that contract. Under these circumstances, the question as to the rights of Morgan under the patent must be regarded as one to be passed upon in this suit as an original question, as if there had been no former suit. Giving to the opinion of the supreme court of Tennessee that consideration which is due to the force of reasoning in the views which it announces, we are unable to concur in the construction it gave to the license to Morgan. Accordingly, the judg ment of the circuit court is reversed, with direction to award a new trial.

(109 U. S. 74)

STEEVER V. RICKMAN.

(October 23, 1883.)

CLERK'S FEES, WHEN PAID-FAILURE TO PAY-EFFECT.

Under the act making appropriations for the expenses of the government for the year ending June 30, 1884, the fees of the clerk of this court should be paid in advance, if demanded.

Under rule 10, failure to pay the fee for printing the record when demanded, in time, is a failure to prosecute. If, through the fault of the party prosecuting, printed copies of the record are not furnished in the due prosecution of the cause, the cause will be dismissed, unless sufficient reason be shown to the contrary.

West Steever and Wm. S. Abert, for appellant.
W. O. Dodd, for appellee.

WAITE, C. J. By the act making appropriations for sundry civil expenses of the government for the fiscal year ending June 30, 1884, c. 143, (St. 1882-3, p. 631,) the clerk of this court is required to pay into the treasury the fees and emoluments of his office over and above his own compensation as fixed by law, and his necessary clerk hire and incidental expenses. It is proper, therefore, that, for his protection, his fees should be paid in advance, if demanded.

Under rule 10, it is the duty of the clerk to have the record printed, and a fee has been fixed for preparing the record for the printer, indexing the same, and supervising the printing. Ordinarily this fee is to be paid, in the first instance, by the party who prosecutes the cause. If he fails to make the payment when demanded, in time to enable the clerk to cause the printing to be done in due course, he fails in the orderly prosecution of his suit, and may be dealt with accordingly. Consequently, if, through the fault of a plaintiff in error or appellant, printed copies of the record are not furnished to the justices or the parties when required in the due prosecution of the cause, the writ or appeal will be dismissed for want of prosecution, unless sufficient cause be shown to the contrary.

In the present case the record has been printed, but the clerk has not furnished the necessary copies to the justices because his fee for

preparing the record for the printer, etc., has not been paid by the appellant, although demanded. As this is the first time the question has arisen, and the practice has not heretofore been authoritatively announced, it is ordered that, unless the appellant pay to the clerk, within 20 days from the entry hereof, what is due him for this fee, the appeal be dismissed for want of prosecution. If the payment is made, the clerk shall at once notify the opposite party, and the cause may thereafter be brought on for hearing under paragraph 7 of rule 26, as a case that has been passed under circumstances which do not place it at the foot of the docket.

(109 U. S. 103)

HEWITT V. CAMPBELL.

(October 29, 1883.)

CONFLICT OF TESTIMONY.

Bill dismissed, on the ground that the complainant failed to establish facts upon which he based his claim for relief.

Appeal from the Supreme Court of the District of Columbia.
L. S. Henkle, for appellant.

W. E. Edmonston, for appellee.

HARLAN, J. Counsel for appellant states the theory of the bill to be that Campbell was not the bona fide purchaser of the lots described, or of either of them, although he holds them by conveyances absolute upon their face; that he was only the broker of Burgess; and that the conveyances were made to him in that capacity, for the purpose of enabling him to raise money upon them for the use of Burgess, less reasonable charges for any services in that behalf rendered. The bill was dismissed by the court below in special term, and that order was affirmed in general term.

The record discloses a serious conflict in the testimony of witnesses, and the court below might well have dismissed the bill upon the sole ground that the complainant had failed to establish the facts upon which he based his claim for relief, and which must have been established before any relief could be granted. The decree must, therefore, be affirmed. It is so ordered.

(109 U. S. 104)

COUNTY OF GREEN v. CONNERS.

(October 29, 1883.)

MUNICIPAL BONDS-STATE ACTS TO AID IN THE CONSTRUCTION OF RAILROADS"CONSOLIDATION" OF RAILROADS-EFFECT UPON FRANCHISES AND PRIVILEGES.

The act of the general assembly of the state of Missouri, approved March 23, 1868, entitled "An act to facilitate the construction of railroads in the state of Missouri," passed upon, and the former decisions in the County of Ralls v. Douglass, 105 U. 8. 728, and Douglass v. Pike Co. 101 U. S. 687, relating thereto, affirmed.

When two companies are authorized to consolidate their roads, it is to be presumed that the franchises and privileges of each continue to exist in respect to the several roads so consolidated.

In Error to the Circuit Court of the United States for the Eastern Division of the Western District of Missouri.

Henry C. Young, for plaintiff in error.

Jas. S. Botsford and R. G. Ingersoll, for defendant in error. BRADLEY, J. Nearly every point in this case has already been decided by this court in the cases of County of Callaway v. Foster, 93 U. S. 567; County of Scotland v. Thomas, 94 U. S. 682; County of Henry v. Nicolay, 95 U. S. 619; County of Schuyler v. Thomas, 98 U. S. 169; County of Cass v. Gillett, 100 U. S. 585; City of Louisiana v. Taylor, 105 U. S. 454; and County of Ralls v. Douglass, 105 U. S. 728. In the case last cited we referred to the previous cases, and to the cases in Missouri which they followed, and said:

"Such being the condition of the law on this subject down to April, 1878, we do not feel inclined to reconsider our former rulings, and follow the later decisions of the supreme court of the state in State v. Garroutte, 67 Mo. 445, and State v. Dallas Co. Ct. 72 Mo. 329, where this whole line of cases was substantially overruled. The bonds involved in this suit were all in the hands of innocent holders when the law of the state was so materially altered by its courts. In our opinion the rights of the parties to this suit are to be determined by the law as it was judicially construed to be when the bonds in question were put on the market as commercial paper. Douglass v. Pike Co. 101 U. S. 687."

