courts of the United States, because it is but the name under which a number of persons, corporators and citizens, may sue and be sued. In deciding the question of jurisdiction, the courts look behind the name to find who are the real parties in interest. In this case the parties to be bound by the judgment are the people of Washington county. That defendant is a municipal corporation, and not a private one, only furnishes a stronger reason why a citizen of another state should have his remedy in this court, and not in a county where the parties against whom the remedy is sought would compose the court and jury to decide their own case. The point is therefore overruled."

The same point is made in Lyell v. Supervisors of Lapeer County, 6 McLean, 446, which was an action brought by a British subject on a warrant or treasury order of one of the counties of Michigan, and tried before Mr. Justice McLean, at circuit in 1855. The question was dismissed by that able judge in the following words: "A county can not claim the immunity of not being sued under the eleventh section of the Constitution. If every county could throw itself on its sovereignty, and hold at defiance the judicial power of the Union, we should have in this country more sovereignty than law."

In 1868 the question came before the Supreme Court of the United States, in Cowles v. Mercer County, 7 Wall. 118, under a statute of Illinois, which recited in one section that "each county established in the state shall be a body politic and corporate, by the name and style of The County of ;' and by that name may sue and be sued, plead and be impleaded, defend and be defended against in any court of record, either in law or equity, or other place where justice shall be administered;" and, in another section, that "all actions, local or transitory, against any county, may be commenced and prosecuted to final judgment and execution in the circuit court of the county against which the action is brought." Rev. Stat. Ill 1845, ch. 27, §§ 1, 18. The Supreme Court of Illinois had decided that a county could neither sue nor be sued at common law, independently of legislative provisions, and had construed the foregoing sections of their statute as excluding the right to sue any county elsewhere than in the circuit court of the county sued. Schuyler Co. v.

Mercer Co., 4 Gilman, 20; Rock Island County v. Steele, 31 Ill. 544; Randolph County v. Ralls, 18 Ill. 30. But that court had never decided that a county of the state was exempt from being sued in the national courts. The action before the Supreme Court of the United States was in form against the Board of Supervisors of Mercer County. This board was a corporation, created such by the laws of the State of Illinois. The force of the case seems to embrace a ruling of these two points: 1. That such corporation may be sued in the national courts; 2. That the county, whose political agent the corporation is, may be so sued. In giving judgment Chief Justice Chase said: "It has never been doubted that a corporation, all the members of which reside in the state creating it, is liable to suit upon its contracts by the citizens of other states; but it was for many years much controverted whether an allegation in a declaration that a corporate defendant was incorporated by a state other than that of the plaintiff, and established within the limits, was a sufficient averment of jurisdiction. And in all cases, prior to 1844, it was held necessary to aver the requisite citizenship of the corporators. Then the whole question underwent thorough re-examination in the case of Louisville, Cincinnati and Charleston Railroad Company v. Letson, 2 Howard, 497; and it was held that a corporation, created by the laws of a state, and having its place of business within that state, must, for the purpose of suit, be regarded as a citizen within the meaning of the Constitution, giving jurisdiction founded upon citizenship. This decision has been since reaffirmed, and must now be taken as the settled construction of the Constitution. In the case before us the corporators are all citizens of Illinois, and the corporation is liable to suit within the narrowest construction of the Constitution. But it was argued that counties in Illinois, by the law of their organization, were exempted from suit elsewhere than in the circuit court of the county. And this seems to be the construction given to the statutes concerning counties by the Supreme Court of Illinois. But that court has never decided that a county in Illinois is exempted from liability to suit in national courts. It is unnecessary, therefore, to consider what would be the effect of such a decision. It is enough for this case that we find the board of super

visors to be a corporation authorized to contract for the county. The power to contract with citizens of other states implies liability to suit by citizens of other states, and no statute limitation of suability can defeat a jurisdiction given by the Constitution."

This question has been again raised at the present term of the Circuit Court of the United States, for the Eastern District of Missouri, before DILLON and TREAT, JJ., in the case of McPike v. Lincoln County, and other cases.

