shipments, as it was requested, upon the spur track of plaintiff in error, and that the latter was accustomed to receive them and remove them to places where they were to be delivered; and this was its custom for years, and until about the time or just before the corn reached Birmingham, "it was a part of its business and a daily occurrence to receive and remove such cars of freight." And this was done for all persons offering them and without discrimination. For this service it received compensation. The court, however, also found that plaintiff in error "placed an embargo upon the receipt or handling of such cars, November 13, 1902, after the complainant had contracted to sell the carloads of corn and after most of them were shipped."

The contention of the Louisville and Nashville Railroad Company, the court stated as follows:

"The contention of the Louisville and Nashville Railroad Company, reduced to its simplest statement, is that it was not bound to receive these cars of corn and place them.

"This insistence on its part rests upon the proposition that, in the matter of handling the cars of other roads in its yards or over its spur tracks, it was not a common carrier, but simply a private carrier, and that this being so, it had the right to refuse to receive and handle these cars, and as a corollary to this proposition, that it had the right to discriminate between freight arriving in Birmingham over its lines and freight arriving over other lines, and could give preference between those that it chose to serve in this business."

The court decided against the contention, and that the company, by reason of its practice in handling freight, "assumed with respect thereto the character of a common carrier, and hence incurred the duties and liabilities of such character." The court added:

"The result is that we are of opinion that the Louisville and Nashville Railway Company was bound, by virtue of its previous course of business, to accept these cars of corn and deliver them to their destination on its terminal or spur

tracks, and that by reason of its failure to do so, it is liable for all damages resulting from its failure,

There was a petition for an additional finding of fact and a rehearing, which the court said would take in the neighborhood of one hundred pages of typewritten information to set out and answer in the form in which they were presented. Some, however, were granted; some qualified. We give only those which we think are relevant. The fifteenth request was that the court set out in full from the evidence, which was, it was said, uncontradicted, the conditions which caused the embargo to be laid by plaintiff in error against switching. The evidence was set out. The court, answering the request, said:

"The simple fact in connection with this matter is that the Louisville and Nashville Railroad Company declined to receive these cars of corn and deliver them to their destination on their spur or side tracks, because it deemed it to its advantage to use its said tracks for and in its own special business." The twenty-fifth request was "that the terminals and equipment of the Louisville and Nashville Railroad Company at that time were sufficient under ordinary circumstances and conditions." In granting this request the court remarked:

"The twenty-fifth request is granted, with the statement that in our opinion, based upon the evidence as we construe it, the Louisville and Nashville Railroad Company could have handled this corn and delivered it to its destination much sooner than it did had it not preferred other business, and even with that business, with the energetic appliance of all the means and facilities at its command."

It will be seen from this statement of the case that there is not a word in it which refers to the Interstate Commerce Act or the assertion of any rights under that act. Plaintiff in error accounts for the want of explicit statement on the ground that the action was instituted and tried, until the decision of the chancery court, upon the theory that the Southern Railway Company and plaintiff in error were "connecting car

riers," and that this theory of the case having been disproved and the appeal dismissed as to plaintiff in error, complainant (defendant in error) shifted its position, and under the broad practice and pleading in the state court was allowed to proceed and procure judgment upon the theory that plaintiff in error had discriminated against defendant in error by preferring its own business, that it had failed to furnish equal facilities for interchange as to this shipment, and that, on account of its previous switching arrangements with the Southern Railway Company, it had no right to refuse to "switch" the cars over its terminals. The record furnishes no justification for this contention. The bill charged the railroad companies as being connecting common carriers, plaintiff in error being the ultimate carrier, and that both were bound by the contracts made, and bound to carry the corn from the points of shipment to destination. Plaintiff in error denied these allegations, as we have seen, and on the issue thus formed proof was taken.

The chancery court found, it is true, in favor of plaintiff in error. The case was taken to the Court of Chancery Appeals, where it was heard, the record recites, "upon the transcript of the record from the Chancery Court of Jefferson County and upon the assignments of error and briefs of counsel." In other words, the Court of Chancery Appeals heard the case as made in the chancery court. What the Chancery Court of Appeals said of the issues and contentions of the parties we have already stated, and we need only repeat that the assignment of error by complainant (defendant in error) in the Chancery Court of Appeals was general, and showed no change in the theory upon which the case was brought and conducted. It was that the chancery court erred in holding that there was no liability on the part of the Louisville and Nashville Railroad Company, and in refusing to hold that it was liable either alone or jointly with the other company. And the court said that the denial of plaintiff in error of liability was "predicated upon the idea that it was not a

connecting carrier in handling the shipments of corn involved in this case, or that it was under no obligations respecting the same." It is true the court also said that plaintiff in error contended "that it had the right to discriminate between freight arriving in Birmingham over its lines and freight arriving over other lines, and could give preference between those that it chose to serve in this business," but this contention, it was also said, was "as a corollary" to the proposition that plaintiff in error was not a common carrier, but simply a private carrier. The court determined against this proposition, and in consequence adjudged plaintiff in error liable. In other words, the judgment of the court was in exact response to the pleading. Nor was there any change on appeal to the Supreme Court. The railroad company's second assignment of error was (and it is the only one with which we can concern ourselves) that it was not "liable for any portion of the alleged damage to these various shipments, because under the facts of this case it was not a connecting carrier and was not bound to handle these shipments.

There is in the printed record a certificate of the Chief Justice of the Supreme Court of the State, given when the writ of error was applied for, to the effect that the Supreme Court of the State was of opinion "that the statutes and laws of Tennessee were not in conflict with the act of Congress regulating interstate commerce, and that the act of Congress did not control the shipments in controversy." Counsel concedes the rule to be that the certificate of the presiding judge of a state court is insufficient to give us jurisdiction, but insists that it can make more certain and specific what is too general and indefinite in the record. There is no doubt of the rule, but there is nothing in this record to justify its application. There is nothing in the record to specialize. It is less open to conjecture than the certificate. As no Federal question was raised, the motion to dismiss must be granted.

VOL. CCIV-36

It is so ordered,

Opinion of the Court.

UNITED STATES v. KEATLEY.

APPEAL FROM THE COURT OF CLAIMS.

204 U.S.

No. 482.

Submitted January 29, 1907.-Decided February 25, 1907.

Where several persons are indicted under one indictment an order of the court granting separate trials makes separate independent causes and entitles the clerk to separate docket fees under par. 10 of § 828, Rev. Stat. Clerk's fee for recording abstract of judgment allowed on folio basis under par. 8 of § 828, Rev. Stat., in addition to the docket allowed by pars. 10, 11, 12 of that section.

41 C. Cl. 384, affirmed.

THE facts are stated in the opinion.

Mr. Assistant Attorney General Van Orsdel and Mr. Philip M. Ashford, Special Assistant Attorney, for appellant.

Mr. Frank B. Crosthwaite, for appellee.

MR. JUSTICE MCKENNA delivered the opinion of the court.

The claimant in the court below, appellee here, was clerk of the United States Circuit Court for the Southern District of West Virginia from July 1 to July 6, 1902, and clerk of that court and the District Court from July 16, 1902, to September 17, 1904. He regularly rendered accounts for such services, which contained, among other things, charges for "separate docket fees in separate trials under one indictment." The charges were disallowed and this suit was brought therefor in the Court of Claims. Judgment was rendered for claimant for the sum of $125.45, certain items being disallowed.

A counterclaim was filed by the United States for the recovery of $57.90, charged for "docketing judgments," alleged to have been erroneously and unlawfully paid to claimant