Pennsylvania Railroad twenty-four times a week; Grand Central depot (Boston line) to Grand Central depot (New York Central and Hudson River line) as often as required.

The transfer service to include the conveyance of all cases of postoffice supplies arriving for transit through the city; each and every transfer to be made as often as may be required by the Postmaster-General; and will do and perform all other mail messenger and transfer service now being performed in said City of New York, and any and all new or additional mail messenger or transfer service in the said city, whether to and between depots and landings now established and those which may hereafter be established, which may become necessary and be required by the Postmaster-General during the time of this contract, without additional compensation; said service to be performed at such hours of arrival and departure at and from the above designated points or places, or those which may be hereafter established, as the postmaster at New York City may order and direct.

It is hereby stipulated and agreed that the Postmaster-General may, if it be required by the public interest, order new or additional service which may become necessary to be performed, which shall be performed without additional compensation; also, that he may discontinue or curtail the service, in whole or in part, if in his judgment the public interest shall so require, he allowing as full indemnity to the contractor one month's extra pay on the amount of service dispensed with, and a pro rata compensation for the amount of service retained and continued."

While Otis was engaged in the performance of this contract, the United States, on the 12th of November, 1878, directed him to transport mails which theretofore had been transferred, as required by the contract, "from the New York City postoffice to the Pennsylvania Railroad depot (foot of Cortlandt Street) and back, fifty times per week," across the Hudson River to the Pennsylvania Railroad depot at Jersey City, in the State of New Jersey. This service Otis performed from November 12, 1878, to July 1, 1881. The pro rata compensation for it, as also its reasonable value, is $15,787.78. When the contract was executed, this extra service was being performed by the Pensylvania Railroad Company, under contract with the United States.

The item for the extra service between station E and the Hudson River Railroad depot, $657.58, and the item for the extra service between the foot of Cortlandt Street and Jersey City, $15,787.78, were allowed by the court of claims. The item for the extra service between the postoffice and the Harlem Railroad depot, $615.97, was disallowed.

No error is assigned by Otis as to the disallowance of the $615.97. But the United States question the propriety of the allowance of the other two items. They contend that the "eighteen round trips per week from station E, No. 465 Eighth Avenue, to the Hudson River Railroad depot, Thirtieth Street and Tenth Avenue," were mail messenger service, under the contract for Route No. 6635, and not, as held by the court of claims, mail station service,

under the contract for Route No. 6636. The argument is made that mail station service, under the latter contract, comprehended only service between the city postoffice and the stations or branch offices, and did not include serv. ice between a station or branch office and a railroad depot; and that the latter was mail messenger service, and was governed by the terms of the contract for Route No. 6635, which forbade extra compensation in regard to it. Although it does not appear by the record what points were designated in the advertisement or in the contract for Route No. 6636, as those between which the mails were to be carried, the fair inference is that there was no specific designation which would include the trips between station E and the Hudson River Railroad depot. The opinion of the court of claims says, on this subject, that this service was not "named in the station contract, but that instrument provided that any increase in mail station service should be paid for pro rata." It held that the service was, on its face, station service, the mails being taken from a station. The mail station service for which Otis proposed was designated in his proposal as "between New York City postoffice and branch offices," and the "mail station service" named in the contract is referred to as that for which Otis proposed. Any increase in the service which might be ordered was to be paid for pro rata. The service in question was an increase in the service, beyond that for which the $14,900 per annum was to be paid. The mail messenger contract for route No. 6635 did not contemplate mail station service, but only service between the main postoffice and railroad stations and steamboat landings. The $657.58 was, accordingly, properly allowed.

As to the extra service to Jersey City, under the contract for Route No 6635, the contract covered fifty-four trips per week from the New York City postoffice to the Pennsylvania Railroad depot at Jersey City, and twenty-seven trips per week from that depot to that postoffice, and also fifty trips per week from that post office to the Pennsylvania Railroad depot at the foot of Cortlandt Street, and fifty trips per week from the latter depot to that postoffice. The finding of the court of claims is, that on each occasion of a trip under the item of fifty trips per week from the postoffice to the depot at the foot of Cortlandt Street and back, Otis was required, in addition, to carry the mails across the Hudson River, and did so. These trips were no portion of the trips contracted for from the postoffice to the Pennsylvania Railroad depot at Jersey City and back. It is also found by the court of claims that, when the contract was executed, this extra service in regard to the fifty trips was being performed by the Pennsylvania Railroad Company, under a contract with the United States. This extra service was not included in the routes designated in the contract.