Mr. Cunningham, for the defendant, filed a special plea to the jurisdicion, alleging that "defendant is a political division of the state of Missouri, without other powers or obligations than may have been imposed upon it by law, and that, by all laws now or heretofore in force in the State of Missouri, a suit against defendant can only be had and maintained in the circuit court in the State of Missouri, in and for said county of Lincoln." The only statute of Missouri relating to the jurisdiction in which counties may be sued, reads as follows: "All actions, local or transitory, against any county, may be commenced and prosecuted to final judgment in the circuit court of the county against which the action is brought." 1 WagStat., p. 408, § 4. There is nothing in the statutes of Missouri like the provisions above quoted from the statutes of Illinois declaring the counties bodies corporate and politic, with the general power of suing and being sued as a natural person. In the absence of such provisions, the Supreme Court of Missouri has decided that the counties of Missouri have not the powers of corporations in general, but that they are merely quasi corporations, political subdivisions of the state, acting in subordination and auxiliary to the state government. Ray Co. v. Bently, 49 Mo. 242; Han. & St. Jo. R. Co. v. Marion Co., 36 Mo. 303; State v. St. Louis Co. Court, 34 Mo. 546; Barton Co. v. Walser, 47 Mo. 189.

In support of this demurrer, Mr. Cunningham contended that the laws of Missouri have never declared a county a body corporate, but that the statutes in force when the bonds were issued merely divided the state into 114 subdivisions, designated as counties by certain names and boundaries; that some portions of the state, notably a strip of land nine miles wide, adjoining Worth County, had, until recently, never been organized into any county; that the only power of counties to make contracts provided that counties may appoint. an agent to make any contract on behalf of such county for erecting any county building, or for any other purpose authorized by law; that the contract of such agent, duly executed on behalf of such county, shall bind such county; that the same law provided that suits against counties may be commenced and prosecuted in the circuit court of the county against which the action is brought; that "may "" means "shall " when applied to public officers or rights of third parties, as declared in Supervisors v. United States, 4 Wallace, 435; that the same section contained the exemption from execution and sale of court houses and other public buildings, which has never yet been disregarded by any court, and that the same law contained the provision about leaving a copy of the original summons in suits against counties with the clerk of the county court, but did not declare the same a sufficient service in such actions. No provision is anywhere made for suits against counties in Missouri, except in the circuit court of each county. It has been only twenty years since one of the ablest Judges of the Supreme Court of the United States protested against the gradual advance by which federal

courts claimed the right to sue even complete private corporations of a state, under the assumption that they were "citizens," and it is earnestly contended by defendant's counsel in the Ralls and Lincoln cases that, if a mere political division of a state, still so identified therewith that under the sanction of its court of last resort, (36 Mo. 294, invariably relied upon by bondholders, and 55 Mo. 295), the legislature may create, alter and abolish them, or without the assent of the citizens thereof, may ruin them at pleasure by the imposition, without their assent, of overwhelming debts, is to-day to be regarded as a complete corporation or 66 'citizen," and sued in federal courts, the day is not far distant when the prohibition of suits in federal courts against sovereign states without their consent, will be construed away as a right waived by some looselyworded act concerning state contracts or the state court of claims, or other means of suit against the state which the constitutions of Misouri have, for fifty-eight years, required the general assembly to enact.

Mr. Overall, contra.

"This is not a new

DILLON, J., in substance, said: question. [He then referred to the decisions of the federal courts already cited.] The statute of Missouri does not, in our judgment, take the case out of the reasoning of these decisions. If it did, it would, under the ruling in Insurance Co. v. Morse, 20 Wall. 445, be unconstitutional. We can not assent to the conclusion that it is within the power of the state to create political bodies capable of contracting debts with citizens of other states, and yet privileged against being compelled to pay those obligations by suit in the national courts."

This case will be carried to the Supreme Court of the United States. We are clear of all doubt that that court will decide that when the Legislature of Missouri clothed Lincoln county with the power of emitting these bonds, it fastened upon it by implication the corresponding liability of being compelled to pay them, by suit brought against it in any appropriate tribunal. We do not share in the apprehension of the learned counsel for the debtor in this case, that there is danger of the federal court so far absorbing jurisdiction as (putting it our way) to compel the states to pay their honest debts; but if such an usurpation of jurisdiction were possible, we doubt whether any great public calamity would attend such a result. Two of these states, at least, have, in the exercise of this so-called "sovereign" power, deliberately repudiated their honest obligations, bringing, in each instance, an ineffacable stigma upon the American name. The less we have of this peculiar incident of "sovereignty" the better.

A CORRESPONDENT Writes: "I lately had occasion to use a Georgia case relating to criminal bail, in which Peters, J., indulged himself in a facetious dissenting opinion, and said: 'After his (a prisoner's) release on bail from custody, he may lawfully leave the court, the county, the state or the nation. And he may go away at just such rate of speed as suits him, and at his own time; he may run away if he thinks it best.'"'

