delivered the opinion of the court:

The bill in this cause was filed by Mr. Corcoran in his own right, and in behalf also of all other holders of bonds such as are hereinafter described, who might desire to become parties to the suit and contribute to the expenses thereof. Subsequently Mr. Stewart was admitted to become one of the complainants. None of the other bondholders have availed themselves of the privilege.

After the suit was brought, the bill was amended more than once, and several stipulations were entered into between the counsel of the respective parties, in consequence of which the issues, originally involved in the controversy, have been reduced to one only, and that one is this: whether the holders of the preferred bonds of the Chesapeake and Ohio Canal Company, and of the overdue coupons annexed to said bonds, are entitled to interest upon those coupons from the dates *363when they severally became due, payable out of the net revenues of the company, which were pledged for the redemption of said coupons, in the first instance, and for payment of the bonds themselves when they shall ultimately fall due.

In Gelpecke vs. Dubuque, 1 Wall., 206, and Aurora City vs. West, 7 Wall., 105, it was decided by the Supreme Court of the United States that, on general principles, coupons “ should draw interest after payment of the principal is unjustly neglected or refused." Those were actions at law, and in both cases payment of the coupons had been demanded at maturity, and refused. Had the complainants in this suit brought actions at law against the Chesapeake and Ohio Canal Company upon their coupons, and proved presentation thereof at maturity, and failure of the company to pay, it is clear they would have been entitled to a judgment, as well for the interest from date of the demand in each instance, as for the principal.

But it .has so happened that all the property of the company is so heavily incumbered with mortgages or deeds of trust to secure the State of Maryland for money advanced for the construction of the canal, that a judgment at law would be fruitless, whether it were for a large or a small amount. And so these complainants have not chosen to resort to that form of remedy, but instead have resorted to equity to enforce their claim under the specific security which was givea by the company for the payment of their bonds and interest. Now, it is very obvious that the extent of the relief to which they are entitled in this suit must be measured by the extent and character of their security. If they hold a security commensurate with their whole claim — bonds, coupons, and interest upon coupons — they may confidently expect a decree in their favor as extensive as their claim; but, on the other hand, if the security under which they ask relief be only partial, or restricted and limited, then must the decree, to be passed, afford them but partial or restricted and limited relief.

The charter of this company was granted in the first instance by the State of Maryland, then by the State of Virginia, to the extent of her territory made use of by the company, and again by the United States, so far as the District of Columbia was concerned. The State of Maryland, how*364ever, being most deeply interested in the work, became its most liberal patron, subscribing for a majority of the stock, and making large loans to the company. On the 10th of March, 1845, these loans exceeded $5,000,000, and were secured by mortgage upon all the property, and revenues of the company. The work, however, was not yet completed to Cumberland, and it was estimated that $1,700,000 would be required for that purpose. The legislature on that date passed an act by which the State consented to waive the priority of its own liens in favor of an issue of bonds to be made by the company to the amount of $1,700,000, payable within thirty-five years, with interest at the rate of six per cent, per annum, payable semi-annually. Subject to the mortgage or deed of trust to secure these bonds, with their interest, the State was still to hold its mortgage upon the property and revenues of the company, as before. These bonds and interest were to be secured exclusively upon the accruing net revenues of the canal, and not upon any of its property or franchises. In ascertaining the net revenues, there were to be deducted, first, any sums which might be required to keep the work in repair and pay the salaries and wages of its ofScers and agents ; second, the sum of $5,000 a year to be applied to the payment of a debt due the creditors of old Potomac Company; and, third, the sum of $25,000 a year to create a sinking fund for the ultimate redemption of the bonds themselves at their maturity. After these objects were provided for out of the revenues, the balance, if any existed, was to be applied to payment of the semi-annual interest upon the bonds, as it should fall due. In 1849 the company commenced to issue its bonds under and in pursuance' of this law, with coupons attached, having executed a deed of trust upon its net revenues for their security. Both the bonds and their coupons refer to the act under which they were issued; the former in these words : “ And by the terms of the said act, which has been duly accepted by the stockholders of said company, it is provided and declared that the bonds that may be issued by the said company under the said act to an amount not exceeding, in the aggregate, one million seven hundred thousand dollars, without any preference or priority over each other on account of date, *365shall be preferred liens on the revenues of said company, according to the provisions of said act, until the said bonds and the interest thereon shall be fully paid.” And on the margin of the coupon are the words: “ Preferred lien on the revenues of the company.” The body of the coupon refers to both the bond to which it is annexed by number, and to the act of the legislature under which it was issued by date and chapter.

