'N ERROR to the Circuit Court of the United

throughout the United States," it may embrace I States for the District of Massachusetts.

within its legislation whatever may be deemed important to a complete and effective bankrupt system. The object of such a system is to secure a ratable distribution of the bankrupt's estate among his creditors, when he is unable to discharge his obligations in full, and at the same time to relieve the honest debtor from legal proceedings for his debts, upon a surrender of his property. The distribution of the property is the principal object to be attained. The discharge of the debtor is merely incidental, and is granted only where his conduct has been free from fraud in the creation of his indebtedness or the disposition of his property. To legislate for the prevention of frauds in either of these particulars, when committed in contemplation of bankruptcy, would seem to be within the competency of Congress. Any act, committed with a view of evading the legislation of Congress passed in the execution of any of its powers, or of fraudulently securing the benefit of such legislation, may properly be made an offense against the United States. But an act committed within a State, whether for a good or a bad purpose, or whether with an honest or a criminal intent, cannot be made an offense against the United States, unless it have some relation to the execution of a power of Congress, or to some matter within the jurisdiction of the United States. An act not having any such relation is one in respect to which the State can alone legislate.

The act described in the 9th subdivision of section 5132 of the Revised Statutes is one which concerns only the State in which it is committed; it does not concern the United States. It is quite possible that the framers of the statute intended it to apply only to acts committed in contemplation of bankruptcy; but it does not say so, and we cannot supply qualifications which the Legislature has failed to express.

Our answer to the question certified must be in the negative; and it will be so returned to the Circuit Court.

Cited-98 U. S., 357.

BENJAMIN F. BUTLER.

(See S. C., 5 Otto, 694-697.) Jurisdictional amount-kind of money. 1. A judgment for the plaintiff for $5,000 in coin is not sufficient in amount to give this court jurisdiction, as it does "not exceed the sum or value of $5,000."

2. This is so, although the verdict was for more, and the plaintiff remitted a part of the verdict be fore judgment. If the remittitur had not been entered until after the judgment, the case would

have been different.

On motion to dismiss.

The case is stated by the court.

Messrs. G. A. Somerby and L. S. Dabney, for defendant in error.

Under the Revised Statutes of the United States, section 691, as amended by the Act_of February 16, 1875, section 3, 18 Stat. at L., 316, this court has not jurisdiction to re-examine judgments of circuit courts, rendered since May 1, 1875, in such actions, unless the matter in dispute shall exceed the sum of $5,000, exclusive of all costs.

Yenaga del Valle v. Harrison, 93 U. S., 233 (XXIII., 892).

If it be argued, however, that at the time the rulings and instructions stated and complained of in the bill of exceptions were made, or given, or refused, the amount in controversy exceeded $5,000, because the plaintiff was then seeking to obtain a verdict for a greater amount, the obvious answer is, that this argument would warrant a re-examination in this court, at the instance of the defendant in the circuit court, of any judgment rendered against him in that court for any amount, however small, provided only the plaintiff in the circuit court sought to obtain the verdict of a jury for more than $5,000; because, in theory of law, all bills of exceptions are signed and sealed, as it appears by the record was done in this case, before the verdict of the jury is rendered. Such a rule is plainly inconsistent with the decision in Walker v. U. S., 71 U. S., 164 (XVIII., 319), and by such a rule the Statute of February 16, 1875, would be robbed of a great part of the operation which was expected from it.

This court is excluded from any inquiry as to why the judgment of the circuit court does not exceed $5,000, or why it is for just $5,000, because any such inquiry would be in effect to re-examine the judgment of a circuit court, in a case in which the laws of the United States, as has been already shown, do not confer on this court jurisdiction to do so.

Messrs. J. Hubley Ashton and James Thomson, for plaintiff in error:

The judgment being for the recovery of five thousand coined (gold) dollars of the United States, is a judgment for a "sum or value greater than $5,000 according to the just import and meaning of the term "dollars," as used in the 2d section of the Act of Feb. 16, 1875.

This court, in the celebrated cases of Bronson v. Rodes and Butler v. Horwitz, 7 Wall., 229, 258 (74 U. S., XIX.,141, 149), took judicial notice, not only of the fact that coined dollars were of greater value than paper dollars, but also of the actual value of coined dollars in the market at the time of the decisions.

See, opinion of Chase, Ch: J., 7 Wall., 245, 250-252 (74 U. S., XIX., 145-147).

The right of the court to recognize the fact that gold dollars were worth more than paper dollars, at the date of this judgment, cannot be doubted,

Considering the question upon the construction of the Act of 1875, as to the description of legal dollars, in which the sum or value of the matter in dispute is to be estimated according to the just intent of the statute, it is obvious and requires no argument to prove, in the first

place, that, inasmuch as the law recognizes two descriptions of dollars, which differ in act ual value, the statute must be held to refer to one or other as a uniform standard of value for determining in all cases the amount in contro-prosecutes a baseless claim for $10,000, and obversy, with reference to the jurisdiction of this

If, however, the reduction is permitted, the er- that we have no jurisdiction and the writ is, acrors in the record will be shut out from our recordingly, dismissed.

