MILLER, J. This is a bill in chancery brought by Charles B. Hoard against the Chesapeake & Ohio Railway Company in the District Court of the United States for the district of West Virginia. The main object of the bill, so far as it can be ascertained, is to enforce specifically the contract set out in writing between the complainant and the Chesapeake & Ohio Railroad Company, which is made an exhibit to the bill, and purports to have been executed on the twenty-eighth of July, 1873. The first part of the instrument professes to be a deed of conveyance, whereby, in consideration of the sum of $1,000 in hand paid, the receipt of which is acknowledged, the complainant sold and conveyed to the Chesapeake & Ohio Railroad Company several pieces of land in the town of Ceredo, in the state of West Virginia, which are minutely described, and which seem to be parts or parcels of land laid out in town lots by the plaintiff, through which it was expected the road of the company would be located. This grant is expressed to be on the condition that in the event the property so conveyed should cease to be used for railroad purposes by the company, its successors or assigns, the estate thereby granted shall revert to the grantor, his heirs or assigns. There was also a covenant that the complainant was to have leave and permission to connect a single siding or branch with the track of the railroad at a point near the Ceredo Hotel, owned by him, and that the company would erect lawful fences and protect said tracks. There is no contract or covenant in this agreement, although it is signed by the railroad company, that it would build its road along and through the property so conveyed, and certainly no contract that it would continue it there, because one of the conditions is that if it should cease to use the road there the title to the land should revert to the grantor. Yet the main foundation of the relief sought in this action is based upon the allegation of a covenant in this contract that the railroad company would build their road over the grounds designated in this conveyance, and the relief asked is that the railway company shall now be compelled, although they have for 10 or 12 years been using the track through other grounds than these, to abandon that and construct their road through the lots mentioned in this contract and continue the same.

The prayer of the bill for relief is "that the Chesapeake & Ohio Railway Company be made a party defendant to this bill; that process may issue; that defendant may be compelled to answer the same; that the contract of twentyeighth July, 1873, be specifically enforced; that the defendant may be compelled to permanently maintain, establish, and run its road through the village of Ceredo, as specified in the contract, and to erect and maintain a depot and place for the convenient and regular receipt and delivery of freight and passengers in the town of Ceredo, near Ceredo Hotel; that it may be decreed to pay to the complainant the sum of $1,000, with interest from the date of the contract; that it may be decreed to do and perform all and everything covenanted to be done and performed by the railroad company by the contract aforesaid; that the defendant may be inhibited, restrained, and enjoined from all further proceedings in the condemnation case pending in this court in the name of the Chesapeake & Ohio Railway Company v. Hoard and al. And after the answer shall have come in, and the cause shall have been fully heard, that defendant be perpetually enjoined, inhibited, and restrained from running its cars, engines, and trains, over the complainant's land on the present location of their road, and as now constructed.'

It will be perceived by this statement of the case that the defendant in this suit is not the Chesapeake & Ohio Railroad Company, with whom the plaintiff made his contract, but the allegation of the bill on this subject is that the "Chesapeake & Ohio Railroad Company" was sold out under a mortgage foreclosure, and that the purchasers, by virtue of the law of West Virginia, became a corporation by the name of "The Chesapeake & Ohio Railway Company," the present defendant, “and entitled to all the works, property, estate, rights, franchises, and privileges, theretofore owned and possessed by the

Chesapeake & Ohio Railroad Company, and subject to all the restrictions imposed by law upon said last-named company."

