wise-deprive it of such jurisdiction lawfully acquired? We think not.

In Reid v. Holmes, 127 Mass. 326, the court say: "If the fact agreed in the case stated of the death of the defendant after the default and before judgment, is competent to be considered, it does not show that the judgment is absolutely void. The court at the time of the bringing of the former action had jurisdiction of the subject-matter and of the parties, and might, after the death of the defendant, have rendered judgment against him as of a previous term. Kelley v. Riley, 106 Mass. 339, 341; Tapley v. Martin, 116 id. 275; Tapley v. Goodsell, 122 id. 176, 181. Or the judgment actually entered might, on motion of the plaintiff, have been amended so as to stand as a judgment nunc pro tunc, or have been vacated, and the administratrix summoned in to defend the action."

The court further say, even if the judgment was erroneous, and might be reversed for irregularity, yet neither party could collaterally dispute its validity citing Hendrick v. Whittemore, 105 Mass. 23; Henderson v. Staniford, id. 504; Penhallow v. Doane, 3 Dall. 54; Warder v. Tainter, 4 Watts, 270; Yaple v. Titus, 41 Penn. St. 195; Evans v. Spurgin, 6 Gratt. 107. The court further say: "In a similar case Chief Justice Tindall said that while the judgment was suffered to exist on the rolls of the court without any application to set it aside, it could only be treated as a valid judgment; and that if any application was made, it should have been to the court in which judgment was rendered, which had power to amend the proceedings, in order to obviate the alleged irregularity. Bridges v. Smyth, 1 Mo. & Sc. 93, 99; S. C., 8 Bing. 29, 32." The death of a party in a chancery case does not, ipso facto, abate the suit without any order of the court. Crook's Ex'r v. Turpin, 10 B. Mon. 245.

In Spalding v. Wathen, 7 Bush, 662, an appeal was prosecuted to the Court of Appeals after the death of the appellant, without knowledge of his death, and the judgment below reversed, and the court held that its judgment of reversal was not void, but binding, and say: "The death of John after judgment in the Circuit Court, and before the appeal was prosecuted, did not take away from this court the right to entertain it. Regularly, a personal representative should have been appointed, and the appeal prosecuted in his name; but we are not prepared to say the want of a personal representative renders void the appeal and all proceedings had under the same. ** * * Where a plaintiff dies pending his suit, his death may be pleaded in abatement, but the defendant may waive such plea, and permit the cause to be tried upon its merits, without revivor. The Supreme Court of Illinois held in the case of Camden v. Robertson, 2 Scam. 508, that the death of one of the plaintiffs before the commencement of the suit was no bar to the action, and could only be made available to the defendaut by a plea in abatement setting up such fact; and in Case v. Ribelin, 1 J. J. Marsh. 30, in which the plaintiff in the Circuit Court died before judgment, this court held that the judgment was not void, and that it could only be corrected by the court in which it was rendered."

Freeman, in section 140 of his work on Judgments, says: "If jurisdiction be obtained over the defendant in his life-time, a judgment rendered against him subsequently to his death is not void," citing in support of the text Collins v. Mitchell, 5 Fla. 364; Loring v. Folger, 7 Gray, 505; Coleman v. McAnulty, 16 Mo. 173; Yaple v. Titus, 41 Penn. St. 203; Day v. Hamburgh, 1 Browne, 75; Gregory v. Haynes, 21 Cal. 443. Again, in section 153, he says: "Even in such cases the judgment is simply erroneous, but not void. This is because the court, having obtained jurisdiction over the

party in his life-time, is thereby empowered to proceed with the action to final judgment; and while the court ought to cease to exercise its jurisdiction over a party when he dies, its failure to do so is an error to be corrected on appeal, if the fact of the death appears upou the face of the record, or by writ of error coram nobis, if the fact must be shown aliunde."

