to every admissible matter which might have been offered, to sustain or defeat the claim or demand. Cromwell v. County of Sac, 94 U. S. 351, 352; Board of Com'rs v. Platt, 79 Fed. 567, 571, 572, 25 C. C. A. 87, 91. "It is a universal rule of law that if the party fail to plead matter in bar to the original action, and judgment pass against him, he cannot afterwards plead it in another action founded on that judg ment." Dickson v. Wilkinson, 3 How. 57, 61. In Hefner v. Insurance Co., 123 U. S. 747, 8 Sup. Ct. 337, one Bates, who was the owner of the premises, mortgaged them to the insurance company on August 23, 1870. On November 15, 1871, the county treasurer sold them to one Callanan for the taxes of 1870, and on December 1, 1874, he issued to him a tax deed thereof. On October 31, 1876, the insurance company filed a bill to foreclose its mortgage, and made Bates, the mortgagor, and Callanan, the owner of the tax title, parties defendant to its suit. The bill made no mention of the tax title, but contained the customary allegation that Callanan "claims some interest in and to a portion of the mortgaged premises, the exact nature of which your orator is unable to determine," and a prayer for “a decree of foreclosure against the premises hereinbefore described, against all of the before-named defendants, and that the right, title, and interest of each and every of the said defendants be, by decree of this court, forever barred and foreclosed," for a sale of the premises by a master, and for, "all and singular, such relief as your orator is equitably entitled to receive." A writ of subpoena was issued on this bill, and was served on Bates and Callanan. Bates answered, and Callanan made default. Thereafter and on May 21, 1877, a decree was rendered that the mortgage "is a lien upon the mortgaged premises, prior and paramount to the lien of each and every of the said defendants, and that the right, title, and equity of redemption of each and every of the defendants in this suit be, by a sale of the said mortgaged premises hereunder, forever barred and foreclosed, and the purchaser at such a sale shall take the premises sold by title absolute; and such title shall relate back to the date of the execution of the mortgage to the complainant, to wit, the 23d day of August, 1870." After the decree was made the insurance company purchased the property under it; and Callanan conveyed his right and title to it under the tax deed to Hefner, who took possession of it. The insurance company thereupon brought an action of ejectment against him. He pleaded his title under the tax deed to Callanan. But the supreme court held that Callanan was a proper, if not a necessary, party to the foreclosure suit, that the court which rendered the decree in that suit had jurisdiction to determine the validity or invalidity of the tax title, and that the decree was "a conclusive adjudication, which cannot be collaterally impeached by Callanan or those claiming under him, that he had no valid title or lien of any kind against the plaintiff as mortgagee of the land in question, and as purchaser at the sale under the decree of foreclosure, and was rightly held to estop the grantees of Callanan to set up his tax title." The similarity between the essential facts in this case and those in the case at bar is marked and striking; and, under the rules and decisions to which we have adverted, it can hardly be truthfully said that it is so

clear that the appellee Corson is not estopped from asserting and perfecting his tax title by the foreclosure decree that that question is not worthy of serious consideration.

Another claim of the appellant is that the tax sale and the tax certificate are void, and entitle Corson to no deed, because a portion of the tax for which the sale was made was illegal. It is conceded that at least one-third of these taxes were levied without jurisdiction, and were illegal. But the land was sold for all the taxes, legal and illegal, for the single sum of $1,164.35; and a certificate of its sale for that amount was issued by the county, and has now been assigned to the appellee Corson. This sale was made on November 7, 1894. The $1,164.35 named in the certificate was the amount of these taxes, and the interest, costs, and penalty thereon to that date; and the only way the appellant could redeem this land from this sale was by paying this entire amount, and interest from the day of the sale. Sess. Laws S. D. 1891, p. 66, c. 14, § 115. It is true that before the appellee Russell purchased this certificate, on January 31, 1896, the illegality of these taxes had been discovered, and that on this account the county sold the certificate to Russell for $246.20 less than its face, and that Corson paid and agreed to pay only $1,000 for it in May, 1897, when it represented, and the amount required to redeem from the sale it recited was, more than $1,500. Id. pp. 66, 67, §§ 114-116. But it is also true that the attorney for the appellee Corson, in his affidavit in this case, and the certificate itself, demand the entire $1,164.35, and interest thereon from November 7, 1894, as a condition of its surrender or redemption. Can the purchaser or the assignee of the purchaser of a certificate of a sale for a tax that is in part legal and in part illegal, who has purchased it of the county at a discount on account of the illegality of a part of the tax for which the sale was made, demand of the owner of the land the payment of the illegal as well as the legal part of the tax, with interest at 12 per cent. per annum, and impose upon him the penalty of a forfeiture of his title if he fails to comply with the demand? An affirmative answer to this question is not so clearly right that it should be given without serious attention.