1. SEPARATION OF JURY REQUISITES OF VERDICT.-In criminal cases, other than capital, the jury may, if they should agree upon a verdict during the adjournment of the court, sign and seal up their finding, and come in and affirm it at the next opening of the court; but such verdict to be legal and effectual must be orally and publicly stated by the foreman in open court.

2. A VERDICT WHICH HAS NEVER BEEN SPOKEN by the jury can not be implied from the mere omission of the jury to contradict the statement of the clerk as to what verdict has been rendered, or from the silence of the prisoner and his counsel.

Mr. Riley and Mr. Russell, for the defendant; Mr. Train, Attorney-General, for the Commonwealth.

INDICTMENT for manslaughter.

After a verdict of guilty, the defendant filed a motion that the verdict be set aside for the following, among other reasons: Because, after the case was given to the jury, and before any verdict was rendered, they had separated without the knowledge or consent of the defendant.

Upon the hearing of the motion the following facts appeared. The jury retired to consider their verdict during the morning session of the court, and, at the time of the adjournment of the court in the afternoon, they had not agreed. The presiding judge adjourned the court, and on his way from the bench to the lobby, and within two minutes after the formal adjournment of the court, instructed the officer in charge of the jury, without the knowledge or consent of the defendant or his counsel, that if the jury agreed before the coming in of the court, on the following morning, he might permit them to seal up their verdict, separate, and return with their verdict into court, at the opening thereof in the morning.

The jury thereafter, and about six o'clock in the evening, did agree upon a verdict of guilty, which the foreman wrote into a printed blank, signed and sealed up with the other papers in the case in the presence of all the jury. The foreman then informed the officer that the jury had agreed and had sealed up their verdict, and they were allowed to separate. At the opening of the court, the next morning, all the members of the jury, the defendant, and one of his counsel, were present in court. By direction of the court, the clerk was directed to take the verdict. The clerk called defendant by

Instructions by the court:

The above blank may be filled with the word "guilty" or the words "not guilty," as the jury may find the defendant to be one or the other. It is then to be signed by the foreman, and sealed up in an envelope, with the other papers in the case, before the jury separate."

The clerk then said: "Gentlemen of the jury, hearken to your verdict as the court has received it. You, upon your oaths, do say that the prisoner at the bar is guilty. So you say, Mr. Foreman, and so, gentlemen, you all say." The above is all that was said. The foreman, after he had sealed the verdict, as above stated, kept the same in his possession until he delivered it to the clerk, when the verdict was returned, and he testified that it had never been opened. In relation to the above facts, the defendant and his counsel knew that the jury had separated after the adjournment of the court; but, as to all the other facts above stated, after the court adjourned, and until after the rendition of the verdict, they were ignorant.

The motion to set aside the verdict was not made until some hours had elapsed after the rendition of the verdict. Upon the above facts, the court overruled said motion and the defendant excepted.

GRAY, C. J., delivered the opinion of the court. By the law of England, in cases of felony, the only verdict allowed was a public verdict, prɔnounced by the foreman in open court, and in the presence of the prisoner. In prosecutions for misdemeanors, and in civil cases, although the jury were permitted to separate, upon giving a privy verdict orally to the judge out of court, yet such verdict was of no force unless afterwards affirmed by an oral verdict given publicly in court, and the only effectual and legal verdict was the public verdict. 3 Bl. Com. 377; 4 Bl. Com. 360; 1 Chit. Crim. Law, 635, 636.

In this country, by way of substitute for a privy verdict, and to attain the same end of allowing the jury to separate after they have come to an agreement, a practice has been adopted-in civil actions and in cases of misdemeanors, at least, if not of all but capital crimes-of directing the jury, if they should agree during the adjournment of the court, to sign and seal up their finding, and come in and affirm it at the next opening of the court; but the verdict which determines the rights of the parties, and is admitted of record, and upon which judg

ment is rendered, is the verdict received from the lips of the foreman in open court. When the jury have been permitted to separate after agreeing upon and sealing up a verdict, there is this difference between civil and criminal cases. In a civil action, if the written verdict does not pass upon the whole case, or the jury refuse to affirm it, the court may send them out again, and a fuller or different verdict afterwards returned will be good. But in a criminal case the oral verdict pronounced by the foreman in open court can not be received unless it is shown to accord substantially with the form sealed up by the jury before their separation. Lawrence v. Stevens, 11 Pick 501; Pritchard v. Hennessey, 1 Gray, 294; Com. v. Townsend, 5 Allen, 216; Com. v. Durfee, 100 Mass. 146; Com. v. Carrington, 116 Mass. 37; Domick v. Rickenback, 10 S. & R. 84; Lord v. State, 16 N. H. 325.