The bill also contains allegations that while the first company never built its road through any part of the town of Ceredo, the present company defendant did build its road through that town, but selected a route somewhat different from that which embraced the lots conveyed by plaintiff to the first corporation; that afterwards, the second corporation instituted proceedings in the proper court for the condemnation of the land over which its line did run, which proceeded to a report of the commission ordered to examine and assess the value of the land taken, and the damages; that this assessment was reported at $1,075 in favor of the plaintiff in this suit for land taken by the new company for the new route, and that this sum was paid into court. It appears that the plaintiff in this suit had notice of these matters, and, as the exhibits show, consented to the appointment of the assessors, but that after the report was made he objected to it, and demanded a jury. He also filed a pleading, in which he set up the contract already mentioned as a bar to the condemnation or taking of the property under the authority of the action of the commission. In this condition of affairs the case for condemnation was removed on the application of the railway company into the district court of the United States, where, after some additional proceedings, the present bill was filed. It also appears that the present defendant deposited the sum awarded to Hoard with the clerk of the state court, under the jurisdiction of which the condemnation was had, and that this money has, by order of the United States court, been placed in the hands of the clerk of that court, and that the defendant has built and been using its road over the property thus condemned for 10 or 12 years. The bill also contains an allegation that the $1,000 recited in the contract as the consideration for the conveyance, was never actually paid, although the deed acknowledges its receipt. A demurrer was filed to this bill, which, on hearing, was sustained, and the bill dismissed, and from this decree of dismissal the present appeal is taken.

It is very clear that the bill presents no feature which justifies or requires the interposition of a court of equity.

1. The contract with the Chesapeake & Ohio Railroad Company contains no such covenant for laying the track of that company through the lands purchased of plaintiff as his bill alleges. Therefore, if even that company was defendant in this suit, there is nothing which the court could specifically compel it to do found in this contract.

2. If there were such a contract, both the law and this contract contemplates the right of the railroad company to change its route before being built, and to abandon it afterwards, and if the plaintiff is injured by this change, the remedy is clearly by an action at law for damages.

3. The present defendant, the railway company, is not shown to be under any obligation to perform the covenant of its predecessor, the railroad company, which is set up here as a matter of specific performance. The persons who purchased the railroad at the mortgage foreclosure sale did not thereby, under any statute of the state, (act of February 1, 1871, Sess. Laws, 91,) or any contract of which we are aware, become obliged to pay the debts and perform the obligations of the railroad company. Railroad Co. v. Miller, 114 U. S. 176, 5 Sup. Ct. Rep. 813. They bought the property of that company and its franchises; but if, as such purchasers, they thereby became bound to pay all the debts and perform all the obligations of the corporation whose property they bought, it would put an end to purchases of railroads. The plaintiff provided his own remedy for what has happened, by the condition in his conveyance that the land should revert to him, his heirs or assigns, in the event of which he now complains.

As regards the sum to which he would be entitled for the taking of the lots or parts of them where the railroad now runs by the defendant company, the law has provided him with the remedy, which is still in the hands of the court

in the proceedings for condemnation. If the money paid into court is insufficient, he is probably entitled to a further trial by jury. If it is a sufficient compensation, the money awaits him when he is ready to accept it.

The bill makes no case for the interposition of a court of equity, and the decree of the court dismissing it is therefore affirmed.

UNITED STATES v. PHILADELPHIA & R. R. Co.

(November 7, 1887.)

TRIAL-INSTRUCTIONS-PROVINCE OF COURT AND JURY.

In a suit by the United States against a railroad company, for unpaid taxes on undivided profits, the judge in charging the jury, referring to the testimony, said: "From the assessment made by the government's officer in 1868, the payment of money in pursuance of it, and the acquiescence of the government in what was thus done for so long a period-nearly twelve years-a presumption arises that the assessment was correct, and that the money paid covered the defendant's entire liability for taxes upon surplus earnings between the periods embraced. The burden is thus cast upon the plaintiff to repel the presumption, by evidence that the presumption was erroneous, and, in view of the circumstances, the evidence should be such as to satisfy the mind fully in this respect." "Whether the government has proved the mistake by the testimony of the witness referred to (there is no other testimony tending to prove it) is for you to determine. In submitting this question, however, it is proper to say that, in the judgment of the court, it would be unsafe, and therefore unjust, to find error in the assessment and settlement under the evidence before you, and consequently to render a verdict against the defendant for the large sum of money claimed as the plaintiff asks you to do. In other words, while the court does not desire to control your finding, but submits the question to you, it is of opinion that you should not, under the circumstances, find for the plaintiff." Held, that it was proper for the judge to so aid the jury by explaining and commenting upon the testimony, and to even give them his opinion upon questions of fact, provided only he submitted those questions to their determination.

