will lean towards the interpretation of a local statute adopted by the local court, and that where a statute of a Territory has been in existence for a considerable time, and been construed by the highest court of the Territory, even apart from its reenactment, weight attaches to the construction given by the local court. Copper Queen Mining Co. v. Arizona Territory, 206 U. S. 474. The case at bar, however, more cogently calls upon us not to disregard the construction given to the statute by the highest court of Hawaii. Here the law in question was passed while Hawaii was an independent government, and its meaning was declared by the court of last resort of that government, and, as we have said, that law as thus construed was given recognition by the organic act. The subject with which the law deals, the rights which may have come into existence during the more than forty years in which the statute has been in force, admonish us that we may not overthrow the meaning given by the court of last resort of Hawaii, and which has prevailed for so many years. Indeed, as the construction affixed to the statute many years before the islands were acquired was final, in effect that construction had entered into the statute at the time of acquisition and must by us be considered as if written in the law.

As to the question of res judicata. It was averred in the petition in the Circuit Court as follows:

"IV. That in the year 1891 the said respondent, being uncertain as to the propriety of paying over to the said children, or to any one in their behalf, their share or any portion of the income of the estate of said J. R. Williams, deceased, applied to the Supreme Court in probate, said court at that time having jurisdiction at chambers in matters of probate, for instructions as to the standing of said children, and that he was instructed and authorized by the Honorable Richard F. Bickerton, one of the justices of said court, to make payment to the said children on the theory that they had become legitimate by the subsequent intermarriage of their parents, and that thereafter said respondent, as trustee, duly made such pay

ments to said Kahalauaola, the mother of said children, in their behalf, until within a year or two past, since which time respondent has utterly refused to make payments to the said children, or either of them, or to any one in their behalf, claiming that they were not, and are not now, entitled to receive any portion of the income, or to share in the principal of the said estate of J. R. Williams, deceased."

These averments cannot bear any other construction than that the application referred to was an ex parte proceeding. The Circuit Court of the Territory, we think, correctly disposed of the claim of res judicata by the following ruling:

"As to the instruction by Mr. Justice Bickerton, it does not appear that any notice was given of the proceedings, or that there was any contest or issue made concerning the legitimacy of children."

Affirmed.

BOSTON AND MAINE RAILROAD v. GOKEY.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND

CIRCUIT.

No. 198. Argued April 14, 1908.-Decided May 18, 1908.

A defendant defeated on the merits after having specially assailed the jurisdiction of the Circuit Court because of defective writ and service is not bound to bring the jurisdictional question directly to this court on certificate under § 5 of the act of March 3, 1891; he may take the entire case to the Circuit Court of Appeals and on such appeal it is the duty of that court to decide all questions in the record; and, if jurisdiction was originally invoked for diversity of citizenship, the decision would be final except as subject to review by this court on certiorari.

Where the Circuit Court of Appeals has refused to decide a question, this court may either remand with instructions, or it may render such judgment as the Circuit Court of Appeals should have rendered, and where the new trial would, as in this case, involve a hardship on the successful party, it will adopt the latter course.

Where, under §§ 914, 918, Rev. Stat., the Circuit Court has adopted a rule of practice as to form and service of process in conformity with the state

practice, it is not bound to alter the rule so as to conform to subsequent alterations made in the state practice.

Under §§ 1109, 3948, 3949, Vermont Statutes, the service of process on a division superintendent in charge of the property attached belonging to a defendant railroad corporation held, to be sufficient.

THE plaintiff below, who is respondent in this court, was in the service of the railroad company, petitioner, and in November, 1901, was injured by being knocked off a freight car at a place called Lyndon, in the county of Caledonia and District of Vermont. The car was one of a freight train moving in the railroad yard and the plaintiff was struck, while on his car attending to the brake, by some portion of the iron switch staff, alleged to have been negligently built too high, and too near the railroad track. The injury made it necessary to amputate one of the legs of the plaintiff just above the ankle. He sought to recover damages for the injury and to that end this action was commenced by attachment in the Circuit Court of the United States for the District of Vermont.

The jurisdiction of the court was founded solely upon the diversity of citizenship, the plaintiff being a citizen of Vermont and the railroad being a citizen of Massachusetts, and operating, as lessee, the Connecticut and Passumpsic Rivers Railroad Company in the State of Vermont, on which road the accident occurred.

The service of the writ was made upon the division superintendent, at his office near Lyndon, in Vermont and the attachment was executed by attaching at that place two locomotives, the property of the railroad.

The defendant appeared only for the purpose of filing a motion to dismiss the writ because of its form, and also for the purpose of filing a plea in abatement on account of the alleged defective service of the writ. The defendant's motion to dismiss the writ was denied, and a demurrer to the plaintiff's replication to the defendant's plea in abatement was overruled, the result of the whole being that plaintiff's writ and its ser vice were both allowed to stand.

