Volume 108 — United States Reports

<p>Review of the legislation' and practice of the court relating to taxation of the clerk’s fees for printed copies of records. Change in rules announced.</p>

<p> Practice. </p> <p>It appearing that a personal decree for money could not be given, and tbe circumstances of the parties not being shown to have changed since the security was taken, a motion for additional security on the supersedeas bond was denied.</p>

The defendant moved to dismiss the writ of error, to affirm the decision below, to strike out assignments of error, and to advance the causes.

Held: that 0 acquired the Jife estate of A; that the heirs of A were entitled to recover; and that neither the United States nor C was subrogated to the rights of B; also, 2. That under the practice of Louisiana, C could not, after going to trial on the petition, object that it was defective by reason of not setting forth the deed under which he claimed title.

Bill in equity to enforcer specific performance of an ■ agreement to convey real estate. The following were the facts as. stated by the court: On the 22d of November, 18 76, the parties to this suit made and signed the following memorandum in pencil: November 22d, 1876. “I propose to give my house on 8th street, subject to $2,000, for one house on Delaware avenue, and one farm in Fairfax Co., Va., and $525 cash. “ Geo.

Held: in Cannon v. Pratt, 99 U. S. 619 , might be done. Afterwards the district ‘court heard the cause and found the facts and stated its conclusions of law thereon, as required by the Practice Act of the Territory.

<p>Error — Practice.</p> <p>A writ of error sued out by one of two or more joint defendants without a summons and severance or equivalent proceeding, must be dismissed.</p>

<p>Error — Practice—Statutes.</p> <p>A case not tried in a territorial cohrt by a jury eannot-be brought for review by a writ of error.</p>

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF LOUISIANA.</p> <p>Motion to dismiss the appeal.</p>

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF MISSISSIPPI.</p> <p>Motion to dismiss.</p>

this is a suit begun in a State court of Missouri'by the Wig-' gins Perry Company, an Illinois corporation,- against the-Chicago & Alton Railroad Company, another Illinois corporation, to recover damages for the breach of a contract by which, as is alleged, the railroad'company bound itself not to employ any other means than the ferry company’s ferry for the transportation of passengers and freight, coming and going on its railroad, across the Mississippi at St. Louis.

Held: that under the decisions of the courts in Illinois, this was proof that such deed and memorandum were of record, so as to give notice to subsequent purchasers. This was an action for the possession of real estate in Illinois, involving title. The plaintiffs claimed under a sale on execution in a judgment recovered by the United States against one Duncan.

<p>Bankruptcy — Fraudulent* Preference.</p> <p>A creditor, dealing with á debtor whom he may suspect to be in failing circumstances, but of which he has no sufficient evidence, may receive payment or take security without necessarily violating the bankrupt law. When such creditor is unwilling to trust a debtor further, or feels anxious about his claim, the obtaining additional security, or the receiving pay- . ment of the debt is not prohibited, if the belief which the aet requires is wanting. Grant v. National Bank, 97 U. S. 80, approved and followed.</p>

Held: and that citizens of New York now hold and own bonds of the same class to a large amount. Testimony has been taken in support of this averment. Mr. Wheeler H. PecTchmi for the State of New Hampshire. —I. ' The controversy is one arising on a contract. This species of controversy is within the jurisdiction of the court.— II.

Held: That in cases coming from the Supremé Court of Louisiana the

' This was a suit to recover back duties exacted by the plaintiff in error, as collector of the port of New York, on glass bottles imported in June, 1879, from1 Antwerp,- The bottles contained natural mineral water.

<p> Customs Duties, </p> <p>The decision of this court, in Schmidt v. Badger, 107 U. S. 85, that, under the statutory provisions in question .in this case, the proper duty on the importation of glass bottles containing beer, was a duty of SO percent, ad valorem on the bottles, in addition to a specific duty of 35 cents a gaEon on the beer, confirmed and appEed to this case..</p>

Held: in substance, that, as there was legislative authority to issue bonds for-municipal purposes, and it was recited in the bonds then sued on that they were issued for such purposes, the city was estopped from proving, as against bona fide holders, that the recitals were untrue.

Action t.o recover back duties claimed to have been illegally exacted by the collector of New York. -cited Drnies v. Arthur, 96 U. S. 148; Arthur v. Hernpan, 96 U. S. 141; Murphy y. Arnson, 96 U. S. 131. cited Smythe v. Fisk, 23 Wall. 374; Stuwrt v. Maxwell, 16 How. 150; Boss v. Peaselye, 2 Curtis, 499; Murphy v. Arnson, 96 U. S. 131; Arthur v. Herman, 96 U. S. 141; Dmies v. Arthur, 96 U. S. 148.

This ivas a suit in equity, begun in a State court of Michigan, by Henry M. Loud,, the appellee, a citizen- of Michigan, against Charles Winchester and Herbert F. Whiting, citizens of Massachusetts, and George E. Wasey, Henry N. Loud, and Aaron F. Gay, citizens of Michigan, and removed to the-Circuit Court of the United States for the Eastern District of Michigan at the instance of the defendant Winchester, on the ground, as stated in the petition for removal, “ that the…

Held: The decree was a final decree, as to E. 2. The amount involved in the original suit was the $9,000. 3. The agreement created no liability on tfie'part of E. to pay the debt to D. . 4. There was a departure in the deed, through mutual mistake, from the terms of the actual agreement. 5.

. On May 27th, 1856, James B. Ewell' and his wife, having the legal title in fee'to the premises, made and delivered to Daggs a promissory note of that date, payable three years after date to his order, for $3,556, and to secure the same executed and delivered to Daggs a deed of mortgage upon a tract of land in Guadulupe County, Texas, containing 1,653 acres, which mortgage was duly proved and recorded on Juné 5th, 1856.

<p>APPEAL PROM THE CIRCUIT COURT OP THE UNITED STATES POR THE DISTRICT OP NEVADA.</p> <p>Appeal from an order of the court below remanding a suit removed-into it from a State' court of Nevada.</p>

<p>This case involves no law. On the facts the decree of the State court is-affirmed.</p>

<p>IN EEEOE TO THE CIECUIT COURT OF THE UNITED STATES FOE THE SOUTHERN DISTRICT OF NEW YORK.</p> <p>Action to recover back duties alleged to have been illegally, exacted. The whole question was whether the suit was begun in time, it being conceded that the plaintiffs had a good cause of action if not barred by the statute. ■ The facts appear in the opinion of the court.</p>

APPEAL PROM THE CIRCUIT COURT OP THE IÍNITED STATES POR THE NORTHERN DISTRICT OP ILLINOIS. Motion to dismiss for want of jurisdiction. This suit was brought to set aside a tax sale. The plaintiff below paid the amount of the taxes, $1,120.79, and costs of suit into court. The court, on hearing set aside the tax rule. The defendants. below appealed.