From the views thus expressed we are not disposed to swerve.

One point taken in the present case may not have been presented in any of the cases cited, to-wit, that the rights, privileges, and franchises of the Kansas City & Cameron Railroad Company were not expressly declared to pass over to the company with which it might become consolidated by the law authorizing such consolidation. This law was passed March 11, 1867, and declared as follows:

"It shall be lawful and competent for said company to make such arrangement with any other railroad company to furnish equipments, and to run and manage its railroad, as it may deem expedient and find necessary, or to lease the same, or to consolidate it with any other company upon such terms as may be deemed just and proper."

In the "finding of facts" made by the court it is, among other things, found as follows:

"That under the provisions of an act of the general assemby of the state of Missouri, approved May 11, 1867, entitled, etc., the said corporation, then known as the Kansas City & Cameron Railroad Company, on the twenty-first day of February, in the year 1870, was consolidated with the Hannibal & St. Joseph Railroad Company, and all the rights, privileges, franchises, and property of said Kansas City & Cameron Railroad Company were, by said consolidation, transferred to the Hannibal & St. Joseph Railroad Company, which then and thereby became the owner of and possessed of the same."

If only a sale of the road to another company had been authorized and made, then it might very plausibly have been contended that the purchasing company took and held it under its own charter only, without the franchises and privileges connected with it in the hands of the vendor company; but "consolidation" is not sale, and when two companies are authorized to consolidate their roads, it is to be presumed that the franchises and privileges of each continue to exist in respect to the several roads so consolidated. This point was considered in the case of Tomlinson v. Branch, 15 Wall. 460, and Branch v. City of Charleston, 92 U. S. 677, and was decided in accordance with this view. This being so, the authority given to consolidate, "upon such terms as may be deemed just and proper," would include the power to transfer to the consolidated company the franchises and privileges connected with the road, if the law itself did not have that effect; and the court has found that this was done. We think, therefore, that the point is not well taken.

The judgment of the circuit court is affirmed.

(109 U. S. 108)

CITY OF OPELIKA v. DANIEL.

(October 29, 1883.)

JURISDICTION, WHEN DEPENDING UPON THE AMOUNT IN CONTROVERSY-REDUCTION OF VERDICT TO AVOID JURISDICTION.

The jurisdiction of the supreme court depends on the matter which is directly in dispute in the particular cause in which the judgment or decree sought to be reviewed has been rendered, and it is not permitted, in determining its sum or value, to estimate its collateral effect in a subsequent suit between the same or other parties.

Elgin v. Marshall, 106 U. S. 579; S. C. 1 SUP. CT. REP. 484.

The trial court having once permitted a verdict to be reduced, whereby the appelJate court is deprived of jurisdiction, the errors in the record will be shut out from re-examination by the appellate court, where its jurisdiction depends upon the amount involved.

Thompson v. Butler, 95 U. S. 694.

In Error to the Circuit Court of the United States for the Middle District of Alabama.

John T. Morgan, for plaintiff in error.

S. F. Rice, for defendant in error.

WAITE, C. J. The action below was brought originally upon 119 interest coupons cut from 24 bonds of the city of Opelika. The bonds were in the aggregate for $24,000, and the amount claimed to be due on the coupons was more than $5,000. At first a demurrer was filed to the complaint. This being overruled, the validity of the bonds was put in issue by various pleas. Before trial, the plaintiff, Daniel, asked and obtained leave to amend his complaint so as to include only 90 of the coupons originally sued for. After the amendment a jury was impaneled, and on the trial the 90 coupons only were put in evidence. The verdict was for $4,755.64, and a judgment was entered thereon for that amount and no more. To reverse that judgment this writ of error was brought. At a former term Daniel moved to dismiss because the value of the matter in dispute did not exceed $5,000. That motion was continued for hearing with the case on its merits.

We decided at the last term in Elgin v. Marshall, 106 U. S. 579, [S. C. 1 SUP. CT. REP. 484,] that our jurisdiction depends on "the matter which is directly in dispute in the particular cause in which the judgment or decree sought to be reviewed has been rendered," and that we are not permitted, "for the purpose of determining its sum or value, to estimate its collateral effect in a subsequent suit between the same or other parties." That, like this, was a suit on coupons, and the judgment was for less than $5,000, although the bonds from which they were cut amounted to much more, and the validity of the bonds was one of the questions in dispute. The two cases cannot be distinguished in this particular.

It was clearly within the discretion of the court to permit the amendment of the complaint before trial. In Thompson v. Butler, 95 U. S. 694, we declined to take jurisdiction where the verdict was for more than $5,000, but the plaintiff before judgment, with leave of the court, remitted the excess, and actually took judgment for $5,000 and no In that case it was said, page 696:

more.

Undoubtedly, the trial court may refuse to permit a verdict to be reduced by a plaintiff on his own motion; and if the object of the reduction is to deprive the appellate court of jurisdiction in a meritorious case, it is to be presumed the trial court will not allow it to be done. If, however, the reduction is permitted, the errors in the record will be shut out from our re-examination in cases where our jurisdiction depends upon the amount in controversy."

That case was stronger in favor of jurisdiction than this. There the reduction was made after verdict; here, before trial. The plaintiff, in effect, discontinued his suit as to part of the coupons. He certainly could have discontinued as to all, and it is difficult to see why he might not as to a part.

The writ is dismissed for want of jurisdiction.