NORTHWESTERN MUTUAL LIFE IN-
SURANCE COMPANY, Piff. in Err.,

examination in cases where our jurisdiction de- Cited-104 U. S., 465; 109 U. S., 109, 233; 110 U. S., pends upon the amount in controversy. In 224. Sampson v. Welsh, 24 How., 207 [65 U. S., XVI., 632], we refused to take jurisdiction upon an appeal in admiralty, where a decree had been rendered against a respondent for more than $2,000, with leave to him, if he chose, to set off an amount due him for freight, and he afterwards, by the set-off, reduced the decree below our jurisdictional amount, notwithstanding, in sginifying his election to make the set-off, he expressly stated in a writing, which appeared in the record, that he did not thereby waive his right of appeal.

V.

EMILY C. MARTIN ET AL.

SAME.

V.

FLORIDA WELBORN, Use, etc.

Jurisdiction as to amount.

If the remitittur had not been entered until after the judgment, the case would have been 1. Where a verdict was rendered for over $5,000 in different; and, if the reduction was made with- favor of plaintiff, and he remitted all over that out the assent of the defendant, more like Kasum, and judgment was entered for just that sum, nouse v. Martin, 15 How., 198, where a declara- brought the case here by writ of error, the case against defendant's remonstrance, and defendant tion was amended in a state court so as to will be dismissed because the amount in controreduce the damages claimed below the jurisdic-versy is not sufficient to give this court jurisdiction. tional amount, after the necessary steps had 2. Thompson v. Butler, ante, 540, followed. been taken for the transfer of the cause to the Submitted Dec. 17, 1877. Decided Jan. 7, 1878, [Nos. 1008, 1009.] circuit court, and in which we held that the

N ERROR to the Circuit Court of the United

jurisdiction of the circuit court could not be de- States for the Western District of Tennes

feated in that way.

see.

Messrs. Wm. P. Lynde, L. D. McKisick, Wright & Folkes, Estes & Ellett, for plaintiff in error.

Mr. Josiah Patterson, for defendant in error.

Mr. Chief Justice Waite announced the decision of the court:

We have no jurisdiction if the sum or value of the matter in dispute does not exceed $5,000. One owing a debt may pay it in gold coin or legal tender notes of the United States, as he chooses, unless there is something to the contrary in the obligation out of which the debt arises. A coin dollar is worth no more for the purposes of tender in payment of an ordinary debt than a note dollar. The law has not made the note a standard of value any more than coin. It is true that in the market, as an article of merchandise, one is of greater value than the other; but as money, that is to say, as a medium of exchange, the law knows no difference between them. We are aware that in Bronson v. Rodes, 7 Wall., 229 [74 U. S., XIX.,141], it was said that a contract to pay in gold or silver coins "Is, in legal import, nothing else than an agreement to deliver a certain weight of standard gold, to be ascertained by a count of coins," and that it is not distinguishable, * * in principle, The question thus presented has just been decidfrom a contract to deliver an equal weight of ed in Thompson v. Butler [ante, 540], and the bullion of equal fineness;" but, notwithstand-motions are granted for the reasons stated in the ing this, it is a contract to pay money, and none opinion read in that case.

*

the less so because it designates for payment

one of the two kinds of money which the law

Verdicts having been rendered in each of these cases against the plaintiff in error (the defendant below) for more than $5,000, the plaintiffs respectively remitted all over that sum, and judgments were entered by the court, against the remonstrance of the defendant, for $5,000 and no more. The cases having been brought here by the defendant below, the defendants in error (plaintiffs below) move to dismiss because the amount in controversy is not sufficient to give us jurisdiction.

has made a legal tender in discharge of money THE CHICAGO, ROCK ISLAND AND PAobligations.

CIFIC RAILROAD COMPANY, Piff. in
Err.,

V.

HAMILTON HOUSTON.
(See S. C.. 5 Otto, 697-703.)

This judgment is for coined money, which at the time it was rendered and now is worth more in the market as merchandise than paper money; but our jurisdiction is to be determined by the amount of money to be paid and not the kind. If, instead of paper dollars and gold dollars legalized as money, the law had provided for Duty of traveler in crossing railroad—negligence. silver dollars and gold dollars, and this judgment had been for payment in gold, we think *1. The neglect of the engineer of a locomotive of it would hardly be contended that this court a railroad train, to sound its whistle or ring its bell could take jurisdiction, because when the judg-party from the necessity of taking ordinary preon approaching a street-crossing does not relieve a ment was rendered gold happened to be worth cautions for his safety. He is bound to use his more in the market as merchandise than silver; to cross the railroad track, in order to avoid any senses-to listen and to look-before attempting but, in principle, that case would not be differ- possible accident from an approaching train. If he ent from this. Notwithstanding, therefore, the omit to use them, and walk thoughtlessly upon the judgment is for coined money, we are satisfied *Head notes by Mr. Justice FIELD. 542

track, he is guilty of culpable negligence; and if he
receive any injury, he so far contributes to it as to
deprive him of any right to complain. If, using
them, he sees the train coming and undertakes to
cross the track instead of waiting for the train to
pass, and is injured, the consequences of his mistake
and temerity cannot be cast upon the railroad com-
pany. If one chooses in such a position to take risks,
he must bear the possible consequences of failure.
2. To instruct upon assumed facts to which no
evidence applies, is error. Such instructions tend
to mislead the jury by withdrawing their attention
from the proper points involved in the issue.
[No. 109.]