Held: as to a defendant, that his rights depended on the matter in dispute in this court, we entertain no doubt it was the intention of the court to adopt as an entirety the position of Mr. Justice Iredell in his dissenting opinion, and to put both sides upon an equal footing.

Held: The requirements of the circular were within the power of the commissioner to prescribe, under § 3396 ; 2. The sales at retail were in violation of law ; 3. The forfeiture claimed was incurred.

Action against the municipality of Savannah to recover on a guaranty of the payment of the principal and interest of the bonds of the Savannah, Albany & Gulf Kailroád Company.

<p>IN ERROR TO THE CIRCUIT COURT OE THE UNITED STATES EOR THE SOUTHERN DISTRICT OE GEORGIA.</p>

Held: when not charged as a conspiracy, hot to be violations of the statutes. Mr. Assistant Attorney-General Maury for the United States. Mr. Geo. JI. Shields and Mr. Chester A. Krum for defendants. •

<p>ON CERTIFICATE OF DIVISION IN OPINION, FROM THE EASTERN DISTRICT OF MISSOURI.</p> <p>Indictment against the president of a national banking association. The indictment contained three counts. It was found by the same grand jury as the indictment in case No. 406, just decided, and was remitted and transferred to the circuit court in like manner.</p> <p>The first count charged that the defendant, James H. Brit-ton, on March 24th, 1877, within the Eastern District of Missouri, being the'president and a director of the National Bank of the State' of Missouri, the shme being a national banking association organized under the act of Congress, “ did cause and procure to be then and there received and discounted by said association a promissory note, which said note was then and there in the words and figures following :</p> <p>“|20,835.] ■ St. Louis, March 24th, 1877.</p> <p>“Four months after date I promise to pay to the order of Geo. F. Britton, negotiable and payable at the National Bank of the. State of Missouri, in St. Louis, twenty thousand eight hundred thirty-five dollars, for value received, without defalcation or dis; count, with interest, after maturity, at the rate of ten per cent, per annum.</p> <p>“J. H. Britton.”</p> <p>That the note was indorsed as follows: “ Geo. F. Britton.” That the defendant converted to his own use the proceeds of the discount of said, note, to wit, the sum. of $20,251.63; that said note, when so discounted, was not well secured; that “ said James H. Britton, and the said payee and indorser of said note, to wit, one George F. Britton, were then and there insolvent, as he, the said James H. Britton, as president and director as aforesaid then and there well knew;” and that said James H. Britton, by procuring said note to be discounted, and by applying the proceeds of said discount to his own use, wilfully misapplied the said sum of $20,251.63 of the money and funds of said association, Avith intent then and there to defraud said association and certain persons to the grand jurors unknown.</p> <p>The second count charged that on June 2d, 1877, within the Eastern District of Missouri, one George F. Britton was indebted to said association in the sum of $79,480.23, as the maker of five promissory notes then unpaid. That said indebtedness of George F. Britton was knoAvn to James H. Brit-ton, president and director of said association; that on said June 2d, 1877, said notes were not well secured and said George F. Britton was insolvent, both of which facts said James H. Britton then well kneiv. ‘ Nevertheless, said James H. Britton, as president and director of said association, did then and there receive and discount a note for $800, dated June 2d, 1877, due and payable on August 5th, 1877,- signed by the said George F. Britton as maker, and indorsed by him, the said James H. Britton, he then being insolvent, as he then well knew; that said Jaipes EL Britton did then and there pay out of the moneys and funds of said association, as the proceeds of said discount, to the said George F. Britton, the sum of $780.45, contrary to the form of the statute, etc.</p> <p>The third count charged that on May 18th, 1877, within the Eastern District of Missouri, said James EL Britton was president and a director of' said banking association; that from April 12th, 1873, to May 18th, 1877, one Alfred M. Britton had been continuously indebted to said association in the sum of $37,122.67, as maker of a certain promissory note during the same period, owed and held by said association, and was then indebted to said association for interest past due on said note in the further sum of $4,529.01; that said Alfred M. Britton was on said May 18th, 1877, insolvent; that on the day and year last named there was in the moneys and funds of said association to the credit of said Alfred M. Britton the sum of $36,860.45; that said James EL Britton, well knowing the said indebtedness of "Alfred M. Britton to said association and his said insolvency, failed and neglected to cause to be applied to the said indebtedness of said Alfred M. Britton the said sum of $36,860.45, so as aforesaid in the moneys and the funds of said association to the credit of said Alfred M. Britton, and did then and there wilfully permit said Alfred M. Britton, while so indebted, to transfer and assign said sum of $36,860.45 to the credit of the City National Bank of Fort Worth, Texas. “ And so the said James EL Britton did -wilfully misapplv'the said sum of $36,860.45 of the moneys of said association, with intent to injure and defraud said association and certain persons to The grand jurors unknown, contrary,” &c.</p> <p>Upon demurrer to the indictment the judges of the circuit court were divided in opinion upon the question whether- the several counts charged with sufficient certainty an offence under section 5209 of the Revised Statute's. The case- comes, to this court upon this certificate of division.</p>

<p>Brand — Indictment—National Banks.</p> <p>1. In an indictment for a conspiracy under § 5440 Rev. Stat., the conspiracy must be sufficiently charged : it eapnot be aided by averments of acts done by one or more of the conspirators in furtherance of the object of the conspiracy.</p> <p>2. The procuring by two or more directors of a national banking association of a declaration of a dividend by the bank at a time when there are no net profits to pay it, is not a wilful misappropriation of the money of the association within the provisions of § 5204 Rev. Stat. ; and an allegation of a conspiracy to do that act is not an allegation-of a conspiracy to commit an offence against the United States.</p>

Held: That the courts should acquiesce in the determination by the qualified voters and the local authorities that the proposed road was near the township, and hold that there was legislative authority for issuing the bonds. Suit to recover on interest coupons of bonds issued by the county in payment of a subscription to the capital stock of the St. Louis & St. Joseph Railroad Company.

