a manner as the original road: provided, | property so purchased, described as in the that the damages incurred in changing the margin.1 act of 1846, because that act embraced only the power to build and operate a road from Harrisburg to Pittsburgh; but that it derived such authority from the act of May, 1857, in the eleventh section thereof, before quoted; and that the convention which made the constitution of 1873 had the power to subject the defendant's exercise of the right of eminent domain to the provision that it should make just compensa location of any road authorized by this By the constitution of Pennsylvania of section shall be ascertained and paid by said 1873, which took effect January 1, 1874, company in the same manner as is provided it was provided as follows, by section for in regard to the location and construc- 8 of article 16: "Municipal and other cortion of their own road." By section 1 of porations and individuals invested with an act passed April 12, 1851, (Laws 1851, No. the privilege of taking private property for 297, p. 518,) it was provided that the fifth public use shall make just compensation section of the act of 1848 should be so for property taken, injured, or destroyed by construed as to include the streets, lanes, the construction or enlargement of their and alleys in any town, borough, or city works, highways, or improvements; which through which the road passed. By the act compensation shall be paid or secured beof May 16, 1857, before referred to, provis-fore such taking, injury, or destruction." ion was made for the sale at public auction With these premises, we are prepared to of the whole main line of the public works consider the views taken of this case by the of the state of Pennsylvania, which included supreme court of Pennsylvania. That the Philadelphia & Columbia Railroad. court gave its assent to the principle that The act provided, among other things, (sec- the charter of the defendant was inviolable. tion 3,) that it should be lawful for any rail- It further stated that the framers of the road company then incorporated by the constitution of 1873 did not intend to repeal state to purchase such main line for a sum any of the provisions of that charter. It not less than $7,500,000; and that if the held that section 8 of article 16 of that conPennsylvania Railroad Company should stitution included, not only then existing become the purchaser at such public sale, municipal corporations, but also then exor by assignment, (which assignment the isting "other corporations." It further act provided for,) it should pay, in addi- held that the defendant did not derive its tion to the purchase money of not less than authority to build the branch road in ques$7,500,000 the further sum of $1,500,000, and tion, from the western side of the Schuyl should, in consideration thereof, have for-kill river through Filbert street, from the ever certain exemptions from taxation. This provision in regard to taxation was held unconstitutional by the supreme court of Pennsylvania in Mott v. Railroad Co., 30 Pa. St. 9,-a decision made before the sale took place. The third section of the act further provided that it should be lawful for the purchaser "to straighten and improve the said Philadelphia and Columbia Railroad, and to extend the same to the Delaware river in the city of Philadelphia." The eleventh section of the act provided as 'The whole main line of the public works between follows: "That, should any company al- the said cities of Philadelphia and Pittsburgh, in ready incorporated by this commonwealth the state of Pennsylvania, consisting of the Philabecome the purchaser of said main line, delphia and Columbia Railroad, the Allegheny Portthey shall possess, hold, and use the same age Railroad, including the new road to avoid the under the provisions of their act of incor-width for the proper use of said railroads, the eastinclined planes, with the necessary and convenient poration, and any supplements thereto, ern division of the Pennsylvania canal, from Comodified, however, so as to embrace all lumbia to the junction, the Juniata division of the the privileges, restrictions, and conditions Pennsylvania canal, from the junction to the east granted by this act in addition thereto; ern terminus of the Allegheny Portage Railroad, and all provisions in said original act and and the western division of the Pennsylvania canal, any supplements inconsistent with the priv- from the western terminus of the Allegheny Portileges herein granted shall be, and the same right, title, and interest of the commonwealth in age Railroad to Pittsburgh, and including also the are hereby, repealed." the bridge over the Susquehanna, at Duncan's islAt a meeting of the stockholders of the and, together with the same interest in the surdefendant, held on the 20th of July, 1857, plus water-power of said canals, with the right to for the purpose of accepting or rejecting purchase and hold such lands as may be necessary the provisions of the act of 1857, and of to make the same available; and all the