in a great variety of cases." "One of the most valuable of the criteria furnished us by these authorities is to ascertain whether any new cause has intervened between the fact accomplished and the alleged cause. If a new force or power has intervened, of itself sufficient to stand as the cause of the misfortune, the other must be considered as too remote. In the present case, we think there is no such new cause. The explosion undoubtedly produced or set in operation the fire which burned the plaintiff's cotton. The fact that it was carried to the cotton by first burning another building supplies no new force or power which caused the burning. Nor can the accidental circumstance that the wind was blowing in a direction to favor the progress of the fire towards the warehouse be considered a new cause." "We are clearly of opinion that the explosion was the cause of the fire in this case." Id. 51, 52. In that case, as has been since observed by Mr. Justice Strong in delivering judgment in a case to be presently referred to more particularly, "it was, in effect, ruled that the efficient cause, the one that set others in motion, is the cause to which the loss is to be attributed, though the other causes may follow it and operate more immediately in producing the disaster." Insurance Co. v. Boon, 95 U. S. 117, 131.

In Insurance Co. v. Transportation Co., 12 Wall. 194, a large steamboat on Long Island Sound was insured against fire, excepting fire happening "by means of any invasion, insurrection, riot, or civil commotion, or of any military or usurped power." The facts, as found by the circuit court, and stated in the report, were as follows: Another vessel came into collision with the steamboat, striking her on the side, and cutting into her hull below the water line, in consequence of which she immediately and rapidly began to fill with water. Within ten or fifteen minutes after the collision the water reached the floor of her furnace, and generated steam which blew the fire against her woodwork, whereby her upper works were enveloped in flames, and continued to burn for half or threequarters of an hour, when she rolled over and gradually sank in twenty fathoms of water. From the effects of the collision alone she would not have sunk below her promenade deck, but would have remained suspended in the water, and could have been towed to a place of safety and repaired at an expense of $15,000. The sinking of the steamboat below her promenade deck was the result of the action of the fire in burning off her upper works, whereby her floating capacity was decreased, and she sank to the bottom; and the amount of the additional damage thereby caused, including the cost of raising her, was $7,300. Upon that state of facts, this court, affirming the judgment of the circuit court, held the insurers liable for the latter sum. But in the opinion of this court, delivered by Mr. Justice Strong, the

rule was recognized and affirmed that "when there is no order of succession in time, when there are two concurrent causes of a loss, the predominating efficient one must be regarded as the proximate, when the damage done by each cannot be distinguished." And it was added, "And certainly that cause which set the other in motion, and gave to it its efficiency for harm at the time of the disaster, must rank as predominant." Id. 199. The rule was held to be inapplicable to that case, because the damage resulting from the fire, and that caused by the collision, apart from the fire, were clearly distinguished, and because the policy, exempting the insurers from liability for losses by fire by certain specified causes, covered losses by fire from all other causes, including collisions. But for those distinctions, the decision could hardly be reconciled with the earlier opinions already referred to, or with that delivered by the same able and careful judge in the later case of Insurance Co. v. Boon, 95 U. S. 117.

In Insurance Co. v. Boon, a policy of insurance against fire, issued during the war of the Rebellion, for one year, upon goods in a store in the city of Glasgow, in the state of Missouri, provided that the insurers should not be liable for "any loss or damage by fire which may happen or take place by means of any invasion, insurrection, riot, or civil commotion, or of any military or usurped power." The city of Glasgow, being occupied as a military post by the United States forces, was attacked by a superior, armed force of the rebels, and defended by the United States forces; and during the battle the commander of these forces, upon its becoming apparent that the city could not be successfully defended, and in order to prevent military stores, which had been placed In the city hall, from falling into the hands of the rebels, caused them to be destroyed by burning the city hall; and the fire, spreading from building to building, through three intermediate buildings, to that containing the goods insured, destroyed them. This court held that the loss was within the exception in the policy, because the rebel military power was the predominating and operating cause of the fire; and in the opinion of the court, delivered by Mr. Justice Strong, and strongly supported by authority, the true rule and its application to that case were stated as follows:

"The question is not what cause was nearest in time or place to the catastrophe. That is not the meaning of the maxim, 'Causa proxima, non remota, spectatur.' The proximate cause is the efficient cause,-the one that necessarily sets the other causes in operation. The causes that are merely incldental, or instruments of a superior or controlling agency, are not the proximate causes and the responsible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be char

ged with the disaster." 95 U. S. 130. "The conclusion is inevitable that the fire which caused the destruction of the plaintiffs' property happened or took place, not merely in consequence of, but by means of, the rebel invasion and military or usurped power. The fire occurred while the attack was in progress, and when it was about being successful. The attack, as a cause, never ceased to operate until the loss was complete. It was the causa causans which set in operation every agency that contributed to the destruction. It created the military necessity for the destruction of the military stores in the city hall, and made it the duty of the commanding officer of the Federal forces to destroy them. His act, therefore, in setting fire to the city hall, was directly in the line of the force set in motion by the usurping power." ☛ Id. 132. "The court below regarded the action of the United States military authorities as a sufficient cause intervening between the rebel attack and the destruction of the plaintiffs' property, and therefore held it to be the responsible, proximate cause. With this we cannot concur. The proximate cause, as we have seen, is the dominant cause, not the one which is incidental to that cause, its mere instrument, though the latter may be nearest in place and time to the loss. In Railway v. Kellogg, 94 U. S. 469, we said, in considering what is the proximate and what the remote cause of an injury, "The inquiry must always be whether there was any intermediate cause, disconnected from the primary fault, and self-operating, which produced the injury.' In the present case the burning of the city hall, and the spread of the fire afterwards, was not a new and independent cause of loss. On the contrary, it was an incident, a necessary incident and consequence, of the hostile rebel attack on the town,-a military necessity caused by the attack. It was one of a continuous chain of events brought into being by the usurped military power,-events so linked together as to form one continuous whole." Insurance Co. v. Boon, 95 U. S. 133.

In general accord with the opinions above quoted are two cases in this court upon the meaning and effect of the term "dangers of navigation," or "perils of the sea," in a bill of lading. The Mohawk, 8 Wall. 153; The Portsmouth, 9 Wall. 682.

In The Mohawk, a steamboat, carrying wheat under a bill of lading containing an exception of "dangers of navigation," grounded on the flats, and, in the effort to get her off, became disabled by the bursting of her boiler, and afterwards sank. It was argued, among other things, on the one side, that the explosion was not a danger incident to navigation, and, on the other, that the sinking of the vessel was the immediate cause of the damage to the wheat. The question at issue was whether the vessel was entitled to freight pro rata itineris. This court, speaking by Mr. Justice Nelson, said that "the explosion of the boiler was not a peril within

the exception of the bill of lading," and therefore the case fell within that class in which the ship is disabled or prevented from forwarding the goods to the port of destination by a peril or accident not within the exception in the bill of lading. The Mohawk, 8 Wall. 162. Although this statement was perhaps not absolutely necessary to the decision, it was upon a point argued by counsel, and shows clearly that the court was of opinion that the explosion, and not the sinking, was the proximate cause of the loss.

In The Portsmouth, it was decided that a jettison made to lighten a steamboat which had been run aground by her captain's negligence was not within an exception of "the dangers of lake navigation" in a bill of lading; and Mr. Justice Strong, in delivering judgment, said: "A loss by a jettison occasioned by a peril of the sea is, in ordinary cases, a loss by perils of the sea. But it is well settled that, if a jettison of a cargo, or a part of it, is rendered necessary by any fault or breach of contract of the master or owners of the vessel, the jettison must be attributed to that fault or breach of contract, rather than to the sea peril, though that may also be present, and enter into the case. This is a principle alike applicable to exceptions in bills of lading and in policies of insurance. Though the peril of the sea may be nearer in time to the disaster, the efficient cause, without which the peril would not have been incurred, is regarded as the proximate cause of the loss. And there is perhaps greater reason for applying the rule to exceptions in contracts of common carriers than to those in policies of insurance; for, in general, negli gence of the insured does not relieve an underwriter, while a common carrier may not, even by stipulation, relieve himself from the consequences of his own fault." The Ports. mouth, 9 Wall. 6S4, 685.

Generally speaking, the words "perils of the sea" have the same meaning in a bill of lading as in a policy of insurance. There is a difference, indeed, in their effect in the two kinds of contract, when negligence of the master or crew of the vessel contributes to a loss by a peril of the sea. In such a case an insurer against "perils of the sea" is liable, because the assured does not warrant that his servants shall use due care to avoid them, whereas an exception of "perils of the sea" in a bill of lading does not relieve the carrier from his primary obligation to carry with reasonable care, unless prevented by the excepted perils. But when, as in the present case, it is distinctly found that there was no negligence, there is no reason, and much inconvenience, in holding that the words have different meanings in the two kinds of commercial contract. The Portsmouth, above cited; Phoenix Ins. Co. v. Erie & W. Transp, Co., 117 U. S. 312, 322-325, 6 Sup. Ct. 750, 1176; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 438, 442, 9 Sup. Ct. 469; Compania de Navigacion La Flecha v.