<p>APPEAL PROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MAINE.</p> <p>Bill in equity to restrain the defendants from using an alleged trade-mark of the complainant, upon certain medicines prepared by them, and to compel an accounting for the profits made from its use in their sale of the medicines; also, the payment of damages for their infringement of the complainant’s rights. ¶</p> <p>The complainant, a corporation formed under the laws of New York, manufactured in that State medicines designated as “Atwood’s Yegetable. Physical Jaundice Bitters;” and claimed as its trade-mark this designation, with the accompanying labels. Whatever right it possessed it derived by various mesne assignments from one Moses Atwood, of Georgetown, Massachusetts. The bill alleged that the complainant was, and for a long time previous to the grievances complained of had been the manufacturer and vender of the medicine mentioned; that it was put up and sold in glass bottles with twelve .panel-shaped' sidés, on five of which in raised words and letters “Atwood’s Genuine Physical Jaundice Bitters, Georgetown, Mass.” were blown in the glass, each bottle containing about a pint, with a light yellow printed label pasted on the outside designating the many virtues of the medicine, and the maimer in which it was to'be taken; and stating that it was manufactured by Moses Atwood, Georgetown, Mass., and sold by his agents throughout the United States.</p> <p>The bill also alleged that the bottles thus filled and labelled were put up in half-dozen packages with the same label on each package; that the medicine was first invented and put up for sale about twenty-five years ago by one Dr. Moses Atwood, formerly of Georgetown, Massachusetts, by whom and his assigns and successors, it had been ever since sold “ by the name, and in the manner, and with the trade-marks, label, and description substantially the same as aforesaid; ” that the complainant was the. exclusive owner of the formula and recipe for making the medicine, and of the right of using the said name or designation, together with the trade-marks, labels, and good will of the business of making and selling the same; that large sales of the medicine under that name and designation were made, amounting annually to twelve thousand bottles; that the defendants were manufacturing and selling at Portland, Me., and at other places within the United States unknown to the complainant, an imitation of the medicine,' with the same designation and labels, and put up in similar bottles, with the same, or nearly the same, words raised on their sides, in fraud of the rights of the complainant and to its serious injury; that, this imitation article was calculated and was intended to deceive purchasers, and to mislead them to use it instead of the genuine article manufactured by the complainant, and had had, and continued to have, that effect. The bill, therefore, prayed for an injunction to restrain the defendants from affixing or applying the words “Atwood’s Yegetable Physical Jaundice Bitters,” or either of them, or.any imitation thereof, to any medicine sold by them, or to place them on any bottles in which it was put up, and also, from using any labels in imitation of those of the complainant. It also prayed for an accounting of profits and for damages.</p> <p>Among the defences interposed were these: that Moses Atwood never claimed any trade-mark of the words used in connection with the medicine manufactured and sold by him; and assuming that he had claimed the words used as a trade-mark, and that the right to use them had been transferred to the assignors of the compla’nant, it was forfeited by the misrepresentation as to the manufacture of the medicine on the labels accompanying it, a misrepresentation continued by the complainant.</p> <p>The cause was heard before Clifford, J., and the bill was dismissed with costs. From this decree the plaintiffs appealed.</p> <p>The main part of this brief was occupied with a discussion of the facts. The following points of law were taken. The name adopted was a good.trademark, assignable, and entitled to protection in the hands of the assignee. McLean v. Fleming, 96 U. S. 245 ; ELM v. Johnson, 100 U. S. 617; Hall v. 'Ba/rrows, 4 DeG. J. & S. 150; 33 L. J. (N. S.) 204; 10 Jurist (N. S.), 55; Fulton v. Sellers, Penn. Sup. Ct. 4 Brewster, 42; Field v. Lewis, Seten, 4th ed. 237. The law will not allow one man to sell his goods as those of another by the use of similar labels. Perry v. Truefitt, 6 Beavan, 66 ; Croft v. Day, 7 id. 84; Taylor v. 'Carpenter, 11 Paige, 292; Coffeen v. Brinton, 5 McLean, 256; Taylor v. Taylor, 2 Eq. Rep. 290; Farina v. Silmerlock, 2 Jurist (N. S.), 1008; Brooklyn White Lead Co. v. Masury, 25 Barb. 416; Edelston v. Edelston, 9 Jurist (N. S.), 479; Boardmanv. The Meriden Britannia Co., 35 Conn. 402; Colman v. Crump, 70 N. Y. 573. A transfer and succession of business of an article carries with it its trademarks by implication. Shipwright v. Clements, 19 W. R. 599; The Congress and Empire Spring Co. v. The High Rock Spring Co., 45 N. Y. 291. The law presumes when one intentionally uses or closely imitates another’s trade-marks, merchandise, or manufactures,- that he does it for the fraudulent purpose of inducing the public or those dealing in the article to believe that the goods are those made or sold by the latter, and of supplanting him in the good will of his trade or business. Taylor v. Carpenter, 11 Paige, 292. The rule is-that the court will enjoin any imitation calculated to deceive ordinary purchasers. Cromshay v. Thompson, 4 Man. & G. 385; Danis y. ' Kendall, 2 R. I. 556; Holmes v. Holmes, dkc., Company, 37 Conn. 278; Wotherspoon v. Currie, 22 L. T. R. (N. S.), 260; HooJcman y. Pottage, 26 L. T. R. (N. S.), 755. To be enjoinable it is not necessary that the imitation should be complete; the imitation may be limited and partial, and still be enjoinable., Loclewood y. Boswiek, 2 Daly (N. Y.), 521; Franks v. Wearer, 10 Beavan, 297; Goffeen v. Brinton, 4 McLean, 516; Shrimpton y. Laight, 18 Beavan, 164; Walton y. Crowley, supra • Clark v. Clark, 25 Barbour (N. Y.), 76; Brooklyn White Lead Company, v. Masury, id. 416; Hostetler v. Bowinklé, 1 Dillon, 329. To be enjoinable it is not requisite that the imitation should be intentionally deceptive. Millington v. Fox, 3 Mylne & Cr. 338; Dale vi Smithson, 12 Abb. Pr. R. (N. Y.). It is no defence that the imitator informs -purchasers of the imitation. It is no answer for .the defendants to say that they sold the bitters as theirs. Coats v. Holbrook, 2 Sandf. Ch. 586; Chappel v. Davids-son, 2 Kay & J. 123. It is sufficient to establish a case for relief to show that the imitation has led or is likely to lead to mistakes. Clement v. Maddiok, 5 Jurist (N.- S.), 592. The plaintiff, in trade-mark cases, is entitled to' relief, though the respondent did not know that the mark used was a trade-mark. Kinaham y. Bolton, 15 Irish Ch. 75; Harrison v. Taylor, 11 Jurist (N. S.), 408; Hall v. Barrows, 10 id. (N. S.), 55; Ainsworth y. Walmsley, 12 id. 205. The fact that the trade-marks were used in-common by the several owners thereof, did not' make them common property as to the wprld. Condy y. Mitchell, 26 W. R. 269; Motley v. Douiman, 3 .My. & Cr. 1; Robinson v. Finlay, 27 W. R. 294; Western v. Keteham, 39 N. Y. Superior Court, 54; Rogers v. Taintor, 97 Mass. 291; Sold y. Geisendorf, 1 Wilson (Ind.), 60. No statute of limitations bars the plaintiff of protection of its trade-marks. Taylor v. Carpenter, 3 Story, 458 ; Taylor v. Carpenter,'It Wood & M. 1.</p>