reservoirs, considering such action as the directors of machinery, locomotives, cars, trucks, stationary enthe defendant had taken in pursuance of offices, stock, and materials whatsoever and wheregines, workshops, tools, water-stations, toll-houses, that act, subject to the approval of the soever thereunto belonging, or held for the use of stockholders, it was resolved that the the same, and together with all the right, title, instockholders of the defendant accepted the terest, claim, and demands of the commonwealth provisions of the act, so far as the same in of Pennsylvania to all property-real, personal, and any way related to or affected the defend- mixed-belonging unto or used in connection with ant, and ratified and approved of such ac- with all and singular other the buildings, improve the same by the said commonwealth, and together tion as had been taken by the board of di-ments, powers, authorities, ways, means, and remrectors of the defendant in purchasing the edies, estates and interests, rights, members, incisaid main line of the public works, pursu- dents, liberties, privileges, easements, franchises, ant to the provisions of that act, for the emoluments, reversions, remainders, rents, issues, sum of $7,500,000. The sale at public auc-profits, hereditaments, and appurtenances, of what tion had taken place on the 25th of June, name, nature, or kind soever, thereto belonging or 1857, and the property had been purchased of the said recited act of assembly, and the provisin anywise appertaining, which by force and virtue by the defendant for the sum above men-ions thereof, were meant and intended, and of right tioned. On the 31st of July, 1857, the state ought to be, hereby assigned and transferred thereconveyed by deed poll to the defendant the with. 08. *83 Such property taken, to compensation for prop- tion, not only for the property which it GAN.1 (November 11, 1889.) 'Affirming 93 N. C. 352. (132 U. S. 141) ⚫143 142 In error to the supreme court of the state | feitures incurred under any law of the United of North Carolina. Wm. E. Earle, for plaintiff in error. J. B. Batchelor, for defendant in error. States;" and section 629 declares that the circuit courts of the United States shall have original jurisdiction of "all suits by or against any banking association estabHARLAN, J. This action was brought in lished in the district for which the court is the superior court of Cleveland county, N. held, under any law providing for national C., by the defendant in error against the banking associations." Section 711 defines plaintiff in error, a national banking asso- the cases in which "the jurisdiction vested ciation, established at Charlotte, Mecklen- in the courts of the United States" shall be burg county, in that state. It was based "exclusive of the courts of the several upon the provision of the Revised Statutes states," and among such are "all suits for of the United States authorizing any person, penalties and forfeitures incurred under the paying to any such association*a greater (laws of the United States." But no subdirate of interest than the law allows it vision of that section, in terms, embraces knowingly to take, receive, reserve, or suits brought under the national bank law, charge, to recover from it, in an action in by or against associations organized unthe nature of an action of debt, twice the der it. amount of the interest so paid. Rev. St. §§ 5197, 5198. The revision omitted entirely that part of the act of 1864 (section 57) designating the The defendant filed an answer denying particular state courts in which suits, acall the material allegations of the com- tions, or proceedings against a national plaint, and, in addition, pleaded in bar banking association might be brought. the limitation of two years provided by That omission was remedied by the act of congress for actions of this character. Id. February 18,1875, entitled "An act to correct § 5198. errors and to supply omissions in the ReThe jury, in response to the issues sub-vised Statutes of the United States." 18 St. mitted to them, found that the plaintiff 316,320. By that act, section 5198 of the Repaid, on the usurious contracts described in vised Statutes, (title, "National Banks,") certain counts of the complaint, the sum of giving the right to recover back twice the $554.28, during the two years next preced-amount of the interest illegally received by ing the commencement of the action, and returned a verdict against the bank for twice that sum, namely, $1,108.56. Judgment was accordingly rendered for the latter sum in favor of Morgan. That judgment, having been affirmed by the supreme court of North Carolina, is here for re-examination. The principal error assigned is that the only state court which, consistently with the laws of the United States, could take cognizance of this action, was one established in the county or city where the bank was located, and which had jurisdiction in similar cases. * a national bank, was amended by adding thereto these words: "That suits, actions, and proceedings against