fill orders except for cash, the measure of damages would be the Interest for 80 days on the amount of cash paid on his orders; and where no cash had ever been paid, he would be in any view entitled only to nominal damages. Defendant in error was not bound by the contract after plaintiff in error had refused to go on under his contract. Van H. Higgins and Isaac N. Arnold, for plaintiJf in error. Josiah R. Sypher, for defendant in error. The cases cited in the opinion were: Wecker v. Hoppack, 6 Wall. 94; MUler v. Mariners' Church, 7 Greenl. 56; Russell v. Butterfield. 21 Wend. 3Q4; Ketchell v. Burns, 24 Wend. 457; U. S. v. Burnham, 1 Masou, 67; Taylor v. Read. 4 Paige, 57L
Wharfage-City Ordinance. CINCINNATI, B. B. S. & P. PKT. Co. 1'. BOARD OF TRUSTEES OF CATLETT8BURGH, U. S. Sup. Ct. Oct. Term, 1881. Error to the circuit court of the United States for the district of Kentucky. The case was determined in the supreme court of the United States on May 8, 1882. Mr. Justice Miller delivered the opinion of the court, affirming the decree of the circuit court dismissing the bill. A town ordinance establishing charges upon steam-boats and other water craft landing at the public landings within the town, and appointing and establishing certain points at which such landings shall be made, and grading the rates for landing according to their tonnage, and affixing a penalty fo;r violation of the ordinance, is not a tax on tonnage, within the meaning of the constitution of the United States,and if a regulation of commerce it is of that class fot which states may prescribe rules in the absence of congressional legislation on the subject; and such an Qrdinance is not repugnant to the constitution of the United States. The money collected for wharfage under a town ordinance is not taxes, and its collection will not be restrained unless it is shown that the rates are excessive, and that there was a clear abuse of the power properly conferred on the trustees in regard to the wharfage charges, such as would justify the interposition ot a court of eqnity David Stuart Hounsell, for plaintiff. Cases cited in the opinion: Wharfage not a tax on tonnage, Cannon v. New Orleans, 20 Wall. 577; Packet Co. v. St. Louis, 100 U. S. 428; Packet Co. v. Keokuk, 95 U. S. 80; Guy v. Baltimore, 100 U. s. 4$4; nor regulation of commerce, Cooley v. Board ot Wardens, 12 How. 299; Gilman v. Philadelphia, 8 Ware, 713; Crandall v. Nevada. 6 Wall. 35; Pound v. Truck, 90 U. S. 462.
l'IUCE V. FOBEMAN.
(Circuit Court, S. D. llli1wi8. July 7,1882.)
REMOVAL OF SUIT FROM STATE CoURT.
Federal courts are without jurisdiction where a necessary party defendant is a citizen of the same state with complainant, between whom and the other defendant, a citizen of another state, there is no separable controversy.
G. Koerner, for complainant. Geo. B. Strong, for American Bible Society and Missionary Society of M. E. Church. HARLAN, Justice, (orally.) This presents a question of removal under the acts of congress regulating the jurisdiction of the circuit courts of the United States. Isaac Foreman died in St. Clair county, in this state, having made his last will and testament, which was duly probated, and by which, in its first clause, was devised.-to his wife, Rebecca Foreman, certain absolutely, and also the homestead for life. By personal the second clause, the defendants Thomas, Peiper, and Harrison were appointed e!Kecutors and trustees for the purposes thereinafter -named. By the third clause the executors are directed and empowered to sell and convey the whole of the testator's real and personal estate not thereinbefore disposed of, and convert the same into money. The fourth clause, after providing for the payment of the testator's just debts, gives and bequeaths to the executors the sum of $2,000, in trust for the use and benefit of his daughter, Mary Price, during her natural life, to be safely loaned or invested, the interest or profits annually to be paid to her during her natural life; and after her death, the interest or proceeds to be paid annually for the maintenance and education of her child or children, and such principal sum to be paid to her child or children when he, she, or they become of age. Should the daughter die, leaving no child or children, or should all of them die before arriving at full age, then the said sum of $2,000 is made payable, two-thirds thereof to the American Bible Society, and the remaining one-third to the Missionary Society of the Methodist Episcopal Church of the United States of Amadca. The last clause gave and bequeathed the proceeds in money of all the real and pel\8onal estate not thereinbefore specifically devised, as follows: Two-thirds to the Bible Society and the remaining third to the Missionary Society. After the death of v.12,no.l0-51