by any surgical operation or medical or mechanical treatment for disease.' The cause was tried before the court and a jury, when, upon the evidence adduced, a verdict for the plaintiff was directed, subject to the opinion of the court upon the question whether the facts proved were sufficient to render the defendants liable upon their policy. The following are the facts as derived from the evidence, and in stating them I adopt the conclusions of fact most favorable to the plaintiff that the evidence will permit to be drawn: The insured died on the 20th of November, 1872. A week or so previous to his death he was suffering from influenza, the result of a cold, and was then treated therefor by his physician. He began to get better, when, on Friday night before his death, he had an attack of cholera morbus, accompanied with convulsions, which seemed to completely shatter his nervous system and left him in a wholly nervous state. On Monday following he was again better, proposed to go to business, and asked his physician, on account of restlessness, to give him some opiate for a quiet night's sleep. The physician ordered a preparation of opium, and | directed him to take twenty drops of it before going to bed. He was at this time taking chloral, under the same medical advice, and the opium was directed to be taken in addition to a prescribed dose of chloral. That night the insured took the prescribed dose of chloral and, as may be inferred from the facts shown, a dose of opium also. There is no direct evidence as to the quantity of opium he took, but I shall treat the case as if the evidence respecting the symptoms that followed, and the actions of the insured, was sufficient to warrant a jury in finding that, through inadvertence, the insured took more opium than he intended to take, and such a quantity that his death was caused thereby, It is by no means clear that such finding would be warranted by the evidence given, and it is certain that no conclusion more favorable to the [319] plaintiff can be drawn from the proofs. I am therefore to determine whether, as matter of law, such a death is within the scope of the policy sued on. Upon this question, my opinion is adverse to the plaintiff. As I view the evidence, the death was caused by medical treatment for disease,' and, if so, it was excepted by the terms of the policy. The contention on behalf of the plaintiff is, that the opium was not administered by the hand of a physician and, moreover, was not the dose directed by the physician to be taken, but was a dose taken by the insured upon his own judgment, and that these facts take the case out of the exception in the policy. But it must be conceded that the opium which caused the death was taken by the insured with the object of allaying the nervous excitement from which he was suffering. Certainly, then, this was disease. The advice of a physician had been taken as to its cure. It is equally certain that there was a treatment of this disease, for the remedy prescribed by the physician was taken, although in excessive quantity, and the opium taken was so taken because the physician had prescribed it to remedy the disease. The opium was taken with no other object than to effect the result which the physician had advised should be attained by using opium. Under these circumstances, the fact that the patient deviated from the direction given by the physician in the mat ter of amount and, upon his own judgment, took a larger dose than had been directed, does not change the character of the act. The object of the insured in taking the opium he did was to cure or else to kill. The facts repel the idea of an intention to kill and prove the inten tion to cure. Death caused by such an act, done with such an intent, is, in my opinion, a death caused wholly or in part by medical treatment for disease and, therefore, is not covered by the policy. I am also of the opinion that the facts do not disclose a case of bodily injury effected through external, violent and accidental means,' occasioning death, within the meaning of the policy. I do not consider that violence can fairly be said to be an ingredient in the act of taking a dose of medicine, although the medicine be destructive in its action and death the result. These considerations compel to a denial of the [320] motion for judgment in favor of the plaintiff, and a direction that judgment for the defendants be entered." To which ruling and conclusion the plaintiff duly excepted. If, after the plaintiff's case had been closed, the court had directed a verdict for the defendant on the ground that the evidence, with all inferences that the jury could justifiably draw from it, was insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, it would have followed