libellants. 76 Fed. Rep. 582. That decree | Any and all words or clauses of such imwas affirmed by the circuit court of appeals. port, inserted in bills of lading or shipping 51 U. S. App. 467, 82 Fed. Rep. 471, 27 C. receipts, shall be null and void and of no efC. A. 326. The appellant then obtained a fect." This section, in all cases coming writ of certiorari from this court. 168 U. within its provisions, overrides and nullifies S. 711, 18 Sup. Ct. 950. any such stipulations in a bill of lading. Calderon v. Atlas S. S. Co. 170 U. S. 272,, 42 L. ed. 1033, 18 Sup. Ct. Rep. 588.

being given to the effect on the ship's trim, or on the sugar drainage. Since this damage arose through negligence in the particular mode of stowing and changing the loading of cargo, as the primary cause, though that cause became operative through its effect on the trim of the ship, this negligence in loading falls within the 1st section. The ship and her owner must therefore answer for this damage, and the 3d section is inapplicable." 76 Fed. Rep. 583-585; 51 U. S. App. 473, 82 Fed. Rep. 471, 27 C. C. A.

326.

this country. In their usual and natural meaning, the words "from any port in the United States" include all voyages, whether domestic or foreign, which begin in this country; the words "to any port in the United States" include all voyages, whether domestic_or foreign, which end in this country; and the words "between ports of the United States and foreign ports" include all foreign voyages which either begin or end here. The words of the 3d section, "to or from any port in the United States," express in the simplest and most direct form the intention to include In The Glenochil [1896] Prob. 10, on voyages hither as well as voyages hence. which the appellant much relied, the negli- And we find insuperable difficulty in the way gence which was held to be within the 3d of giving a different meaning to the words section of the Harter act was, as said by Sir of the 1st section, "from or between ports of Francis Jeune, "a mismanagement of part the United States and foreign ports." The of the appliances of the ship, and misman-words "from ports of the United States" agement which arose because it was intended would of themselves be sufficient to cover all to do something for the benefit of the ship, voyages which begin here, whether they end namely, to stiffen her, the necessity for stif- in a domestic or in a foreign port; and the fening arising because part of her cargo had words "between ports of the United States been taken out of her." He pointed out that and foreign ports" no more appropriately the 1st and 3d sections of the act might be designate foreign voyages beginning here reconciled by the construction, "first, that than such voyages beginning abroad. The the act prevents exemptions in the case of phrase of the 1st section is slightly ellipti direct want of care in respect of the cargo, cal; but it appears to us to have exactly the and, secondly, the exemption permitted is in same meaning as if the ellipsis had been suprespect of a fault primarily connected with plied by repeating the words "ports of the the navigation or the management of the United States," so as to read "any vessel vessel, and not with the cargo." And he transporting merchandise or property from added that the court had had the same sort ports of the United States, or between ports of question before it in the case of The Ferro of the United States and foreign ports." And [1893] Prob. 38, and he adhered to what he no reason has been suggested why a foreign* there said, "that mere stowage is an alto-vessel should come within the benefit of the gether different matter from the management 3d section relaxing the warranty of seaof the vessel." And Sir Gorell Barnes de- worthiness, and not come within the prohi livered a concurring opinion to the same ef-bition of the 1st section affirming the unlawfect. fulness of stipulations against liability for negligence.

The like distinction was recognized by this court in the recent case of The Silvia, 171 U. S. 462, 466, 43 L. ed. 241, 243, 19 Sup. Ct. Rep. 7.

The remaining question is whether the 1st section of the Harter act applies to a foreign vessel on a voyage from a foreign port to a port in the United States.

The power of Congress to include such cases in this enactment cannot be denied in a court of the United States. The point in controversy is whether, upon the proper construction of the act, Congress has done so. That the 3d section does extend to such a vessel or such a voyage has been already decided by this court. The Silvia, above cited; The Chattahoochee, 173 U. S. 540, 550, 551, 43 L. ed. 801, 806, 19 Sup. Ct. Rep. 491.

It is true that the words of that section are not exactly the same in this respect, being "any vessel transporting merchandise or property to or from any port in the United States," whereas the corresponding words in the 1st section are "any vessel transporting merchandise or property from or between ports of the United States and foreign ports."

Attention was called at the bar to the fact that in the act, as originally passed by the House of Representatives, the words of the 3d section were "any vessel transporting merchandise or property between ports in the United States of America and foreign ports," and that for those words the Senate substituted the words as they now stand in the act; and it was argued that the change in this section, leaving unchanged the corresponding clauses in the 1st and other sections of the act, showed that those sections were not supposed or intended to include vessels bound from foreign ports to ports of the United States. But the argument fails to notice that the 3d section, as it originally stood, did not contain the words "from or," but covered only voyages "between ports in the United States and foreign ports;" and the more reasonable inference is that the change was made for the purpose of bringing domestic voyages within this section. See 24 Congr. Rec. 147-149, 173, 1181, 1291, 1292.