In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.

Sol. Gen. Jenks, for plaintiff in error. Wm. Ward, Thos. Hart, Jr., and Geo. R. Kaercher, for defendants in error.

GRAY, J. Trial by jury in the courts of the United States is a trial presided over by a judge, with authority, not only to rule upon objections to evidence, and to instruct the jury upon the law, but also, when in his judgment the due administration of justice requires it, to aid the jury by explaining and commenting upon the testimony, and even giving them his opinion upon questions of fact, provided only he submits those questions to their determination. Railroad v. Putnam, 118 U. S. 545, 7 Sup. Ct. Rep. 1; Railway v. Vickers, 122 U. S. 360, 7 Sup. Ct. Rep. 1216. The judge who presided at the trial of this action did not exceed his rightful power in this respect.

The action was brought by the United States against a railroad corporation to recover $40,844.19, for unpaid taxes on undivided profits from June 30, 1864, to November 30, 1867; under the internal revenue act of June 30, 1864, c. 173, § 122, as amended by the act of July 13, 1866, c. 184. 13 St. 284; 14 St. 138. The trial proceeded upon the rule established by previous decisions of this court, that an assessment is not required by the act, nor, if made, conclusive upon either party, and that in an action to recover the tax the controlling question is not what has been assessed, but what is by law due. Bank v. U. S., 19 Wall. 227; Clinkenbeard v. U. S., 21 Wall. 65. The president of the corporation testified that in 1868 the United States made a demand upon the company for some $350,000 alleged to be due for such taxes for the same period; that the company resisted the demand, and through him as its counsel contended that it had already paid more than was due, and was entitled to a considerable credit for items really belonging to construction, though charged to income in the form in which its accounts

were made up; that the company opened all its books to the officers of the government, and after full investigation by them, and arguments in behalf of both parties before the assessor of internal revenue for the district, occupying several weeks, the officers of the company and the assessor agreed upon a settlement and adjustment of the demand for the sum of $39,797.61, which the company thereupon paid, and for which it took the following receipt:

"UNITED STATES INTERNAL REVENUE, COLLECTOR'S OFFICE, "DISTRICT OF PENNSYLVANIA, July 28, 1868. "Received of Philadelphia & Reading R. R. Co. forty-one thousand eight hundred & seven 61-100 dollars, for excise tax on—

Gross receipts,

Profits over dividends,

Total,

$ 2,010 00

39,797 61

$41,807 61

"May, 1868, being amount assessed on June list for July 1, 1864, to November 30, 1867. JOSEPH G. KLINE, Deputy-Collector." The only witness called by the United States was an internal revenue agent, who testified that in November, 1879, he examined the defendant's books and accounts, the defendant giving him every facility that he desired; and that the result of his examination showed that the gross amount of the tax for the period in question was $85,532.60, and that, deducting an overpayment of $4,890.80 in 1869 on the "renewal fund," (which the commissioner of internal revenue had since held not to be taxable,) and deducting also the payment of $39,797.61 in 1868, there was $10,844.19 still due; that he made up the gross amount by charging the company with the total receipts from its road, and with rent received from another corporation, and crediting it with all the working expenses, the "renewal fund," interest paid on mortgages of real estate and on bonded debt, dividends paid to stockholders, and the United States tax, and the state tax on such dividends; and that he did not know how the sum of $39,797.61 was made up. In the course of a long examination and cross-examination, he testified that he made no allowance for interest paid by the company on its funded debt, and that by his mode of statement the company was taxed upon every dollar expended for interest, even if some of that interest was exempt from taxation; that where the company paid a dividend to stockholders, and assumed the payment of the government tax on the dividend, he computed the dividend tax upon the whole dividend declared, and not merely upon the amount actually paid to the stockholders; that the fiscal year of the company ended with November 30th, and that, in computing the tax for the five months from June 30 to November 30, 1864, he credited the company with five-twelfths only of the "renewal fund" for the year ending November 30, 1864, and of the United States tax and the state tax on dividends, and of the annual dividend estimated as aforesaid, although, before June 30, 1864, there was no tax on surplus profits, and money spent in construction was not taxable. Each of these points was contested by the defendant. It is not pretended that any of them have been determined by judicial decision, and it might well be inferred that they had all been taken into consideration in the settlement between the assessor and the company in 1868. The bill of exceptions further states that the government offered in evidence "all the books of the Philadelphia & Reading Railroad Company referred to, as well as the statements and reports, and closed." But it contains no description of those books, statements and reports, except as they are mentioned in the testimony of the internal revenue agent.

