Opinion of the Court. In Griffin's case, Chase's Decisions, 364, 425, this was so ruled, and Mr. Chief Justice Chase said: "This subject received the consideration of the judges of the Supreme Court at the last term, with reference to this and kindred cases in this district, and I am authorized to say that they unanimously concur in the opinion that a person convicted by a judge de vice John Jay, resigned" was sent in on the 10th of that month, and on the 15th of the same month the Senate refused to concur in it. Rutledge's biographer says that the nomination was rejected because "when the Senate met in December his mind had become diseased;" but Jefferson, writing on the 31st of December, 1795, said: "The rejection of Mr. Rutledge by the Senate is a bold thing; because they cannot pretend any objection to him but his disapprobation of the [Jay's] treaty." Busts of the deceased Chief Justices have been placed in the court room, through appropriations made by Congress for the purpose. The first appropriation was made March 2, 1831, "for employing John Frazee to execute a bust of John Jay for the Supreme Court room, four hundred dollars." Frazee then resided in New York. The second, made June 30, 1834, authorized a contract to be made "with a suitable American artist for the execution, in marble, and delivery in the room of the Supreme Court of the United States, a bust of the late Chief Justice Ellsworth," and appropriated eight hundred dollars therefor. The bust was made by H. Augur, then living in New Haven. The third, made May 9, 1836, appropriated" for a marble bust of the late Chief Justice Marshali, five hundred dollars." The bust was executed by Hiram Powers, who lived in Washington from 1835 to 1837. The fourth, made January 21, 1857, authorized the making of "a contract with a suitable artist for the execution, in marble, and delivery in the room of the Supreme Court of the United States, a bust of the late Chief Justice John Rutledge, and appropriated therefor eight hundred dollars." The bust was made by A. Galt. The fifth, made January 29, 1874, authorized the Joint Committee on the Library" to procure and place in the room of the Supreme Court busts of the late Chief Justice Roger Brooke Taney, and of the late Salmon Portland Chase," and appropriated two thousand five hundred dollars for the purpose. The bust of Taney is by Rinehart, and that of Chase by Jones. The latest appropriation, made March 2, 1889, was "to procure and place in the room of the Supreme Court of the United States a bust of the late Chief Justice, Morrison Remick Waite, one thousand five hundred dollars." The bust is by St. Gaudens of New York. See also the Act of October 2, 1888, c. 1069, 25 Stat. 505, 547, appropriating for portraits of Rutledge, Ellsworth, and Waite, to be hung "on the robing room of the court with those of the other Chief Justices already there." Opinion of the Court. facto, acting under color of office, though not de jure, and detained in custody in pursuance of his sentence, cannot be properly discharged upon habeas corpus." And to that effect see Sheehan's case, 122 Mass. 445; Fowler v. Bebee, 9 Mass. 231, 235; People v. Bangs, 24 Illinois, 184, 187; In re Burke; In re Manning, 76 Wisconsin, 357, 365; In re Manning, 139 U. S. 504; Church on Habeas Corpus, §§ 256, 257, 269, and cases cited. In McDowell v. United States, 159 U. S. 596, one of the Circuit Judges in the Fourth Circuit designated the judge of one of the District Courts of North Carolina to hold a term in South Carolina, and his power to act was challenged by an accused on his trial and before sentence. The cause was carried to the Court of Appeals for that circuit, which certified questions to this court. We decided that whether existing statutes authorized the designation of the North Carolina District Judge to act as District Judge in South Carolina was immaterial, since he must be held to have been a judge de facto, if not de jure, and his actions as such so far as they affected other persons were not open to question. Cocke v. Halsey, 16 Pet. 71, 85, 86; Hussey v. Smith, 99 U. S. 20, 24; Norton v. Shelby County, 118 U. S. 425, 445; Ball v. United States, 140 U. S. 118, 128, 129. The result of the authorities is that the title of a person acting with color of authority, even if he be not a good officer in point of law, cannot be collaterally attacked; and as Judge Meek acted, at least, under such color, we cannot enter on any discussion of propositions involving his title to the office he held. Leave denied. Thus it appears that Washington appointed Rutledge Chief Justice ad interim; that the other members of the court acted with him as such without objection; and that both Houses of Congress have recognized him as one of the Chief Justices. Statement of the Case. ' THIRD STREET AND SUBURBAN RAILWAY APPEAL FROM THE COURT OF APPEALS FOR THE NINTH CIRCUIT. Inder the act of August 13, 1888, c. 866, a Circuit Court of the United States has no jurisdiction, either original, or by removal from a state court, of a suit as one arising under the Constitution, laws or treaties, of the United States, unless that appears by the plaintiff's statement to be a necessary part of his claim. If it does not appear at the outset that a suit is one of which the Circuit Court, at the time its jurisdiction is invoked, could properly take cognizance, the suit must be dismissed; and lack of jurisdiction cannot be