Brauer, 168 U. S. 104, 18 Sup. Ct. 12; The Xantho, 12 App. Cas. 503, 510, 514, 517. In the case at bar the explosion of the case of detonators, besides doing other damage, burst open the side of the ship below the water line; and the sea water rapidly flowed in through the opening made by the explosion, and injured the plaintiff's sugar. The explosion, in consequence of which, and through the hole made by which, the water immediately entered the ship, must be considered as the predominant, the efficient, the proximate, the responsible cause of the damage to the sugar, according to each of the tests laid down in the judgments of this court above referred to. The damage to the sugar was an effect which proceeded inevitably, and of absolute necessity, from the explosion, and must therefore be ascribed to that cause. The explosion concurred, as the efficient agent, with the water, at the instant when the water entered the ship. The inflow of the water, seeking a level by the mere force of gravitation, was not a new and independent cause, but was a necessary and instantaneous result and effect of the bursting open of the ship's side by the explosion. There being two concurrent causes of the damage, the explosion of the detonators, and the inflow of the water, without any appreciable interval of time, or any possibility of distinguishing the amount of damage done by each, the explosion, as the cause which set the water in motion, and gave it its efficiency for harm at the time of the disaster, must be regarded as the predominant cause. It was the primary and efficient cause, the one that necessarily set the force of the water in operation. It was the superior or controlling agency, of which the water was the incident or instrument. The inflow of the sea water was not an intermediate cause, disconnected from the primary cause, and self-operating: it was not a new and independent cause of damage; but, on the contrary, it was an incident, a necessary incident and consequence, of the explosion; and it was one of a continuous chain of events brought into being by the explosion,-events so linked together as to form one continuous whole.

The damage was not owing to any violent action of winds or waves, or to the ship coming against a rock or shoal or other external object; but it was owing to an explosion within the ship, and arising out of the nature of the cargo, which cannot be considered, either in common understanding, or according to the judicial precedents, as a peril of the sea.

As was observed by this court in Insurance Co. v. Boon, above cited: "Often, in case of a fire, much of the destruction is caused by water applied in efforts to extinguish the flames; yet, it is not doubted, all

that destruction is caused by the fire, and in95 U. surers against fire are liable for it." S. 131. If damage done by water thrown on by human agency to put out a fire is considered a direct consequence of the fire, surely damage done by water entering instantly, by the mere force of gravitation, through a hole made by an explosion of part of the cargo, must be considered as a direct consequence of the explosion.

Upon principle and authority, therefore, our conclusion is that the explosion, and not the sea water, was the proximate cause of the damage to the sugar, and that this damage was not occasioned by the perils of the sea, within the exceptions in the bill of lading.

Nor can the damage to the sugar, attributable, not to a peril of the sea, but to the explosion of part of the cargo after the ship had ended her voyage, and had been finally and intentionally moored at the dock, there to remain until her cargo was taken out of her, be considered as "occasioned by accidents of navigation." Canada Shipping Co. v. British Shipowners' Ass'n, 23 Q. B. Div. 342; The Accomac, 15 Prob. Div. 208; Insurance Co. v. Hamilton, 12 App. Cas. 484; The Mohawk, above cited.

Much reliance was placed by the appellee upon a recent English case, in which the house of lords, reversing the decision of Lord Esher and Lords Justices Bowen and Fry in the court of appeal, and restoring the Judgment of Lord Justice Lopes in the queen's bench division, held that damage to goods by sea water which, without any neglect or default on the part of the shipowners or their servants, found its way into the hold of a steamship through a hole which had been gnawed by rats in a leaden pipe connected with the bath room of the vessel, was within the exception of "dangers or accidents of the seas" in a bill of lading. Hamilton v. Pandorf, 12 App. Cas. 518, 17 Q. B. Div. 670, 16 Q. B. Div. 629. There is nothing in the report of any stage of that case to show that the sea water entered the ship immediately upon the gnawing by the rats of the hole in the pipe; and any such inference would be inconsistent with one of the opinions delivered in the house of lords, in which Lord Fitzgerald said: "The remote cause was, in a certain sense, the action of the rats on the lead pipe; but the immediate cause of the damage was the irruption of sea water from time to time through the injured pipe, caused by the rolling of the ship as she proceeded on her voyage." 12 App. Cas. 528. However that may have been, that case differs so much in its facts from the case now before us that it is unnecessary to consider it more particularly.

Question certified answered in the negative.

1. Under the provision of the judiciary act of March 3, 1891, making judgments or decrees of the circuit courts of appeals, which are thereby made final, reviewable by the supreme court on writ of certiorari, with the same power and authority as if the case had been carried to that court by appeal or writ of error, only the errors assigned by the petitioner at whose instance the writ of certiorari was issued can be considered, though the case was heard in the circuit court of appeals on appeals by both parties.