It is under this legislation, and this security alone, that complainants have instituted the present suit, aud ask for relief. Their claim is against the net revenues from the canal. But what is to be the result if there be no such revenues? The bill must fail for want of a subject as to which the court could pass a decree. Complainants must themselves not only allege in their bill, but prove, the existence of the revenues, else they can get no relief here. There can be no lien if there be no subject of lien. If the revenue comes into the treasury of the company the bondholders may claim its appropriation to the payment of their coupons. If the revenue fail, the coupons must wait. If it fail without fault of the company, (as the fact must be taken to be for the purposes of this case,) the company is under no obligation to pay, and there is no right on the part of the bondholders to ask for payment. A demand for payment when there are no revenues on hand to meet it, is premature, and properly refused. The coupon, by the very terms of the security given, is payable out of the revenues. If you seek your remedy against the fund, you have no right to claim relief unless the fund has existence. A refusal to pay in that case is not “ unjust,” but is consistent with the very terms of the contract.

In Aurora City vs. West, the court say "that interest on a debt is due from the time that payment is unjustly refused.” Interest, therefore, is not to be allowed where the payment was justly refused. In the present case, the record shows that the company has always been ready and willing to pay the coupons when presented, provided there was “ net revenue” in their treasury, applicable to that purpose.

There is another aspect of this question which we deem worthy of attention. The bond on its face contains the fol*366lowing provision as to payment of interest: “ Witli interest thereon payable semi-annually on the first day of January and July in each year in the city of Baltimore, on the presentation and delivery of the half-yearly coupons, hereunto annexed.”

Now it is neither alleged in the bill, nor has it been shown by proof in the cause, that any coupon sued upon in this case has ever been refused payment when presented for that purpose by the complainants or either of them. On the contrary it is proved, as well as conceded by stipulation of counsel, that the company has offered to pay these coupons, as well as all others, to the extent of the fund applicable by law, and contract to that purpose, but that complainants have refused to accept such payment and surrender their coupons, unless on payment also of interest from the date when the several coupons fell due, notwithstanding the fact that no demand of payment at those times, or afterward, had been made.

Were this even an action at law, instead of the suit in equity which it is, to enforce a specific lien, that fact would be fatal to the claim for interest; for by the express terms of the contract the interest upon the bond was to be payable only “on the presentation and delivery of the half-yearly coupons ” to the company in the city of Baltimore.

Under the decisions in Gelpecke vs. Dubuque and Aurora City vs. West, coupons bear interest only after payment of the principal has been unjustly neglected or refused. A coupon payable on presentation and demand can bear interest only from the date of ibs maturity and after payment has been demanded and unjustly refused. That principle of law is too clear to need either argument or authority in its support; and we cannot well understand how these complainants could expect to recover interest in this case without having either averred in their bill or proved by evidence that demand of payment had been made when or after they were payable. It is quite comprehensible why the demand of payment was not made in fact. Complainants knew that payment of their coupons could be obtained, if ever, only from the net revenues of the company, and that it was useless to make a demand of payment except when such rev*367enues existed; and they were aware, also, that to the extent of those revenues they were from time to time receiving payments. The idea of claiming interest upon the coupons sprung up only after the great majority of the coupons had been long overdue, and after the revenues had greatly increased, and probably in consequence of a misunderstanding of the decisions made in the cases referred to.

So far as the present suit is concerned, however, the demand of payment, had it been punctually made on each day when a coupon fell due, would have made no difference as to its result. For the purposes of this case, the coupons were payable only when there was “ net revenue ” in the company’s treasury to meet them; and there is no evidence to show that any one of these coupons has ever been refused payment when that was the case. It is true the company has refused to pay some of these coupons when its revenues were in a condition to pay them; but only because the complainants themselves declined to accept the principal unless the interest were paid along with the principal.