Held: in possession from June, 1862, to September, 1865, the enemy held that firm possession of, which enabled this enemy to exercise the fullest rights of sovereignty over.

Original; This was an application for a writ of mandamus to the Circuit Court of the United States for the Eastern District of Louisiana, requiring that court to take jurisdiction of, and hear and determine an appeal by the petitioner, Emery E. Norton, from a decree of the district court of that district.

Held: That the act of 1873 fully empowered the District and the company to make the new agreement, transferring a part of the land to the District and diminishing the rent for the remainder. 2. That there was nothing in the act of 1870 which established an irrevocable charitable trust for the benefit of the poor of Washington. 3.

<p>Conflict of Laws — Executor and Administrator.</p> <p>When a debt due.to a deceased person is voluntarily paid by the debtor at his own domicil in,a State in which no administration has been taken out, and in which no creditors or next oí kin reside, to an- administrator appointed in another State, and the sum paid is inventoried and accounted for by him in that State, the payment is good as against an administrator afterwards appointed in the State in which the payment is made, although this is the State of the domicil of the deceased.</p>

appeal' FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH 'CAROLINA. Bill in equity by a creditor to obtain the benefit of securities held by sureties of the principal debtor. T,he appellee, who was complainant below, was the holder, and filed his bill in equity, on behalf of himself and the other holders of bonds, executed and delivered by Theodore I).

The case was decided at October term, 1882, and is reported 107 U. S. 602. We ask rehearing on a single point involved in the opinion of the. court, viz., when the court say: “ As the gift was to take effect only upon the death of the donor, it was not a present executed donaUo causa mortis, but a testamentary disposition, void for want of compliance with the statute of wills.” The gift was executed in the State of Tennessee.

Action to recover five per cent, tax on profits alleged to have been carried to a fund, or expended in construction. All the material facts, necessary to the comprehension of the controversy are stated in the opinion of the court.

Held: following the ridings of the commissioner of internal revenue, that the distiller was not liable for the capacity tax until a copy of the survey had been delivered to him.

Action to recover interest due on-municipal bonds issued in aid of a railway. Defence that the charter of the municipality and the laws affecting it conferred no power to issue such bonds, and that the bonds were issued without authority and are void. The charter of Shreveport contained no express au.bority for the issue of such bonds.. The parties agreed to the facts on the hearing below. The following are ’ the most material parts of that agreement: “2.

Proceedings against a receiver of a railroad corporation to recover damages against Mm as common carrier for injuries suffered in a collision.

Held: that the decree must be held for naught. A decree was made by a circuit court, in December, 1873, against two plaintiffs. In January,.1874, they appealed to this court. In December, 1875, the appeal was dismissed for the failure of the appellants to file and docket the cause in this court.

<p>IN error .to the circuit court of the united states for the EASTERN DISTRICT OF PENNSYLVANIA.</p> <p>Assumpsit to recover, back duties alleged to have been illegally collected on works of art.</p>

