[169]*CRYSTAL SPRINGS LAND & WATER

COMPANY and S. G. Murphy, Appts.,

v.

CITY OF LOS ANGELES.

(See S. C. Reporter's ed. 169.)

tion of its impairment for the purpose of
creating a Federal question to give jurisdic-
tion on writ of error from the Supreme Court
of the United States to a state court.
[No. 392.]

Federal question-rights based on Mexican Submitted March 19, 1900. Decided April

grant.

A sult to establish water rights connected with
I
lands included in a grant from the Mexican
government, which rights are claimed to be
within the protection of the treaty with Mex-

ico, is held to involve no Federal question for
the purpose of giving jurisdiction to the Fed-
eral courts.

[No. 41.]

Submitted March 15, 1900. Decided April
9, 1900.

PPEAL from a decree of the Circuit

A Court of the United States for the

Southern District of California dismissing a
bill for want of jurisdiction. Affirmed.

See same case below, 82 Fed. Rep. 114.
Messrs. Stephen M. White and John
Garber submitted the cause for appellants.
Mr. S. O. Houghton submitted the cause
for appellee. Messrs. Walter F. Haas and
Lee & Scott were with him on the brief.

Per Curiam: Bill to quiet title to cer-
tain waters, water rights, and works con-
nected therewith. Bill dismissed for want

of jurisdiction, and question of jurisdiction
certified. Reported below, 82 Fed. Rep. 114,
76 Fed. Rep. 148.

Decree affirmed on authority of (1) Phil-
lips v. Mound City Land & Water Asso. 124
U. S. 605, 31 L. ed. 588, 8 Sup. Ct. Rep. 657;
California Powder Works v. Davis, 151 U. S.
389, 395, 38 L. ed. 206, 208, 14 Sup. Ct. Rep.

9, 1900.

N ERROR to the Court of Appeals for the

affirmance sustaining a statute changing the name of a corporation, which is alleged to be in impairment of the obligation of a contract. Dismissed.

58.

See same case below, 88 Md. 633, 42 Atl.

Mr. E. J. D. Cross submitted the cause for plaintiff in error. Mr. Abner McKinley was with him on the brief.

mitted the cause for defendant in error.
Mr. William Pinkney Whyte sub-

Messrs. George R. Willis and Francis T.
Homer were with him on the brief.

Per Curiam: Cause reported in state court, 88 Md. 633, 42 Atl. 58. Writ of error dismissed on the authority of Williams v. Eggleston, 170 U. S. 304, 309, 42 L. ed. 1047, 1049, 18 Sup. Ct. Rep. 617; Hamblin v. Western Land Co. 147 U. S. 531, 37 L. ed. 267, 13 Sup. Ct. Rep. 353; Wilson v. North Carolina, 169 U. S. 586, 595, 42 L. ed. 865, 871, 18 Sup. Ct. Rep. 435.

AUGUST J. HENKEL, Plff. in Err.,

บ.

CITY OF CINCINNATI.

(See S. C. Reporter's ed. 170, 171.)

chief justice.

The certificate of the chief Justice of the supreme court of a state, stating that a question as to a violation of the Federal Constitution was submitted to the court and decided, cannot confer jurisdiction upon the Supreme Court of the United States on writ of error to the state court.

350; New Orleans v. DeArmas, 9 Pet. 224,9 Writ of error to state court—certificate of
L. ed. 109; Borgmeyer v. Idler, 159 U. S. 408,
40 L. ed. 199, 16 Sup. Ct. Rep. 34; Muse v.
Arlington Hotel Co. 168 U. S. 430, 42 L. ed.
531, 18 Sup. Ct. Rep. 109; (2) Robinson v.
Anderson, 121 U. S. 522, 30 L. ed. 1021, 7
Sup. Ct. Rep. 1011; Florida C. & P. R. Co. v.
Bell, 176 U. S. 330, ante, 486, 20 Sup. Ct.
Rep. 402; Little York Gold-Washing &
Water Co. v. Keyes, 96 U. S. 199, 24 L. ed.
656; Tennessee v. Union & P. Bank, 152 U.
S. 454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654;
New Orleans v. Benjamin, 153 U. S. 411, 424, Argued March 20, 21, 1900. Decided April
38 L. ed. 764, 769, 14 Sup. Ct. Rep. 905.