By the settled practice in this commonwealth, the course of proceeding upon the return of the jury into court in criminal cases, is as follows: The clerk asks the jury if they have agreed upon their verdict. If the foreman answers that they have, the clerk then asks whether they find the defendant guilty or not guilty. The foreman answers "guilty," or "not guilty." The clerk then makes on the back of the indictment a minute of the verdict so returned, and, having done this, says to the jury: "Gentlemen of the jury, hearken to your verdict as the court has recorded it. You, upon your oath, say that the prisoner at the bar is 'guilty' "" (or "not guilty"). "So you say, Mr. foreman, and so, gentlemen, you all say."

The question of the clerk whether the jury have agreed upon their verdict, and the answer of the foreman that they have, are merely preliminary, and do not show what the verdict is. The form of verdict signed and sealed up by the jury has no weight or effect, except to preclude the idea of the jury having been influenced in arriving at their oral verdict, by anything that has occurred in the interval between their separation and their return into court. Com. v. Carrington, 116 Mass. 37, 40. The final declaring of the verdict by the clerk assumes it to have been already rendered by the jury and recorded by the court, and is intended to proclaim the actual and formal decision of the jury as understood by the court, and to enable any misapprehension in the record of that decision to be corrected by the jury before they are discharged. Rex v. Parkinson, 1 Moody, 45; Reg. v. Vodden, Dearsley, 229; s. c. 6 Cox C. C. 226. Any or all of these precautions for making sure that the verdict expresses the deliberate conclusion of the jury can not of themselves constitute a verdict, or dispense with the return of a verdict in proper and legal form.

The law requires the double safeguard against mistake: First, the delivery of the verdict by the foreman as the organ of the jury by word of mouth in open court, under the sense of responsibility attending such an utterance in the face of the court and of the public, and, in a case of felony, of the accused; and, second, the proclamation by the clerk of that verdict as understood and recorded by the court. The fact that in this com

monwealth the defendant is not entitled or permitted, as he is in England and many states, to have the jury polled, makes it peculiarly important for the security of his right to adhere to the established forms, remembering the words of Chief Justice Shaw: "In this respect it is true that forms are substance." Com. v. Roby, 12 Pick. 496, 514, 515.

In the case at bar, after the jury, upon their return into court, had been asked whether they had agreed upon their verdict and the foreman had answered that they had, the form of verdict which had been signed and sealed up before the jury separated was silently delivered by the foreman to the clerk and was opened and read by the clerk to the jury. The clerk thereupon told the jury (in the words accustomed to be used after the verdict has been pronounced by the foreman and minuted by the clerk) to hearken to their verdict as the court had recorded it. And the bill of exceptions states that "the above is all that was said."

In Com. v. Carrington, already cited, upon which the attorney-general principally relies, the bill of exceptions stated that, before the verdict was recorded, the clerk asked the jury if their verdict was that the defendant was guilty, to which they assented; and although the precise form in which such inquiry and response were expressed was not set forth in the bill of exceptions, it was assumed both by the counsel and the court, that an oral verdict had been returned in due form, if any such verdict could be received after the jury had separated and had brought in a sealed verdict.

But in the present case, it distinctly appears that when the clerk told the jury to hearken to their verdict as recorded, no legal or effectual verdict had been rendered by the jury, and they had not been asked, nor, in any form of words, orally and publicly stated, what their verdict was; and that, after they had been told that a verdict of guilty had been received, they simply said nothing. A verdict which has never been spoken by the jury can not be implied from the mere omission of the jury to contradict the statement of the clerk, or from the silence of the prisoner and his counsel.

The verdict received and recorded by the court not being a legal verdict, it was the right of the defendant, upon his motion filed on the same day, to have it set aside. The order of the supreme court, overruling this motion and denying him this right, was a decision upon a question of law which could not have been raised before verdict, and was therefore a proper subject of a bill of exceptions. Gen. Sts., c. 115, § 7.

As for these reasons, the defendant, in the opinion of a majority of this court, is entitled to a new trial, it is unnecessary to consider whether the instructions given by the judge to the officer after the court had adjourned, and in the absence of the defendant and his counsel, or those communicated to the jury by the novel, and, so far as we are informed, unprecedented method of printing them on a blank form of verdict, legally justified the separation of the jury before they returned into court.