any association under this title may be had in any circuit, district, or territorial court of the United States held within the district in which such association may be established, or in any state, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases." A suit against a national bank to recover back twice the amount of interest illegally taken by it is a suit to recover a penalty incurred under a law of the United States; and it may be that, if the act of 1864 had been silent as to the courts which might *take cognizance of such a suit, it must, at any time before the revision took effect, have been brought in the proper court of the United States. But the acts of 1864 and 1875, authorizing certain state courts to take cognizance of suits, actions, and pro By the ninth section of the Judiciary Act of 1789, it was provided that the district courts of the United States "shall also have exclusive original cognizance * of all suits for penalties and forfeitures incurred under the laws of the United States." 1 St. 76, 77. This provision was in force when the National Bank Act of June 3, 1864, was passed. 13 St. p. 99, §§ 8, 57. By that act it was declared that asso-ceedings against national banking associaciations formed pursuant to its provis- tions, had the effect, so far as suits for penions may make contracts, sue and be alties incurred under the laws of the United sued, complain and defend, in any court of States were concerned, to modify the prolaw and equity, as fully as natural per- vision in prior enactments that expressly sons," (section8;) and that "suits, actions, excluded suits for such penalties from the and proceedings against any association" cognizance of state courts. When the presformed under it, "may be had in any cir-ent action was brought, the jurisdiction of cuit, district, or territorial court of the the courts of the United States of suits for United States held within the district in penalties incurred under the national bankwhich such association may be established, ing act for taking usurious interest was or in any state, county, or municipal court not exclusive of, but concurrent with, the in the county or city in which said associa- jurisdiction of such state, county, or muniction is located, having jurisdiction in simi-ipal courts of the county or city in which lar cases: provided, however, that all pro- the bank was located, as had jurisdiction, ceedings to enjoin the comptroller under under the local law, in similar cases. This this act shall be had in a circuit, district, exemption of national banking associaor territorial court of the United States, tions from suits in state courts, established held in the district in which the association elsewhere than in the county or city in is located," (section 57.) which such associations were located, was, Section 563 of the Revised Statutes pro- we do not doubt, prescribed for the convenvides that the district courts shall have ju- ience of those institutions, and to prevent risdiction of "all suit for penalties and for-interruption in their business that might 46 result from their books being sent to dis-case the property or stock is entirely worthless, tant counties in obedience to process from then its value is what it would have been worth if state courts. Bank v. Pahquioque Bank, it had been as represented by the defendant," as 14 Wall. 383, 394; Crocker v. Bank, 101 Mass. the measure of damages is the loss sustained, and does not include expected profits. 240. But, without indulging in conjecture as to the object of the exemption in ques- In error to the circuit court of the United tion, it is sufficient that it was granted by States for the northern district of Ohio. congress, and if it had been claimed by the Richard J. Bolles filed his petition against defendant, when appearing in the superior Lewis W. Smith on the 21st day of Februcourt of Cleveland county, must have been ary, 1884, in the circuit court of the United recognized. The defendant did not, how-States for the northern district of Ohio, to ever, choose to claim immunity from suit in recover damages for alleged fraudulent repthat court. It made defense upon the mer-resentations in the sale of shares of mining its, and, having been unsuccessful, prose- stock, in place of which an amended peticuted a writ of error to the supreme court tion was substituted on the 2d day of of the state, and in the latter tribunal, for March, 1886, by leave of court. The amended the first time, claimed the immunity grant-petition set up five causes of action: First. ed to it by congress. This was too late. That in the fall of 1879 defendant and one Considering the object as well as the words Joseph W. Haskins entered into a frauduof the statute authorizing suit against a lent combination to form an incorporated national banking association to be brought mining company, based upon alleged minin the proper state court of the county ing property in the territory of Arizona, where it is located, we are of opinion that and for the alleged purpose of mining silver its exemption from