The contract provides that Otis shall "do and perform all other mail messenger and transfer service now being performed in the said City of New York, and any and all new or additional mail messenger, or transfer service in the said city, whether to and between depots and landings now established and those which may hereafter be established, which may become necessary and be required by the Postmaster-General during the time of this contract, without addi

by her husband, A. B. Cook, and delivered to her, on the 19th of September, 1872, twentythree days after the date of the policy, and which was in these words:

"This instrument of writing certifies that the policy No. 66,488 I have taken out on the life of Wm. G. Harvison, for twenty thousand ($20,000) dollars, in the Phoenix Mutual Life Insurance Company, of Hartford, Connecticut, was taken out by me for the sole benefit of my wife, Fannie M. Cook; and I hereby declare that the above mentioned life policy of $20,000, and the money secured thereby, is given and assigned to my said wife as separate estate, and shall continue to be the separate estate of my said wife; and whether the said Harvison dies before or after me, my said wife shall have and receive and hold said money as her separate estate and for her separate and sole benefit, to dispose of as she may think proper.

Witness my hand, this 19th day of September, 1872, at Louisville, Ky.

A. B. COOK." The suit was removed into the Circuit Court of the United States for the District of Kentucky, where the plaintiff filed a bill in equity making the Company and A. B. Cook de endants, and praying judgment against the Company for the $17,340 and interest. The Company answered, setting up various defenses, on which issue was joined. A. B. Cook also answered. On a hearing on proofs, the court dismissed the bill, without delivering any opinion, oral or written. The plaintiff appealed to this court. She has since died, and her executrix has been substituted as plaintiff.

It appears, by the proofs, that A. B. Cook, on the 14th of June, 1880, and before Harvison's death, received from the Company $4,000, and delivered to it the policy and the following instrument, signed by him, indorsed on the policy:

"Louisville, Ky., June 14, 1880.

I hereby sell, transfer, and assign to the Phoe. nix Mut. Life Ins. Co. of Hartford, Conn., all right and title to the within policy on the life of W. G. Harvison, in consideration of the sum of four thousand dollars in hand paid, by draft on the said Co., and a return of the premium notes.

A. B. COOK." Among the defenses set up and urged by the defendant were: (1) that A. B. Cook, who was a witness for his wife, was not a competent witness for her under the Statutes of Kentucky; (2) that no assignment of the policy by A. B. Cook to his wife was ever in fact executed and delivered; (3) that Fannie M. Cook had no insurable interest in the life of Harvison, and, therefore, could not become assignee of the policy; (4) that the statement in the application for the policy, that Harvison was not addicted to the habitual use of spirituous liquors, was untrue; (5) that after the policy was issued the habits of Harvison became, as to the use of spirituous liquors, so far different from his habits as to such use represented in the application, as to make the risk more than ordinarily hazardous.

Without considering any of the other questions raised, we are of opinion that, as a matter of fact, and even conceding that A. B. Cook was a competent witness, the assignment by

him to his wife is not satisfactorily proved to have been made or delivered prior to the transaction of June 14, 1880. The evidence on that point is conflicting, and it would not be profitable to discuss it in detail. As the suit cannot be maintained without proof of the assignment, the decree is affirmed. True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.

CRESCENT CITY LIVE-STOCK LAND [141]

ING AND SLAUGHTER-HOUSE COM-
PANY ET AL., Piffs. in Err.,

BUTCHERS'

UNION SLAUGHTERHOUSE AND LIVE-STOCK LANDING COMPANY.

(See S. C. Reporter's ed. 141-160.) Jurisdiction-constitutional law-malicious prosecution-probable cause-prior adverse judg ment of state court-history of litigation as to an alleged exclusive privilege to carry on the live-stock landing and slaughter-house business in New Orleans.

