M'CULLOUGH v. LARG]!).
der, and there is nothing showing that he could be tried by the courts of the Cherokee Nation, and therefore such nation had no right to demand him, and because, under the constitution and laws of the United States, tbe chief of the Cherokee Nation, not being the chief e:Iecutive ofa state or territory, could make no demand upon the governor of the state of Arkansas for the extradition of Morgan, it must be held that the warrant of the governor of the state of Arkansas, issued for the arrest of Morgan, and by which he is now held, is void, and he is illegally restrained of his Eberty, and the prayer of his petition must therefore be granted, and he will be discha.rged.
MCCULLOUGH, Jr., v. LARGE and
(Circuit COU'l't,W. D. Penn.qylvania. 1\'Iay 23, 1884.)
INTERNAL REVENUE-LEVY BY SHERIFF ON WHISKY IN BONDED WAREHOUSE.
Whisky deposited in a bonded warehouse of the United States, and held therein for internal revenue tax due the government, is virtually in the possession of the United States. and a sheriff has DO right to enter such warehouse and seize, in execution, such whisky as the property of the defendant in a writ of .fieri facia" in his hands, even though he may offer to pay the tax.
SAME-HE)IOVAL OF CAUSE-RuLE ON COLLECTOR TO SHOW C.HJSE-CON'rEMPT OF STAn; COURT.
A rule upon a United States internal revenue collector, granted by a state court, upon the petition of the sheriff, to show cause why an attachment should not issue against him for contempt of the process of said court in refu",ing to permit the sheriff to enter a bonded warehou,e of the United tltates and seize, in execution, Whisky held therein for internal revenue tax, is a "civil suit" removable into thc United States circuit court under section 643 of the Revised
3. SAME-JURISDICTIO:S OF CmCUIT COURT-WHE:S ATTACHES-REV. ST. 643, Where a cause is removable under said section 643, the jurisdict.ion of the circuit court, attaches upon the filing therein of a proper petition, and, upon the delivery of the prescribed process issued to the state court, the jurisoiction of the latter court is Wholly divested, so that its subsequent orders are co'ram non judice and void.
In re Petition of .William McCallin, sheriff of Allegheny connty, for a rule upon Frank P. Case, United States collector of internal revenue, etc. Wm. A. Stone, U. S. Atty., for F.P. Case, U. S. Int. Rev. Collector. BefoteBRADLEY and A'cBEsoN, JJ. , ACHESON, J. William McCa.1lin, sheriff of Allegheny county, presented his petition to the court qf common pleas, No.2, of said county, setting forth that Henry Large,the defendant in a writ of fl. fa. issued out of Said court, was the Owner of about 300 barrels of whisky, subject to an internal revenue tax of 90 cents per gallon due the United States, stored in a certain warehouse on his premises, which he, (the shE)riff,) by virtue of sa.idwrit, was proceeding to fie:zeand take in execution, when he was hindered and prevented by Gll..se;
collector of internalrevenue for the Twenty-second collection district of Pennsylvania, who refused to permit him to enter said warehouse to levy upon, seize, and remove said whisky, although by direction of James McCullough, the plaintiff in the writ, the sheriff offered to pay to the eollector the government taxes and liens against the same, which the collector refused to receive; and the petition concluded with the prayer that the court grant a rule upon the said Frank P. Oase to show cause why an attachment should not issue against him for contempt of the process of the court, and for obstructing and interfering with the sheri:(f while engaged in executing said process, and that he (the sheriff) might have such remedy and relief in the premises as to right and justice might appertain. Thereupon the court made the following order:
"And now, February 23, 1884, the w.ithin petition presentod, considered, and ordered to be filed; and, on motion of John Barton and W. C. Moreland, attorneys for James McCullough, Jr., and Will. McCallin, sheriff, the court does order and grant a rule on Frank P. Case to appear and answer said petition, and to show cause why an attachment should not issue against him for contempt of the process of this court for obstructing the sheriff of said county in the execution of its process; said rule returnable on Satmday, March 8, 1884, at 10 A. H."
On March 5, 1884, Mr. Oase presented his petition in this court, under section 643 of the Revised Statutes, which provides for the removal into the circuit court of the United States for the proper district of "any civil suit" or criminal prosecution commenced in any court of a state against any officer appointed under or acting by authority of any revenue law of the United States, on account of any act done under color of his office or of any such law, or on account of any right, title, or authority claimed b.v such officer under any such law. This petition being strictly conformable to the statute, this court, as thereby directed, issued a writ of certiorari (which was duly delivered) to the said court of common pleas, requiring it to send to the circuit court the record and proceedings in the said cause against the collector. With the requirement of the writ of certiorari the court of common pleas has failed to comply, nor has it made any return to the writ. We need scarcely say, however, that in a case removable, nnder the statute, the jurisdiction of the circuit court attaches upon the filing therein of a proper petition, and upon the due delivery of the prescribed process, issued to the state court, the jurisdiction of the latter court is wholly divested, so that its subsequent orders are coram non judice and Davis v. South Carolina, 107 U. S. 597; S. C. 2 Sup. Ct. Rep. 686. That the proceeding here against the collector is a "civil suit," removable under section Rev. St., is entirely clear. Weston v. City Council of Charleston, 2 Pet. 449,464. Defining a "suit," within the meaning of the judiciary act of 1789, Ohief Justice MARSHALL there says:
M'CULLOUGH V. LABGE.