a practice sanctioned by repeated decisions of this court. Randall v. R. R. Co., 109 U. S., 478 [XXVII., 1003], and cases there cited. And in that event, the plaintiff, having duly excepted to the ruling in a bill of exceptions, setting out all the evidence, upon a writ of error, would have been entitled to the judgment of this court, whether, as a matter of law, the ruling against him was erroneous. Or if, in the present case, a verdict having been taken for the plaintiff by direction of the court, subject to its opinion whether the evidence was sufficient to sustain it, the court had subsequently granted a motion on behalf of the defendant for a new trial, and set aside the ver dict, on the ground of the insufficiency of the evidence, it would have followed a common practice, in respect to which error could not have been alleged, or it might, with propriety, have reserved the question, what judgment should be rendered, and in favor of what party, upon an agreed statement of facts, and afterwards rendered judgment upon its conclusions of law. But, without a waiver of the right of trial by jury, by consent of parties, the court errs if it substitutes itself for the jury and, passing upon the effect of the evidence, finds the [321] facts involved in the issue, and renders judg ment thereon. This is what was done in the present case. It may be that the conclusions of fact reached and stated by the court are correct and, when properly ascertained, that they require such a judg ment as was rendered. That is a question not before us. The plaintiff in error complains that he was entitled to have the evidence submitted to the jury and to the benefit of such conclusions of fact as it might justifiably have drawn; a right he demanded and did not waive; and that he has been deprived of it, by the act of the court, in entering a judgment against him | Samuel Lord, A. Canale, L. D. Mowry, Alfred The right of trial by jury in the courts of the United States is expressly secured by the Seventh Article of Amendment to the Constitution, and Congress has, by statute, provided for the trial of issues of fact in civil cases by the court without the intervention of a jury, only when the parties waive their right to a jury by a stipulation in writing. R. S., 648, 649. Feb III. That heretofore, to wit: on the ruary, 1881, the Marine and River Phosphate Mining and Manufacturing Company of South Carolina was a corporation under the laws of the State of South Carolina, with a paid up capital stock of $50,000, and no more; that said company was, by the terms of the charter, authorized to increase its capital stock, in the manner provided by law, to an amount not exceeding $250,000, and by an Act amendatory of its charter, passed December, 1882, the said company was further authorized to increase its capital stock to an amount not ex ceeding $400,000 in the whole, inclusive of the stock then existing; that the company did, from time to time, between the said February, 1881, and 21 March, 1883, increase its capital stock to the sum of $300,000, that is to say, scrip for shares of capital stock to the par value of James H. McKenney, Clerk, Sup. Court, U. S. $300,000 were issued; but, as the plaintiff is in This constitutional right this court has al- For error in this particular, the judgment is re- Submitted Jan. 5, 1885. Decided Feb. 2, 1885. IN ERROR to the Circuit Court of the United States for the District of South Carolina. Mr. Wm. E. Earle, for plaintiff in error. Mr. Justice Matthews delivered the opinion of the court: formed and believes, and so alleges and charges, IV. That, by an Act amendatory of its char- V. That on the 21st day of March, 1883, the said Robert G. Chisolm, Samuel Lord, A. Canale, L. D. Mowry, Alfred Ravenel and James [304] Conner were directors of said company. That thereafter, to wit: July 1883, the said James Conner departed this life, leaving a last will, whereof he appointed his wife, Sallie E. Conner, executrix, who was duly qualified thereon. VI. That, on said 21st March, 1883, the said Marine and River Phosphate Company was indebted, in an amount not less in the aggregate than $75,000. VII. That, on said 21st March, 1883, in the administration of the aforesaid directors, there were issued the following bonds, being a debt contracted by the said company additional to the debt existing as aforesaid, to wit: Sixty bonds or obligations of said company, bearing date the 21st day of March, 1883, and each conditioned for the payment to bearer of the sum of $500 on the first day of January, This is a writ of error prosecuted to reverse 1893, with interest thereon, payable semi-annua judgment of the Circuit Court for the Dis-ally, at the rate of seven per cent per annum trict of South Carolina, dismissing