[170]*ELLEN J. O. PHINNEY, Gerald C. Tobey, Horace P. Tobey, et al., Plffs. in Err.,

V.

TRUSTEES OF THE SHEPPARD AND
ENOCH PRATT HOSPITAL.

(See S. C. Reporter's ed. 170.)

[No. 206.]

9, 1900.

IN ERROR to the Supreme Court of the

State of Ohio to review a judgment af-
firming a decision dismissing a bill for in-
junction to restrain collection of a special
assessment. Dismissed.

See same case below, 58 Ohio St. 726, 51
N. E. 1098.

Mr. L. Benton Tussing argued the cause, and Messrs. Donaldson & Tussing and Writ of error to state court-right to raise Dolle & Dolle filed a brief for plaintiff in er

Federal question.

A stranger to a contract cannot raise the ques-
NOTE.-A8 to jurisdiction of cases involving
Federal questions-see notes to Montana Ore
Purchasing Co. v. Boston & M. Consol. Copper
& Silver Min. Co. 35 C. C. A. 7 and Bailey v.
Mosher, 11 C. C. A. 308.

ror.

Messrs. Wade H. Ellis and Ellis G. Kinkead argued the cause and filed a brief for defendant in error.

*Per Curiam: Bill for injunction to re-[171] strain collection of a special assessment filed

June 21, "mandate issued," and "original Argued March 6, 1900. Decided April 9,

ing. The trial proceeded and resulted in a | such statute to the trial of an action at comverdict and judgment for the plaintiff. The mon law. defendant brought the case by writ of error Neither the Constitution, treaties, nor before the circuit court of appeals, and that statutes of the United States otherwise recourt, desiring the instruction of this court quire or provide. The statute concerns the upon the matter, made the foregoing state-evidence which may be given on a trial in ment and ordered the following questions to be certified here:

"1. Is the above-recited statute of the state of New Jersey, the act of May 12, 1896, applicable to an action to recover damages for injury to the person brought and tried in the circuit court of the United States for the district of New Jersey?

"2. Is said statute applicable to an action to recover damages for injury to the person brought and tried in the circuit court of the United States for the district of New Jersey, where the injury occurred in the state of New Jersey, and both the plaintiff and the defendant at the time of the injury were citizens of that state?

"3. Had the circuit court the legal right or power to order a surgical examination of the plaintif?"

Messrs. E. A. Armstrong and D. J. Pancoast argued the cause and filed briefs for plaintiff in error.

Mr. Howard Carrow argued the cause

and filed a brief for defendant in error.

Contentions of counsel sufficiently appear in the opinion.

[134]. *Mr. Justice Peckham, after stating the facts, delivered the opinion of the court:

An answer to the third question, "Had the circuit court the legal right or power to order a surgical examination of the plaintiff ?" -will be all that is necessary for the action of the court below.

It is settled in this court that no power to make such an order exists at common law; in other words, the court has no inherent power to make it. Union P. R. Co. v. Botsford, 141 U. S. 250, 35 L. ed. 734, 11 Sup. Ct. Rep. 1000. In that case there was no statute of the state in which the United States court was held which authorized the order. There is no intimation in the opinion that a statute of a state directly authorizing such examination would be a violation of the Federal Constitution, or invalid for any other reason.

In this case we have such a statute, and by section 721 of the Revised Statutes of the United States it is provided that "the laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in courts of the United States, in cases in which they apply."

Does not this statute of the state apply in trials at common law in the United States courts sitting in the state where the statute exists?