Exceptions sustained.

A RECEIVER being an officer of the court has no implied powers other than those derived from the order of the court. He could not issue certificates which would constitute a first lien on this road, except for money borrowed, material furnished, or labor performed. The certificates, although they are in many respects like negotiable paper, yet it is the duty of the purchaser to see under what authority they are issued, and the plaintiff is not such a holder as will cut off the equities existing between the original parties to these certificates.

Appeal from Clinton District Court.

This action was commenced by the Joliet Iron and Steel Co., against the corporation defendant, in November, 1875, to enforce an alleged lien. E. H. Thayer was appointed receiver of the company. In July, 1876, the corporation receiver and certain other parties being represented and before the court, the following order was entered of record: "That the said receiver be and is hereby authorized and empowered to proceed to complete and build all the unconstructed portions of the line of the railroad of said Chicago, Clinton and Western Railroad Company, from Clinton, in Clinton Co., Iowa, to Iowa City, in Johnson Co., Iowa, and to put those portions of said line in good order and condition to be operated as a railroad. All of said construction and work said receiver is authorized to have done directly under his own management, or by contract of the whole of said work, or in part thereof, as may be in his judgment most advantageous and expedient, and to do the same as early as practicable. And said receiver is further authorized and directed to do and perform all the acts and things necessary to be done and performed to construct and complete said line of railroad, as above directed, and for such purpose the said receiver is hereby authorized and empowered to borrow, on such terms as to time of payment and rate of interest, as in his judgment may seem advisable, such sum or sums of money, and to make such indebtedness as shall be necessary for the further construction, equipment and final completion of said road, not to exceed eight thousand dollars per mile upon the whole line of said road, completed, and to be completed, and to make and issue to the person or persons of whom said money may be borrowed, or to whom such indebtedness may be due, but only such as is incurred by said receiver, his debentures or certificates, with the interest expressed in their body or in coupons or interest war

rant attached, signed by him as such receiver, but not personally; and it is further ordered and decreed that such debentures and certificates, issued by said receiver, in pursuance of the order herein made for the construction and completion of said road, whether for money borrowed, material furnished, labor performed or on account of contracts made by him for or on account of the construction or completion of said road, or any part thereof, shall be, and they are hereby adjudged to be, and shall be held and treated as receiver's indebtedness, and as such are decreed and adjudged to be a first lien for the principal and interest thereof, upon the entire line of said railroad, including the road-bed, iron, right of way, rolling stock, taxes, income and earnings of said road, and all the property, rights, interests and franchises of said railroad company now in existence or hereafter accruing or belonging to said company prior to any other lease or claims thereon whatsoever."

Afterwards the receiver, under said order, issued certain certificates, some of which having been acquired by the South St. Louis Iron Co., that company filed its petition of intervention to establish its lien, and have the property sold to satisfy the

same.

In November, 1877, the plaintiff, claiming to be the owner of certain of said certificates, filed its petition of intervention, asking the establishment of its lien, and that the property be sold to satisfy the same. The certificates owned by the plaintiff, amounting to $25,000, were all of the form following:

No. 28. RECEIVERS' CERTIFICATE. $5,000. Office of the Receiver of the Chicago, Clinton and Western Railroad, Clinton, Iowa, January 20th, 1877.

This is to certify that there is due on July 16th, 1877, to the Joliet Iron and Steel Co. or bearer, from Edward H. Thayer, as receiver (but not personally) of the Chicago, Clinton and Western Railroad, appointed by the District Court of the State of Iowa, in and for Clinton county, five thousand ($5,000) dollars, with interest thereon from this date, at the rate of seven per cent. per annum, on account of indebtedness incurred by said receiver. This obligation is issued under and by virtue of certain provisions of an order duly entered by the District Court of Clinton County, Iowa, on July 27th, 1876, and is one of a series of receiver's certificates authorized to be issued by such order, and by virtue thereof constitutes a first lien upon the said line of railroad, its appurtenances, franchises and income, being for iron furnished for constructing said road, payable at the Third National Bank, Chicago, Ill. EDWARD H. THAYER, Receiver of the Chicago, Clinton and Western Railroad.

An answer to the petition of intervention of the plaintiff was filed by the South St. Louis Iron Co., alleging the certificates owned by the plaintiff "were not issued by the receiver in payment of any money borrowed, nor in payment of any indebtedness due to the payee mentioned in said certificates, or any other person, but said certificates (and others of the same date) were issued and delivered to