Another question arises out of the consent of the State of Maryland that her earlier liens might be postponed to this one, to the extent, however, only of the principal and interest of the bonds. Her claims are very large, and if ever paid, it must be in a very remote future. In strictness, she has agreed to be postponed only for the principal and interest upon the preferred bonds, not for interest upon interest. And in her situation, we are inclined to the opinion she has a right to insist upon the very letter of the contract. It was so decided by the court of appeals of that State, in the case of The Commonwealth of Virginia vs. The State of Maryland, the Chesapeake and Ohio Canal Company, and William W. Corcoran and others, trustees. In that case Mr. Corcoran was sued, in his capacity as trustee, and although his answer made no reference to this fiduciary character, but, on the contrary, set up that he was the holder of a large amount of the preferred bonds of the company in his own right, and denied that the complainant was entitled to the relief sought, yet as he neither filed a cross-bill in the cause, nor made any claim as such bondholder beyond resistance to the preference of payment claimed by the State of Virginia, we think the *368decision in that case would not warrant us in pronouncing it to be an absolute estoppel to the claim set up by him in this. Nevertheless, it is a decision made by a high and learned judicial tribunal, and entitled to be received by us with great respect.

These views, we think, dispose of the subject of controversy in the present cause upon the merits; and we deem it unnecessary to advert to any of the numerous points presented by the briefs of counsel relating to parties, and other questions of minor and incidental consequence.

The decree of the court below was as favorable to the complainants as they have any right to claim. It dismissed their bill, but without prejudice to their right to sue at law for the recovery of the interest in dispute; and further ordered that if the complainants should surrender any of said coupons on receiving payment of the same without interest, such surrender should not of itself be deemed an abandonment of their said right, if any such right existed.

delivered the following dissenting opinion:

It has become so well established that the coupons attached to bonds of the character of those in this case bear interest if not paid at maturity, that it is not necessary to refer to authorities. But for the purpose of strength, reference is made to Aurora vs. West, 7 Wall., and Virginia vs. Chesapeake and Ohio Canal Company, 32 Maryland. Interest upon interest, as it is termed, is not favored by the law, and hence the doctrine pronounced by a learned chancellor in 1 John. Ch. R. The very nature of the transaction, and the use of the instruments, the bond and the coupon, by the parties, make it interest-bearing. It is not interest upon interest in the obnoxious sense, but the coupon at maturity starts on a career of its own, the law annexing to it the office and quality of an interest-bearing instrument, and a security covering the main body covers also the appendage, which has now become inseparable by reason of the default of the borrower. The language of the act of Maryland is, “ so as to make the said bonds, and the interest to accrue thereon, preferred and *369absolute liens on said revenues.” The language used in all the sections is the same as to the appropriation of the revenues of the company, to make the bonds, and “ the interest to accrue thereon,” preferred liens. Is the interest on the coupons, interest to accrue growing out of the bonds? The decisions say that the coupons bear interest after maturity and if interest accrue by law on the coupons on failure to pay at maturity, it is because it is interest to accrue in consequence of the bonds being issued and the coupons not paid at maturity, and there would be no interest on the coupons except such as was to accrue on the bonds as a legal consequence of the failure to take up and retire the coupons.

The bonds issued under the act provide that they shall be preferred liens on the revenues of the company until the said bonds and the interest to accrue thereon shall be fully paid. The learned court of appeals of Maryland announced as clearly settled that the coupons bear interest after maturity till paid. But will it escape the conclusion, that it must be “interest to accrue” on the bonds when that is the only interest contracted to be paid, and if this interest does not accrue upon the bonds, then there is no foundation for it. It appears to me that the distinction taken on behalf of the State of Maryland, between the coupon and the interest thereon, is at war with the repeated adjudications of the Supreme Court of the United States. It is admitted that the interest is due because the coupon is unpaid, and that it grows out of the coupon, and that the coupon is covered by the lien; but it is insisted that the company must pay this interest on the coupons after satisfying the State of Maryland.