1. Whether a state court has given due effect to a decree or judgment of a court of the United States is a question arising under the Constitution and laws of the United States, and is within the juris

diction of the federal courts.

2. In an action for a malicious prosecution, brought in a state court, it is held that the decree of the Circuit Court of the United States in the action complained of is conclusive evidence of probable cause; although an adverse judgment had been rendered by the Supreme Court of the State in a prior action by the defendant against a different party. 3. Want of probable cause and the existence of malice, express or implied, must concur to entitle the plaintiff to recover in an action for a malicious prosecution. [No. 1167.1

Submitted Jan. 6, 1887. Decided Jan. 24, 1887. IN ERROR to the Supreme Court of the State of Louisiana. Reported below, 37 La. Ann. 874. Affirmed in part, reversed in part. The history and facts of the case sufficiently appear in the opinion of the court.

Messrs. William A. Maury, Asst. AttyGen.,and Robert Mott, for plaintiffs in error:

The right set up by the plaintiffs in error to the protection of the decree of the Circuit Court of the United States in the injunction suit, was a right claimed under an authority exercised under the United States, within the meaning of section 709, R. S.

Dupasseur v. Rochereu, 88 U. S. 21 Wall. 130 (22: 588); Buck v. Colbath, 70 U. S. 3 Wall. 334 (18: 257); Factors & T. Ins. Co. v. Murphy, 111 U. S. 738 (28: 582); New Orleans, etc. R. R. Co. v. Delamore, 114 U. S. 501 (29: 244).

To maintain an action for malicious prosecution there must be a concurrence of malice and want of probable cause.

Stewart v. Sonneborn, 98 U. S. 194 (25: 119). "Probable cause is judicially ascertained by the verdict of the jury and judgment of the court thereon, although upon an appeal a contrary verdict and judgment be given in a higher court."

Griffis v. Sellars, 4 Dev. & B. Law, 177. See also Herman v. Brookerhoff, 8 Watts, 240; Kaye

v. Kean, 18 B. Mon. 845; Whitney v. Peckham, 15 Mass. 243; Palmer v. Avery, 41 Barb. 290; Reynold v. Kennedy, B. R. 1 Wils. 232; Witham v. Gowen, 14 Me. 362; Cooley, Torts, 185.

We deny that the decision of the State Supreme Court in the previous case against the City of New Orleans debarred the Crescent City, etc. Company from filing a bill against another party in the United States Circuit Court for the purpose of litigating the very point of constitutional law involved in the first suit, or that it was the duty of the circuit court to accept the doctrine laid down by the state court until it should be overruled by this court. No authority for this has been or can be shown.

What the Crescent City, etc. Company wanted was the decision of this court on the constitutional provision which it claimed had invaded its monopoly; and it is certainly not ob noxious to censure if, finding that the federal question involving that point was not properly raised in its suit against the City of New Orleans, or that there was room for doubt in that particular, it pursued the direct course of filing a bill in the United States Circuit Court which did fairly present that question.

Messrs. E. Howard McCaleb and B. R. Forman, for defendant in error:

We deny that in a suit brought to recover damages for a malicious prosecution the judgment of an inferior court, subsequently reversed, is conclusive, in all cases, of probable cause sufficient to exempt the prosecutor from liability.

The better opinion would seem to be that the judgment of the court of the first instance, afterward reversed, "if regarded as evidence of probable cause, is prima facie only, and not conclusive."

Bacon v. Towne, 4 Cush. 236; Burt v. Place, 4 Wend. 591.

What is the probable force and effect of a reversed judgment? Whether such judgment amounts to full and complete evidence of probable cause is not a federal question, but one of general law, as to which the decision of the state court is not examinable here.

"The legal effect of the judgment set up in bar is a question of general law, as to which the decision of the state court is not reversible here. The federal questions, if any there were in the case, lay behind this defense, and could not be reached until it was out of the way."

Chouteau v. Gibson, 111 U. S. 201 (28: 401). "The general rule is, the lex fori governs the admissibility and effect of evidence.

