it is an inquiry into the boundary lines of the power given to a separate department of the government, yet "when it is clear that the legislature has transcended its authority, it is imperatively required of the courts" to maintain the paramount authority of law, and after a careful investigation of the questions involved in the inquiry first propounded, it seems clear that the statute in question is repugnant to the fundamental principles in respect to individual rights, the limitations and guarantees of the constitution, and the maxims of the common law, and, therefore, the judgment of the lower court must be reversed, and the cause remanded for a new trial. Judgment reversed.

PARTNERSHIP-BANKRUPTCY.

IN RE THOMAS & SIVYER.

United States District Court, Eastern District of Wisconsin-January 28, 1878.

Before HON. CHARLES E. DYER, District Judge. 1. PARTNERSHIP -NOTE SIGNED IN INDIVIDUAL NAMES OF PARTNERS.-Where T. & S. have become copartners, and preliminary to beginning their co-partnership business made a loan of money, giving therefor their joint note, but signing the same by their individual names, and the money was treated as a co-partnership fund, and applied to the business uses of the firm held, that the debt was a firm liability.

2. A FIRM CREDITOR, HOLDING MORTGAGE SECURITY upon the separate estate of one of the partners, may prove his whole debt against the joint estate without valuation or surrender of his security, even though the individual schedules of the partner whose separate estate is thus mortgaged do not show that he owes individual debts.

Orton & Frankenberg and D. S. Ordway for cred

itors, in support of proof of debt; Howard & Wall and F. C. Winkler, for creditors opposed.

In April, 1875, George L. Thomas and Byron G. Sivyer, the bankrupts, formed a co-partnership for the purpose of carrying on a livery and boarding stable business, under the name and style of Thomas & Sivyer.

The co-partnership relation began about the 8th or 9th of April, 1875, although the active conduct of the business did not commence until some days later. Previously, Sivyer, and one White, had, as co-partners, carried on the same business, and, by arrangement, the bankrupts purchased White's interest, agreeing to pay him therefor a certain sum of money in cash, and to assume and pay his share of the liabilities of the original firm. To enable them to carry out this arrangement, the bankrupts negotiated a loan of $5,500, from a corporation known as "The Trustees of Nashotah House." This loan was consummated on the 15th day of April, 1875, and, on that day, the bankrupts executed to Nashotah House their joint note for the sum borrowed, signing the note in their individual names. On the same day they received from the agent of Nashotah House a check for the money, running to them in their firm name, and, at the same time, the bankrupts, in their firm name, gave to White a check upon their bankers for $1,960, the amount agreed to be paid to him in cash, upon their purchase of his interest. The remainder of the moneys so borrowed appears to have been treated and used by them as co-partnership funds. The active prosecution of the copartnership business began on the day these transactions took place. Concurrently with the making of the loan of $5,500, and, as security for the repayment thereof, the bankrupts procured to be executed to Nashotah House a mortgage upon real estate, which mortgage was executed by Dorothy Sivyer, wife of Joseph Sivyer, deceased. E. H. Sivyer and wife, Annie J. Sivyer, Byron G. Sivyer, one of the bankrupts, and Julia N. Sivyer Thomas, wife of Geo. L. Thomas, the other of said bankrupts, and by said Thomas. The lands so mortgaged were the property of the heirs of Joseph Sivyer, deceased, each owning an undivided quarter interest, subject to a life interest held by the widow Dorothy Sivyer; the widow and heirs thus joining in the mortgage, and Byron G. Sivyer, one of the bankrupts, Mrs. Thomas, wife of the other bankrupt, being two of the heirs. This mortgage has been ever since held by the Nashotah House.

Sivyer & Thomas carried on their co-partnership business until October 8th, 1877, when they filed a voluntary petition in bankruptcy, and were adjudicated bankrupts as co-partners and as individuals. Their schedules disclosed partnership liabilities and assets, and also individual liabilities of Thomas, but did not show any individual liabilities of Sivyer. The interest of Sivyer, in the real estate mortgage to Nashotah House, was scheduled as individual assets. At a meeting of creditors for the choice of assignee, the Nashotah House was permitted by the register to prove its claim as demanded against the partnership, or

joint estate of Sivyer and Thomas, without surrender of the mortgage security, and to participate, as could an unsecured creditor of the firm, in the election of an assignee. Objection being made by the other creditors to this ruling by the register, the case was certified for the opinion of the court.