<p>' IN ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.</p> <p>Action in tbe nature of an áction on the case to recover damages for the discomfort occasioned by "the establishment of a building for housing the locomotive engines of a railroad company, contiguous to a building used for Sunday schools and public worship by a religious society. The following is the statement of facts as prepared by the court:</p> <p>The .Fifth Baptist Church, the plaintiff in the court below, was a religious corporation, created under the general- incorporation act of Congress in force in the District of Columbia. It owned a building in the city of Washington situated on D street, between Four-and-a-half and Sixth streets, which was erected and has been used' by it as a church for many years. The defendant in the court below, the Baltimore & Potomac Railroad Company, was a corporation created under the laws of Maryland, and was authorized by act of Congress to lay its track'within the limits of the city and construct other works necessary and expedient to the proper completion and main tenance of its road.</p> <p>Thé plaintiff alleged that the defehdant, in 1874, erected an engine house and machine shop on a parcel of land immediately adjoining its church edifice, and had since used them in such a way as to disturb, on Sundays and other days, the congregation assembled in the church, to interfere with religious exercises therein, break up its Sunday schools, and destroy the value of the building as a place of public worship. It therefore brought the present suit in the Supreme Court of the District for the damages it had sustained. The defendant pleaded the general issue.</p> <p>On the trial evidence was given to show that the Fifth Baptist Church had owned and used the premises described as a place of worship since 1857; that the present church building was begun in 1867, and since 1868 or 1869 had been continuously occupied by the church as its house of worship; that in 1872 the' defendant erected upon a'parcel of ground immediately adjoining the premises on the west, and from Aprilj 1874, till the commencement of this suit, maintained, an engine house, and machine shop, where a large number of locomotives and steam engines were housed and their, fires made, and to and from which the engines were propelled, and in which they were coaled, watered, repaired, and otherwise used; that when the ground was first broken for the1 erection of these works the plaintiff advised the company that, if put there, they would prove to be a nuisance and ruinous to the plaintiff’s interest, and protested against their erection; that the company, however, paid no heed to this protest, but proceeded to erect the works upon, the building line of its own premises within five and a half feet from the church edifice, and. constructed upon the engine house sixteen smokestacks, lower in height than the windows of the main room of the church; that the nearest of the smokestacks was less than sixty feet from the windows, and the others were in a semicircular curve, at gradually increasing distances ; ■ that during this period — from April, 1874, to the commencement of the present suit1 — the plaintiff was accustomed to have on every Sabbath day Sunday school exercises in the morning, preaching in the forenoon, and preaching in the evening; and that religious services were also held in it on Wednesday evening of every week,, and on the first Tuesday and Friday evenings of every month, and at. intervals protracted religious meetings were- held in it every night in the week except Saturday night; that during this p.eriod these services were habitually interrupted and disturbed: by the hammering noises made in. the workshops of the company, the rumbling of its engines passing in and Out Of' them, and the blowing off.of steam; that these noises were at times so great as to prevent members of the congregation, sitting in parts of the "church farthest from the shops, from hearing what was said; that the act of blowing off. steam' occupied from five to fifteen minutes, and frequently compelled the pastor of the church to suspend his remarks; that this was' of habitual occurrence, during the day and at night, and on Sundays as well as other days; and that in the summer time, when the Windows of the church were. opened for air, smoke, cinders, and dust were blown from the' smokestacks through the windows of the church, settling upon the pews and furniture, and soilmig the clothes of the occupants, accompanied by an offensive odor, which greatly annoyed the congregation.</p> <p>Evidence was also given to show that the railroad company, which was authorized to lay its track only, along Yirginia avenue in this city, had constructed a side track from the avenue to its workshops, crossing a part of D street and its sidewalk at a distance of about 100 feet from the door of the church; that the locomotives were allowed to stand at the entrance of its premises' with their cow-catchers protruding several feet beyond the inclosure, and sometimes to stand across the sidewalk along which two-thirds of the congregation are obliged to pass in going to and from the church; that the access to the church was thereby obstructed and rendered dangerous, and on several occasions members had barely escaped being run over by the sudden starting of the locomotives without note or warning; that the congregation had been thereby diminished, and the attendance upon the Sunday school decreaséd by about one-fóurth; that the Sunday school was a source of revenue to the plaintiff, having contributed to the construction and improvement of the church building, and this revenue was proportioned to the attendance thereon; that the property, of the. plaintiff was; nearly ruined for church purposes by the proximity of the works of the defendant, and ■ the noise, smoke, cinders, and dust which they created; that the rental value was ordinarily from $1,200 to $1,600 per annum, but that with the defendant’s works adjoining it could hardly be rented at ali; and that those works had depreciated the value of the property fifty per cent.</p> <p>To meet the facts thus established, and as a defence to the action, the railroad company gave evidence to show that it ran about sixty trains a day over its road in the city of Washington during week days, and about ten trains on Sundays; that its. locomotives were the best known .in the business;. that it employed about 200 men, who. were all skilful in their particular branches of work, and well-behaved; that in the engine and repair shop no more noise was made than was necessary; that every precaution was taken on Sundays to preserve quiet in the neighborhood of the church; that the main shop of the company was in the city of Baltimore, and -the shop and engine house in Washington were used only for'making casual and temporary repairs, in order to keep the machinery and engines in operation'; that the smokestacks were higher than required by the. building regulations in force in Washington; ■.that' the engine house and workshops were skilfully and carefully constructed with suitable.appointments and appliances; •'that,the bells, of the locomotives were not rung, nor the whistles sounded,' except when, an accident was liable to occur .; and that when the engines were brought into the house the steam ordinarily was not blown off but allowed to go down.</p> <p>The main reliance, however, of the railroad company to defeat the action was the authority conferred upon it by the act of Congress of February 5th, 1867, to exercise the same powers, rights, and privileges in the construction of a road in the District of Columbia, the line of which was afterwards designated, which it could exercise under its charter.in the construction of a road in Maryland, with some exceptions, not material here. By its charter it was empowered to make and construct all works whatever which might “ be necessary and expedient” in order to the proper completion and maintenance of the road.</p> <p>The act of Congress provided that the. road which the company was authorized to construct should enter the city at such place and pass along such public street or alley to such terminus ás might be allowed by Congress, upon the presentation of a survey and map of its proposed location. Subsequently Congress allowed the company to enter the city with its railroad, by one of two routes, as it might select. It selected the one by which the road is brought along Virginia avenue, in front of the church of the plaintiff, to the intersection of South C and West 9th streets.</p> <p>The testimony of the parties being closed, the plaintiff prayed three instructions to the jury, which were given by the court with additions to each. They were as follows:</p> <p>First instruction prayed:</p> <p>“ If the jury find from the evidence that the engine house of the defendant is used for receiving its engines when they come into the city after a trip; that after coming into said engine house such engines more or less frequently blow off their steam, and that such blowing off of steam makes a loud and disagreeable noise, .and that such engines are put in the stalls in said house, and emit the smoke from their fires through the chimneys of said house, and that the said engine house is used for the purpose of a shop in which to make a certain class of repairs upon the engines and cars of the defendant, and that a loud noise of hammering is created in making such repairs, and that said engine house is also used to receive coal for coaling the engines of defendant before going out, and that they are all coaled, therein, and also get up their fire and steam therein, and further find that said house is located so near the church of the plaintiff that the noises from said engine house can be distinctly heard inside of the said church, and also that the chimneys of said engine house are so constructed that the tops thereof are not as high as the tops of the windows of said church, and shall further find that the smoke from said chimneys is thrown through said windows into said church in such quantities and so generally as tobe a common annoyance and inconvenience to the congregation worshipping therein, and that said noises in said yard of blowing off steam are pf daily and nightly occurrence, and are so distinctly heard in said church on Sundays, as well as the days of the week, as to annoy, harass, and inconvenience the- congregation when engaged in divine worship therein, and that they disturb and greatly inconvenience the congregation in the enjoyment of said building as a church, then the plaintiff is entitled to recover, provided the jury find that said church was located upon the spot where it now is before the defendant established its engine house in its present position, and provided the jury further find that the annoyance and inconvenience to said congregation from the 'smoke and noises above mentioned occurred within three years before the date -at which this suit was brought, and provided further that said noises and smoke depreciated the value of the property of the plaintiff within the period from April 1st, 1874, to March 22d, 1877.” '</p> <p>The court granted this prayer and gave the instruction, adding to it a charge, as follows:</p> <p>“ If you find all these facts, then this shop is a nuisance, and a special annoyance to the congregation that worship in this church. Every man has a right to the comfortable enjoyment of his own house, in which enjoyment a neighbor cannot molest him ; and no grant conferred by proper authority upon any corporation to construct a railroad along the public streets, or to build shops, can be construed as authorizing 'that company to construct a nuisance. If the work is of such a necessary kind that the company must'have it, if the shop.is of that character, and yet is a nuisance in the neighborhood, they must find some other place to put it. No legislature has a right to establish a private nuisance.”</p> <p>Second instruction prayed:</p> <p>“ The actual amount of pecuniary loss to the plaintiff is not necessarily the rule of damages in actions like the present. In estimating the amount pf compensation to the plaintiff for the injury, if any, found to have been' sustained by it, the jury may determine the extent of the injury and (he equivalent damages, in view of all the circumstances of said injury to said plaintiff, of depreciation in the valué of its property during the period embraced in this suit, and of interference with the uses- to which said property was devoted by said plaintiff during said period, and of all other particulars, if any, wherein the plaintiff is shown to have been injured during said period, and for which, under the instructions of the cour,t, said plaintiff is entitled .to recover.”