Such being the case on trial, the judge, in charging the jury, and referring them to the testimony given before them by the president of the company on the one side and by the witness for the government on the other, might justly and properly say to them, as he did: "From the assessment made by the government's officer in 1868, the payment of the money in pursuance of it, and

the acquiescence of the government in what was thus done for so long a period-nearly twelve years-a presumption arises that the assessment then made was correct, and that the money paid covered the defendant's entire liability for taxes upon surplus earnings between the periods embraced. The burden is thus cast upon the plaintiff to repel the presumption by evidence that the assessment was erroneous; and, in view of the circumstances, the evidence should be such as to satisfy the mind fully in this respect." "Whether the government has proved mistake by the testimony of the witness referred to (there is no other testimony tending to prove it) is for you to determine. In submitting this question, however, it is proper to say that, in the judgment of the court, it would be unsafe, and therefore unjust, to find error in the assessment and settlement under the evidence before you, and consequently to render a verdict against the defendant for the large sum of money claimed, as the plaintiff asks you to do. In other words, while the court does not desire to control your finding, but submits the question to you, it is of opinion that you should not, under the circumstances, find for the plaintiff." Judgment affirmed.

UNITED STATES v. MULLAN.
(November 7, 1887.)

ARMY AND NAVY-PAY OF OFFICERS-ACT OF MARCH 3, 1860.

Plaintiff, who had served in the navy continuously since 1860, presented a claim under the provisions of act of March 3, 1883, which declares: "And all officers of the navy shall be credited with the actual time they may have served as officers or enlisted men in the regular or volunteer army or navy, or both, and shall receive all the benefits of such actual service in all respects in the same manner as if all said service had been continuous, and in the regular navy, in the lowest grade having graduated pay, held by such officer since last entering the service." Held, that the benefits of the act are to be received where the service has been continuous in the regular navy.

Appeal from the Court of Claims.

Atty. Gen. Garland, Asst. Atty. Gen. Howard, and F. P. Dewees, for appellant. John Paul Jones and Robt. B. Lines, for appellee.

BLATCHFORD, J. This is an appeal by the United States from a judgment of the court of claims, for the sum of $356.03, in favor of Dennis W. Mullan. Mullan is an officer in the regular navy, who has served continously therein since September 21, 1860, on which day he was appointed acting midshipman. He was appointed acting ensign, October 21, 1863; master, May 10, 1866; lieutenant, February 21, 1867; and lieutenant commander, March 12, 1868. He was paid for all of his services in those capacities, in accordance with the laws in force at the time they were performed. In addition, he claimed to be entitled to the benefit of the provisions of the act of March 3, 1883, c. 97, 22 St. 473, which reads as follows: "And all officers of the navy shall be credited with the actual time they may have served as officers or enlisted men in the regular or volunteer army or navy, or both, and shall receive all the benefits of such actual service in all respects in the same manner as if all said service had been continuous, and in the regular navy, in the lowest grade having graduated pay held by such officer since last entering the service: provided, that nothing in this clause shall be so construed as to authorize any change in the dates of commission or in the relative rank of such officers: provided, further, that nothing herein contained shall be so construed as to give any additional pay to any such officer during the time of his service in the volunteer army or navy."

The court of claims held that Mullan was entitled to $356.03 under that act. The amount is not questioned by the government, if the court of claims decided the question of law correctly. Graduated pay for various ranks in