However, it may be said that the coupons were not presented at the place where they were payable, or that there is no allegation that they were so presented. According to well-established rules of law, the maker of the note must show that he had funds at the place of payment, or that the paper was payable nowhere else, before he can be exonerated from interest, or he must show a tender. And it is admitted in the answer that the company suspended payment for many years for want of funds, and if resumption was had it was their duty to notify the fact. If the maker deposits *370funds at the place of payment to meet the demand, then he is exempted from interest, otherwise he must hunt up the holder to tender if interest is to be avoided. It is insisted upon in the answer and in argument, that the complainants are precluded by the case of Virginia vs. The Canal Company in the courts of Maryland from this suit, the matters and things here involved having been there adjudicated, and the parties there being parties here. Exhibit No. 3 is admitted as evidence of the record, stating the points and objects of the bill in the case above referred to. The record in that case discloses that in December, 1867, a bill was filed in the circuit court of Baltimore County, Maryland, by the Commonwealth of Virginia vs. The State of Maryland, the Chesapeake and Ohio Canal Company, and TV. TV. Corcoran, George W. Riggs, Horatio Allen, J. B. H. Smith, and J. Philip Roman, trustees, and some others. The bill was filed to compel the canal company to apply its revenues, “first, to the payment of $200,000 repair-bonds issued by the company to repair the canal below dam No. 6, which bonds were guaranteed by the State of Virginia; second, to the payment of certain certificates of the company to the amount of $140,000, issued in lieu of coupons to Edson, Withers & Co., who, by arrangement with the company, had taken up said coupons, said certificates being now held by the company; third, to the payment of certain coupons on certain preferred bonds issued under the Maryland act of 1845, guaranteed by the State of Virginia, and secured by the deed of trust to W. W. Corcoran and others of June 8,1848, with interest on the overdue coupons.” From this record it appears that Corcoran, one of the present complainants, was before the court as a trustee and not as a party in individual interest, and the only matter or thing as regards the preferred bonds that was involved in the case was “ certain preferred bonds,” which we learn from the decree amounted to $300,000, guaranteed by the State of Virginia. Corcoran appeared, but only as trustee. It appears to have been a suit of State vs. State, in substance, though the form was State vs. a company for navigating objects, in which another State had an interest, and especially provided by law to consent to be made a party.

*371If the learned court of appeals of Maryland decided a question involving the right of these complainants when they were not before the court, all the rules of law abhor the idea that they are concluded. Could Corcoran have taken an appeal in his capacity of individual holder of bonds or coupons from the decision in the case unless he had gone in under the decree ? The record discloses the case to have been a suit by Virginia, setting up priority over all creditors for the amount of the repair-bonds and some preferred bonds which she had guaranteed. Corcoran was made a party because he was trustee, in his representative capacity as trustee, to whom the mortgage had been made in trust, and his answer was resisting any decree giving to Virginia a priority over the creditors holding preferred bonds. The court did determine in that case that the claim of the State of Virginia to interest on the coupons could not be allowed. But the decree directed the payment to the State of the principal and the coupons which had been paid by her to the amount of $200,000; then that the $300,000 that had been guaranteed by the State should share pari passu with those held and unpaid by other parties. There was no calling in of all the creditors. These complainants had not been made parties. There was no obligation on the part of the trustee to make himself a party individually.

The third point stated in the bill was to determine the payment of the coupons, the bonds on which they were based being preferred bonds guaranteed by the State of Virginia. The question of interest upon the coupons was decided, but the decision can only, bind the parties properly before the court. The case is an authority to be cited as persuasive of what the law is on the point involved, but not conclusive upon these complainants. There is no part of the decree which provides for any holders of bonds or coupons other than Virginia’s guaranteed bonds, $200,000 repair, and $300,000 preferred, and $5,000 per year to the holders of bonds issued by the Potomac Company to come in and have their claims adjusted.

In fact, the whole record discloses a case got before the court for the purpose of eliciting an expression of opinion upon a general question, but which decree can in no just relation be held as res adjudicata, except as to Virginia.