Attention was also called to the 4th section of the act, which makes it the duty of the owner, master, or agent of "any vessel But the two phrases, as applied to the transporting merchandise or property from subject-matter, are precisely equivalent, and or between ports of the United States" to isare both equally applicable to a foreign voy-sue to shippers bills of lading containing age that ends, and to one that begins, in certain description of the goods; and to the

A CERTIFICATE from the United

The facts are stated in the opinion. Messrs. Melvin Grigsby and 8. H. Wright for plaintiff in error.

Mr. John W. Griggs, Attorney General, for defendant in error.

Mr. Chief Justice Fuller delivered the opinion of the court:

5th section, which provides that, "for a vio-States Circuit Court of Appeals for the lation of any of the provisions of this act, the agent, owner, or master of the vessel Eighth Circuit on a question as to its jurisguilty of such violation, and who refuses to diction on a conviction for murder without issue on demand the bill of lading herein pro- capital punishment. Its jurisdiction devided for, shall be liable to a fine not ex- nied. ceeding $2,000," and the amount of the fine and costs shall be a lien upon the vessel, and she may be libelled therefor in any district court of the United States within whose jurisdiction she may be found. It was argued that this provision imposing a penalty would cover a refusal to give a bill of lading without the clauses prohibited by the 1st section, and could not extend to acts done in a foreign port out of the jurisdiction of the United States. But whether that be so or not (which we are not required in this case to decide), it affords no sufficient reason for refusing to give full effect, according to what appears to us to be their manifest meaning, to the positive words of the 1st section, which enact, as to "any vessel" transporting merchandise or property "between ports of the United States and foreign ports," that all stipulations relieving the carrier from liability for loss or damage arising from negligence in the loading or stowage of the cargo shall not only be unlawful, but "shall be null and void and of no effect." This express provision of the act of Congress overrides and nullifies the stipulations of the bill of lading that the carrier shall be exempt from liability for such negligence, and that the contract shall be governed by the law of the ship's flag. Decree affirmed.

(179 U. S. 87)

GOOD SHOT, an Indian, Piff. in Err.,

บ.

UNITED STATES.

was sen

Good Shot, an Indian, was indicted in the district court of the United States for the district of South Dakota for the murder of Emily Good Shot, and, the indictment having been remitted to the circuit court, was arraigned and pleaded not guilty; was tried; found "guilty as charged in the indictment, without capital punishment;" tenced to imprisonment at hard labor in the penitentiary at Sioux Falls, in the state of South Dakota, for life; and a writ of error was duly sued out of the circuit court of appeals for the eighth circuit to review the judgment of the circuit court. The United States moved to dismiss the writ for want of jurisdiction, whereupon the circuit court of appeals certified to this court, on facts stated, the following question: "Has this circuit court of appeals jurisdiction to review upon writ of error the trial, judgment, and sentence of an Indian to imprisonment for life, founded upon a verdict rendered on a trial of an indictment of the Indian for murder, by which verdict the jury find the defendant guilty as charged in the indict ment, without capital punishment?'"

The certificate was duly transmitted to the clerk of this court, but not filed until October 15, 1900; and on October 17, Good Shot filed petition praying that a certiorari might be issued requiring the entire rec

Writ of error in case of capital crime-cer-ord and cause to be sent up from the circuit tified question-withdrawal-certiorari.

court of appeals. On the same day a certi1. A conviction for murder punishable with court of appeals, entered October 15, purfied transcript of an order of the circuit death is a conviction for a capital crime of which the Supreme Court, and not the cir- porting to vacate and annul the order certicuit court of appeals, has jurisdiction on fying the case, and to recall the certificate, writ of error, although the jury have quall-in view of the decision of this court in Fitzfed the judgment by rendering a verdict "without capital punishment."

2.

patrick v. United States, 178 U. S. 304, 44 L. ed. 1078, 20 Sup. Ct. Rep. 944, was filed. An answer to a question certified by the cirIn the case referred to we held that a concult court of appeals respecting its jurisdic-viction for murder punishable with death tion may be given, although the certificate has been recalled, where the answer to the

question is against the jurisdiction of the circuit court of appeals, and will result in the dismissal of the writ of error from that court, which is the same result that would follow the dismissal of the certificate. 8. Certiorari cannot properly be issued to require the circuit court of appeals to send up a cause over which it has no jurisdiction for determination on the merits, when it has not rendered any decision in the case, but has merely certified the question of its jurisdiction.

[No. 447.]

was not the less a conviction for a capital crime by reason of the fact that the jury, in a particular case, qualified the punishment, and that, in such circumstances, this court had jurisdiction under § 5 of the judiciary act of March 3, 1891, providing therefor "in followed that circuit courts of appeals did cases of conviction of a capital crime." It not have jurisdiction.

