Statement of the Case.

these references, as stated in the charge, was to indicate to the jury that as to certain counts there could be no conviction, because as to them the testimony was only that of an accomplice and uncorroborated. Of course the defendant cannot complain of an instruction that no conviction can be had on any count supported by only the uncorroborated testimony of an accomplice.

These are the substantial questions presented by counsel. We have examined them all carefully, and are of the opinion that no substantial error appears in the record. The judgment is, therefore,

Affirmed.

MR. JUSTICE FIELD dissented.

DELAWARE AND HUDSON CANAL COMPANY v. PENNSYLVANIA.

ERROR TO THE SUPREME COURT OF THE STATE OF PENNSYLVANIA.

No. 452. Submitted January 7, 1895. — Decided January 14, 1895.

Reversed upon the authority of New York, Lake Erie & Western Railroad Co. v. Pennsylvania, 153 U. S. 628.

THE Delaware and Hudson Canal Company was held liable in the trial court, whose judgment was affirmed by the Supreme Court of Pennsylvania, for the amount of a tax of three mills upon bonds originally issued and sold by the company in the State of New York, but held in the year 1890 by residents of Pennsylvania. The tax was imposed upon the bondholders. The liability of the company was maintained because of the failure of its treasurer, when paying interest in the city of New York, to deduct therefrom the amount of the tax and pay the same into the state treasury of Pennsylvania. The company, which is a corporation of the State of New York, constructed a portion of its improvements within the limits of

Opinion of the Court.

Pennsylvania, in pursuance of certain statutes of that State defining the terms and conditions upon which they might be so constructed. In its original appeal and in its assignment of errors the company denied the authority of the State of Pennsylvania to impose upon it or its treasurer, when paying interest in New York, the duty of assessing and collecting this Pennsylvania state tax, and further urged that the imposition upon it of this duty as a further condition to its doing business in Pennsylvania worked an impairment of the obligation of the contract contained in the original legisla tion, in pursuance of which it entered the State and constructed its works.

Mr. M. E. Olmsted for plaintiff in error.

Mr. W. U. Hensel, Attorney General of the State of Pennsylvania, and Mr. James A. Stranahan for defendant in error.

The assignments of error raise substantially the same questions as were presented to this court in New York, Lake Erie & Western Railroad v. Pennsylvania, 153 U. S. 628. By reference to the record, it will appear that in the trial court and in the Supreme Court of Pennsylvania the two cases were considered identical in principle. It is conceded by the Commonwealth that there is no substantial distinction between them. The Erie case was thoroughly and fully discussed upon either side, and the Commonwealth of Pennsylvania, having nothing further to add to its views as then presented, respectfully submits the case at bar for such action as to this honorable court may seem proper.

THE CHIEF JUSTICE: Judgment reversed with costs upon the authority of New York, Lake Erie & Western Railroad V. Pennsylvania, 153 U. S. 628, and cause remanded for further proceedings consistent with the opinion in that case.

Reversed.

Statement of the Case.

LAZARUS v. PHELPS.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS.

No. 105. Argued December 12, 1894. - Decided January 28, 1895.

In an action to recover the rental value of plaintiff's land alleged to have been wrongfully taken possession of and occupied by defendant for grazing purposes, a former judgment in plaintiff's favor against the defendant for a like possession and occupation of those lands terminating before the commencement of this action, is admissible in evidence against defendant.

A party who is not prejudiced by an erroneous ruling of the judge in the trial below has no right to complain of it here.

The court having instructed the jury that the obligation of the defendant rested entirely upon the theory that he had stocked the plaintiff's lands to their full capacity and enjoyed their exclusive use, it would have been irrelevant to further charge that defendant's liability was limited to the consumption by his own stock.

THIS was an action originally begun by William Walter Phelps to recover of the plaintiff in error, Samuel Lazarus, the rental value of 186,880 acres of land in Texas, from February 5, 1890, at 8 cents per acre. The allegation of the petition was that defendant permitted large herds of his cattle and horses to graze upon plaintiff's lands and used them for pasturage for other cattle, for which he received hire.