the complaint, in which the plaintiff asked for a recovery for the sum of $1,050, with interest from July 1, 1883. The jurisdiction of this court depends upon and is limited by a certificate of division of opinion between the Circuit and Dis303] trict Judges, before whom the case was tried, and is confined to the single question so certified: whether the remedy of the plaintiff below was by an action at law or by a suit in equity. The allegations of the complaint are as follows: "I. That the plaintiff, Roy Stone, is a citizen of the State of New York. II. That the defendants, Robert G. Chisolm, on the presentment of the interest coupons VIII. That plaintiff is the lawful owner and IX. That the said bonds, so conditioned, for the aggregate sum of $30,000, was in addition to the debt already existing as aforesaid, and constituted an indebtedness in excess of the capital stock of said company actually paid in as aforesaid. X. That, by the 1267th section of the General Statutes of the State of South Carolina and by the provisious of an Act of the said State, approved 10th December, 1869, entitled 'An Act to Regulate the Formation of Corporations,' under which Act the said Marine and River Phosphate Mining and Manufacturing Company of South Carolina was incorporated, and by sundry other laws of said State, the said de[305] fendants are jointly and severally liable to the plaintiff for the payment of the said bonds and [306] coupons. XI. That the said Marine and River Phosphate Company is totally insolvent; that all its property is mortgaged to an extent far in excess of its value; that, as plaintiff is advised, its property, consisting of personalty so mortgaged, is not subject to levy under execution; and that even if it were, plaintiff alleges and charges that there is no unincumbered property of said company subject to levy, and that judgment and execution would be wholly nugatory and fruitless to effect anything, as the incumbered property, upon a sale thereof, would not bring sufficient to discharge the liens on the same, and the execution creditors would only be cast in the costs of such levy and sale. XII. That, by reason of the premises, defendants are indebted to plaintiff, upon the coupons held by him as aforesaid, in the sum of $1,050, and interest from the first day of July, 1883. Wherefore, plaintiff prays judgment against said defendants for the sum of $1,050, with interest from first July, 1883, and costs. Thereupon the defendants demurred orally, on the ground: "That the liability imposed by the statutes referred to in the complaint cannot be enforced in an action at law, but by a proceeding in equity only; and, consequently, that this, being a court of law, has no jurisdiction to entertain the plaintiff's case.' And this question having been fully argued before the Judges aforesaid, and their opinions thereupon being opposed, the point upon which they disagree is stated as follows: Whether the liability imposed upon the directors of a corporation by the provisions of the statutes referred to in the complaint can be enforced by a single aggrieved creditor in an action at law against one or more directors, or whether such creditor must proceed by a creditor's bill in equity." The statutes referred to in the complaint are the 1367th section of the General Statutes of South Carolina, the Act of December 10, 1869, entitled "An Act to Regulate the Formation of Corporations," and "sundry other laws of said State." This last reference would broaden the question certified, so as to embrace the inquiry whether the remedy insisted on was conferred by any law of the State; but counsel for the plaintiffs in error disclaim reliance upon any provisions of the statutes, except those specifically referred to, which they have accordingly printed with their brief. tions Organized under Charters." It reads as follows: "Sec. 1367. The total amount of debts which such corporations shall at any time owe shall not exceed the amount of its capital stock actually paid in; and in case of excess, the directors in whose administration it shall happen shall be personally liable for the same, both to the contractor or contractors and to the corporation: Such of the directors as may have been absent when the said excess was contracted or created, or who may have voted against such contract or agreement, and caused his vote to be recorded in the minutes of the board, may respectively prevent such liability from attaching to themselves by forthwith giving notice of the fact to a general meeting of the stockholders, which they are authorized to call for that purpose. The provisions of this section shall not apply to debts of railroad corporations secured by mortgage." This provision was a re-enactment of