If we should dismiss the certificate because of the action of the circuit court of appeals on October 15, or if we answer the question certified, the same result is reached, namely, the dismissal of the writ of error below.

Bubmitted October 22, 1900. Decided Octo- And in the posture of the case disclosed by

ber 23, 1900.

21 8. C.-3

the record, we think the better course is to

answer the question, which we do necessarily in the negative.

As the circuit court of appeals did not have jurisdiction, the application for a certiorari must be denied. That writ may be issued by this court to the circuit courts of appeals under § 6 of the act of March 3, 1891, on application, and ordinarily after judgment, in cases in which judgments are made final in those courts by the section, and also where questions of law have been certified to this court by those courts for their guidance in disposing of such cases.

In this case there is no judgment in the circuit court of appeals, and the sole question certified relates to the jurisdiction of that court, and it having been determined that jurisdiction does not exist, the writ of certiorari cannot properly be issued to require the court to send up a cause over which it has no jurisdiction for determination on the merits. The remedy is by writ of error from this court to the circuit court.

The question certified will be answered in the negative, and the petition for certiorari I will be denied

So ordered.

(179 U. S. 116)

JAMES M. SIGAFUS, Plff. in Err.,

บ.

DUDLEY PORTER et al.

Damages in case of deceit measured by actual loss, not by expected fruits of unrealized speculation.

2.

1. The denial of a motion to dismiss a complaint cannot be assigned as error if the defendant did not rest, but introduced evidence. The measure of damages in an action for deceit in the sale of property is not the difference between the value of the property as it proved to be and as it would have been if as represented, but is the difference between the real value of the property at the date of sale and the price paid, with interest thereon, together with such outlays as were legitimately attributable to defendant's conduct, since the damages are limited to the direct pecuniary loss, if any, or the plaintiff, and

will not cover the expected fruits of an unrealized speculation.

Messrs. Edmund Wetmore and Henry B. Johnson for plaintiff in error.

Mr. Albert Stickney for defendants in

error.

·

Mr. Justice Harlan delivered the opinion of the court:

This action was brought to recover damages for deceit alleged to have been practised by Sigafus, the plaintiff in error, upon Porter, Hobson, and Morse, the defendants in error, in the sale by the former to the latter of a gold mine in California, known as the Good Hope Consolidated Gold Lode Mining Claim (consisting of the San Jacinto and Good Hope Quartz locations), and as the Annex, adjoining the Good Hope mine on the south.

The complaint alleged that the defendant, Sigafus, was president of the Good Hope Consolidated Gold Mining Company, a corporation of California possessing the legal title to the property in question, and that with the exception of a few shares standing in the name of his son-in-law he owned its entire capital stock, and was in fact the sole beneficial owner of the mine and the lands and property appurtenant thereto;

That prior to December 28th, 1893, the defendant, representing his own interests and those of the company, as well as those of his son-in-law, and acting by one William H. Griffith, entered into negotiations with the plaintiffs for the sale of the mine, mining claims, and their appurtenances;

That in the course of such negotiations the defendant falsely and fraudulently, and with intent to deceive and defraud the plaintiffs, represented to them that the lands and mines and mining claims contained a large and valuable vein of gold-bearing ore, large and valuable deposits of gold, and that all of the gold-bearing quartz would average in milling more than $16 per ton;

That he laid before the plaintiffs a false and fraudulent report or statement in writing in regard to the lands and mines and mining claims, made by one Burnham, who was therein represented to be an independent and disinterested mining engineer and expert, and to have made a careful and complete examination in the premises, which report or statement in substance stated that the pay streak in the mine had an average width of 2 feet, that 2.434 tons of ore from the mine had been milled and yielded an Argued April 21, 24, 1899. Ordered for re-average value in gold of $23.78 per ton, that argument May 15, 1899. Reargued No- the mine had been operated and the ore vember 15, 16, 1899. Decided October 29, taken therefrom had been milled for two 1900. years or more and had yielded, in gold, an average of $23.78 per ton; that the value of the bullion produced from the mine for the

[No. 8.]

N WRIT OF CERTIORARI to the United

*

0 States Circuit COLOR to the United twelve months ending with January, 1992,

Second Circuit to bring up the entire record from the Circuit Court of Appeals in an action to recover damages for deceit. Reversed.

See same case below, 51 U. S. App. 693, 84 Fed. Rep. 430, 28 C. C. A. 443; and also (on motions to amend certificate) 56 U. S. App. 62, 85 Fed. Rep. 689, 29 C. C. A. 391.