The evidence showed that Phelps was the owner in fee simple of 149,716 acres of land situated in four different counties in Texas. The land was in sections of 640 acres each, alternating with like sections owned by the public school fund of Texas, plaintiff owning the odd-numbered and the fund owning the even-numbered sections. In July, 1887, defendant Lazarus rented from the State, for four years from that date, the alternate sections of land so owned by it. Prior to the time of Lazarus' lease, Phelps had a much larger quantity of land, but before the trial had sold 30,000 acres.

Opinion of the Court.

Plaintiff's lands had been rented to Curtis and Atkinson upon a lease which expired on April 15, 1887. Curtis and Atkinson built wire fences around the land, or a greater portion of it, enclosing both the lands owned by the plaintiff and those owned by the State, which were subsequently leased to defendant. The fence was partly upon plaintiff's land, and partly upon the school land. Phelps had no cattle within the enclosure, but the settlers, some 150 in number, had about 3000 head of cattle running at large and mingling with defendant's cattle. Defendant had within the enclosure a number of cattle estimated by the witnesses at 10,500 head.

Plaintiff introduced testimony, which was objected to, showing that on September 17, 1888, he had instituted a suit similar to this one, against the defendant, and on February 5, 1890, recovered a judgment for the use and occupation of the land to that date. Plaintiff's evidence tended to show that the land had been stocked to its full capacity. Defendant's evidence tended to prove the contrary. Plaintiff also offered evidence showing the value of the land for grazing purposes, during the time covered by this suit, to have been four cents per acre per annum, or $5988.14. The trial resulted in a verdict and judgment for plaintiff in the sum of $5460.32. Defendant thereupon sued out this writ of error.

Mr. F. C. Dillard for plaintiff in error.

Mr. Leigh Robinson for defendants in error.

MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.

A similar case between the same parties was before this court, and is reported in 152 U. S. 81. In that case the rental value of the same lands from April 15, 1887, to February 5, 1890, was recovered, and the judgment sustained by this

court.

1. The first error assigned is to the introduction of the record of that case. The proof was that, on September 17,

Opinion of the Court.

1888, plaintiff instituted a suit in the same court, upon a petition containing allegations similar to those in this case, against the defendant for the use of the land after the expiration of the Curtis and Atkinson lease, and in such suit recovered judgment for the use and occupation of said lands up to February 5, 1890, in the sum of $8417. This evidence was offered to establish the fact that defendant did have exclusive possession of said land as charged by plaintiff, and to show that plaintiff had claimed for the use and value of his land from the time of the original occupation of the same by the defendant.

If this had been a mere action of trespass on lands, although the trespass was a continuous one, it might well be said that proof that certain trespasses were committed upon divers days and times before a certain date had no legal tendency to prove that the same trespasses continued beyond that date. But the petition in that case, which is admitted by the bill of exceptions to have been similar to the one filed in the case under consideration, averred not only that defendant, without lawful authority and by force of arms, entered upon such lands, and pastured his cattle there, but that during the whole of said time he converted the said land to his own use, and appropriated and took to himself all its benefits; that at the expiration of the lease to Curtis and Atkinson, the said Lazarus, defendant, purchased all the cattle of the said Curtis and Atkinson, which were then running upon the said lands; that defendant, instead of surrendering said lands to the said plaintiff, as the said Curtis and Atkinson were bound to do, maintained possession thereof, and has since maintained the fence around the whole of said lands, excluding others and the cattle of others therefrom, and "has held, and is now holding, the exclusive possession of the same to his own use and benefit." In other words, the basis of the petition was not only the depasture of these lands, but the exclusive use and occupation of the same. The verdict and judgment in that case settled the fact that the defendant was in the use and occupation of said lands up to February 5, 1890, and, in the absence of evidence to the contrary, such possession would be presumed to continue after that date.