This was an action of trespass brought by James E. Morgan against the Jersey City & Bergen Railroad Company in the circuit court of Hudson county, N. J., to recover damages for his ejection from a street car of the company by the conductor thereof. The defendant pleaded the general issue and a special plea of mollitur manus imposuit in defense of possession, to which plaintiff filed a replication de injuria. Issues were joined accordingly. There was verdict and judgment for plaintiff, which was affirmed on error by the supreme court (52 N. J. Law, 60, 18 Atl. 904); that judgment was affirmed by the court of errors and appeals, for the reasons given by the court below (52 N. J. Law, 558, 21 Atl. 783); the record remitted to the supreme court; and this writ of error allowed.
The facts were that the company was running a horse-car railroad in certain streets of Jersey City; that plaintiff and his [160 U.S. 288, 289] wife entered one of the cars, and, after riding a short distance, plaintiff handed to the conductor a 10-cent plece, which was the requisite amount for two fares, but the conductor refused to receive the coin because it was worn smooth. Plaintiff protested, paid his wife's fare of five cents, and, on refusal to pay for himself with any other money than the dime he had offered, was ejected from the car. Thereupon this action was brought. The foregoing facts were proven, and, as stated by the supreme court, the coin was shown to the jury, and it did not appear in the evidence to have been so worn that it was light in weight or not distinguishable as a genuine dime; nor was it defaced, cut, or mutilated, but only made smooth by constant and long-continued handling, while being circulated as part of the national currency. At the close of the evidence, defendant's counsel asked the court 'to direct the jury to bring in a verdict for defendant, on the ground that the coin was not a current coin,- one that was not mutilated, a perfect coin, one that is worth its face value.' The trial judge remarked: 'It is not mutilated in the ordinary sense. Mutilation implies the taking away of some part. It is not mutilated in the ordinary sense of the term. A portion of it is gone only by use, by currency; and that happens to any coin after it has passed through numerous hands. How soon after use-such use as the government intends-how soon does the coin cease to be coin? I have looked into the statutes, and am unable to find any limitation upon the legal-tender character of silver coin. There is an express limitation on the gold coin, and that is when its circulation has resulted in the loss of one-half of 1 per cent. of its standard weight for 20 years of circulation. But that limitation does not extend to silver coin, and the provision of the statutes is that silver coin shall be lawful tender so long as it remains lawful money of the country,'-and overruled the motion to direct the verdict for the defendant, who excepted. The judge charged the jury, among other things, as follows: 'The first question to decide is whether the plaintiff tendered his lawful fare. He tendered this ten-cent piece, a genuine and recognizable coin of the [160 U.S. 288, 290] United States, and that was his lawful fare, provided you believe that the coin is in the condition in which it was when issued from the mint, except as it has been changed by proper use. If there has been no other abrasion, no other wearing away, no other defacement of that coin, except such as it has received in passing from hand to hand, then it is still, under the laws of the country, a good ten-cent piece, and was the fare of the plaintiff. If you think it has been otherwise changed, willfully changed, by being rebbed or in any other way, why, then, it has ceased to be a lawful coin of the country; it has ceased to be lawful tender. This distinction rests upon the idea that the government issues this coin for circulation, and, if the government does not choose to put any limit upon the circulation it shall receive, it continues to be legal tender just as long as it is circulating and receiving only such injury as circulation gives. Every piece of money that passes through our hands is to some extent abraded thereby, and the government knows and expects that its coin will be abraded, will be worn, and will be in that way defaced; and the government does not withdraw coin that is only defaced in that way; it is still a legal tender. But, if anybody chooses to resort to any other means of defacement, then the government does not any longer sanction that coin. But, so long as it is only defaced by lawful use, this coin remains good current coin, and lawful tender for all debts. Now, if you believe that is the character of this ten-cent piece, then this plaintiff lawfully tendered his fare. If you do not believe it is of that sort, then plaintiff did not lawfully tender his fare.'
To this portion of the charge defendant excepted.
The following are sections of the Revised Statutes:
Section 3513 enumerates the dime or 10-cent piece among the silver coins of the United States.
The first and third sections of the act of June 9, 1879 (21 Stat. 7, c. 12), are as follows:
Thos. J. Kennedy, for defendant in error.
Mr. Chief Justice FULLER, after stating facts in the foregoing language, delivered the opinion of the court.
The supreme court of New Jersey, after referring to the legislation of congress above quoted, said: 'This particularity in the limitation and allowance as to gold coin is not found in the case of natural abrasion in silver coin. This difference is very noticeable and important in a question of statutory construction and legislative intention. It seems by these statutes that so long as a genuine silver coin is worn only by natural abrasion, is not appreciably diminished in weight, and retains the appearance of a coin duly issued from the mint, it is a legal tender for its original value. U. S. v. Lissner, 12 Fed. 840.' The instructions of the trial court were therefore sustained, and the judgment affirmed.
By section 709 of the Revised Statutes, a final judgment or decree in any suit in the highest court of a state in which a decision could be had may be re-examined and reversed or affirmed in this court upon a writ of error, where, among other things, '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 of claimed, by either party, under such constitution, treaty, statute, commission, or authority.' Neither in defendant's pleadings, nor in the motion to direct the jury to find for defendant, nor in the objection and exception to the instructions, was any such right specially set up or claimed. The claim which defendant now states it relied on is that the coin in question was not legal tender under the laws of the United States. This, however, is only a denial of the claim by plaintiff that the coin was such; and as, upon the facts determined by the verdict, the state courts so adjudged, [160 U.S. 288, 293] the decision was in favor of and not against the right thus claimed under the laws of the United States, if such a right could be treated as involved on this record, and this court has no jurisdiction to review it. Missouri v. Andriano, 138 U.S. 496 , 11 Sup. Ct. 385, and cases cited. And, although denying plaintiffs claim, defendant did not pretend to set up any right it had under any statute of the United States in reference to the effect of reduction in weight of silver coin by natural abrasion.
No other ground of jurisdiction under section 709 is suggested, and this is insufficient to maintain it.
Writ of error dismissed.