The 22d section of the same law provides as follows, to wit: "To entitle a claimant against the estate of a bankrupt to have his demand allowed, it must be verified by a deposition in writing, on oath, or solemn affirmation before the proper register or commissioner, setting forth

The demand;

The consideration thereof;

Whether any and what securities are held therefor, etc.," evidently contemplating that all demands, whether secured or otherwise, shall be proven in the manner indicated in said 22d section.

If these two sections were alone to be considered there would be no difficulty in deciding this question, since the 13th section of the law provides that all who have proved their demands may vote, and the 22d section provides that all creditors with, as well as without, security may prove their demands. But the 20th section has apparently placed a limitation on this right which must be next considered. The language of said section, so far as it relates to this question is as follows:

"Where a creditor has a mortgage or pledge of real or personal property of the bankrupt, or a lien thereon for securing the payment of a debt owing to him from 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 between him and the assignee, or by a sale thereof to be made in such manner as the court shall direct."

In Bump's Law and Practice of Bankruptcy is made this broad declaration : "A secured creditor cannot vote," (see 4th ed. page 123.) This statement is much broader than the law will sustain, for unquestionably, a creditor who has an endorser for security, or who holds a mortgage on other than the bankrupt's property, is not prohibited from voting, for by the terms of the law only such as have liens upon the property of the bankrupt are prohibited from being admitted as creditors. To sustain his statement he cites three cases, one of which does not discuss this question and the other

two do not agree, one being on each side of the question, thus, in effect, leaving it open and unsettled. The attorneys in this case seem to have accepted qualifiedly Mr. Bump's statement and have failed to discuss the point as to what is the true construction to be given to the 20th sec. quoted above. I am unable to see in what manner the fact that the mortgage is upon the homestead, rather than any other piece of the bankrupt's property, can alter the construction to be given to the 20th section of this law.

But it seems there is a distinction between proving a claim or debt and being admitted a creditor, in this, that the proof of a debt is the preliminary step only toward the admission to the rank of a creditor, under this law. A debt may be proven while the judicial act of admitting or allowing the claim may be entirely omitted, or the claim may be rejected. The language used in the 13th sec., to wit., "have proved their debts," evidently refers to and intends only the deposition indicated in the 22d sec., and does not intend and mean that there shall be a judgment final, such as is implied in the 20th sec., when it uses the words admitted a creditor, which carries with it the idea of an adjudication, after proof offered.

It is not difficult to imagine a case where every creditor could have some lien such as would come within the provisions of the 20th sec., and if no one such creditor could vote for an assignee, as contended for by the attorneys for the obiecting creditors in this case, it might be questionable whether any assignee could legally be appointed, because there might be opposing interests from such prospective creditors, and the law fails to provide that such interest shall proceed only from creditors who have "proved their debts.”

I am of the opinion, therefore, that the register did right in allowing the mortgagee to vote on the election of an assignee.

United States Circuit Court, District of Minnesota.

THE STATE OF WISCONSIN v. THE CITY OF DULUTH et al. The Circuit Courts of the United States have no jurisdiction of an action in which a State is plaintiff.

By the Constitution of the United States, the Supreme Court has original jurisdiction in such cases, and no concurrent jurisdiction has been conferred by Congress on the Circuit Courts.

Whether Congress could confer a concurrent jurisdiction in such cases on the Circuit Court: Quaere.

This was a bill in equity, filed by the State of Wisconsin, asserting the interest of the State, and of her citizens, in the navigation of the river St. Louis, from its mouth, where it empties into Lake Superior, at Superior City, for about twenty miles up the river, a part of which, by reason of the expansion of the river, is known as the Bay of Superior, and alleging that the City of Duluth, and Mr. Luce, the mayor of that city, and the Northern Pacific Railroad Co., are now extending a dyke into the navigable waters of said river, whereby the use of the river for navigation will be seriously obstructed, and the rights of the State and of her citizens, will be impaired. The bill prayed for an injunction, and

other relief.

The opinion of the court was delivered by

MILLER, J.-The case comes before us at this time for a preliminary injunction, and the defendants raise the question of the jurisdiction of the Circuit Court, and move to dismiss the bill on that ground.

The question thus presented is, whether a State of the Union can maintain a suit in a Circuit Court of the United States. It is one of interest and of great importance. As we shall presently see, it does not appear to have ever been decided by the Supreme Court, and has only received the attention of the Circuit Courts in two or three reported cases.

It is not asserted in behalf of plaintiff that the jurisdiction can be maintained on the nature of the rights asserted in the bill without regard to the character of the parties, but it is insisted that, as one of the States of the Federal Union, Wisconsin can sustain any action which can properly be brought in a Circuit Court.

The Constitution, in the second section of the third article, declares that the judicial power shall extend to controversies between a State and citizens of another State, and as the defendant, Luce, and the City of Duluth are undeniably citizens of the State of Minnesota, the case in that respect comes within that provision of the fundamental law.

The succeeding clause, however, of the same section, in defining the jurisdiction of the Supreme Court, the only court established by the Constitution, uses language which cannot be disregarded in this connection. It says that in all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned, it shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.

As this is a case in which a State is a party, the Supreme Court undoubtedly has original jurisdiction of it, if it is one to which the power of the Federal judiciary extends; and this jurisdiction it has without the aid of any Act of Congress. for it is conferred in clear and express terms by the Constitution. Nor is this affected by the eleventh amendment to the Constitution; for that only protects the States from suits commenced or prosecuted against them, when brought by citizens of another State, or of a foreign State. It may, therefore, be safely affirmed that the Supreme Court would have jurisdiction of this suit so far as the character of the parties can give it, if brought in that court: Pennsylvania v. The Wheeling Bridge Company, 13 How. 518.

As that court has original jurisdiction of such suits, it would seem that it cannot have in any such case appellate jurisdiction. The section in the Constitution which confers it as original is followed by the declaration that in all other cases before mentioned the Supreme Court shall have appelLate jurisdiction. Did the framers of the Constitution intend to give to the Supreme Court both an original and appellate jurisdiction in the same class of cases founded in the character of the parties? Or did it by this clause intend to define the

cases in which it should have original, and those in which it should have appellate jurisdiction, and to distinguish and separate them from each other?

The natural import of the language used, defining specially the cases in which it has original jurisdiction, and declaring that in all others its jurisdiction shall be appellate, favors very strongly the idea that in those classes of cases of which it has original cognizance it can have no appellate jurisdiction.

If this be a sound exposition of the Constitution, it follows that if there is in the Circuit Court a jurisdiction concurrent with the Supreme Court in cases to which a State is a party, no appeal or writ of error can be taken when the suit is brought in the former. This would be an anomaly in our system of jurisprudence, which stands alone, and it weighs very heavily against a construction of the act of Congress creating the Circuit Courts, and conferring their powers, which brings such cases within their jurisdiction by mere implication.

But waiving this view of the subject for the present, these propositions may be fairly deduced from the Constitution in regard to suits brought by a State against citizens of another State.

1. That the judiciary power of the Federal government extends to such cases.

2. That the Supreme Court has original jurisdiction of such cases.

3. That jurisdiction is conferred on no other court of such cases by the Constitution propria vigore.

Conceding, then, that the jurisdiction of the Supreme Court as derived from the Constitution is not exclusive in this class of cases, we must still look to some other source of authority than that instrument when a concurrent jurisdiction is claimed for some other court. It may also be conceded, and perhaps that is the established doctrine, that the States have lawfully conferred such a power on their own courts when exercised on person or property within their territorial limits, and that to this extent such a concurrent jurisdiction exists.

But when it is claimed for any other Federal court than the