The appellant insists that if the appellees were not estopped by the foreclosure decree, and if the sale had been made for a legal tax, still they could not lawfully take a tax title upon the property, against him, because he held the first mortgage upon it, and the second mort gagee, Russell, is not permitted to divest the lien of a prior mortgagee by acquiring a subsequent tax title upon land which furnishes a common fund for the discharge of both their debts. In this view he is sustained by the following authorities: Trust Co. v. Wickhem (S. D.) 69 N. W. 14, 70 N. W. 654; Fair v. Brown, 40 Iowa, 209, 210; Eck v. Swennumson, 73 Iowa, 423, 424, 35 N. W. 503; Frank v. Arnold, 73 Iowa, 370, 371, 376, 35 N. W. 453; Black, Tax Titles, §§ 279, 280; Goodrich v. Kimberly, 48 Conn. 395, 396; Woodbury v. Swan, 59 N. H. 22; Smith v. Lewis, 20 Wis. 369, 373; Garrettson v. Scofield, 44 Iowa, 35, 37. In the last case, a second mortgagee, who pleaded his tax title in answer to a bill for a foreclosure of the first mortgage, was held to have no title to the premises, but to be entitled to receive from the

proceeds of the foreclosure sale the amount which he paid for the taxes, with interest at 6 per cent. per annum, but without penalties or costs. If these decisions are right, the appellees could not have recovered more than a reimbursement of the amount of legal taxes which Russell's purchase of the certificate discharged, with simple interest from the date of payment, if they had pleaded their claim under it in the foreclosure suit. They could not have recovered the amount represented by the certificate, the amount bid at the sale, and 12 per cent. interest per annum, nor could they have acquired title to the property as against the appellant. We will not extend this opinion by a discussion of the questions presented here. Enough has been said to show that the appellant did not fail, on his application for the injunction, to at least raise a serious question whether he would not be entitled on a final hearing to the perpetual injunction which he sought. This is not the time for the decision of the issues of law suggested by this record, and we forbear to discuss them. There is no answer to the bill, no testimony on the issues to be finally heard before us, and there has been no final hearing in the court below. We defer the expression of our opinion on the merits of the case until we are advised what issues it presents, and until the court below has rendered its decree upon the final hearing. Meanwhile the appellees should be enjoined from making or receiving a tax deed until the case is finally decided. Such an injunction will entail no substantial loss or inconvenience or risk of it upon the appellees, if they have a good defense to this suit, but will merely delay the execution of their deed a few months, during which the money they have invested draws more than 12 per cent. interest per annum, while to refuse it would cause the loss of all the rights which the appellant seeks to enforce if his claims are well founded. These claims are certainly not so frivolous and devoid of merit that they can be rightfully dismissed without a full hearing and serious consideration. The order appealed from is reversed, and the case is remanded to the court below, with directions to issue the preliminary injunction as prayed in the bill.

MASSACHUSETTS LOAN & TRUST CO. et al. v. HAMILTON.

(Circuit Court of Appeals, Ninth Circuit. May 3, 1898.)

No. 424.

"

1. CONSTRUCTION OF STATUTES-MEANING OF "RAILROAD. The word "railroad" has no such fixed definition as to enable a court to determine whether, by its mere use in a statute, it applies to street railways or not. It may be used in its broad sense, which includes & street railroad, and any other kind of road on which rails of iron are laid for the wheels of cars to run upon, whether propelled by steam, electricity, horse, or other power, or it may be used in its technical sense, which does not apply to street railroads.

2. RULE OF CONSTRUCTION.

As a general rule, statutes are presumed to use words in their popular sense; but the safest rule of construction is to take the entire provisions of the statute, and thereby ascertain, if possible, what the legislature intended. The meaning must depend upon the context, and be ascertained

from the occasion and necessity of the law, the mischief felt, and the object and remedy in view.

8. SAME.

The difference between street railroads and railroads of commerce for general traffic consists in their use, and not in their motive power. 4. SAME.

The words "railroad" and "railway" are synonymous, and, under all ordinary circumstances, are to be treated as without distinction of meaning. 5. SAME-JUDGMENTS FOR PERSONAL INJURIES-PRIORITY OF LIEN.

The Montana statute which provides that a judgment against "any railway corporation" for any injury to person or property, or for material furnished, etc., shall be a lien, within the county where recovered, superior to the lien of any mortgage or trust deed on the railroad property (Comp. St. 1887, div. 5, § 707), being construed in connection with other provisions of the same statute (which plainly refer only to the railroads of commerce), does not include street railroads.