Blocker v. Whittenburg, 12 La. Ann. 401; Story, Confl. L. § 629; Scudder v. Union Nat. Bank, 91 U. S. 412 (23: 248); Whart. Ev. § 316. The reversed decree of the circuit judge in the case of the Crescent City Company v. Butchers Union Company, granting and subsequently perpetuating the injunction complained of, was a direct violation of the prior judgment of the Supreme Court of Louisiana in the case of the Crescent City Slaughter-House Company v. City of New Orleans, 33 La. Ann. 934. The decision of the State Supreme Court in the last mentioned suit was virtually a decree between the same parties on the same subject matter; because in the suit previously decided by the state court, the City of New Orleans, acting in its corporate capacity, represented all of its inhabitants,

every person within its limits, both natural and artificial, individuals and corporations. A judgment rendered for or against a city is res judicata as against its inhabitants. Parker v. Scogin, 11 La. Ann. 629; Shields v. Chase, 32 La. Ann. 409; Freem. Judg. § 178. The decree of the circuit court was void for want of jurisdiction over the controversy, because the suit did not arise under the Constitution of the United States and the parties were citizens of the same State.

The decree of a court without jurisdiction over the controversy furnishes no justification and is not even "prima facie" evidence of prob able cause. All proceedings had under such decree are wrongful and a trespass.

Hayes v. Younglove, 7 B. Mon. 545. In order to reverse the decision of the Supreme Court of Louisiana, it is necessary to hold that a judgment of a federal circuit judge allowing an injunction, or maintaining an attachment, arrest or other writ, even though reversed on appeal, is, regardless of circum stances, a complete and perfect bar under federal laws and the Federal Constitution, to any action for damages, although the same questions had been twice decided by the highest court of the State adversely to the prosecutor in litigation provoked by himself.

Mr. Justice Matthews delivered the opinion of the court;

This is a writ of error bringing into review a judgment of the Supreme Court of the State of Louisiana, reported in 37 Louisiana Annual Reports, 874. The federal question arising upon the record presented for our consideration is, whether the Supreme Court of Louisiana in its determination of the case gave due effect to a certain decree of the Circuit Court of the United States for the Eastern District of Louisiana, in a previous litigation between the same parties. That question is presented upon the following case:

The plaintiff in error is a corporation created by the laws of Louisiana, which, by an Act of the Legislature of that State, passed March 8, 1869, was invested with the sole and exclusive privilege of conducting and carrying on the live-stock landing and slaughter-house business within the City of New Orleans and the Parishes of Orleans, Jefferson and St. Bernard. The validity of this monopoly was sustained by the decision of this court in the Slaughter-House Cases, 83 U. S. 16 Wall. 36 [21: 394], on the ground that this grant of exclusive right or privilege was a police regulation for the health and comfort of the people within the power of the State Legislature, and not in violation of any provision of the Constitution of the United States. The Company continued thenceforward to use and enjoy its exclusive privileges until the adoption by the people of Lousiana of a new State Constitution in the year 1879. That Constitution contained the following articles:

"Article 248. The police juries of the several parishes, and the constituted authorities of all incorporated municipalities of the State, shall alone have the power of regulating the slaughtering of cattle and other live stock within their respective limits; Provided, No monopoly or exclusive privilege shall exist in this State, nor such business be restricted to the land or houses

plaintiff in error and Bertrand Saloy, by a petl. tion in which a recovery is sought upon the bond against the defendants in solido for the sum of $8,000, with 5 per cent interest from judicial demand for a breach of its condition, and against the Company alone for the further sum of $70,000 damages, with 5 per cent in

The City of New Orleans, by ordinances adopted in 1881, proceeded to declare,under article 248 of the Constitution, within what limits in the Parish of Orleans animals, intended for food, might be slaughtered, in which the board of health of the State of Louisiana concurred. In March, 1880, the Butchers Union SlaughterHouse and Live-Stock Landing Company, the defendant in error, became incorporated under the general law of Louisiana, and was authorized by its charter "To erect, at any point or piace in the Parish of Orleans, wharves, stables, sheds, yards and buildings necessary to land, stable, shelter, protect and preserve all kinds of horses, mules, cattle and other animals, for the purpose of carrying on the live-stock landing and slaughter-house business, and for the purpose of sheltering and protecting all such cattle or other animals which may be sent to said Company destined for slaughter; and the said Company shall, as soon as practicable, build and complete a slaughter-house; also a sufficient number of sheds and stables and other buildings as may be deemed necessary for the carrying on said slaughtering business."