The case before us is a common-law action; it is one to recover damages for a tort, which is an action of that nature. It was being tried in the state which enacted the statute, and the court was asked to apply

New Jersey, and it does not conflict with any
statute of the United States upon that sub-
ject. It is not a question of a general na-
ture, like the law merchant, but simply one
concerning evidence based upon a local stat
ute applicable to actions brought within the
state to recover damages for injury to the
person. The statute comes within the prin-[175]
ciple of the decisions of this court holding a
law of the state of such a nature binding up-
on Federal courts sitting within the state.
Swift v. Tyson, 16 Pet. 1, 18, 10 L. ed. 865,
871; Nichols v. Levy, 5 Wall. 433, 18 L. ed.
596; Watson v. Tarpley, 18 How. 517, 520,
15 L. ed. 509, 511; Ex parte Fisk, 113 U. S.
713, 28 L. ed. 1117, 5 Sup. Ct. Rep. 724.

It was held in United States v. Reid, 12
How. 361, 13 L. ed. 1023, that the provision
of the law of Congress did not extend to
criminal offenses against the United States,
for that would be to give to the states the
Power of prescribing the rules of evidence in
trials for offenses against the United States.
tended to confer upon the courts of the
It was said, however, that the section was in-
United States the jurisdiction necessary to
enable them to administer the laws of the

states.

We are not aware of any reason why this law of the state does not apply to courts of the United States under the section of the Revised Statutes above quoted. There is no claim made that the statute violates the Federal Constitution, and we are of opinion that such a claim would have no foundation, if made.

Counsel for plaintiff refers in his argument to the opinion in the Botsford Case, where it is stated (at page 256, 35 L. ed. 739, 11 Sup. Ct. Rep. 1002), that the question is one which is not governed by the law or practice of the state in which the trial is had, but that it depends upon the power of the national courts under the Constitution and laws of the United States, and he argues therefrom that the state statute is immaterial, and can furnish no foundation for the exercise of the power by the Federal court. We do not dispute that if there were no law of the United States which, in connection with the state law, could be referred to as in effect providing for the exercise of the power, the court could not grant the order under the decision in the case of Botsford. But we say there is a law of the United States which does apply the laws of the state where the United States court sits; and where the state has a law which provides for the making of an order for the examination of the person of a plaintiff in a case like this, the law of the United States applies that law to cases of such a nature on trial in Federal courts sitting in that state. In the Botsford Case there was no state law, and consequently no foundation for the application of the law of the United States.

*In Ex parte Fisk, 113 U. S. 713, 28 L. ed. [176]

1117, 5 Sup. Ct. Rep. 724, the statute of the |
state of New York, in relation to the exami-
nation of parties before trial, was held to be
in conflict with the act of Congress provid-
ing for the examination of witnesses in courts
of the United States, and was therefore in-
applicable in those courts; but the statute in
this case is not in conflict with any statute
of the United States. It does not conflict

with § 861 of the Revised Statutes, provid-
ing for the oral examination of witnesses
in open court. On the contrary, whatever
information may be obtained by the surgeon
who examines the plaintiff under the statute
in question can be availed of only by the de-
fendant's producing the witness and examin-
ing him in open court, or by deposition, if he
come within the exception mentioned in §
863 and the following sections.

The validity of this statute has been affirmed by the supreme court of New Jersey in McGovern v. Hope, 42 Atl. S30, to appear in 63 N. J. L. The opinion of the court was delivered by Mr. Justice Depue, and the court held that the act was within the power of the legislature, and was not an infringement upon the constitutional rights of the party.

OLIVER O. FORSYTH, Administrator of the Estate of Jacob Forsyth, Deceased, Piff. in Err.,

v.

HENRY F. T. VEHMEYER.

(See S. C. Reporter's ed. 177-182.)

Federal question-allegation and proof of fraud-effect of bankruptcy discharge on debt created by fraud.

1.

2.

The decision by a state court that an allegation of false and fraudulent representations implies a knowledge of their falsity, and that, if an express allegation of the scienter were necessary, the omission would be cured by the verdict, does not involve any Federal question for review by the Supreme Court of the United States.