Appeal from the Circuit Court of the United States for the District of Montana.

Ransom Cooper and McConnell, Clayberg & Gunn, for appellants. Edwin W. Toole, Thos. C. Bach, and Jos. K. Toole, for appellee. Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY, District Judge. Appellee, in an action against the Great Falls Street-Railway Company to recover damages for personal injuries received, obtained a judgment for $7,500, with costs, and brings this suit in equity to enforce the judgment lien against appellants, as a prior and superior claim and lien, upon the property of the street-railway company, to the mortgage lien and claim of the Massachusetts Loan & Trust Company. Whether a judgment rendered against a street-railway corporation for personal injuries has priority over the lien of a mortgage upon the corporate property depends upon the interpretation to be given to the provisions of section 707 of the fifth division of the Compiled Statutes of Montana of 1887, which reads as follows:

"A judgment against any railway corporation for any injury to person or property, or for material furnished, or work or labor done upon any of the property of such corporation, shall be a lien within the county where recovered on the property of such corporation, and such lien shall be prior and superior to the lien of any mortgage or trust deed provided for in this act.”

Does this section apply to street railroads? Was it the intention of the legislature, at the time of the adoption of this section, that it should apply to all railroad corporations within the state, to street railroads, as well as to commercial and steam railroads, operated by means of locomotives and cars, for the transportation of passengers and freight? Is there anything in the laws of Montana which sheds any light upon the question of the intent of the legislature? If not, how is the intent to be ascertained? What do the authorities say upon this subject?

In May, 1873, the legislature of the territory of Montana passed "An act to provide for the formation of railroad corporations in the territory of Montana" (St. Mont. 1873, p. 93). The provisions of this act are general in their character, and are all specially applicable to

steam railroads. At the time of the passage of this act there were no railroads of any kind within the territory. In 1887 the legislature of the territory passed "An act in relation to railroads," consisting of six sections, which, in the Compiled Statutes of Montana, is treated as a supplement to the railroad act of 1873, and numbered sections 702 to 707; the last section, heretofore quoted, being the one under consideration. Sections 702 to and including 706 are specially applicable to steam and commercial railroads. At the time of the passage of this act there were no street railways within the territory of Montana, but at the same session (1887) the legislature passed an act providing for municipalities licensing and authorizing the construction of street railroads. Section 325 of the municipal act provides, among other things, that "the city council of all cities incorporated under this act shall have the following powers" (subdivision 14): "To regulate and control the laying of railroad tracks and prohibiting the use of engines and locomotives propelled by steam or to regulate the speed thereof when used;" (subdivision 16) "to license and authorize the construction and operation of street railroads and require them to conform to the grade of the streets as the same are or may be established." The legislature of Montana in 1893 passed an act, approved March 2, 1893, extending the provis ions of chapter 36 of the Compiled Laws of 1887, relating to the conditional sale of railroad equipments, to street-railway equipments. This act was entitled "An act relating to certain contracts for the conditional sale, lease or hire of railroads and street railway equipments and rolling stock, and providing for the recording thereof." Section 393 of the Civil Code of 1895 provides, "The purposes for which the private corporations mentioned in the last section are" (subdivision 15) "the construction and maintenance of a railroad and of a telegraph line in connection therewith and a street railroad of any kind." The constitution of Montana (section 12, art. 15) declares that "no street or other railroad shall be constructed within any city or town without the consent of the local authorities,” etc.

But little is gained by a reference solely to the meaning of the word "railroad." The word, of itself, has no such fixed definition as to enable the court to determine whether, by its mere use in a statute, it applies to street railways or not. It may or may not include them. It may be used in the statute in its broadest sense, or it may be used in its technical or popular sense. 19 Am. & Eng. Enc. Law, 777 et seq.; Bishop v. North, 11 Mees. & W. 418; Lieberman v. Railway Co., 141 Ill. 140, 147, 30 N. E. 544; Bloxham v. Railroad Co., 36 Fla. 519, 539, 18 South. 444; Funk v. Railroad Co. (Minn.) 63 N. W. 1099. In its broadest sense, it undoubtedly includes a street railroad, and every other kind of a road or way on which rails of iron are laid for the wheels of cars to run upon, whether propelled by steam, electricity, horse, or other power, carrying light or heavy loads of freight. or passengers, or both. 2 Bouv. Law Dict. tit. "Railroads." In its technical sense it does not apply to street railroads. Louisville & P. R. Co. v. Louisville City Ry. Co., 2 Duv. 175; Ror. R. R. 1422; Elliott. Roads & S. 558.