In Stotzell v. Fullerton, 44 Ill. 108, the court, in speaking of the rule that the death of a party abates the suit, said: "This rule is not universal at common law, as appears from the case cited by appellee's counsel (Underhill v. Devereux, 2 Saund. 72, note i) as in a quare impedit by two, or in an audita querela by two, or in debt by two executors, when one was summoned and severed, and dies, the writ did not abate; and when one of two plaintiffs dies before interlocutory judgment, but the suit went on to execution in the names of both, the plaintiff was permitted, even after a motion to set aside the proceeding for irregularity, to suggest the death of the other on the roll, and to amend the ca. sa. without paying costs. Newnham v. Law, 5 Term Rep. 577. The statute of 8 and 9 William III, ch. 11, as well as our own, was designed to prevent the abatement of any case where the cause of action would survive on the suggestion of the death, which suggestion is a matter of form, and may be made by either party. The cases cited show that it has been often allowed to make the suggestion nunc pro tunc, and it should be allowed in furtherance of justice and in support of the right. Newnham v. Law, supra; Hamilton v. Holcomb, 1 Johns. Cas. 29."

But it is urged that conceding the foregoing to be good law, it has no application to a suit for a divorce. It is claimed that the death of either party puts an end to all further legal proceedings. This is true where the death takes place before any final decree of divorce. Ewald v. Corbett, 32 Cal. 493; Swan v. Harrison, 2 Coldw. 534; Pearson v. Darrington, 32 Ala. 227. But where a decree of divorce has been improperly obtained, and the proceedings are erroneous, the party whose property rights have been injuriously affected by such decree ought not to be concluded by reason of the subsequent death of the other party. While both parties live, a writ of error lies to reverse an erroneous decree of divorce, the effect of which is to restore both parties to their former status of husband and wife, in law, and after the death of one it ought to lie in favor of the other party, not for the same purpose, but to restore the survivor to his or her rights of property divested erroneously by the decree. On the reversal of a decree of divorce the parties will be placed in the position they occupied before the decree was entered, and if one of them has died between the date of the decree of divorce and its reversal, the survivor procuring the reversal will be entitled to all rights of succession or dower, and the like, in the estate of the other, the same as if no divorce had ever been had; but in such case the court need not ordinarily remand the case, as no other decree of divorce can ever be had.

This court has decided that a divorced wife, after the death of her husband, may prosecute a writ of error to reverse the decree of divorce, and thereby be restored to all her rights as widow in the estate of her deceased husband. Wren v. Moss, 2 Gil. 72. In that case this court say: "The plaintiff in error complains that she has been injured by an erroneous decree. If so, she ought to find a remedy by writ of error, for although by the death of the complainant the parties were divorced, and no further proceedings could be had, yet the mode of effecting the same object by a decree will, if erroneous, unjustly deprive the plaintiff in error of all right in dower or interest in the personalty. It is plain therefore that she may be greatly ag

grieved by the decree, if erroneous. If aggrieved, she ought to find a remedy by appeal or writ of error.' The writ of error in that case was so framed as to bring before the court all persons whose interests might be affected, as has been done here, by notice.

If then the appellant could have prosecuted her appeal or writ of error to reverse the decree of divorce even after her husband's death, and thus remove the bar of that decree to the assertion of her property rights as widow of the deceased, no reason is seen why she may not do the same thing where her husband dies after the appeal is taken or writ of error brought, and after the cause is submitted. The most that can be said of the entry of final judgment after the death of the appellee is that it was irregular and informal. No valid objection can be urged to its substantial justice. If the procedure was informal, it seems no objection was taken to the same by either party, and the attention of the court was not called to the fact of appellee's death. Until objection was made to the judgment, appellant might have remained passive; but we see no good reason why the informality may not be corrected in the mode suggested by the appellant-by directing the amendment of the record so as to show the entry of the judgment of a date prior to appellee's death. This we clearly have the power to do in furtherance of justice.

In Wood v. Keyes, 6 Paige, 478, the court said: "It being understood by the court that the complainant's cestui que trust has died since the hearing of this cause, the decree must be entered as of the 20th of April, 1836; and in case the trust is at an end, the suit must be properly revived in the name of the person who has succeeded to the complainant's rights, if further proceedings in the cause shall be found necessary."

In Perry v. Wilson, 7 Mass. 393, it was held that where an action is delayed for the convenience of the court they will take care that nobody suffers by such delay. Therefore when after a continuance, by order of the court, for advisement, the defendant in the action died, judgment was entered as of the former term.