</p> <p>. This prayer was granted and the instruction given, accompanied with the following charge to the jury:</p> <p>“ That prayer I think is substantially. right. The suit is brought by a congregation duly incorporated, and they have brought an action to recover damages for their inconvenience and discomfort in consequence of the acts of the defendant. It is the personal discomfort more than anything else Which is to be considered in regard to the assessment of damages. Now, I can very easily imagine, and it may often happen, that the construction of an improvement such as this might increase the value of property in the vicinity, and I am not sure at all that' the erection of this workshop in that neighborhood may not really have increased the intrinsic value of the property belonging to this congregation. The evidence in the ease does not, as it seems to me, show that this property has be.en depreciated by the construction of that workshop. We can imagine, and it is not a far-fetched imagination either, that the effect of such a workshop in that neighborhood might be to collect.a population around it, and thus increase the population in that neighborhood, and really enhance the value of property ; and yet the congregation would be entitled to recover damages (although their property might have, increased in value) because of the inconvenience and discomfort they have suffered from the use of the shop. • The congregation has the same right to the comfortable enjoyment of its house for church purposes that a private gentleman has to the comfortable enjoyment of his own house, and it is the discomfort which is the primary consideration in allowing damages.”</p> <p>Third instruction prayed:</p> <p>“ If the jury find from the evidence that, among other purposes, .the plaintiff’s church was used by the said plaintiff as a schoolhouse for the instruction of children on the Sabbath day, and that a revenue was derived from such school, depending for the amount thereof upon the number of children attending said school, and shall also find that the defendant was in the habit of .allowing its engines, with steam on and ready to move out over D street,. to lie adjacent to the sidewalk of said D street, adjacent to its workshop -and engine house, and that in consequence of said engines being so allowed to occupy.such position, the number of pupils attending said school was diminished, and that from the said cause the number of the pupils of the said school w&s lessened within the period from March 22d, 1874, to March 22d, 1877, then the jury will consider the extent of such special damage to the plaintiff, should they find such special damage an element in mak-. ing up their verdict in this case.”</p> <p>This prayer was granted and.the instruction given,, accompanied tvith the following charge:</p> <p>“ I grant that prayer because there, is some evidence that this congregation used that church paxtly for a Sunday school where children are instructed, and that those children were in the habit of contributing, and have contributed, sums of money to the support of the church. A party is entitled to be compensated, not only for actual damages sustained from the acts of the defendants ; but, in a case like this, is entitled to his damáges for a continuous and threatened danger. A man is entitled to recover damages from the owner of an-adjoining property Teady to tumble down upon himself or his family. That is a threatened danger, and although the danger may not have been actually sustained, yet people are not to be kept in alarm constantly by a threat of danger. It may fall upon him at any time, and a court of chancery would direct it to be removed, and on an indictment for a nuisance of that kind it would be removed.</p> <p>“ But in private actions like this, it may be taken into consideration by the jury whether those engines, standing inside the house and passing out and in so frequently as they do, and in that place, produce a reasonable and fair apprehension of. danger to persons passing to that church, especially to children passing to Sunday school. You can take that element into your consideration.”</p> <p>To each of these instructions the defendant excepted. It also requested the court to give several other instructions, the purport of which was that if the railroad company constructed its smokestacks on the repair shop in the usual and ordinary manner, and built them as high as required by the building regulations in force in Washington, the plaintiff could not re-' cover for any damage caused by smoke from such smokestacKs: that the company possessed the right to select the location in. question, and to construct, maintain, and use upon it such engine house and other works as were necessary and expedient for the construction, maintenance and repair of its road and engines, and to occupy the premises for that purpose; and that if the jury found that the inconveniences complained of were no more nor greater than the natural or probable result of maintaining such engine house and repair shop; or found that, in the occupation and use of the property and management of its business, the company exercised such reasonable care as a person of ordinary prudence and caution would exercise under the circumstances, it was not liable for any damages; and that if the company did not use reasonable care in the construction of the smokestacks on the engine house or repair shop, the plaintiff was only entitled to recover interest for three years on the difference between the value of the property, as it would have been if the defendant’s smokestacks had been carefully constructed, and the actual value as reduced by the smoke from them; that the defendant was entitled to construct and usé the side track across D street; and that the plaintiff could not recover, being a corporation, for any inconvenience which memb.ers of the congregation assembled in its church might suffer from the noise and offensive odors occasioned by the' defendant’s engines and shops.</p> <p>The court- refused to give these instructions, ,and the jury' found for the plaintiff $4,500 damages, and the judgment entered thereon was affirmed at the general term of the supreme-court of the district. To review that judgment the defendant brought the case here on-a writ of error.</p> <p>I. The Baltimore & Potomac Railroad Company was authorized by Congress to maintain the shops complained of, and" they were necessary to the conduct of its business. -By the act of 18th March, 1869, 16 Stat. 1, the company was authorized to pass along Virginia avenue to the southern terminus of the prescribed line; this terminus, was by that act fixed at the junction of West Ninth and South C streets and Virginia1 avenue. This being the end of the road, the statute must have been passed with the expectation, in the legislative mind, that depots, stations, engine houses and other works would be constructed at or near that point. Power to construct and maintain- a railroad necessarily includes power to build depots, stations, side tracks, engine houses, switches, repair" shops, &c., &c. Enfield Toll Bridge Company v. Hartford <& New Haven Railroad Company\ 17 Conn. 453; Black v. Philadelphia <& Reading Railroad Company, 58 Penn. St. 249 ; 8peer v. Cleveland & Pittsburg Railroad Company, 56 Penn. St. 325; Turnpike Company v. Camden <& Amboy Railroad Company, 2 Harr. (NJ.) 314. The power of determining whether or not such works are necessary and expedient, and where they shall be erected, is by the statute confided to the president and board of directors of the company, and .when they have once exercised that power in good-faith, their judgment is not reviewable, but is conclusive on all authority in this District, except that of Congress. Ford v. Chicago <& North Western Railroad Company, 14 Wis. 663 ; New York <& Hudson Rimer Railroad Company v. Kip, 46 N. Y. 546; Giesy v. Cincinnati <& Zanesville Railroad Company, 4 Ohio St. 308; Brainand V. Clapp, 10 Cush. 6; Curtis v. Eastern■ Railroad Company, 14 Allen, 55; Pierce on Railways, 148,160,494; Haruoley v. Steele, 6 Ch. Div. 521. It would be difficult to select a location for these works in the city of Washington; or, indeed, in any city, which would be satisfactory to every property owner in the vicinity; some person or persons would be sure to complain of, the noise and smoke. These considerations, when this'line was traced and established over this wide street and through this particular portion of the city, must have received due attention from Congress, as well as a,11 these other attendant questions. If the railroad company did not exceed its pow;ers and did not exercise them wantonly or unlawfully, it cannot be mulcted in damages. No action will he and no recovery can be had for doing that which the law authorizes the party to do, and that cannot be adjudged a nuisance and be held unlawful which the law declares to be lawful. New York & Erie Railroad Company v. Young, 33 Penn. St. 175 ; Renwick v. Morris, 3 Hill, 621; Bridge Company v. Kirk, 46 Penn. St. 112; Northern Tr. Company v. Chicago, 99 H. S. 635 ; Angelí on. Highways, § 237; Addison on Torts, § 1040; Porter v. North Missouri Railroad ,Company, 33 Mo. 158; Navigation Company w. Coons, 6 Watts & Serg. 1Q1; Henry v. Pittsburg Bridge Company, 8 Watts & Serg. 85; RadcUff v. Brooklyn, 4 N. Y. 195 ; Bellinger v. Railroad Company, 23 N. Y. 42; Moyer v. Railroad Company, 88 N. Y. 351.</p> <p>The streets of Washington belong to the United States. It. cannot be successfully denied that Congress can legalize the; presence of smoke, cinders, noises, railroad trains, and locomotive engines on a public street in the city of Washington, where it is conceded all persons may pass and repass at their will- and pleasure, if not interrupted by legalized obstructions. This being so, it would be strange indeed if the same inconveniences cannot be legalized by Congress for railroad purposes upon premises adjoining the railroad, which are the private property of the corporation operating the railroad, and which are used in connection with the conduct of its business. If the right to pass through and over this property belonging to the company could be granted, why could not the right be granted also to stop and remain stationary thereon? The difference might be but' slight in the character and extent of the noise, smoke, and-other inconveniences, depending upon the number of passing trains on the one hand and on the extent of yard on the other. — II. The rule which the court below laid down respecting damages was- wrong. It told the jury that it might assess damages against the railroad company on behalf of the church corporation for the personal inconveniences and discomforts suffered by individuals worshipping in the church. The true rule was laid down by the Supreme Court of Pennsylvania, in the well considered case of Sparhanok v. Rmlwrn/Company, 54 Penn. St. 401, on an application to restrain a railroad company from running its cars alongside a church on Sunday. The court says:</p> <p>“ The bill charges an injury, not physical, but mental or spiritual. One which neither deprives the body of rest, refreshment; or-health. That this is the nature of the complaint is most evident, from the fact that' the disturbing causes are the same, and no greater on Sundays than on other days, and of this there is no complaint. How are we to determine whether the mind is injuriously disturbed or not ? To some it is granted that there may be annoyance in the passing of cars on Sundays.’ To others it would be but an agreeable sound. ' To many it would be an annoyance because of their views of the Sabbath. But, as already said, that is not in this cáse, for want of power in this form to take cognizance of it. It is not possible, in my judgment, to establish a material injury, where alone at most the mind is disturbed without the slightest bodily effect or interference with ordinary comfort. It is but an inconvenience incident to the situation, and not the subject of an adjudication in equity. . . .</p> <p>Progress will not be stopped to accommodate anybody’s convenience. It must yield in consideration of our interests in the thousand advantages in other respects of city life. We should not attribute the fault in our own position to faults in others.”</p>

