ALBANY & RENSSELAER IRON & STEEL CO.
And it may not have jurisdiction in an action upon a note or bond for $1,800, upon which there may be due and unpaid four years of interest. Such inconsistencies are for the consideration of congress, and not the court. But, say the plaintiffs, suppose that the claim is wholly for interest,-for example, a bond for $100,000, payable in 10 years, interest payable annually; on this bond let one or more installments of interest be due, - is the court excluded from jurisdiction? Clearly it would not be. Each installment of interest due itself becomes an interest-bearing fund; a sum certain and a distinct cause of action; a matter in dispute in itself actionable independent of the fact that the bond is not due. The relators contend that the return cannot impeach the validity of the judgment; that this cannot Le inquired into collaterally; and that, for the purposes of this rule, the judgment must stand. If there be error in the judgment, it can be corrected only by appeal. There can be no doubt that where the parties and the subject-matter, or either, are within the jurisdiction of the court, the judgment cannot be impeached for error in whole or in part in a collateral proceeding.. The only mode of correcting it is an appeal. Kempe'8 Le88ee v. Kennedy, 5 Cranch, 185; Skillern v. May, 6 Cranch, 267; Bank v. MoBS, 6 How. 39; U. S. v. Hackabee, 16 Wall. 435. See Walker v.H'iJl, (Ind.) 12N. E. Rep. 387. But when it appears by an inspection of the record that the <lOurt was wholly without jurisdiction,-that the matter was coram non judice,-the judgment is void and of no effect, and must be disregarded. Elliott v. Les8ee of Peir80l, 1 Pet. 328; Miller v. Miller, 1 Bailey, Law, 244; James v. Smith, 2 S. C. 188; Freem. Judgm. 188. See Pasteur v. Lewis, (La.) 1 South. Rep. 307. This court, it must be remembered, has but a limited jurisdiction in mandamus. Its authority to issue the writ is solely in aid of its jurisdiction. Bath v. Amy, 13 Wall. 244; R08lmbaum v. Bauer, 120 U. S. 450, 7 Sup. Ct. Rep. 633. The first question, then, is, is the matter to be enforced within the jurisdiction of the court? In the present case it is not. Let the rule to show cause be dismissed, and the mandamu8 be· refused.
(Circuit Court, S.
EVIDENCE-AT FORMER TRIAL-REVERSAL AND REMAND OF CAUSE.
In an action in which a new trial has been ordered in a United States circuit court in New York, to recover damages for breach of a contract to purchase a quantity of iron which defendant refused to accept because it was not of the proper quality, the power of the court is doubted to grant a motion of defendant to be permitted before trial to take borings from pigs of iron, tht. property of the firm, for which plaintiff is agent, and in his possession, and to make an analysis of said borings, to be used as evidence upon the second trial, on the gronnd that, as the Pigs were offered in evidence on the former trial and would be offered again, they were under the control of the court,
,Action forbrea,ch of contract for the sale of iron, which defendant fused to accept on acc.ount of alleged imperfections. On appeal from It verdict in plaintifFs favor, the United States supreme court reversed the judgment and: remanded the cause for second trial. See 7 Sup. Ct. Rep. 958,. " J. W. Eaton, Jr., and Edwin Countryman, for the motion. Everett P. Wheeler, against the motiot;l. SHIPMAN, J. This is a motion, jn an action at law, that the defend8,nt be permitted to take borings from three pigs of iron, now the property of the firm for which the plaintiff is agent, and in his possession, analysis of said borings, which analysis is to be used as and to evidence upon the next trial of said cause. Upon the former trial to the jqry,the plaintiff introduced an analysis of the borings taken from said three pigs. The action is for an alleged breach of contract for the purchase of a large quantity of iron which was furnished and acceptance of which was refused,and of which these pigs are a part or sample. The amount of phosphorus which was contained in the iron is an important question of fa,ct in the case. The defendant has other analyses taken from other samples. The ground upon which the. motion is placed is that as the pigs have. once been ·offered in evidence,and will undoubtedly 1:>e offered again, they are now, in a certain sense,under the control <;lfthe, court. It is to be noticed that no /tuthority is given by statute to the courts of common law of the United States or of the state of New York, to direct 1,1.11 inspection and examination afthis species of personal property before trial. It is substantially conceded that, if the case had not·pnce,been tried, the motion would not be pressed. Amen v. Tuska, lRob.(N. Y.) 663; Miner, v. Gardiner, 4 Hun, 132; Cooke v. Lalance ¥nnuf'g Co., 29 Hun, 641I hav(" very serious doubts of the power pf this court to make such an ord,erbefore the trial; and before the. articles have been offered in e'lidence, although they were offered upon a former trial.,Upon the trial, when the articles are in court for the purposes of evidence, they will be for the time being, to its direction and control. I am not clear that I have power, at the present time, to direct that the defendant shaH have an inspection of the articles which are the property of the plaintiff or of his principal, and which are to become a part of his testimony in the case.. The case of Hewitt v. Pigott, 7 Bing. 400, which was a motion for the inspection of a deed'whichhad been read upon the former trial, an inspection of which was wanted for the purpose of ascertaining its language, does not seem to. be controlling. The motion is denied, with leave to renew it, if so advised, upon the tdal of the case.
