Opinion of the Court. So that the case, as finally determined, was simply one at law for breach of a contract to invest in the stock of the Southern Railroad Association. This mere recital of the facts concerning that action at law seems sufficient answer to the plea of res judicata, for among the essentials of an estoppel by judgment is identity of the cause of action. Atchison, Topeka &c. Railroad v. Jefferson County, 12 Kansas, 127; 2 Bouv. Law Dic. title "Res Judicata." When an action at law for breach of a contract to invest in stocks fails because the testimony develops that the investment was made and a declaration of trust given in respect to the stock so purchased, it would seem strange to hold that such judgment is a bar to a suit in equity for a breach of the trust, especially when it appears from the records in the law case that an application to change the declaration into a bill in equity in respect to the trust was denied. As was said in Cromwell v. County of Sac, 94 U. S. 351, 353: "In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been litigated and determined. Only upon such matters is the judgment conclusive in another action." What might have been determined in the Massachusetts court if the amendment of the declaration had been permitted can only be conjectured; what was determined was that no such contract as charged existed, or, if it existed, was broken. Copious extracts were in evidence in this case from the brief of the defendant's counsel in the Massachusetts case, which show that the defence relied upon was that no action at law could be maintained in consequence of the disclosure of the trust receipt. It is enough to quote these, which are but samples of others: "It is, of course, unnecessary to give any consideration to the trust receipt,' except as it disproves the agreement alleged, because "(1.) It is not the contract alleged and declared on and for breach of which money is sought. VOL. CXLIX-41 Opinion of the Court. (2.) Because its only scope and effect is to create a trust, for the enforcement of which no action of law can be brought, but only a remedy sought in equity.” * * * * * "It becomes wholly unnecessary, as it is entirely impracticable, to inquire, consider, or determine what anybody's rights may be under the trust created or declared on in this transaction When, if ever, a bill in equity shall be brought, and all parties in interest brought into court, that may be an interesting as it will be a necessary question. Till then it is enough that the trust created and acted upon for more than six years by all parties clearly negatives any other agreement concerning this original subscription, and necessitates a judgment for the defendant in this suit." Properly, therefore, the Circuit Court held against this claim of res judicata. It is suggested that the plaintiffs have been guilty of laches; but in view of the fact that defendant, when called as a witness in the first law action, testified that the stock stood as it always had stood, and of the further fact that no breach of the trust was discovered until just before the commencement of this suit, this defence is also without merit. The final question is as to the measure of damages. The court charged the defendant with the amount invested by plaintiff, and recognized by the declaration of trust, to wit, $42,000, and interest. Both parties challenge the question of correctness of this amount. The plaintiffs insist that McComb sold his own stock for $125 a share, and that, therefore, in the accounting he should be charged for the 800 shares held by him in trust for Snyder at that price per share, for which sum, together with interest to date, a decree should be passed. The defendant claims that McComb never did anything with this trust stock, other than in the fair discharge of his duties as trustee; that, owing to causes over which he had no control, and for which he was not responsible, the stock finally ceased to be of any value, and, therefore, that his estate should not be called upon to account for anything. It becomes necessary ana. Opinion of the Court. to see exactly what McComb did with this stock. The Southern Railroad Association was the lessee of the Mississippi Central Railroad Company, and was incorporated for the purpose of taking a lease of and operating said road. This road extended from Jackson, Tennessee, to Canton, Mississippi; there it connected with the New Orleans, Jackson and Great Northern railroad, running from that place to New Orleans, LouisiMcComb was a large holder of stock in that company. On November 8, 1871, he made an arrangement by which he sold to the Pennsylvania Company 14,000 shares in the New Orleans, Jackson and Great Northern Railroad Company, at $50 per share, and 5000 shares in the Southern Railroad Association at $125 a share. At the same time he transferred to the Pennsylvania Company an additional 14,000 shares in the New Orleans, Jackson and Great Northern railroad, and 5000 shares in the Southern Railroad