The facts are stated in the opinion.

inclusive, was $57,879.78, and the total expense of production $15,500; that the estimated total bullion product from the mine after its discovery down to on or about February 1st, 1892, was $317,879.78; that beyond all doubt the ore averaged at least $18 per ton in gold; that the mine contained 44,733 tons of gold ore in reserve, of the net value of $805,186, and also 37,333 tons of

gold ore in sight, of the net value of $761,- | whereas, as the defendants knew at the time, 094, and that the mines and mining claims it was worth practically little or nothing; had a very large prospective value in addi- that, relying upon the representations, retion thereto; that the gold-bearing vein in ports, and mill run mentioned, the plaintiffs the mine was a permanent and lasting one, purchased the property for the sum of $400,and that the property under energetic man-000, paying $150,000 in cash, and executing agement should produce from $30,000 to notes and mortgages upon the property to $40,000 per month net, and keep the develop- the amount of $225,000, as part of the price; ment even with the output; together with and had paid, laid out, and expended large other statements of fact in regard to the sums of money on the property in the atproperty, each and all of which were false tempt to develop it. and fraudulent, representing said report to be just, accurate, and true, although knowing the same to be false and fraudulent;

That, during the course of a mill run of the mine made by the plaintiffs for the purpose of testing the value of the ores contained therein, the defendant falsely and fraudulently, and with intent thereby to deceive and defraud them, placed and caused to be placed in and among the ores to be reduced in the mill run, exceptionally rich specimens of ore that were not part of the ordinary production of the mine, and placed and caused to be placed therein large quantities of exceptionally rich ore that had been mined on the premises, but reserved by him over a long period of time, and which contained gold far in excess of the average amount carried by the ore produced from the mine, and caused false and fraudulent representations to be made as to the amount of ore run through the mill at that time, understating the same, with the intent and result that a much larger production of gold might seem to be produced from the ore reduced than was just and true; and,

The plaintiffs therefore claimed that they had suffered damage to the amount of $1,000,000, for which they prayed judgment. The defendant denied each and every alle gation of the complaint. He specifically denied that he ever made any representations to the plaintiffs, directly or indirectly, through Griffith or at all, in reference to the property, or that he ever sold it to or received any money from them on account of it. * It may be here stated that there was evi-* dence in the case tending to show that the negotiations for the property were between the plaintiffs and Griffith, and it was a question whether Griffith was to be deemed in any sense an agent of Sigafus in the sale of the property to the plaintiffs. It was also a question whether the defendant did or caused to be done anything that was calculated to mislead and deceive, or did in fact mislead and deceive, the plaintiffs in their prelimin ary examination of the property by an expert, whereby they were induced to think that it had a value which, within the de fendant's knowledge, it did not really possess.

That the defendant falsely and fraudulently, and with intent thereby to deceive There was a verdict in favor of the plainand defraud the plaintiffs, represented to tiffs for $330,275. A motion for new trial them that certain portions of the mine, from having been denied, judgment was entered which all the valuable ore had been extracted, for the amount of the verdict. The case was were still solid and untouched, and blocked carried to the circuit court of appeals, and up the entrance to such excavations with that court, while sustaining the rulings of timber, which he falsely and fraudulently the trial court on questions involving the stated was placed in the mine for the pur- admission and exclusion of evidence, left cerpose of support, and that it was dangerous tain points undisposed of in order that the to remove the same, with the intent and re- question raised by them could be certified sult of thereby preventing the plaintiffs and to this court. The circuit court of appeals their representatives from investigating the Judge Lacombe delivering the opinion of condition of the mine; and falsely and fraudulently, and with the intent to thereby deceive and defraud the plaintiffs, changed certain bullion returns as to past production, misstating the quantities of ore producing the bullion so as to show a much larger and richer production of gold from the ore mined

than had in fact been made.

It was alleged that all these representations were made and all these acts were done and caused to be done in the full knowledge that they were false and fraudulent and calculated to deceive and defraud, and with the intent and result that the same should be communicated to the plaintiffs, and thereby deceive and defraud them, inducing the belief that the land, mine, and mining claim were worth at least the sum of $1,000,000.

The complaint further alleged that if said representations, reports, and mill run had been true and accurate, the property would have been reasonably worth $1,000,000,

the court-among other things said: "The only remaining assignments of error are the twenty-sixth, to so much of the charge as instructed the jury that the 'measure of damages is the difference between the value of the property as it proved to be and as it would have been as represented,' and the twenty-eighth, to the refusal to charge substantially that the measure of damages is the money plaintiffs had paid out for the mine with interest and any other outlay le gitimately attributable to defendant's fraudulent conduct, less the actual value of the mine when plaintiffs bought it. In view of the recent opinion in Smith v. Bolles, 132 U. S. 125, 33 L. ed. 279, 10 Sup. Ct. Rep. 39, this court desires the instruction of the Supreine Court for its proper decision of the question arising upon these two assignments of error. A certificate in the form required by the act of March 3d, 1891, .. has therefore