This Company having begun to acquire the necessary plant for conducting the live-stock and slaughtering business, in pursuance of its charter, the plaintiff in error, on the 23d of November, 1881, filed its bill in the Circuit Court of the United States for the Eastern District of Louisiana against the defendant in error, setting up its exclusive right and privilege as claimed by it under its original charter and grant, alleging that the defendant was about to violate the same, and praying for an injunction to restrain that Company from carrying out its purpose. On the 29th of December, 1881, after notice and hearing, the judges of that court granted the injunction as prayed for pendente lite. On final hearing on the 8th of May, 1882, this injunction was made perpetual. On May 5, 1884, this decree of the circuit court was reversed by this court by a decision reported in 111 U. S. 746 [28: 585], on the ground that the exclusive right originally granted to the plaintiff in error was valid only as an exercise of the police power of the State, and was of that character, having reference to the public health, that it could not be made the subject of contract, protected against subsequent legislation by the Constitution of the United States.

In granting the preliminary injunction referred to, the plaintiff in error was required to and gave an injunction bond in the sum of $8,000, with Bertrand Saloy as surety, reciting the allowance of the injunction pendente lite, and conditioned to pay to the defendant in said injunction all such damages as it might suffer or had suffered in consequence thereof. 'The present action was begun in the Civil District Court for the Parish of Orleans on May 28, 1884, by the defendant in error against the

leged ground of a malicious prosecution by the complainant therein of the said bill in equity for an injunction. This cause came on for trial by a jury when there was a verdict against both defendants for $6,588.80, with interest, and against the Crescent City Live-Stock Landing and Slaughter-House Company alone, upon the plea [145] of malicious prosecution, for the sum of $12,500 damages, and the further sum of $2,500 attor neys' fees. Upon the trial the defendant relied upon the decree of the Circuit Court of the United States, granting and perpetuating the injunction, as conclusive proof of probable cause for the institution and prosecution of the suit complained of. The rulings of the civil district court upon this defense are set out in several bills of exception. In one of them it appears that the judge left it to the jury to determine whether the decree of the circuit court constituted probable cause or not, adding that in his opinion it was both remarkable and extraordinary, and, as explanatory of that, the bill of exceptions signed by him contains the following statement: "I describe the action of the federal court as 'remarkable and extraordinary,' because it set at naught the decisions of the State Courts of Louisiana, of the Supreme Court of Louisiana, set at defiance the positive mandate of the State Constitution, and because it was held by the unanimous Supreme Court of the United States to have involved a usurpation of jurisdiction; such action was truly remarkable and extraordinary,' though not without deplorable precedent.'

"

It also appears that the defendants requested the judge to charge the jury as follows:

"A plaintiff, whose asserted right was conferred by an Act of Legislature and has been in force for a number of years, has a right to test the legality of a subsequent repeal of said right, when the validity of such repeal or modifica tion has not been finally settled, and the plaintiff is advised by competent counsel that the repeal is invalid. In such a case the plaintiff has probable cause for asserting his rights and instituting an action for such purpose. If, in the action instituted, the lower court being the Circuit Court of the United States, presided over by two judges, render a judgment in favor of the plaintiff, the existence of probable cause for instituting such suit is demonstrated by the finding of the judges of the circuit court, although their judgment was reversed on appeal."

This charge the judge refused to give, on the ground that it was unsound in law. Judgment [146] was rendered on the verdict February 24, 1885, and the cause was removed by a suspensive appeal to the Supreme Court of Louisiana for the final decision of that court, by which, on December 14, 1885, it was affirmed.

It is contended by counsel for the defendant in error that, in examining the record in this case, this court will only consider the opinion and judgment of the Supreme Court of Louisi