and, consequently, superseded a similar provision contained in section 33 of the Act of December 10, 1869, under which the Marine and River Phosphate Company had been organized as a corporation, and which being a general law was subject to modification and repeal. The language of that section was as follows: 'Sec. 33. The whole amount of the debts which any such company at any time owes shall not exceed the amount of its capital stock actually paid in; and, in case of any excess, the directors under whose administration it occurs, shall be jointly and severally liable to the extent of such excess, for all the debts of the company then existing, and for all that are contracted, so long as they respectively continue in office, and until the debts are reduced to the amount of the capital stock; Provided, That any of the directors, who are absent at the time of contracting any debt contrary to the foregoing provisions, or who object thereto, may exempt themselves from liability by forthwith giving notice of the fact to the stockholders at the meeting they may call for that purpose." The Act of 1869 also contained the following: "Sec. 35. When any of the officers of a company are liable, by the provisions of this Act to pay the debts of the company or any part thereof, any person to whom they are so liable may have an action against any one or more of said officers, and the declaration in such action shall state the claim against the company and the grounds on which the plaintiff expects to charge the defendants, personally; and such action may be brought, notwithstanding the pendency of an action against the company for the recovery of the same claim or demand; and both of the actions may be prosecuted until the plaintiff obtains the payment of his debt, and the cost of both actions." This section now appears as section 1401 of the General Statutes, but under a subdivision of "Provisions Applicable Solely to Corpora tions under Class I;" and this class is defined by section 1377 as "all labor, agricultural, manufacturing, industrial, mining, or companies or associations of like nature," the organization and government of which is the subject of chap. XXXIX., entitled "Of Corporations Organized under General Statutes." Section 1367 of the General Statutes of South Carolina occurs in a general Act on the subject of the organization and government of corporations, contained in the revision of 1882, in chap- On the other hand, section 1367 of the Genter XXXVIII., under the sub-title "Of Corpora-eral Statutes, which, as we have seen, corre [307] sponds to and supersedes section 33 of the Act | the common benefit of all entitled to enforce it of 1869, is contained in chapter XXXVIII. of the according to their interest; an apportionment General Statutes under the head "Of Corpora- which, in case there cannot be satisfaction for [308] tions Organized under Charters." But section all, can only be made in a single proceeding to 1370 of the same chapter, under a subdivision which all interested can be made parties. designating "manufacturing companies," provides that "All manufacturing companies which shall be incorporated in this State shall have all the powers and privileges and be subject to all the duties, liabilities and other provisions contained in sections 1361 to 1369, inclusive, of this chapter, unless the said corporations be specially exempted therefrom by their respective charters." It thus appears, that, although section 35 of the Act of 1869 furnished the remedy for enforcing the liability imposed by section 33 of the same Act, the former has been superseded by section 1401, and the latter by section 1367 of the General Statutes, but with a totally different relation in the latter, from that sustained by the corresponding sections in the former, so that it cannot be said that the action given by and described in section 1401 of the General Statutes applics, as the remedy expressly prescribed for enforcing the liability imposed by section 1367. It follows, that if section 1401 applies to the Marine and River Phosphate Company, section 1367 does not, Either, there is no such liability as is sought to be enforced in the present action; or, the remedy resorted to cannot rest upon the section cited, as expressly conferring it. The case cannot be distinguished from that of Hornor v. Henning, 93 U. S., 228 [XXIII., 879], the reasoning and result in which we reaffirm. It is immaterial that in the present case it does not appear that there are other creditors than the plaintiffs in error. There can be but one rule for construing the section, whether the creditors be one or many. To the question certified, therefore, it must be answered that an action at law will not lie, and that the only remedy is by a suit in equity. The judgment is, accordingly, affirmed. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. LYDIA M. FUSSELL, Appt., V. DANIEL GREGG ET AL. (See S. C., Reporter's ed., 550-565.) Ejectment brought on equitable title-equity jurisdiction-action at law-failure to return survey-General Land-Office. 1. Where the bill of complaint alleges that the complainant has an equitable estate in fee in the premises in dispute and that the defendants are in possession without title, in other words, are naked trespassers, and prays that they may be turned out and that complainant who has only an equitable is such as a court of law is competent to grant, and title, may be put in possession, the relief prayed for a court of equity has no jurisdiction. 2. Complainant can turn the defendant out of possession only upon the strength of the legal title, a court of law is the proper forum in which to bring which he must first acquire, and having done this, his suit. It is argued, indeed, on behalf of the defendants in error, that section 1367, which declares the liability of the directors in the case stated in the complaint, cannot apply, because the Marine and River Phosphate Company is not a corporation organized under a charter but under a general law, that provision being applicable, it is said, only to those of the former description. But we deem it unnecessary to consider and decide that question, because no special remedy being prescribed by statute for enforcing the 3. A court of the United States, sitting in equity, cannot control a principal surveyor of a military liability defined by that section, from a consid-district in the discharge of his duties nor take eration of its nature and the circumstances charge of the records of his office nor declare their which are made the conditions of it, we are led effect to be other than that which appears upon to the conclusion that the only appropriate remedy in the courts of the United States is by a suit in equity. their face. 4. By failure to make return of a survey of lands in the military district to the General Land-Office within the time prescribed by the Act of Congress of 1804, on that subject, the entry and survey became vacated, annulled and void, and the lands covered thereby became released from such entry and survey. has not been prolonged by subsequent Acts of 5. The period limited for returning the survey Congress. 6. The Act of 1855, is by its terms confined to lands entered and not surveyed prior to January 1, 1852. The conditions of the personal liability of the directors of the corporation, expressed in the statute, are: that there shall be debts of the corporation in excess of the capital stock act ually paid in, to which the directors sought to be charged shall have assented, and this liabil309] ity is for the entire excess both to the creditors and to the corporation. To ascertain the existence of the liability in a given case requires an account to be taken of the amount of the corporate indebtedness and of the amount of the capital stock actually paid in; facts which the directors, upon whom the liability is imposed, have a right to have determined, once for all, in a proceeding which shall conclude all who have an adverse interest, and a right to partic- Submitted Jan. 8, 9, 1885. Decided Feb. 2, 1885. ipate in the benefit to result from enforcing the liability. Otherwise the facts which constitute the basis of liability might be determined dif- 7. By the Act of May 27, 1880, 21 Stat., 142, three years' further time was allowed for the return of the surveys of such land only as had been entered, but not surveyed, before January 1, 1852. 8. The "land-office" referred to in section 3 of the last named Act, is the General Land-Office. 9. The 1st and 2d sections of the Act of May 27, 1880, do not repeal, by implication, the 3d section of [No. 147.] the Act of 1804. APPEAL from the Circuit Court of the United States for the Northern District of Ohio. * The history and facts of the case appear in the opinion of the court. Messrs. Jeremiah Hall and P. C. Smith, for appellant. Messrs. Wm. Lawrence and West, Walker | vey, and patent of Gregg were all made and & West, for appellees: obtained in violation of the proviso of section 2 of the Act of March 1, 1823, entitled "An Act [553] Extending the Time for Locating Virginia Miltary Land Warrants, and Returning Surveys Thereon to the General Land-Office," 3 Stat. at L., 772, and were, therefore, null and void, and never appropriated any land or vested any title in Gregg, as against the plaintiff or those under whom she claimed. Mr. Lawrence filed with his brief, House Mis. Docs. No. 42, 47th Congress, 1st Session (Copp's Land Owner, August, 1880), and No. 10, 47th Congress, 2d Session, prepared by him, concerning