suits in other courts of ore therefrom, and milling the same for the same state was a personal privilege market. That the title to the property was that it could waive, and which, in this case, claimed to be in Haskins. That Haskins the defendant did waive, by appearing and and others organized said corporation unmaking defense without claiming the im-der the laws of New York, by the name, munity granted by congress. No reason of "The Irene Mill & Mining Company," can be suggested why one court of a state, rather than another, both being of the same dignity, should take cognizance of a suit against a national bank, except the convenience of the bank; and this consideration supports the view that the exemp-ly for the sum of $2,000,000. That Haskins tion of a national bank from suit in any state court except one of the county or city in which it is located is a personal privilege, which it could claim or not as it deemed necessary. It is proper to say that we lay no stress upon the proviso of the fourth section of the act of July 12, 1882, entitled "An act to enable national banking associations to extend their corporate existence, and for other purposes." 22 St. 162, 163, c. 290, § 4. That proviso refers only to suits by or against national banking associations brought after the passage of that act. The present suit was commenced before that date. with a capital of $2,000,000,* divided into 100,000 shares of $20 each. That Haskins took the whole of the stock, and paid for the same by transferring to the company the alleged mining property, and apparentand defendant then represented that 60,000 shares of said stock were issued to or paid for by Haskins, and were deposited with the treasurer of the company, to be sold to subscribers and purchasers, and the proceeds to be applied to the construction of a stamp-mill, to be connected with the supposed mining property, and for the purpose of further sinking the shaft and tunnel then in progress. That the defendant had, in connection with Haskins, some interest in the stock, the extent of which was then and is still unknown to plaintiff. That plaintiff was wholly ignorant of the value of the stock, and of the mining property on which it was supposed to be based, never having dealt in such stock or property. That in the month of February, 1880, the defendant applied to him to buy and subscribe for some of the stock, stating that he was interested in it, and that, before acquiring an interest, he had learned from Haskins the enormous value of the property, and to satisfy himself had gone to Arizona, and thoroughly examined it. That he then represented to plaintiff a variety of facts as existing in respect to the mine, The objection that the complaint does not state facts sufficient to constitute a cause of action, under the act of congress, is not well taken. It might have been more specific, but enough was alleged to justify the court in overruling the motion in arrest of judgment. The bank filed its answer, and went to trial upon the merits; and, as the verdict embraces only illegal interest taken within the two years next preceding the commencement of the action, there is no ground to contend that the judgment ex-making it of great value, which representaceeded the amount that congress authorized to be recovered. Judgment affirmed. tions are set forth in detail; and that, having known the defendant for several years, and believing him to be a truthful and honest man, and without knowledge or suspicion that said representations were untrue, but believing and relying on the same, the plaintiff had, at the request of the defendant, in the month of February, 1880, agreed to buy of the defendant 4,000 shares of the stock, at $1.50 per share, which contract was completed in the month of March, 1880, by the payment in full of the purchase price, to-wit, $6,000, to one H. J. Davis, who claimed to act as treasurer of W.W. Boynton, J. C.Hale, and E. H. Fitch, for plaintiff in error. E. J. Estep, for defendant in error. the company, and from whom plaintiff re- was rendered, and the cause was then ceived certificates for the stock. Plaintiff brought here on writ of error. then alleged that said representations were each and all false and fraudulent, specifically denying the truth of each of them, and averring that "said stock and mining property was then, and still is, wholly worth-| * Mr. Chief Justice FULLER, after stating the less, and that had the same been as repre- facts as above, delivered the opinion of the sented by defendant it would have been court. worth at least ten dollars per share, and The bill of exceptions states that the so plaintiff says that by reason of the prem-court charged the jury, "as to the law by ises he has sustained damages to the which the jury were to be governed in the amount of forty thousand dollars." Sec-assessment of damages under the issues ond. That defendant made similar false made in the case," that "the measure of and fraudulent representations to John H. recovery is generally the difference between Bolles, by which the latter was induced to the contract price and the reasonable marpurchase 2,000 shares of the stock at the ket value, if the property had been as repprice of $1.50 per share, and was, by reason resented to be, or in case the property or of the premises, damaged to the extent of stock is entirely worthless, then its value is $6,000; and that John H. Bolles had trans- what it would have been worth if it had ferred his claim to the plaintiff, who was been as represented by the defendant, and entitled to recover of defendant said sum. as may be shown in the evidence before Third. That defendant made similar false you." and fraudulent representations to L. W.