supplied by anything set up by way of defence. When jurisdiction originally depends upon diverse citizenship the decree of the Circuit Court of Appeals is final, though another ground of jurisdiction may be developed in the course of the proceedings. THIS was a supplemental bill of complaint filed October 9, 1895, in the Circuit Court of the United States for the District of Washington. The original bill does not appear in the record, but the supplemental bill alleged "Meyer Lewis, a citizen of the city and county of San Francisco in the State of California, with leave of court first had and obtained, brings this, his supplemental bill, against the Third Street and Suburban Railway Company, a corporation duly organized and existing under the laws of the State of Washington, defendant, with its principal place of business in the city of Seattle, in said State; the original bill herein being brought by this plaintiff against Western Mill Company, a corporation organized and existing under the laws of the State of Washington, with its principal place of business in Seattle, in said State, John Leary and J. W. Edwards, citizens of Washington and residents of Seattle, James Oldfield, citizen of Washington and a resident of Seattle, Malcolm McDonald, a citizen of Washington and a resident of Fort Blakeley, in said State, the city of Seattle, a municipal corporation duly organized and existing under the laws of the 178 457 178 578 Statement of the Case. State of Washington, Washington Savings Bank, a corporation duly organized and existing under the laws of Washington, with its principal place of business in Seattle, in said State, and other defendants, against whom decrees pro confesso have been entered in the above-entitled cause prior to the bringing of this supplemental bill." And set forth in paragraph one: "That at all times hereinafter mentioned the defendant, Third Street and Suburban Railway Company, was and it now is a corporation, duly organized and existing under and by virtue of the laws of the State of Washington, with its principal place of business in the city of Seattle, in said State." The supplemental bill then stated that the Western Mill Company, in May, 1884, and certain other defendants as sureties, made and delivered to plaintiff their note, to secure the payment of which, and the interest thereon and attorneys' fees, it executed a certain mortgage, which plaintiff sought by, his bill to foreclose. The eighth paragraph was as follows: "That on or about the 14th day of October, 1891, the defendant, Western Mill Company, mortgagor herein, by its certain deed of sale, sold said mortgaged premises and every part thereof to the Ranier Power and Railway Company, a corporation organized under the laws of Washington, and having its principal place of business in Seattle; that thereafter, and on or about the 13th day of February, 1895, in the cause of A. P. Fuller v. The Ranier Power & Railway Company, No.-, then pending before this honorable court, Eben Smith, Esq., the duly appointed, qualified and acting master in chancery in said cause, made, executed and delivered to A. M. Brookes, Angus McIntosh and Frederick Bausman, purchasers of said premises, at a sale theretofore had, to satisfy a decree in said cause theretofore rendered by this court, a deed of sale to said mortgaged premises and each and every part thereof; that thereafter, on the 12th day of February, 1895, for a valuable consideration, said Angus McIntosh, A. M. Brookes and Frederick Bausman dulv bargained and sold Opinion of the Court. by their deed of sale, their right, title and interest in and to said premises, and every part thereof to the Third Street and Suburban Railway Company, defendant herein, who now claims some interest in or lien upon said mortgaged premises through said deed of purchase, so made subsequent to the commencement of plaintiff's action, but that said interest in or lien upon said property is subsequent, subject and inferior to the lien of plaintiff's mortgage." Thereupon plaintiff prayed judgment against the parties to the note for the sum alleged to be due with interest and attorneys' fees; that a decree for the sale of the mortgaged premises be entered, the proceeds to be applied in payment of the amount found due on the note and mortgage; that the railway company, and all persons claiming under it, be barred and foreclosed from setting up any claim or equity therein thereafter; and that plaintiff have judgment over for any deficiency on the sale. The defendant, the railway company, answered; a demurrer was sustained to its answer; and a decree was entered against the parties to the note for the amount due thereon and for the sale of the premises mortgaged, with judgment against them for any deficiency; and also for the distribution of any surplus that might remain after the application on the mortgage of the proceeds from the sale. The case was carried on appeal to the Circuit Court of Ap peals for the Ninth Circuit, and the decree below was by that court affirmed. 48 U. S. App. 273. And from its decree this appeal was allowed. Mr. Frederick Bausman for appellant. Mr. J. W. Blackburn, Jr., and Mr. George E. Hamilton for appellee. MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court. Although the record does not contain the original bill, it is apparent that the jurisdiction of the Circuit Court was invoked on the ground of diverse citizenship, and that the |