CITY AND COUNTY OF SAN FRANCISCO.
CITY AND COUNTY OF SAN FRANCISCO and another.
(Oircuit Oourt, N. D.Oalifornia. September 5, 1887.)
MUNICIPAL ORDINANCE-REMOVAL OF DEAD ANIMALS-CONTRACT-ExOLUSIVE PRIVILEGE-INJUNCTION.
The city and county of San Francisco. under the power vested in all municipal bodies to provide for the health of their inhabitants, and by virtue of express provisions of the constitution of California, art.H, § 11, and by the consolidation act of 1863, has power to make regulations for the removal from its limits of dead animals, not slain for human food. Pursuant to this authority,. the board of supervisors entered into a contract, and passed the neclilssary ordinance to give it effect, known as the "Dead-Animal Contract," whereby plaintiff and his assigns were granteel the exclu5ive privilege, for 20 years, of having and removing all 'dead animals not slain for food. During the existence of thecontract, the board of supervisors passed a resolution directing its clerk to advertise for. proposals from parties desirous of obtaining the car casses of dogs killed by the pound-keeper pursuant to the order of the board, and repealing "all orders or resolutions, or parts of orders or resolutions. 'in conflict with this resolution. ", The ,plaintiff asked for an injlinctioll . ing the board from passing or carrying out such a resolution. Held, that the passage of lI. resolution or order or ordinance providing for the removal of dead animals by the board was a. matter of legislative discretion, and an injunction restraininj:\' the' passage of such a resolution, order, or ordinatlce would .not be granted by the.circuit court of the United States. 1 .. .
SAME-"DEAD-ANuIAL CONTRACT" OF SAii FRANCISCo-DUTY OF POUNDKEEPER, . . .
The contract known as. the "Dead-Animal Contract." whereby plaintiff and his assigns were granted,' by the board of supervisors of San the exclusive privilege, for 20 years, of having and removing the carcasses Of all dead animals, not slain fbrioo. d, sUbjec.t to the regulations and. c.o.ntrol of the supervisors, provides that it shall "be the duty of tbe keeper tbe public pound to notify the plaintiff .orhis assigns to remove the animals. destroyed by him." Reld, that the plaintiff is entitled to an injunction restraining the pound-keeper from delivering, or ca.using to be delivered, to any other. person than pla.intiff or his assigns, such carcasses during the Ilxist!'lDCe of the contract.
The plaintiff has filed a bill against the city and county of Ban Francisco, its mayor, supervisors, and pound-keeper, to prevent any' obstruction by them to the execution of a contract between him and the city and county, known as the' Dead-Animal Contract." And he applies for a provisional injunction against the municipality to restrain the passage Many resolution, order, ot ordinance, which will impair the obligaEon of that contract. The injunctiori'is asked upon the bill and affidavits. and their allegations not being controverted, are, for the purposes of this application, to be taken as true. It appears by them that ill April, board of supervisors made a contract with one G. Wetzler, for 1866, the removal from the city limits, at hil:' own cost and expense, for °a period of 20 years, of all dead animals not slain for human food; to some
lIn an injunction to restrain the anticipated action of board'bfsllpervisors of a county in paying ct'l'tain alle-ged claims will not be granted, it !:leing hardly claimed that the board has nojurisdiction. Mprriam v. Yuba Co., 14 Pac. ReIl.137·. But that courts have jurisdiction to enjoin the board of supervisors ofa mnnICipal corporation from passing an ordinance which is not within the scope of their powers, ",bere the pll8sage of sucb ordillallC(; would work irreparable injury,see Water-Works v.Mayor, 16 Fed. Rep. 615. .