| In this there was error. The measure of Marsteller, who was thereby induced to pur-damages was not the difference between chase 800 shares of said stock, at the price the contract price and the reasonable marof $2 per share, and was damaged by rea-ket value if the property had been as represon of the premises to the extent of $2,000, sented to be, even if the stock had been and had transferred his claim to the plain- worth the price paid for it; nor, if the stock tiff, who was therefore entitled to recover were worthless, could the plaintiff have resaid sum of the defendant. Fourth. That covered the value it would have had if the the defendant had made similar false and property had been equal to the representafraudulent representations to Mrs. Mary tions. What the plaintiff might have Manchester, and induced her, in reliance gained is not the question, but what he had thereon, to purchase 225 shares of the stock. lost by being deceived into the purchase. at a cost, according to the original peti-The suit was not brought for breach of contion, of $450, and she had incurred damages thereby to the extent of $1,500. That this claim had been assigned to the plaintiff, who was entitled to recover said sum of the defendant. Fifth. That defendant made similar false and fraudulent representations to one John van Gassbeck, who was in-er. If the jury believed from the evidence duced thereby to purchase 2,500 shares of that the defendant was guilty of the fraudthe stock at $2 per share, making $5,000, ulent and false representations alleged, and which he had paid to defendant, and he was that the purchase of stock had been made by reason of the premises damaged to the in reliance thereon, then the defendant was extent of $10,000; and that Van Gassbeck | liable to respond in such damages as naturhad transferred this claim to the plaintiff, ally and proximately resulted from the whereby the latter was entitled to recover fraud. He was bound to make good the said sum of the defendant. Plaintiff fur-loss sustained,-such as the moneys the ther averred that the aggregate of said damages amounted to $60,500, for which he prayed judgment. tract. The gist of the action was that the plaintiff was fraudulently induced by the defendant to purchase stock upon the faith of certain false and fraudulent representations, and so as to the other persons on whose claims the plaintiff sought to recov plaintiff had paid out and interest, and any other outlay legitimately attributable to defendant's fraudulent conduct; but this Defendant answered plaintiff's petition. liability did not include the expected fruits admitting the incorporation and organ- of an unrealized speculation. The reasonization of the "Irene Mill & Mining Com-able market value, if the property had been pany," but denying all and singular the remaining allegations of the petition, and further set up affirmatively the statute of limitations. The second and fourth causes of action, as set forth in the original petition, founded on the claims of John H. Bolles and Mary Manchester, sought merely a rescission of the contracts, and to recover back all the money they had respectively paid for shares of stock; but by the amended petition their causes of action were changed to counts for the recovery of damages resulting to said John H. and Mary from the alleged false and fraudulent representations. The cause was tried by a jury, and resulted in a verdict for the plaintiff, assessing his damages at the sum of $8,140, upon which, after a motion for a new trial had been made by the defendant, and overruled, judgment as represented, afforded, therefore, no proper element of recovery. Nor had the contract price the bearing given to it by the court. What the plaintiff paid for the stock was properly put in evidence, not as the basis of the application of the rule in relation to the difference between the contract price and the market or actual value, but as establishing the loss he had sustained in that particular. If the stock had a value in fact, that would necessarily be applied in reduction of the damages. "The damage to be recovered must always be the natural and proximate consequence of the act_complained of," says Mr. Greenleaf, (volume 2, § 256;) and "the test is," adds Chief Justice BEASLEY, in Crater v. Binninger, 33 N. J. Law, 513, “that those results are proximate which the wrong-doer, from his position, must have contemplated as |