This is a writ of error to review the judgment of the highest court of a state in which a decision in the suit could be had, under section 709 of the Revised Statutes, providing for such review where the validity of an authority exercised under the United States is drawn in question and the decision is against its validity, or 'where any title, right, privilege, or immunity is claimed under the constitution, or any treaty, or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity specially set up and claimed, by either party, under such constitution, treaty, statute, commission or authority.'
Because the suit might have been brought in the circuit court of the United States, or removed thereto from the state court on the ground that it was one arising under the laws of the United States, in that the Texas & Pacific Railway Company was a corporation organized under and by virtue of acts of congress, it does not follow that the state court decided against any title, right, privilege, or immunity in exercising its jurisdiction. The rialway company was not exempted from suit in the state courts by the law of its creation, or any other act of congress; and we perceive no title, right, privilege, or immunity secured by that law, which was denied by the judgment under consideration.
Nor can jurisdiction be maintained on the ground that a right or immunity was claimed under the authority exercised by the receiver in virtue of the order of the circuit court of the United States, which right or immunity was denied, as in McNulta v. Lochridge, 141 U.S. 327, 12 Sup. Ct. 11. The judgment was in favor of the receiver, and the writ of error is brought by the company; and it is well settled that the right or immunity must be one of the plaintiff in error, and not of a third person only. Ludeling v. Chaffe, 143 U.S. 301, 12 Sup. Ct. 439; Giles v. Little, 134 U.S. 645, 10 Sup. Ct. 623.
The validity of no treaty or statute of the United States was drawn in question, nor was any claim of right or immunity set up under the constitution or any treaty or statute of or commission under the United States, so that we are confined to the inquiry whether the validity of an authority exercised under the United States in any other regard than above indicated, or any claim under such authority, was denied; and, as the defense was directly made that the plaintiff below was subject to the order of October 26th, and must, therefore, resort to the court which entered it for the collection of his claim, and could not recover a judgment in personam, collectible by the ordinary process, and, moreover, that his claim was thereby barred, the overruling of that defense may properly be held to have amounted to a decision against the validity of the order, or against a claim of right or immunity thereunder.
As respects the contention for the railway company that a personal judgment could not be rendered against it, because it was not liable for acts of negligence committed by the receiver, that was a question of general law, and for the state court to pass upon. In the view of that court, a railway company might be held directly liable when a receiver is appointed in an amicable suit at the instigation of the company, and for the company's own purposes, and, these purposes being accomplished, the property is returned to its owner, the rights of no third persons as purchasers intervening, upon the ground that the acts of the receiver might well be regarded as the acts of its own servant, rather than those of an officer of the court, which, under such circumstances, he would only be sub modo. But as the court did not feel authorized to entertain a conclusion which might carry the implication that this receivership would have been created or continued, although its object had only been to place the property temporarily beyond the reach of creditors until it could be augmented in value by improvements made from earnings under the protection of the court, that rule was not applied in this case. The company was held liable upon the distinct ground that the earnings of the road were subject to the payment of claims for damages; and that as, in this instance, such earnings, to an extent far greater than sufficient to pay the plaintiff, had been diverted into betterments, of which the company had the benefit, it must respond directly for the claim. This was so by reason of the statute, (Laws Tex. 1887, p. 120, c. 131, § 6,) and, irrespective of statute, on equitable principles applicabel under the facts.