"The term is certainly a very comprehensive one, and is understood to ap'" ply to any proceeding in a court of justice by which an individual pursues that remedy in a court of justice which the law affords him. The modes of proceeding may be various, but if a right is litigated between parties in a court of justice, the proceeding by which the decision of the court is sought is a suit." An authenticated copy of the record and proceedings in the court of common pleas has been filed, as authorizod by the statute, in this court by the collector, who has also here filed his answer to the petie tion of the sheriff and to the rule to show cause. It appears that the warehouse in which the whisky in question was and is stored is a distillery warehouse, under section 3211 of the Revised Statutes, and, with its cont&nts, subject to the provisions of that and other sections of title 35, "Internal Revenue," and of the amendatory act, approved May 28, 1880, (21 St. at Large, 145.) It is a bonded warehouse of the United States, under the direction and control of the said Frank P. Case, the collector of. the district, and in charge of the internal revenue store-keeper assigned thereto. The entry far deposit in sncn warehouse is to be made by the disti.ller or ownel' of the distilled spirits, under oath, specifying the kinds of spirits, the whole number of packages, the marks and serial numbers thereon, and other particulars. Section 3234 of the Bevised Stat· utes, as amend-ed by the act of .March I, 1879, (20 St. at Large, 337,) and section 5 of the act of :May 23, 1880, (21 St. at J.Jarge, 146,) regnlates the withdrawal of spirits from the warehouse on llhe payment of the tax thereon. Such withdrawal can only be made on application to the pr.oper collector, on making a withdrawal entry in dupli. cate, in a prescribed form. Such entry must specify the whole number of casks or packages, with the marks and serial numbers thereon, the number of gauge or wine gallons, and of proof gallons and taxable gallons, and the amount of the tax on the distilled spirits contained in them at the tima they were deposited in the distillery warehouse; and said entry must a180 specify the number of gauge or wine gallons and of proof gall'Jns and taxable gallons contained in said casks or packages at the time application shall be made for the withdrawal thereof, all of which muet be verified by the oath of the person making such entry; and the removal is to be made upon the order of the collector, addressed to the store-keeper in charge, and after the gauge ing, stamping, and branding of the casks by United SGates officials. Section 3295. These sections, we think, preclude the exercise. by the sheriff of the authority claimed by him here. It is plain that such officer cannot make the sworn withdrawal entry required by the statute, and, in fact, in the present instance the sheriff did not propose so to do. We find no provision in any part of the internal revenue laws giving countenance to the idea that a sheriff has a right to enter a bonded warehouse of the United States and seize spirits held therein for government tax, as the property of the defendant in
an execution in his hands, even though he may offer to pay the tax. Our conclusion that the whisky in question was not liable to seizure by the sheriff is well sustained by adjudged cases. In Harris v. Dennie, 3 Pet. 292, the supreme court held that the United States having a lien on imported goods for the payment of duties accruing on them and not secured by bond, and being entitled to the custody of them from the time of their arrival in port until the duties are paid or secured, an attachment thereof by a state officer is an interference with such lien and right to custody, and, being repugnant to the laws of the United States, is void. There, ftt the time of the attachment, the sheriff offered to give security ful' the duties, which the collector declined accepting. In Fischer v. Daudistal,9 FED. REP. 145, a writ of foreign attachment from a state court was served on the United States collector at the port of. Philadelphia, and the attaching creditor tendered him the duties on the imported goods sought to be reached, which tender was declined. Thereupon the court from which the attachment issued granted a. rule upon the collector to show cause why he should not receive the duties and surrender the goods into t.1e custody of the court. The case having been removed into the United States circuit court, was argued before Judges McKENNAN and BUTLER, and the service of the attachment as to the collector set aside, on the ground that it would not lie against him in respect to goods of the defendant held for duties. The present case is not distinguishable in principle from those above. cited. The whisky in question was virtually in the possession of the United States,-held for internal revenue taxes,-and the sheriff could not rightfully disturb that possession. The collector, therefore, was guilty of no contempt or unlawful obstruction of the process of the court of common pleas when he refused to permit the sheriff to enter the bonded warehouse of the United States and 'make the proposed levy. Mr. Justice BRADLEY authorizes me to say that he concurs in this opinion and in the following order:
And now, May 23, 1884, this cause haVing been heard and duly considered by the court, the rule granted by the court of common pleas, No.2, of Allegheny county, Pennsylvania, upon Frank P. Case, United States collector of internal revenue, to show cause why an attachment should not issue against him, etc., is discharged; and it is ordered, adjUdged, and decreed that the aforesaid petition of William McCallin, sheriff of said county, be disBy THE COURT. missed, at his costs.