Obtaining advances of money by false and fraudulent representations that the borrower has a certain quantity of wood cut, piled, and ready for shipment, and a sale of which has already been contracted at a certain price, creates a debt by means of fraud involving moral turpitude and intentional wrong, that is exempt from the effect of a discharge in bankruptcy under the bankrupt act of 1867. [No. 180.]

The validity of a statute of this nature has
also been upheld in Lyon v. Manhattan R.
Co. 142 N. Y. 298, 25 L. R. A. 402, 37 N. E.
113, although the particular form of that Submitted March 13, 1900. Decided April
statute would probably be regarded as con-
flicting with the law of Congress in relation
to the examination of a party as a witness

before trial, and hence might not be enforced
in courts of the United States sitting within
the state of New York, but the validity of a
statute providing for the examination of the
person of a plaintiff in an action to recover
for injuries is upheld and declared not to be
in violation of the constitutional rights of
the party.

The citizenship of the plaintiff at the time
of the injury is not material so long as the
court below has jurisdiction of the case and
the parties at the time of the commencement
of the action.

In those states in which it has been held that the court has inherent power to order the examination of a plaintiff in this class of action without the aid of a statute, all has been said that could be urged in favor of

9, 1900.

State of Illinois to review a judgment afN ERROR to the Supreme Court of the

firming a decision to the effect that a certain debt was exempt from a discharge in bankruptcy. Affirmed.

55.

See same case below, 176 Ill. 359, 52 N. E.

The facts are stated in the opinion. Mr. Edward Roby submitted the cause for plaintiff in error.

Mr. M. W. Robinson submitted the cause for defendant in error. Mr. John S. Miller was with him on the brief. Contentions of counsel sufficiently appear in the opinion.

*Mr. Justice Peckham delivered the opin-[177] ion of the court:

such power on grounds connected with pub-ior lic policy and the due and proper adminis[177]tration of *justice by the courts. This court has taken another view of the subject, in the decision of Botsford's Case, above cited. But by reason of the statute of New Jersey, in which state this action was brought, there being no law of Congress in conflict therewith, we hold that the courts of the United States therein sitting have the power, under the statute and by virtue of § 721 of the Revised Statutes of the United States, to order the examination of the person of the plaintiff, and we therefore answer the third ques-notes to Hamblin v. Western Land Co. 37 L. ed. tion of the court below in the affirmative and it will be so certified.

The defendant in error brought this accourt of Cook county, in the state of Ill-[178] tion against one Jacob Forsyth, in the superinois, in April term, 1891, upon a judgment in his favor which he had theretofore recov ered against the said Jacob Forsyth. The defendant has died since the commencement of this action, and the plaintiff in error has been appointed administrator upon his estate. The judgment sued upon was entered at the June term of the superior court of Cook county, in the state of Illinois, held in Chicago in 1871, and the judgment record

Mr. Justice Harlan dissented.

NOTE.-A8 to jurisdiction of Federal over state courts; necessity of Federal question-see U. S. 267; Kipley v. Illinois ex rel. Akin, 42 L.

ed. U. S. 998.

As to what is a Federal question; when considered-see note to Re Buchanan, 39 L. ed. U. S. 884.

was destroyed by the great fire in that city on October 9, 1871.

To the declaration in the action upon this judgment the defendant pleaded (1) nil debet; (2) nul tiel record;` (3) a discharge in bankruptcy (meaning under the bankrupt act of 1867).

Plaintiff replied to the third plea, that the debt mentioned in the judgment was created by fraud, and therefore was not discharged under the bankrupt act.

Unless the judgment sued upon was recovered on a debt created by fraud, the defendant's discharge in bankruptcy was a bar to the maintenance of this action.

The bankrupt act of 1867, § 33 (14 Stat. at L. 517, 533, chap. 176; also Rev. Stat. § 5117), provided "that no debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged under this act," etc.