titles in the Virginia Military District in Ohio, and containing an elaborate discussion of the subject. Mr. Justice Woods delivered the opinion of the court: This was a bill in equity, filed November 20, 1879, to establish the title of the plaintiff to and recover the possession of a certain tract of land in the County of Logan, in the State of Ohio, and for an account of rents and profits. Filling the many blanks left in the bill by resort to the evidence, the case made thereby was substantially as follows: It was further alleged that the defendant, Eleazur P. Kendrick, being the principal surveyor of the Virginia Military District, and in possession of the records of that office, did, subsequently to the entry and survey of Gregg, without the knowledge or consent of plaintiff, or of any person under whom she claimed title, write in the margin of the record of Archibald Gordon's entry the word "withdrawn," and in and across the plat and record of the survey thereof the words "state line," and that Kendrick refused to give the plaintiff a duplicate of said survey to enable her to obtain a patent for the land described therein. On July 19, 1822, warrant No. 6508 for 200 acres of land was granted by the State of Virginia to the grandfather of the plaintiff, Archibald Gordon, late of Cecil County, Maryland, in consideration of his services as a private, in Daniel Gregg, Eleazur P. Kendrick, William [552] the Virginia line on the Continental establish- Swissgood, Emily Swissgood, Francis Higgins, ment in the War of the Revolution. On Jan- John W. Higgins, Angeline Higgins, Matilda uary 21, 1823, he caused his warrant to be lo- Higgins, James Eaton, W. G. Smitlison and Ancated by entry No. 12017 in the Virginia Mili-drew Murdock were made defendants to the bill tary District in the State of Ohio, and the entry to be duly recorded. On March 25, 1823, he caused the entry to be surveyed by Thomas J. McArthur, a deputy surveyor of said military district, and on November 5, 1824, he had the survey recorded in the office of the principal surveyor of the district. Archibald Gordon died intestate about the year 1829, leaving Archibald Gordon, Jr., late of Baltimore, Maryland, his only child and heir at law. Archibald Gordon, Jr., died intestate about the year 1833 or 1834, leaving the plaintiff and her sister, Sarah Priscilla Gordon, his only children and | heirs at law. The plaintiff, on October 31, 1854, intermarried with Joseph B. Fussell, who died December 6, 1864, and the plaintiff's sister, Sarah Priscilla, having intermarried with one William H. Kelly, died intestate on May 12, 1853, leaving issue one daughter, her only child, Mary Elizabeth Kelly. William H. Kelly died at a date not mentioned, leaving his daughter, Mary Elizabeth, surviving him, who died at the age of nine years six months and three days without issue, leaving the plaintiff her sole heir at law. The plaintiff claimed that by direct inheritance from her father, Archibald Gordon, Jr., and collateral inheritance from her niece, Mary Elizabeth Kelly, she was seised of an equitable estate in fee in the lands covered by survey 12017, and entitled to the immediate possession thereof. of complaint, the bill alleging that the defend- We think that the averments of the bill do not entitle the plaintiff to relief. Her case, as alleged, is: that she has an equitable estate in fee in the premises in dispute; and that the defendants, except Gregg and Kendrick, are in possession without title; in other words, are naked trespassers. The theory of her bill seems It was further alleged that on October 4, to be that, because she has an equitable title 1851, Daniel Gregg, one of the defendants, only, and for that reason could not recover in made an entry on the records of the principal an action at law, a court of equity has jurisdicsurveyor of the district, No. 16070, of 130 acres tion of her case. But this is plainly an error. of military warrant No. 442, and on December Mr. Justice Bradley, in Young v. Porter, 3 20, 1851, he procured 100 acres of his entry to Woods, 342. To give a court of equity jurisbe so surveyed as to cover 100 acres of land ap- diction, the nature of the relief asked must be propriated by the entry and survey of Archi- equitable, even when the suit is based on an bald Gordon, No. 12017, and on November 2, equitable title. The plaintiff does not allege 1855, he caused the survey to be recorded, and that the defendants, who are in possession of on November 20, 1855, obtained a patent of the premises, have the legal title or that they that date for the lands described in this survey. obtained possession under any person who had The bill further averred, that the entry, sur-it. Nor does she state any facts which connect [554] |