210 U. S.

Argument for Petitioner.

The defendant then filed a plea to the merits, on which the parties went to trial, resulting in a verdict of $3,350 for the plaintiff.

The defendant took the case by writ of error to the Circuit Court of Appeals, where the judgment was affirmed; but that court refused to decide the question of jurisdiction of the Circuit Court, which had been argued before it at the same time with questions upon the merits, on the ground that the Circuit Court of Appeals had no jurisdiction to decide it.

On application, this court granted a writ of certiorari.

Mr. George B. Young, with whom Mr. John Young was on the brief, for petitioner:

The original writ in the suit of John N. Gokey v. Boston & Maine Railroad, returnable to the United States Circuit Court for the District of Vermont, was insufficient. Sec. 914, Rev. Stat.; Rules 7, 8, U. S. Circuit Court for Dist. of Vermont; Judiciary Act of Vermont, of March, 1797; Rev. Stat. Vermont, 1839, ch. 28, § 10; Gen. Stat. Vermont, 1863, ch. 33, § 19; Rev. Laws Vermont, 1880, § 868; Vermont Stat., 1894, §§ 1088, 1089, 1090; Laws of Vermont, 1898, No. 137.

The Boston and Maine Railroad, being a foreign corporation and a non-resident of Vermont, the Circuit Court could not acquire jurisdiction of the original action, nor of this petitioner, the defendant therein, except by a valid attachment of property of this petitioner in Vermont and a legal service of the original writ in accordance with the laws of the State of Vermont. No such service nor attachment was made and the Circuit Court for the District of Vermont acquired no jurisdiction of the original action nor of the defendant therein, the petitioner here. Statutes cited supra and Hill v. Warren, 54 Vermont, 73; Folsom v. Conner, 49 Vermont, 4; Rollins v. Clement, 49 Vermont, 98; Clark & Freeman v. Patterson, 58 Vermont, 676; Amy v. Watertown, 130 U. S. 301; Harkness v. Hyde, 98 U. S. 476; Connecticut Mut. Life Ins. Co. v. Spratley, 172 U. S. 602; Alexandria v. Fairfax, 95 U. S. 774; Bors v.

Argument for Petitioner.

210 U.S.

Preston, 111 U. S. 252; Andrews v. Michigan Central R. R. Co., 99 Massachusetts, 534; Desper et al. v. Continental Water Meter Co., 137 Massachusetts, 252; Lewis v. Northern Railroad, 139 Massachusetts, 294; Mexican Cent. Ry. Co. v. Pinkney, 149 U. S. 194.

The sufficiency of the service must be determined from the return of the marshal on the original writ, unaided by extraneous facts or presumptions. Folsom v. Conner, 49 Vermont, 4; Hill v. Warren, 54 Vermont, 73; Clark & Freeman v. Patterson, 58 Vermont, 676; Alexandria v. Fairfax, 95 U. S. 774; Mexican Cent. Ry. Co. v. Pinkney, 149 U. S. 194; Bors v. Preston, 111 U. S. 252; Johnson v. Hunter, 147 Fed. Rep. 133, 137; Galpin v. Page, 18 Wallace, 350, 366; Settlemier v. Sullivan, 97 U. S. 445, 448; Cheeley v. Clayton, 110.U. S. 701, 708.

The insufficiency of the original writ is apparent on the face of the record; consequently, the insufficiency of said writ was properly raised by the motion to dismiss. Bent v. Bent, 43 Vermont, 42; Bennet v. Allen, 30 Vermont, 684.

The insufficiency of the attachment and service was properly raised by the motion to dismiss; also by the plea in abatement. Howard v. Walker, 39 Vermont, 163; Bliss v. Conn. & Pass. R. R. Co., 24 Vermont, 428; Bennet v. Allen, 30 Vermont, 684; Bent v. Bent, 43 Vermont, 42.

The plea in abatement was sufficient in form and substance. Vermont Stats., §§ 1109, 3948, 3949; Pearson v. French, 9 Vermont, 349; Morse v. Nash, 30 Vermont, 76; Fogg v. Blair, 139 U. S. 118, 127; Kent v. Lake Superior Canal & Iron Co., 144 U. S. 75, 91; Hill v. Warren, 54 Vermont, 73; Clark & Freeman v. Patterson, 58 Vermont, 676; Gould's Pleadings, ch. 3, § 167; Stephen's Pleadings, p. 217; 1 Chitty's Pleadings, 13 Am. Ed. 611; Carpenter et al. v. Briggs et al., 15 Vermont, 34, 41; Murdock v. Hicks, 50 Vermont, 683, 687; Lyman v. Central Vt. Ry. Co., 59 Vermont, 167, 175; Clement v. Graham, 78 Vermont, 290, 308; Toland v. Sprague, 12 Peters, 309, 335; Galpin v. Page, 18 Wall. 350.

The replication to the plea in abatement was insufficient