Where an action on a statute was tried before its repeal took effect, and a verdict rendered for the plaintiff, and questions of law were reserved, which, after the repeal took effect, were decided in favor of the plaintiff, the court ordered judgment to be entered on the verdict as of a day previous to the going into operation of the Repealing Act. Springfield v. Worcester, 2 Cush. 52, citing Bing. Judg. 95, 96; Key v. Goodwin, 1 Moore & Scott, 620; Ryghtmyre v. Durham, 12 Wend. 245; Perry v. Wilson, 7 Mass. 395.

Where a plaintiff was nonsuited at the trial, and who applied for a new trial, died while the cause was sub judice, and a new trial was eventually denied, the defendant was permitted to enter judgment as of the term succeeding the nonsuit, the plaintiff then being in full life. Spalding v. Congdon, 18 Wend. 543. To the same effect, see Currier v. Lowell, 16 Pick. 170; Tooker v. Duke of Beaufort, 1 Burr. 147; Oades v. Woodward, 1 Salk. 87; Tidd Pr. (1st Am. ed.) 846; Tapley v. Martin, 116 Mass. 275; Mead v. Mead, 1 Mo. App. 247; Webber v. Webber, 83 N. C. 280; Boyd v. Boyd, 38 Penn. St. 241; Jennings v. Ashley, 5 Pike, 128; Pool v. Loomis, id. 110; Davies v. Davies, 9 Ves. Jr. 461; Hess v. Cole, 3 Zabr. 116.

But it is urged that the judgment of this court in reversing the judgment of the Appellate Court can have no effect to restore appellant to her rights as widow of her deceased husband. It is claimed there were entered two distinct and separate decrees in the Circuit Courtthe one for the divorce, and the last refusing to set aside the decree of divorce and allow the appellant to defend and that she appealed only from the latter,

and not from the decree of divorce, and therefore the Appellate Court can reverse only the order denying her an opportunity to defend, leaving the decree of divorce in full force. This court decided that the Circuit Court erred in refusing to set aside the decree of divorce, and upon that ground reversed the judgment of the Appellate Court, and remanded the cause. This is equivalent to remanding with directions to reverse the order of the Circuit Court overruling the motion to vacate the decree, and to remand the case to the Circuit Court, with directions to the Circuit Court to allow the motion and vacate the decree.

The motion to amend the record in this court will be allowed, and the record of the judgment amended so as to make it appear as of the September term, 1882. When the case comes before the Appellate Court under this record as amended, formal regularity will require the death of appellee to be suggested, and that his legal representatives be made parties thereto.

Motion allowed.

[N. Y. Code Civ. Proc., §§ 763, 765; 49 N. Y. 576; 77 id. 515; 59 How. Pr. 385; 21 Hun, 509; 26 Am. Rep. 311.-ED.]

NEW YORK COURT OF APPEALS ABSTRACT.

NEW YORK CITY -HEADS OF DEPARTMENTS "TERM."-The word "term" in the provision of the New York Charter of 1873 (§ 25, ch. 335, Laws of 1873), fixing the terms of heads of departments and commissioners, is to be construed as designating consecutive periods of six years following each other in regular order, the one commencing when the other ends; and the incumbent appointed in any such period is to be treated as the incumbent of the term or period to which his appointment relates; his office expires at the expiration of the term. Where therefore the term of a police commissioner expired April 30, 1878, and his successor was not appointed until May 15, 1880, held, that the term of the latter expired April 30, 1884. In determining the question now before us the court is to be guided by the established rules of interpretation of written instruments. It is not compelledindeed it is not permitted to give absolute and unqualified effect to a single section or clause of a statute, however direct, plain and unambiguous, considered by itself alone, the language may be, if there are other provisions inconsistent with such a rigid and unrestricted interpretation, unless the repugnancy between the parts is irreconcilable, in which case it is the duty of the court to preserve the paramount intention, so far as it is consistent with the rules of law, although this may lead to the rejection of some subordinate and secondary provision. Taggart v. Murray, 53 N. Y. 233. But fortunately it does not very frequently happen that a statute is incapable of a construction which will give some effect to all its parts. The primary purpose of interpretation is to ascertain the intent of the law-makers, and in statutes, as other instruments, clauses in themselves, absolute and unqualified, may be limited by other clauses and provisions. The whole context of

a statute may be examined to ascertain the meaning of a particular clause, and this becomes necessary where the meaning is doubtful, or where by giving a particular clause full effect it would come in conflict with other clauses. A statute, like a will or contract, is to be construed as a whole, and in applying this principle of construction, it is not material in what order provisions which at first blush seem contradictory are placed. The meaning is to be collected ex antecedentibus et consequentibus, and a latter provision may be qualified by a prior one, or the con