Association. Included in this last 5000 shares was the 800 shares standing in the name of McComb as trustee, which were transferred by an endorsement on the certificates, vesting apparently an absolute title in the Pennsylvania Company. The stock which he sold was his own, and the whole cash payment, $1,325,000, passed to him, and, so far as appears, was appropriated to his own uses. By means of this transfer the Pennsylvania Company obtained control of the Southern Railroad Association, as well as of the New Orleans, Jackson and Great Northern Railroad Company. The transaction between McComb and the Pennsylvania Company is evidenced by three documents, executed on November 8, 1871, but though evidenced by these separate instruments, there was manifestly but a single transaction by which McComb transferred to the Pennsylvania Company the control of these two corporations, accomplishing this vesting of control by the sale of his own stock, at a large price, and a transfer of this trustee and other stock, without receiving a dollar. Obviously it was the use of this latter stock that enabled him to sell his own. If this were all, the obligation to account would unquestionably reach to $125 per share; but the purchase of McComb's stock was subject to an obligation to repurchase at the end of Opinion of the Court. two years, at the same price and thirty per cent advance, less dividends received by the company. This condition may well be deemed to have entered largely into the fixing of the price, and prevents that price from being a fair test of the value. Neither should one or two extravagant statements made by McComb, apparently to quiet any fears on the part of Snyder as to his investment and to continue his confidence therein, be considered sufficient to justify placing any such valuation on the stock. On the other hand, it is quite clear that the stock was worth at least what it had cost at the time of the trust declaration. Indeed, we do not think this is seriously questioned by the defendant. Little need be said with respect to the contention of defendant, that McComb did no more with this stock than a trustee might rightfully do, and that he used it simply to induce the Pennsylvania Company to take hold of this association, and manage it for the best interests of all the stockholders. On the contrary, it is more correct to say that he used this stock to induce the Pennsylvania Company to buy his own, or at least to increase the price at which it bought. Evidently the Pennsylvania Company wanted the control, and for that end a majority of the shares. It might not have been willing to pay $125 a share if it had been compelled to buy the 10,000 shares; but would naturally be willing to pay a larger price for half if the other half could be placed in its hands without cost, and thus the control obtained. Very likely the cestui que trust would have preferred $125 in cash to the promise of even the Pennsylvania, Company to manage the interests of the association for the benefit of all stockholders. We think, taking all the circumstances into consideration, that the Circuit Court reached as nearly as possible what justice demands when it awarded a return of the amount for which McComb acknowledged himself a trustee and interest. The decree will, therefore, be Affirmed. The costs of this court will be equally divided between the parties. Opinion of the Court. MCNULTY v. CALIFORNIA. ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA. The decision of the Supreme Court of California that McNulty should be punished under the law as it existed at the time of his conviction, involved no Federal question. It was settled in Hurtado v. California, 110 U. S. 516, that the words "due process of law" in the Fourteenth Amendment do not necessarily require an indictment by a grand jury in a prosecution by a State for murder, whose constitution authorizes such prosecution by information. When the record in a case brought by writ of error from a state court fails to show that a right, privilege or immunity claimed under the Constitution or a treaty or statute of the United States was set up or claimed, and was denied in the state court, this court is without jurisdiction to review the judgment of the state court in that respect. THIS was a motion to dismiss. The case is stated in the opinion. Mr. William H. H. Hart, Attorney General of the State of California, for the motion. Mr. Carroll Cook opposing. MR. CHIEF JUSTICE FULLER delivered the opinion of the Court. Plaintiff in error was tried for the murder of one Collins on March 25, 1888, convicted and sentenced to be hanged. From the judgment of conviction he prosecuted an appeal to the Supreme Court of the State of California, which on May 1, 1891, affirmed the judgment of the court below. On May 27, the Supreme Court, of its own motion set aside the judg ment of affirmance solely on the ground, as shown by the record, that the cause might "be argued upon the question of effect and operation of the recent amendment to the penal |