received therefor the preferred stock, while the Coast Line Company assumed the obligations prior thereto, amounting to $4,248,413.76, and received therefor the non-par stock directly from the Coast Company. In their brief, counsel for the Coast Company concede that "delivery of that stock was made in consideration of the payments which the Coast Line Company had made, and which it undertook to make." If this delivery was in fact made upon the direction of the reorganization committee, as counsel contend, such direction was not only superfluous but wholly gratuitous.

We find that the amount to be included by the Coast Company in account 751," Capital stock ", to record its liability on account of the preferred stock, is $5,180,300.

We further find that the consideration received by the Coast Company for its non-par common stock was the extinction by the Coast Line Company of liens, subject to which it took the deed to its properties, in the amount of $4,248,413.76; that such amount was the cash equivalent of that consideration; and that in accordance with the express provisions of the text of account 751, "Capital stock", the maximum amount to be included therein by the Coast Company to record its liability on account of non-par common stock, is $4,248,413.76.

Including the preferred stock at par, we further find that the current cash value of the consideration moving from the Coast Company in the acquisition of its properties did not exceed $9,428,713.76, and that in accordance with the express provisions of the text of account 41, "Cost of road purchased ", that sum represents the maximum amount to be apportioned to that company's investment in road and in equipment and to the net amount of other assets and liabilities.

The foregoing findings are independent of the express condition embodied in our order of December 21, 1926. The Coast Company does not repudiate that condition, but contends that, in view of the construction necessarily to be placed thereon, its proposed accounting is in compliance therewith. It is apparent, however, that to construe the words "amount received" as embracing only money or tangible property would be too narrow and literal.

We find that the amount received by the Coast Company for its issue of non-par stock was the assumption, payment, and discharge by the Coast Line Company of liens against the properties acquired by the former aggregating $4,248,413.76, and that the application of the condition in our order of December 21, 1926, requires the apportionment of the maximum amount of $9,428,713.76 to the Coast Company's investment in road and in equipment and to the net amount of other assets and liabilities.

It is clear, however, that the Coast Company issued its non-par stock directly to the Coast Line Company in consideration of the latter's payment, assumption, and discharge of the priorities subject to which it. took the deed to its properties. The contrary contention is not supported by any competent evidence. It is, moreover, contradicted by all of the facts in the record. Support for it is claimed in the charter provision authorizing the Coast Company to issue its preferred stock and/or its non-par stock for the purpose of acquiring and paying for the property and assets in question. It should not be overlooked that the general authority was to issue and dispose of all or portions of either issue "for such cash, property, real or personal, or other consideration and upon such terms or conditions as may be determined from time to time by the Board of Directors." But the result is the same when the special authority is treated as having been exercised in this instance, because in the exercise thereof the Coast Company did not deal with the holder of an unencumbered title. Its issues of stock were delivered respectively to the holder of an encumbered title and to the holder of part of the encumbrances who assumed the remainder and agreed to discharge them.

The reorganization committee never acquired or conveyed a clear title to the properties and consequently had nothing to exchange for the non-par stock. It did not receive that stock from the Coast Company. Neither did it sell the non-par stock to the Coast Line Company. The latter's right to the ultimate receipt thereof from the Coast Company springs from the agreement of February 23, 1926, which long antedates the Coast Company's acquisition of the properties. That agreement, however, was no more a sale of the nonpar stock by the bondholders' committees (or the reorganization committee) to the Coast Line Company than it was a sale by the latter of the preferred stock to the former. The agreement fully defined the functions of the parties thereto providing as it did what each was to acquire and convey to the Coast Company and receive in consideration therefor. The considerations supporting this agreement were the Coast Line Company's undertaking of guaranty with respect to the preferred stock for the benefit of the committees and the latter's undertaking to vest the encumbered title to the properties in the subsidiary of the former. The testimony of George E. Warren shows that this guaranty was the important thing in the minds of the reorganization committee and that they did not give much consideration to the interest in the properties of the Coast Company to be represented by the preferred stock. In consummating the agreement the reorganization committee conveyed to the Coast Company the bondholders' interest in the properties and

received therefor the preferred stock, while the Coast Line Company assumed the obligations prior thereto, amounting to $4,248,413.76, and received therefor the non-par stock directly from the Coast Company. In their brief, counsel for the Coast Company concede that "delivery of that stock was made in consideration of the payments which the Coast Line Company had made, and which it undertook to make." If this delivery was in fact made upon the direction of the reorganization committee, as counsel contend, such direction was not only superfluous but wholly gratuitous.

We find that the amount to be included by the Coast Company in account 751, "Capital stock", to record its liability on account of the preferred stock, is $5,180,300.

We further find that the consideration received by the Coast Company for its non-par common stock was the extinction by the Coast Line Company of liens, subject to which it took the deed to its properties, in the amount of $4,248,413.76; that such amount was the cash equivalent of that consideration; and that in accordance with the express provisions of the text of account 751, "Capital stock", the maximum amount to be included therein by the Coast Company to record its liability on account of non-par common stock, is $4,248,413.76.