BANKRUPTCY.-The United States Supreme Court has jurisdiction in error over the judgment of the Supreme Court of Louisiana in a suit between citizens of that State for the foreclosure of a mortgage, in which the only controversy related to the effect to be given a sale of property under an order of the bankruptcy court directing the mortgaged property of the bankrupt to be sold free of incumbrances. The very question here presented was decided by this court in the recent case of Factors' Ins. Co. v. Murphy, in 111 U. S. 738; S. C., 4 Sup. Ct. Rep. 679, where it was held that this court had jurisdiction in error over the judgment of the Supreme Court of Louisiana in a suit between citizens of that State for the foreclosure of a mortgage, in which the only controversy related to the effect to be given a sale of property under an order of the bankruptcy court directing the mortgaged property of the bankrupt to be sold free of incumbrances. The case is in point and decisive of the jurisdiction of this court on the present appeal. We therefore proceed to consider the merits of the case. They are involved in the one question, whether the right of way and franchises granted by the city of New Orleans to the first Canal Street, City Park & Lake Railroad Company passed by the sale thereof made in pursuance of the decree of the bankruptcy court? The jurisdiction of the bankruptcy court to adjudicate a railroad company bankrupt and to administer its property, under the Bankrupt Act, has been sustained by several Circuit Courts of the United States. Adams v. Boston, H. & E. R. Co., 1 Holmes, 30; Sweatt v. Boston, H. & E. R. Co., 5 N. B. R. 234; Alabama & C. R. Co. v. Jones, id. 97; Winter v. Iowa, etc., Ry. Co., 2 Dill. 487. No Circuit Court before which the question has been brought has denied the jurisdiction. As they were the courts of last resort upon this question, and valuable rights may depend upon their judgments upon this point, we think the question should be considered as settled by the authorities cited, and are unwilling at this late day to re-examine it, especially as we have no jurisdiction to do so, except in a collateral proceeding like the present. The plaintiff contends that the right of way, with the franchise to build and use a railroad thereon for profit, was surrendered by the bankrupt corporation as a part of its property, and was sold to Handy at the bankruptcy sale, and was subsequently acquired by it by means of the claim of title above set forth. It is not contended in this case that Handy acquired the franchise to be a corporation or any other franchise except those just mentioned by virtue of his purchase at the bankruptcy sale. On the other hand, it is contended by the defendant that the right of way and the franchise to build and use a railroad thereon reverted to the city of New Orleans when the railroad company was adjudicated bankrupt, and that all that was surrendered in bankruptcy by the railroad company, and sold at the bankruptcy sale or the mortgage sale, was the railroad without right of way or other franchise. The ground upon which this view of the defendant is based is that the franchises of a railroad corporation are inalienable in Louisiana. In passing upon this question it is necessary to bear in mind the distinction between the different classes of railroad franchises. This was stated by Mr. Justice Curtis in the case of Hall v. Sullivan R. Co., 21 Law Rep. 138, where he said: "The franchise to be a cor*Appearing in 5 Sup. Ct. Rep.

poration is therefore not a subject of sale and transfer unless the law by some positive provision made it so and pointed out the modes in which such sale and transfer may be effected. But the franchises to build, own, and manage a railroad and to take tolls thereon are not necessarily corporate rights. They are capable of existing in and being enjoyed by natural persons, and there is nothing in their nature inconsistent with their being assignable." The same subject was considered by this court in the case of Morgan v. Louisiana, 93 U. S. 217, where it was held that exemption from taxation was a right personal to the railroad corporation to which it was granted, and did not pass upon a sale of its property and franchises. Mr. Justice Field, who delivered the opinion of the court, distinguished such an immunity from taxation from those rights, privileges, and immunities which, accurately speaking, are the franchises of a railroad company.