DYER, J.:

Two questions are presented: First, is the debt owing to Nashotah House a partnership liability, for the payment of which the creditor may look to the joint estate of the bankrupts? Second, if it is a partnership debt, can it be proved against the joint fund, without surrender of the mortgage security?

The first question must, in my opinion, be answered in the affirmative. It is true that the note held by the Nashotah House was signed by the bankrupts in their individual names. But this circumstance is not controlling upon the real character of the liability. "The form of negotiable paper is at most the slightest prima facie evidence of the true character and relation of the parties whose names appear upon it. The members of a firm may appear either on the face or back of the paper, in their individual names or in the name of the firm. If the paper is made or signed in any manner in the course of the business of the firm, it is co-partnership paper." Richardson v. Higgins, 23 N. H. 122. The evidence shows that, at the time of the $5,500 loan, the co-partnership relations existed between Thomas & Sivyer. The money, when received, was regarded and treated as a co-partnership fund. It was dealt with by the parties as a fund employed in their joint enterprise. In the proof of debt, made by the Nashotah House, it is stated that it was represented by the parties when they made the loan, that the money was to be expended in purchasing partnership stock, and other joint uses; that they desired and offered to sign the note in their firm name, but, at the request of the creditor, they subscribed it with their individual names. "A note signed by each of the members of a firm individually, the consideration of which went into their company business, and given instead of one signed with the partnership name, because the payee preferred, held to be a partnership note." Kendrick v. Tarbell, Jr., 27 Vt. 513. The true test is, was this money borrowed by these parties as co-partners, and for the benefit of the firm, and was it so used. Of course this question is not to be decided upon statements contained in the proof of debt, which is tendered, and, looking into the evidence, proper, which has been submitted, and into the circumstances of the transaction, I am satisfied that the demand in question is the firm debt of Thomas & Sivyer. Entries on their books have been pointed out as tending to a different, conclusion, but I do not see that they as materially bear upon this question, as they may upon other questions touched upon in the argument, but not now directly presented for adjudication.

Mr. Parsons, in his work on Partnership, page 225, says: “If a partnership be contemplated and agreed upon, and a purchase is made on a debt

otherwise incurred by one of the partners for the partnership, but before the actual formation of the ❘ partnership, it is only the debt of that partner." This proposition was cited by counsel in combating the claim that the demand held by the Nashotah House, is a firm liability. But if we are right on the facts of this case, that proposition is inapplicable, because it has reference only to the case of a debt incurred by one of the partners, and before the existence of the co-partnership.

Conceding that the demand held by Nashotah House is the firm liability of Thomas & Sivyer, the more serious question remains: Can the creditor be permitted to prove against the joint estate without giving up its morgage security to the extent that it covers the interest of Byron G. Sivyer, one of the bankrupts, in the lands mortgaged?

The question is au interesting one, and was very forcibly discussed by counsel, both in oral argument and in written briefs since submitted.

Counsel for creditors, who oppose the proof of debt. contend that the case is not like that of the creditor of a firm, who holds as security the collateral liability of a third party, which he may hold, and still prove his debt as if unsecured against the joint estate, but that here the security, to the extent of the bankrupt Sivyer's interest in the land mortgaged, belongs in fact to the estate against which the debt is proven; that the interest of Sivyer in the mortgaged land is part of the estate for the payment of the partnership debts, especially as his indidividual schedules do not show that he owes individual debts; hence, that the creditor can not prove against the joint estate, without surrendering his security. Counsel were also understood to deny the general proposition that a joint creditor having security upon the individual estate of one of the members of a firm, is entitled to prove against the joint estate without giving up his security.

The bankrupt law provides (sec. 5075 Rev. Stat.) that when a creditor has a mortgage upon the property of the bankrupt, he shall be admitted as a creditor only for the balance of the debt after deducting the value of such property, to be ascertained by agreement or sale; that the creditor may release his claim upon such property, and be admitted to prove his whole debt; and if the property is not sold or released, the creditor shall not be allowed to prove any part of his debt. It is to be observed that the security here spoken of is such as is upon the property of the bankrupt, and as it is the firm that is the bankrupt where the proceedings are against a co-partnership, there is certainly some reason for construing this statute upon its bare language, and independently of other considerations, as meaning that the creditor who must give up his security in order to prove his debt, must be one who has a lien upon the property of the firm; i. e. the bankrupt. And this, too, notwithstanding the fact that as an incident to the adjudication of the firm, the individual members are also adjudicated bankrupts.

Giving due consideration, as we should, to the object of this statute, it is plain that its purpose was to place the creditors of a bankrupt upon an