Including the preferred stock at par, we further find that the current cash value of the consideration moving from the Coast Company in the acquisition of its properties did not exceed $9,428,713.76, and that in accordance with the express provisions of the text of account 41, "Cost of road purchased ", that sum represents the maximum amount to be apportioned to that company's investment in road and in equipment and to the net amount of other assets and liabilities.

The foregoing findings are independent of the express condition embodied in our order of December 21, 1926. The Coast Company does not repudiate that condition, but contends that, in view of the construction necessarily to be placed thereon, its proposed accounting is in compliance therewith. It is apparent, however, that to construe the words "amount received" as embracing only money or tangible property would be too narrow and literal.

We find that the amount received by the Coast Company for its issue of non-par stock was the assumption, payment, and discharge by the Coast Line Company of liens against the properties acquired by the former aggregating $4,248,413.76, and that the application of the condition in our order of December 21, 1926, requires the apportionment of the maximum amount of $9,428,713.76 to the Coast Company's investment in road and in equipment and to the net amount of other assets and liabilities.

The Coast Company further contends that so far as the non-par stock is involved the foregoing findings are not open to us, and that we are restricted to a finding of the valuation of the properties. In support thereof it urges that the above-mentioned decree of October 26, 1928, constitutes res judicata or that in any event the statement of facts and resulting construction of the condition as set forth in the opinion leading to that decree are controlling here as constituting the law of the case.

But the decree is not res judicata of the relations of the several parties to the transactions involved nor of the meaning of the condition, because it was not on the merits. It expressly provided that the supplemental application of the Coast Company should stand for further hearing before us, without direction for disposition in accordance with the opinion. It did not purport to determine the fundamental controversy there presented nor any of the matters involved in the present investigation. All that it adjudicated was that our order of April 9, 1928, was invalid because entered without affording a hearing.

On the other hand, the mere statement of the doctrine of the law of the case implies that as a prerequisite to its application the expression relied upon must have been made in a prior stage of the same proceeding. It is usually confined to statements of appellate courts.

The proceeding in the district court was not heard on the record which resulted in our order of April 9, 1928. It was an independent and original proceeding involving a trial de novo. Hence, with respect to those proceedings and that herein, constituting as it does an independent investigation on a new record, there is not the relation of identity between any of them which is requisite to the application of the rule of the law of the case. Moreover, it is well settled that the application of the principle of the law of the case is a matter of practice and not compulsory, merely directing discretion as distinguished from power to reexamine a question and decide it differently. Messinger v. Anderson, 225 U.S. 436, 444; Southern R. Co. v. Clift, 260 U.S. 316, 319.

Of course, as held in the case first cited, the court of last resort is not bound by the expression of an inferior tribunal. Herein lies the reason why the doctrine of the law of the case, in the sense that it implies compulsion, must be restricted to expressions of courts of last resort. If it were otherwise, a judgment or order of an inferior tribunal which was compelled by the law might nevertheless be subject to reversal or annulment for error.

Furthermore, the rule under discussion is clearly inapplicable where material new or different evidence is introduced in the subsequent proceeding. In Page v. Natural Gas & Fuel Co., 35 Fed.

(2d) 462, the district court dismissed a suit on the ground that the allegations of the bill showed that the title deraigned by plaintiffs through a predecessor in his representative capacity had been adjudicated against him in both his individual and representative capacities and so conveyed to defendant's predecessor in compliance with the adverse order. The circuit court of appeals, holding that plaintiffs' predecessor had been adjudicated in his individual capacity only and that the conveyance in his representative capacity was ineffective, reversed the decree and remanded for further proceedings consistent with its opinion. Upon retrial (with a successor substituted as defendant) the district court held that it was not bound by the foregoing portion of the appellate court's opinion because the evidence (most of which it seems, however, had been incorporated as exhibits to the original bill) showed that plaintiffs' predecessor had been adjudicated in his representative capacity, and dismissed the suit for want of equity. The circuit court of appeals, although recognizing the doctrine of "the law of the case" as a rule of practice, likewise held that under the circumstances it was not bound by its former decision, sustained the above finding, and affirmed the decree. Page v. Arkansas Natural Gas Corp., 53 Fed. (2d) 27, (affirmed, 286 U.S. 269.)

As a result of the absence of that identity which is requisite to the Coast Company's contention, the present record does not disclose what evidence was before the court, but it must be presumed that the facts were not developed as fully as they are here.

It thus appears that the portions of the court's opinion embracing the statement of facts and the construction of the condition in the order of December 21, 1926, would not have bound us as the law of the case, even in the further hearing on the supplemental petition of the Coast Company directed by the court's decree, and clearly are not so operative herein.

Moreover, since it would be open to the court upon evidence of the nature before us herein, to deny injunction against an order requiring the Coast Company to conform to the accounting prescribed in the foregoing findings, we are not prevented by any rule of law from making the findings which would support such order. The text of account 41, "Cost of road purchased ", read in the light of the general instructions, contemplates that the entry in account 701 shall be based upon the money value of the consideration given. Even if the principles of res judicata and law of case were applied so as to require the conclusive presumption that the Coast Company acquired unencumbered title to the properties from the reorganization committee in consideration of its stock issues, the