by her daughter as she left her house, and by the engineer a few seconds before she was struck by the locomotive. It does not appear that she was seen by any other person after leaving the house before she was injured. When discovered by the engineer, the locomotive was within four feet of her. She was then on the main track of the railway, about ninety feet east of Harris Street, and was apparently passing from the track south. She was struck by the extreme end of the beam of timber running across the Argued Nov. 22, 1877. Decided Jan. 7, 1878. engine, known as the bumper, and was thrown into a ditch about ten feet from the section

ERROR to the Circuit Court of the United house. The engineer testified, that when he dis

souri.

States for the Western District of Mis- covered her it was impossible to stop the train so as to avoid striking her. She died within an hour after receiving the injury.

The case is stated by the court.

Mr. Thomas F. Withrow, for plaintiff in

error.

Messrs. Jefferson Chandler, Jas. O. Broadhead and Newton Chalkin, for defendant in

error.

Mr. Justice Field delivered the opinion of the court:

This was an action against the defendant, the Railroad Company, brought under a statute of Missouri, which subjects a corporation to a penalty of $5,000 where death is caused by an injury resulting from "the negligence, unskillfulness or criminal intent" of any of its officers, agents, servants or employés, whilst running, conducting or managing a locomotive, car or train of cars. In this case, the deceased was the wife of the plaintiff; her death was caused by injuries inflicted by the locomotive of a railway train belonging to the defendant whilst the train was passing through the Village of Cameron in that State. The Company had two tracks, one main and the other a side track, which extended through a considerable portion of the village, and passed south of Second Street. The tracks were separated from each other by only a few feet. The house at which the deceased resided was north of Second Street and east of Harris Street, which the tracks crossed. South of the two tracks, and about ninety feet east from Harris Street, was situated a building belonging to the Company, called the sectionhouse, near which was a well of water. Both building and well were on the Company's right of way. The train was due, on the evening when the accident occurred, at half-past six, and it entered the village from the west. At that time a gravel train had been switched on the side track east of Harris Street, between the section-house and the depot. Freight cars were also standing on the side track west of, but near, Harris Street. There was a plank crossing, over the railway at Harris Street. When cars were not standing on the tracks there was nothing to prevent one passing in a direct or near ly direct line from the house of the deceased to the section-house. Persons, in going to the well from the Houston House, sometimes passed the road at the public crossing, and sometimes on the right of way of the Company east of Harris Street. The evidence disclosed by the record relating to the accident only shows that at about half-past six in the evening of the 13th of March, 1872, the deceased took a pail upon her arm and left her house and, it is supposed, started for the well near the section-house. She was seen

It appears from the evidence, also, that the railway was in plain view from the house of the deceased, and that a train approaching from the west could be seen from it, and from any point between the Harris Street crossing and the section-house for a distance of three quarters of a mile. At the time of the accident there was a bright moonlight, and the head-light of the engine was burning, and the movement of the train created a loud noise. There was some conflict of evidence as to the rate of speed at which the train was running at the time, and whether its bell was rung and its whistle sounded. As to the other facts stated, the evidence was all one way.

If, then, the positions most advantageous for the plaintiff be assumed as correct, that the train was moving at an unusual rate of speed, its bell not rung and its whistle not sounded, it is still difficult to see on what ground the accident can be attributed solely to the "negligence, unskillfulness or criminal intent" of the defendant's engineer. Had the train been moving at an ordinary rate of speed, it would have been impossible for him to stop the engine when within four feet of the deceased. And she was at the time on the private right of way of the Company, where she had no right to be. But, aside from this fact, the failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the Company's employés in these particulars was no excuse for negligence on her part. She was bound to listen and to look, before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and to see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If, using them, she saw the train coming and yet undertook to cross the track, instead of waiting for the train to pass, and was injured, the consequences of her mistake and temerity cannot be cast upon the defendant. No railroad company can be held for a failure of experiments of that kind. If one chooses, in such a position, to take risks, he must bear the possible consequences of failure. Upon the facts disclosed by the undisputed evidence in the case we cannot see any ground for a recovery by the

To instruct a jury upon assumed facts to which no evidence applied, was error. Such instructions tended to mislead them, by with drawing their attention from the proper points involved in the issue. Juries are sufficiently prone to indulge in conjectures, without having possible facts not in evidence suggested for their consideration. In no respect could the in-premises. They pray to be permitted to levy structions mentioned have aided them in reaching a just conclusion.