He said: "The franchises of a railroad corporation are rights or privileges which are essential to the operation of the corporation, and without which its works

** **

*

*

*

and road would be of little value. They are positive rights and privileges, without the possession of which the road of the company could not be successfully worked. Immunity from taxation is not one of these. The former may be conveyed to the purchaser of the road as part of the property of the company; the latter is personal and incapable of transfer without express statutory direction. In the case of Chaffe v. Ludeling, 27 La. Ann. 607, it was declared that the defendants, by their purchase at sheriff's sale of the property of the Vicksburg, Shreveport & Texas Railroad Company, a Louisiana corporation, acquired "the privileges and franchise of the corporation and its powers to operate the railroad. The sheriff's sale made them the owners of the road, its right of way, its property, its franchise, but did not and could not make them a corporation. * This sale conveyed to them the rights and property of that company; it made them joint owners thereof." There is therefore nothing in the nature of a corporate franchise under the law of Louisiana which forbids its transfer with the other property of the corporation. And such must be the conclusion whenever a railroad company is authorized by law to mortgage its tangible property and franchises. When there has been a judicial sale of railroad property under a mortgage authorized by law, covering its franchises, it is now well settled that the franchises necessary to the use and enjoyment of the railroad passed to the purchasers. This was assumed to be the law by the opinion of this court pronounced by Mr. Justice Matthews in the case of Memphis R. Co. v. Commissioners, 112 U. S. 609; S. C., ante, 299, when it was said: "The franchise of being a corporation need not be implied as necessary to secure to the mortgage bondholders or the purchasers at a foreclosure sale the substantial rights intended to be secured. They acquire the ownership of the railroad and the property incident to it and the franchise of maintaining and operating it as such." See also Hall v. Sullivan R. Co., 21 Law Rep. 138; Galveston R. R. v. Cowdrey, 11 Wall. 459. It follows that if the franchises of a railroad corporation essential to the use of its road, and other tangible property, can by law be mortgaged to secure its debts, the surrender of its property, upon the bankruptcy of the company, carries the franchises, and they may be sold and passed to the purchaser at the bankruptcy sale. New Orleans, etc., R. Co. v. Delamore. Opinion by Woods, J. [Decided May 4, 1885.]

VIRGINIA BONDS-WRIT OF MANDAMUS AS A REMEDY.-The plaintiff in error filed his petition on April 26, 1884, in the Circuit Court of the city of Richmond,

against Greenhow, the defendant, as treasurer of the city of Richmond, praying for a rule nisi, commanding the said Greenhow to show cause why a peremptory mandamus should not be awarded to the plaintiff, commanding the said treasurer to issue to the petitioner a certificate in writing, stating that he had made the deposit required by law in payment of his license tax, as a sample merchant in said city. The petition set forth that the tender made in payment of this deposit consisted of coupons cut from bonds issued by the State of Virginia, and by contract with the State therein declared, receivable in payment of all taxes, debts, demands, and dues to the State, and that the tender was refused by the treasurer, and a certificate of deposit withheld, because the 112th section of the act of the General Assembly of Virginia, approved March 15, 1884, for the purpose of assessing taxes on persons, property, and incomes and licenses, requires that all license taxes shall be paid in gold or silver coin, United States treasury notes, or national bank-notes, and not in coupons; and another act of the General Assembly of the State, approved March 7, 1884, to regulate the granting of licenses, likewise forbids the payment of license taxes in coupons. The alternative writ prayed for was denied by the Circuit Court of the city of Richmond, and on a petition for a writ of error, its judgment dismissing the petition therefor was affirmed by the Supreme Court of Appeals of the State. This being a case in which, by mandamus, the plaintiff in error seeks to compel the officers of the State of Virginia specifically to receive coupons instead of money in payment of license taxes, it comes within the exact terms of the decision of a majority of this court in Antoni v. Greenhow, 107 U. S. 769, according to which the plaintiff in error is remitted to the remedy provided by the act of January 14, 1882, entitled "An act to prevent frauds upon the Commonwealth and the holders of her securities in the collection and disbursement of revenues." The judgment of the Supreme Court of Appeals of Virginia is therefore affirmed. Moore v. Greenhow. Opinion by Matthews, J.