2. In a suit in equity to recover securities pledged to defendant by a third person, where It is found that complainant's rights in the securities are subject to the pledge, the court has power to decree the payment of defendant's claim as a condition of their redemption, and, necessarily, to declare complainant's rights extinguished, if the condition is not performed.

3. Where complainant seeks to recover securities pledged to defendant, and which de fendant has sold under the pledge and bought in, the fact that defendant pleads its title under such purchase, which is held invalid, does not deprive it of the right to insist upon its lien as pledgee.

4. Where the secretary and treasurer of a trust company, who was intrusted with the entire management of its business, delivered to one of its debtors securities deposited by him, having no indorsement which would prevent their negotiation, and with knowledge of his purpose to hypothecate them to others, the company cannot set up a claim to such securities as pledgee as against a subsequent pledgee in good faith and without notice.

5. An assignee for the benefit of creditors of a corporation has no better standing than his assignor to recover securities alleged to have been pledged to the assignor to secure it as indorser of certain notes, the holders of which have proved their claims as creditors.

6. The validity of a pledge of collateral to secure an issue of notes placed on the market and negotiated by the pledgee as trustee cannot be attacked in a suit to which neither the pledgor nor the holders of the notes are parties.

7. A complainant who seeks the affirmative aid of equity to set aside a transaction as usurious must tender or offer to repay the consideration parted with by defendant.

8. The provision of the usury law of New York that a borrower who files a bill in equity for relief need not offer to pay either interest or principal, is confined in its application strictly to borrowers; nor is it applicable to suits not brought within the state of New York.

9. The fact that a loan procured by a corporation was usurious or ultra vires will not charge the lender with notice of the rights of a third person or corporation in securities pledged for its payment.

On Writ of Certiorari to the United States Circuit Court of Appeals for the Eighth Circuit.

The Manhattan Trust Company, of New York, filed its bill on September 28, 1893, in the circuit court of the United States for the Northern district of Iowa, against the Sioux

City & Northern Railroad Company, of Iowa, praying for the appointment of a receiver to take possession of the railroad and its properties, and to operate and preserve the same, under and by virtue of the terms of a trust deed made and executed by the Sioux City & Northern Railroad Company to the Manhattan Trust Company, January 1, 1890, to secure an issue of bonds to the amount of $1,920,000.

October 5, 1893, receivers were appointed, and on the same day E. H. Hubbard, as assignee of the Union Loan & Trust Company, a corporation of Iowa, filed in said cause an intervening petition against the members of the banking firm of J. Kennedy Tod & Co., of New York, praying in respect of 10,600 shares of the capital stock of the Sioux City & Northern Railroad Company, and $2,340,000 in first mortgage bonds of the Sioux City, O'Neill & Western Railway Company, a corporation of Nebraska, held by J. Kennedy Tod & Co., an injunction against the disposition thereof, an accounting of what sums J. Kennedy Tod & Co. had advanced in good faith on said securities, and the surrender by them of the collateral to the intervening petitioner on the ascertainment of the sums so advanced, and constituting a lien there

on.

J. Kennedy Tod, W. S. Tod, and Robert S. Tod, composing the firm of Tod & Co., objected to the Jurisdiction, but answered November 16, 1893, and about the 1st of January, 1894, petitioner filed an amended petition, to which defendants filed a supplemental answer, and petitioner a replication.

The intervening petition and amendments averred that the Union Loan & Trust Company was a corporation of the state of Iowa, organized in the year 1885, and thereafter engaged in carrying on a loan and trust business up to and until April 25, 1893, when it made a general assignment of all its property and assets to E. H. Hubbard, of Sioux City, Iowa.

That on July 3, 1889, A. S. Garretson, John Hornick, J. D. Booge, Ed. Haakinson, and D. T. Hedges entered into an agreement in writing, referred to as a "railroad syndicate agreement," for the construction of the Sioux City & Northern Railroad, which construction was proceeded with, and from time to time the individual members of the syndicate executed and delivered their respective notes to the Union Loan & Trust Company in various sums, which notes that company sold to various bankers and brokers throughout the United States; that there existed an understanding or agreement between the syndicate and the company that the syndicate should deposit with the company, as collateral security for said notes, the stock and bonds of the Sioux City & Northern Railway Company when issued; that the syndicate caused the corporation to issue the mortgage described in the original bill; and that the bonds and stock of the corporation were held by the

company "as collateral security for the payment of the notes with the proceeds whereof the said railroad has been constructed and equipped as aforesaid."