Indictment for perjury. The perjury charged in the first count was the taking an oath by Ambrose' before the district judge for the Southern District of Ohio, that a certain written declaration by him subscribed was true; and the declaration as set out was a statement subscribed to an account against the United States, that the services charged in the account had been actually rendered.

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF LOUISIANA.</p> <p>In admiralty. Libel for freight. The facts appear in the opinion of the court..</p> <p>cited The Soblomsten, L. R. 1 Adm. and Eccl. 293; The Cito, 7 L. R. Probate Div. 5; Cargo ex Galam, Br. & Lush. 167; Aitchison v. Lohre, 4 App. Cases, 755; .the Kathleen, L. R. 4 A. & E. 269; Jones v. Holm, L. R; 2 Exchq. 335 ; Tindall v. Taylor, 4 Ellis & B. 219 ; 1 Parsons Maritime Law, 158-9; Clark v. Insurance Company, 2 Pick. 104; Palmer v. Lorillard, T6 Johns. 348; Campbell v. Gonner, 70 N.. Y. 424; Bulkley v. Cotton Compamy, 24 How. 386; Jordan v. Warren Insurance Compamy, 1 Story, 342; Hubbell v. Great Western Insurance Compamy, 74 N. Y. 246; Shipton v. Thornton, 9 Ad- & E. 314 ; Hugg v. Bankmg Company, 7 How. 595; Hickie y. Rodocamachi, 4 Hurls. & N. 455. .</p>

Held: That this was a salvage service, and that the passenger on. board the ship, as well as the. owner, officers, crew and passengers of the tug, might share in the salvage. 2.

Held: That the wife was entitled to interest oh the judgment sum from the date fixed in the decree for the payment, and was bound to account for the rents and profits of the premises which were received, or might reasonably have been received by her after the date fixed by the arbitrators for the payment of the money from the railroad company. 2.