[Decided May 4, 1885.]

RAILROAD-CONSTRUCTION CONTRACT-PAYMENTAPPROVAL OF WORK BY ENGINEER.-A contract for the construction of a railroad provided that the company's engineer should, in all cases, determine questions relating to its execution, including the quantity of the several kinds of work to be done, and the com pensation earned by the contractor at the rates specified; that his estimate should be final and conclusive; and that "whenever the contract shall be completely performed on the part of the contractor, and the said engineer shall certify the same in writing under his hand, together with his estimate aforesaid, the said company shall, within thirty days after the receipt of said certificate, pay to the said contractor, in current notes, the sum which, according to this contract, shall be due." Held, that in the absence of fraud, or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment, his action in the premises is conclusive upon the parties. Kihlberg sued the United States upon a contract for the transportation of military, Indian, and government stores and supplies from points on the Kansas Pacific railway to posts and stations in certain States and Territories. The contract provided for payment for transportation "in all cases according to the distance from the place of departure to that of delivery, the distance to be ascertained and fixed by the chief quartermaster of the District of New Mexico, and in no case to exceed the distance by the usual and customary route." One of the issues in that case was as to the authority of that officer to fix, conclusively for

the parties, the distances which should govern in the settlement of the contractor's accounts for transportation. There was neither allegation nor proof of fraud or bad faith upon the part of that officer in his discharge of the duty imposed upon him by the mutual assent of the parties. This court said: "In the absence of fraud, or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment, his action in the premises is conclusive upon the appellant as well as upon the government." This principle was affirmed and applied in Sweeney's case, in which he sought to recover from the United States the price of a wall built by him around a national cemetery. The contract provided that the wall should be received, and become the property of the United States, after an officer or civil engineer, to be designated by the government to inspect the work, should certify that it was in all respects such as the contractor agreed to construct. The officer designated for that purpose refused to so certify, on the ground that neither the material nor the workmanship was such as the contract required. As the officer exercised an honest judgment in making his inspections, and as there was on his part neither fraud, nor such gross mistake as implied bad faith, it was adjudged that the contractor had no cause of action on the contract against the United States. Those decisions control the determination of the claim arising out of the contract here in suit, whereby the defendant in error, who was plaintiff below, covenanted and agreed that he would furnish all the material required, which should be sound, durable, and of good quality, and approved by the company's chief engineer, and perform all the labor necessary to construct and finish, in every respect, in the most substantial and workmanlike manner, the grading and masonry of a certain section of the Martinsburg & Potomac railroad. Martinsburg, etc., R. Co. v. March. Opinion by Harlan, J. [Decided May 4, 1885.]

PATENT-SARGENT TIME-LOCK-INFRINGEMENT.—

In letters-patent No. 186,369, granted to James Sargent, January 16, 1877, for improvements in time-locks, the combination-lock forming a member of the combinations claimed by the two claims of the patent, is one which has a bolt or bearing that turns on an axis or revolves, as distinguished from a sliding-bolt, and those claims are not infringed by a structure in which the combination-lock has not a turning or revolving bolt. Claim 2 of the patent requires that the tumblers of the combination-lock and its spindle shall be free to rotate while the bolt-work is held in its locked position, by the bolt or bearing of the combination-lock. In patents for combinations of mechanism, limitations and provisos, imposed by the inventor, especially such as were introduced into an application after it had been persistently rejected, must be strictly construed against the inventor and in favor of the public, and looked upon as in the nature of disclaimers. was said in Fay v. Cordesman, 109 U. S. 408, 420; S. C., 3 Sup. Ct. Rep. 236, 244, "the claims of the patents sued on in this case are claims for combinations. In such a claim, if the patentee specifies any element as entering into the combination, either directly by the language of the claim, or by such a reference to the descriptive part of the specification as carries such element into the claim, he makes such element material to the combination, and the court cannot declare it to be immaterial. It is his province to make his own claim, and his privilege to restrict it. If it be a claim to a combination, and be restricted to specified elements, all must be regarded as material, leaving open only the question whether an omitted device is supplied by an equivalent device or instrumentality. Water Meter Co. v. Desper, 101 U. S. 332; Gage v. Her

As