That afterwards the syndicate lent its aid to the Wyoming-Pacific Improvement Company, a Wyoming corporation, engaged in the construction of the Nebraska & Western Railroad, a line of road extending westward from Sioux City to the town of O'Neill, in the state of Nebraska, and that said syndicate also extended its aid and assistance to other corporations in and about Sioux City, such as the Pacific Short-Line Bridge Company, the Union Stock-Yards Company, the Sioux City Terminal Railroad & Warehouse Company, and the Sioux City Dressed Beef & Canning Company, with the like understanding between the syndicate and the Union Loan & Trust Company that the securities of the respective companies coming into the possession of the syndicate should be deposited with the Union Loan & Trust Company as collateral to the notes which the members of the syndicate might give to that company on behalf of the enterprises respectively.

And also that the syndicate organized the corporation known as the Pacific Short-Line Bridge Company to construct a bridge across the Missouri river at Sioux City for the purpose of connecting said railroads, the stock of said company to belong to the Nebraska Company.

It was further averred that the syndicate acquired the ownership of all the bonds of the Nebraska & Western Railway Company, and that they became subject to the lien of the Union Loan & Trust Company; yet that A. S. Garretson, on or about October 1, 1891, without any apparent record or other authority from the Union Loan & Trust Company, caused all of the Nebraska & Western bonds and 7,200 shares of Sioux City & Northern Railroad stock to be transferred to Tod & Co. as security for a loan of $1,000,000, but that Tod & Co. were chargeable with notice of Garretson's want of authority.

That the Nebraska & Western Railway was built by the Wyoming & Pacific Improvement Company, which was practically owned and controlled by the Manhattan Trust Company, and that the improvement company received stock and bonds of the Nebraska & Western Company, and delivered them to the Manhattan Trust Company, by which they were pledged, or held in trust, as security for loans negotiated and advanced by it to the improvement company, including a loan of $500,000 by Belmont & Co.: all of which were outstanding when, on November 1, 1890, the improvement company collapsed, to the knowledge of Tod & Co.

That to relieve itself from impending loss the Manhattan Trust Company, by untruthful representations as to the amount of the indebtedness of the Nebraska & Western Railway Company, induced Garretson to purchase said loans; that Garretson there

upon deposited $750,000 of the Sioux City & Northern bonds with the Manhattan Trust Company as security for relief of the maturing obligations to Belmont & Co., and that about the same time Tod & Co. began to make advances to Garretson on the security of the Nebraska & Western bonds; that Garretson was obliged to sell all the Sioux City & Northern bonds at a sacrifice price of 75 per cent., and to pledge all the Nebraska & Western bonds and half of the Sioux City & Northern stock substantially for the value of the purchase price of the Nebraska & Western bonds.

That the mortgage covering said bonds was foreclosed, and the property conveyed to a new corporation, called the Sioux City, O'Neill & Western Railway Company, in exchange for the issue of $2,340,000 of first mortgage bonds and 36,000 shares of stock; and that in the latter part of 1892, or early. in 1893, Garretson, without any apparent* record or other authority from the Union Loan & Trust Company, caused all of the bonds of the Sioux City, O'Neill & Western Railway Company, and substantially all of the stock of the Sioux City & Northern Railroad Company, to be vested in the Pacific Short-Line Bridge Company, and the notes of the latter company, to the amount of $1,500,000, to be given to himself, and the payment thereof to be secured by the pledge of all said bonds and stock, and transferred the notes and securities to J. Kennedy Tod & Co., who, acting as trustees, but chargeable with notice, negotiated or bought the greater part of the said notes for different holders or purchasers thereof, $500,000 being taken by the Great Northern Railway, which desired to acquire the Sioux City & Northern Railroad, and with which Tod & Co. were allied.

That after the failure of the Union Loan & Trust Company, a committee of its creditors, Tod & Co. having advertised the sale of the collateral pursuant to the terms of the $1,500,000 loan, there having been default in payment of interest for 30 days, offered to pay the overdue interest on certain conditions, which were refused, and the collateral was sold and bought in by Tod & Co. for $1,000,000.

The petition and amended petition contained an averment that petitioner, "as assignee of said Union Loan & Trust Company, is entitled to the immediate surrender of all and singular of said securities by said J. Kennedy Tod & Co. to your petitioner, without any payment of principal or interest upon said alleged loan, or any other consideration whatsoever."

The prayer of the amended petition was that Tod & Co. surrender to petitioner, without any terms or conditions, the collateral held by them as aforesaid, and that they be enjoined from selling or disposing of the same; for an accounting of sums advanced by Tod & Co. in good faith, and