NEW YORK OENT. & H. B. B. 00.
and others v.
NEW YORK CENTRAL &;
H. R. R.
(Circuit Oourt, S. D. New York. May 26,1884.) 1.
REHEARING-MoTION TIONAL F Ac'rs, AFFIDAVITS AGREED S'rATEMENT OF FACTS ADDI-
Where a case is tried npon an agreed statement of facts, a motion for a rehearing will not, be granted when the affidavits upon which it is based fail to disclose adequate reason why additional facts, which the party fUlly knew at the time the agreed statement was signed, should be introduced.
INSURANCE-To INURE TO BENEFI'r OF CA.flRIER BY AGREEMENT WITH OWNEll,
The rule that an insurer, when he has indemnified an owner of property fOL a loBS occasioned by a carrier, is entitled to all the means of indemnity whiell the satisfied owner held against the carrier, and that the owner cannot, atter loss, reJinguish any rights to which the insurer is entitled, does not mean that, the owner and the carrier may not, at the time the goods are shipped, and before insurance is efIecLed, make, without fraudulent concealment, a valid agreement that any insurance shall inure to the benefit of the carrier.
Motion for Rehearing. See S. C. 17 FED. REP. 905. Geo. W. Wingate, for plaintiffs. Frank Loomis, for defendant. SHIPMAN, J. This case was originally tried upon an agreed statement of facts which did not contain the terms of the policy of insurance. The plaintiffs move for a rehearing in order to introduce the policy of insurance, which they claim is important. I do not perceive that any adequate reasOn is given in the affidavits why additional facts, which the plaintIffs fully knew at the time that the agreed statement was signed, should now be introduced, The counsel for the plaintiffs has also reargued the case upon the old statement of facts, and has insisted that the shipper and the carrier cannot enter into a valid contract, at the t:me of the shipment of the goods, whereby the carrier may obtain the benefit of the insurance, beC'ause the insurer is, as matter of law, entitled to pursue the remedy of the shipper against the carrier in case the former has received a full indemnity from the insurer, and therefore that his legal right, after full payment of the loss, to sue the carrier in the name of the insured, cannot be impaired in any way. It is true that the insurer, when "he has indemnified the owner for the loss, is entitled to all the means of indemnity which the satisfied owner held against" the carrier, (Hall v,' Railroad G08. 13 Wall. 367,) and that the owner cannot, after a loss, relinquish any rights to which the insurer may be entitled; but this does not mean that the owner and the carrier may not, at the time the goods are shipped, and before insurance is effected, make, without fraudulent concealment, a valid agreement that any insurance shall inure to the benefit of the carrier. The law has not interdicted the owner from making, at the time the goods are shipped, a contract in regard to insurance with the carrier, provided no fraud or fraudulent concealment is practiced upon the insurer. This is recognized in the Hall Case,
supra, for the court, after commenting upon the supposed difference between tbHght of subrogation in marine insurance and in fire insurance upon land, say:'
"There is, then, no reason for the subrogation of insurers, by mar:ne policies, to the rights of the assured against a carrier by sea which does not exist in support M a like sUbrogation in case of an insurance against fire on land. Nor do theauthQrities make any'distinction between the cases, though a carrier may, byatipulation with the owner vf the goods, olJtain the benetit of insurance." .
The motion for a rehearing is denied.
PENTLARGE v. NEW YORK BUNG & BUSHING Co. and others.
(Circuit Vourt, S. D. New York.
PATENTS FOR INVENTIONs-Bm,mF FOR INFRINGEMltN'r, WHEN GRANTED.
Relief for the infringement of a patent will not be granted unless the patents interfere.
in patents are distinct, and neither covers the same things . as the other, they do not interfere.
In Equity. B'l'odhead,King rt Voorhies, for complainant. Wyllys Hodges, for defendant. WHEELER, J. The orator owns reissued patent No. 10,175, dated Augustl, 1882, the original of which was No. 192,386, dated June 26, 1877, granted to himself and Philipp Hirsch, for a vent-bung. The defendants own patent No. 203,316, dated May 7, 1878, and granted to George Borst for an improvement in bungs. This bill is brought under section 4918, Rev. St., to have the latter patent declared void.. There were bungs having a hole nearly through them, leaving a thin web of the wood on the inside, to be driven through in venting the cask, as described in the patent of Rafael Pentlarge, No. 148,747, dated February 18, 1874. The orator's patent is for a bung with a hole on each surface, and a web between the holes in the interior of the bung. The Jefendant's patent is for a bung Eke Rafael Pentlarge's,. with a core left on the web by a groove cut around it, leaving.it ready for removal, Or for a bung like the orator's with a like core on one Or both sides of the web. The orator is not, and is not claimed to be, entitled to any reLief here unless his patent and the defendant's interfere. Mowry v. Whitney 14 Wall. 434. The patents are each good for the difference only between the hungs described in them and those in existence before. Ry. Co. v. Sayles, 97 U. S. 554. The difference between the orator's bung and Rafael Pentlarge's was the having the web in the interior inste.ad of at the inner surface, and