Held: That the receiver was not entitled by reason of any conflict between the local statute and the Bankrupt Act, or by force of the judgment and the proceedings thereunder, to the possession of the assigned property or of its proceeds, as against the assignees, or to a priority of claim for the benefit of the judgment creditors upon such proceeds.

Held: That the preferred stockholders had no claim on the property superior to that of creditors under debts contracted by the company subsequently to the issue of the preferred stock, and that their only valid claim was one to a priority over the holders of common stock.

This was an action brought in an inferior court of Dakota Territory by John B. Pearson against Álvin W. Whitney and Morton E. Post, copartners under the name of the Keets Mining Company.

<p>Assignees in Bankruptcy — Equity—Mandate—Parties—Practice.</p> <p>On appeal from the decree of the court below executing the mandate of the court on the judgment entered in Blake v. Mawkins, 98 U. S. 315: Meld,</p> <p>1. That it was no error in the execution of the mandate to permit a new party to become party and set up rights under the decree, when it appears by the record that all parties consented.</p> <p>2. That there was no error in charging the amount found due to the appelleess as next of kin, upon the real estate conveyed to Deveretix by his mother, and in the hands of his assignees in bankruptcy; and the assignees took the estate charged with the specific equity to which- it was subject in the bankrupt’s hands, and must hold and apply it to the purposes to which in equity it is devoted.</p>

Held: That the B. H. & E. Company thereby became the legal successor of the H. P. & F.. Company in Rhode Island ; and, in respect to its railroad in Rhode Island, a corporation of thal State. 2. The State of. Rhode Island authorized by an act of its legislature the B. H. & E. Company to extend within the limits of the State the road thus acquired.

This was a suit brought by the appellants, John J. Manning and Caleb J. Norwood, to restrain the infringement by the appellees of letters patent dated January 7th, 1873, issued to the appellants and W. N. Manning, as assignees of the inventor, James Manning. By the subsequent assignment of W. N. Manning the appellants became vested with the title to the entire patent.

<p>Patent — Printed Publication.</p> <p>1. The doctrine reaffirmed that the earlier printed and published description of a subject of a patent which is put in evidence to invalidate a patent must be in terms that would enable a person skilled in the art or science . to which it appertains to make, construct and practise the invention as completely as he could do by the aid of information derived from a prior patent; and that unless it is sufficiently full to enable such person to comprehend it without assistance from the patent, or to make it or repeat the process claimed, it is insuffieient'to invalidate the patent.</p> <p>2. Applying the doctrine to this ease, the appellant’s patent held to be void.</p>

<p>Constitutional Law — Illinois—Mortgage—Practice—Statutes.</p> <p>The question considered as to when the opinion of the highest court of a State may be examined for the purpose of ascertaining whether the judgmeni-involves the denial of any asserted right under the Constitution, laws, or treaties of the United States.</p> <p>In view of the statutory requirement that the-justices of the Supreme Court of. Illinois shall file and spread at large upon the records of the courts written opinions in all cases submitted to it, such opinions may be examined, in connection with other portions of the record, to ascertain whether the judg- . ment or decree necessarily involves a federal question within the reviewing power of this court.</p> <p>The act of the general assembly of Illinois, in forcé July 1st, 1875, validating loans or investments previously made in that State by corporations of other States or countries authorized by their respective charters to invest or loan money, is not in conflict with the contract clause of the federal Constitution, nor with that part of the Fourteenth Amendment forbidding a State from depriving'any person of property without due procesK.of law.</p>

United States v. Forty-Three Gallons of Whiskey, 108 U.S. 491 (1883), is a United States Supreme Court case in which the Court held that Congress has the power to regulate the possession and sale of liquor in the lands of and near Native American tribes and upheld an order to seize barrels containing forty-three gallons of whiskey that were being traded on Native American land.

Held: That, the objection not having been taken below, the fact of such authority could be inquired into and shown here. On the evidence it appeared that the lands in question were mineral lands, and were known to be such by the applicant for the patent, and agent for the railroad company, at the time of the application. The patent, was set aside. The bill was filed in the court below in February, 1877.

Held: That these provisions of the Constitution and of the statute requiring owners of tacit mortgages to record them for the protection of innocent persons dealing with the tutor, and giving ample time and opportunity to do what wa= required, and what was eminently just to everybody, did not impair the obligation of contracts. 2. That these provisions are in the nature of statutes" of limitations.

<p>APPEAL EROM THE SUPREME COURT OE THE DISTRICT OE COLUMBIA.</p>

Held: That inasmuch as the power to establish rates was to be exercised through by-laws, and the power to make by-laws was restricted to such as should not be repugnant (among other things), to the laws of the State, the amendment did not release the oompany from restrictions upon the amount of rates contained in general and special statutes of the State. , Grants of immunity from legitimate] governmental control are…

<p>Habeas Corpus — Jurisdiction.</p> <p>Except in cases afEeoting ambassadors, other public ministers, or consuls, or those in which a State is a party, the supreme court can only issue a writ of habeas corpus under its appellate jurisdiction.</p>

<p> Limitations. </p> <p>The facts in this ease showed no claim in the plaintiff against the county defendant. The claim, if any, was against the district in the county benefited by the levees which he claims to have constructed.</p> <p>It being conceded that an action at law for the enforcement of the claims set up in this suit was barred when this suit was brought, no equitable reason was found why the limitation of the statute should not be applied in equity.</p>

Held: is in contravention of the Constitution of the United States and of a treaty between the United States and the Emperor of China. *559 A question which, meets us at the outset is whether we have jurisdiction, and that depends on whether the proceeding is to be treated as civil or criminal.

Held: in Insurance Company v. Pechner, 95 U. S. 183 , that there could not be a removal unless the necessary citizenship existed when the suit was begun. That act provided only for a removal on the application of the defendant when the plaintiff was a citizen of the State in which the suit was brought, and the defendant was required to file his petition for removal at the time of entering his appearance in the State court.

Trespass qua/re clausum, to which, was joined a count of trespass de bonis asportatis. General issue. Trial and judgment for the plaintiff for $4,072.25, damages, costs, and charges. .Defendant brought the cause here on error. Defendant in error' moved to dismiss the writ of error, and joined with it a motion to affirm, grounding the.first motion on the insufficiency of the amount of the judgment.

<p> Limitations. </p> <p>No judgment or decree of a State court can be reviewed in this court unless the writ o£ error is filed in the court which rendered the judgment within two years from the entry of the judgment.</p>