Upon the trial the plaintiff, in order to prove the original judgment and its character, called as a witness the attorney who procured it, who testified that the declaration was in substance as follows: The plaintiff complains of the defendant in an action in trespass on the case, for that on the 10th day of August, 1868, in order to induce the plaintiff to advance to the defendant a large amount of money, to wit, the sum of $1,200, the defendant falsely and fraudulently represented unto the plaintiff that the defendant had a large amount of birch cordwood, to wit, the amount of 200 cords, cut and piled up near the Pittsburgh & Fort Wayne railroad in the county of Lake, state of Indiana, ready to be shipped to Chicago; that one Eldridge had contracted to purchase the wood at $6 per cord in the city of Chicago, when shipped, and that if the plaintiff would advance to the defendant at the rate of $5 per cord, for the 200 cords of wood, the defendant would immediately ship the cordwood to the city of Chicago; that the plaintiff, relying upon those representations as being true, advanced to the defendant the sum of $1,200; that the defendant shipped only the sum of 40 cords of wood to Eldridge, upon which the plaintiff received the sum of $6 per cord; that the representations of the defendant were false and fraudulent; that he did not have and never did have in the county of Lake and state of Indiana 200 cords of birch [179]*wood piled up ready for shipment to the city.. But even though an express allegation

The plaintiff in error contends that the original judgment was not recovered in an action for fraud and deceit, and, even if it were, the fraud proved is not that kind of fraud which is debarred from a discharge in bankruptcy. He gave some evidence tending to show that the action was in the nature of one in assumpsit, but the finding of the court in plaintiff's favor must be held to be a finding that the action was for fraud. The declaration proved alleges a false and fraudulent representation *by means of which[180] the plaintiff below was induced to advance money to the defendant to his damage in a named amount. The defendant pleaded not guilty, and if the cause of action had been one in assumpsit, the plea at common law would have been nonassumpsit, instead of not guilty. 3 Ch. Pl. 10th Am. 3d Lond. ed. pp. 908, 1030.

of Chicago to sell to Eldridge, but that he only had in the county of Lake, or anywhere else, the sum of 40 cords of birch wood, which was shipped by the defendant to Eldridge; that the plaintiff was damaged to the extent of the amount that was alleged in the declaration, and therefore he brings this action for fraud and deceit against the defendant.

The declaration did not, it is true, contain the allegation that the representations of the defendant were false to his knowledge. It simply said that the representations of the defendant were false and fraudulent.

The opinion of the appellate court, in this case, which was adopted by the supreme court of the state, held that "the declaration testified to is too plainly in tort for false and fraudulent representations to require argument. The allegation that the representations were false and fraudulent implies that appellant knew of their falsity.

of the scienter were necessary, its omission would be cured by the verdict.' [75 Ill. App. 322.] We understand by this opinion that the court held the first action was for fraud and deceit, and that the plaintiff was bound to have proved the fraud as alleged in the declaration in order to maintain the action. This decision involves no Federal question.

Where the state court has decided that the action was for fraud and deceit, and has held that in order to have maintained such action the fraud must have been proved as laid in the declaration, it must be assumed that the verdict and judgment in that action were ob

To this declaration the undisputed evidence shows that the defendant pleaded not guilty, and there was no other issue in the case. The verdict was "that the jury found the defendant guilty and assessed the plaintiff's damages at $833.35." Judgment was duly entered upon the verdict, and it is this judg-tained only upon proof and a finding by the ment which is sued upon in this action.

The present action was tried before the court, and upon the trial the defendant read in evidence a duly certified copy of his discharge in bankruptcy on December 30, 1880. The court found the issues in favor of the plaintiff, and ordered judgment in his favor, which was duly entered. Upon appeal to the appellate court the judgment was affirmed, and upon a further appeal to the supreme court that court also affirmed it, and the case is now here on writ of error to the supreme court of Illinois.

jury of the fact of fraud. Judgment being entered after a trial upon such pleadings and upon a verdict of guilty, the question of fraud was not open for a second litigation upon the trial of this action. The defendant below in this action had full opportunity given him to prove what in fact was the declaration in and the character of the first action, aud the findings of the court below in favor of the plaintiff must be regarded as a finding against the defendant upon the issue as to the character of that action. The evidence offered by him and rejected by the