*372The hill in the case before us does not seek to disturb the decree of the Maryland courts; that stands untouched, for Virginia’s guaranteed bond and coupon holders have been paid off, except interest on the coupons under that decree.

The present complainants sue for themselves as creditors, and seek the enforcement of a lien they assert to exist on funds wholly independent of the funds in the courts of Maryland.

Under the Maryland decree, the complainants could bring an original bill even in the courts of that State, and they would not be bound by the former decree.

The courts of that State would not apply the res adjudicata, but of course they could apply the rule of stare decisis. But the court of appeals would be at liberty to overrule its former decision as not being law; but if res adjudicata, it could not do so on an original bill, and if these complainants, or either of them, could bring and maintain an original bill in Maryland, then the case is. not res adjudicata. And if a suit could be maintained in the courts of Maryland on an original bill, then it follows that suit may be maintained in this court.

It is nowhere pretended that Stewart was a party in any capacity to the Maryland suit.

. See the case of Good vs. Blewit, 16 Vesey, in which Lord Eldon gave as full and satisfactory an expose of the rules determining the rights of creditors in choosing their forms of proceeding as any case to be met with.

Where a creditor’s bill is filed on behalf of complainant and all other creditors who may choose to come in, then any creditor seeking to avail himself of the decree must himself make a party. Where one creditor files a bill on his own behalf, no other creditor is prevented from his own suit, unless he was directly made a party, and where a bill is filed by one creditor on his c wn and the behalf of all other creditors, no creditor who is not made a party directly, by proper process, is bound to gc into that case. If he seeks the benefit of the decree he must make himself a party in the usual form. But if he does not seek the benefit of the decree, he need not come in. And if he further does not seek by his own bill to disturb the former decree, by interfering with the fund already *373disposed of, lie is not precluded from liis own suit. We have before said that the bill before us does not seek to disturb the funds in the courts of Maryland, and the parties are free to ask the courts of Maryland, or of any other jurisdiction, to apply a rule of law although different to the one applied in the former case. We are all agreed that the State of Maryland has been made a party if necessary to be made so. A State that enters into the ordinary business transactions,, mingling with individuals, puts herself on a level and must share the fate of suitors. United States Bank vs. Planters' Bank, 9 Wheaton.

It is insisted on, part of respondent that the decision of the court of appeals of Maryland being the construction of a statute of a State by its highest court, is binding upon all other courts. This proposition as a general one is true, unless the question passed upon by the State court comes within the well-recognized exceptions to the rule. The act of a State legislature which impairs the obligation of contracts is no law at all (though sustained by the decision of the highest judicial tribunal of the State) outside the territorial limits of the State, nor upon the courts of the United States sitting within the State.

The repeated decisions of the courts of the country that the coupons bear interest after maturity, if unpaid, could be based upon no other ground than that the sequence was a part of the contract. If a part of the contract it is binding upon the parties, and to impair it by attempting to postpone a lien which covered all, where there was no express stipulation limiting the lien, is, as far as I can see, impairing the obligation of the contract.

But we are not without adjudicated cases upon these questions. Swift vs. Tyson, 16 Peters; Williamson vs. Berry, 8 Howard; Jefferson Bank vs. Skelly, 1 Black.

The conclusion to which my mind has come — attempting to be guided by authority — is, that, on all the points made, the complainants are entitled to a decree, as far as the powers of this court may reach, to subject the revenues and tolls of the company, deducting the amounts as expressly provided, to the satisfaction of coupons and interest thereon.

It is probable that, under the pleadings as now presented. *374nothing further could be decreed than an account as to the amount due, and the capacity of the tolls and revenues of the company, over and beyond the expenses provided for by the act and the mortgage, and leave the parties to amend the pleadings, and to make proofs of the management of the affairs of the canal.

I think, however, that enough appears to entitle the complainants to an account.

The decree below dismissed the bill, which, if affirmed, leaves the complainants without remedy for that which is admitted to be due them. Whereas, under the view here taken, this remedy would be left, but the company would not be deprived of the use and management of the canal, except gross negligence and misapplication of proceeds could be shown.