Volume 114 — United States Reports

Held: That, for the purpose of securing the free passage of water in one-direction, and preventing its escape in the other, direction otherwise than gradually, the defendants, had used nothing which they did not have a right to use, and had not appropriated any patentable,, invention which Carr had a right to cover, as against the defendants’ structure,, by the third claim of his reissue.

I'll these actions, five in number, Alexander Ramsey, A. 'S. Paddock. G-. L. 'Godfrey, A. B. C.arleton and J. R. Pettigrew, defendants in all,' were persons who ' composéd the board appointed under § 9 of the act of Congress,, approved March 22,1882, entitled “ An act to amend section' fifty-three hundred and fifty-two of the Revised Statutes of the United States, in reference to bigamy, and for Other purposes.” -22 Stat. 30. E. I).

This case came before this court from the Supreme Court of California. The'plaintiff in.the-court below, the defendant in error here, was the holder of a patent, of the United States for certain lands situated in Humboldt County;-in that State, issued to him under the pre-emption laws upon proof of settlement and improvement, and the present action is to recover their possession.

This was a writ of error for the review of an order of the Circuit Court remanding a case which had been removed from the Supreme Court of the State of New York under the act of March 3,1875, ch. 137,18 Stat. 470.

This was a writ of error for the- review of an order of the Circuit Court remanding a suit to a State court.

This was an appeal from an order of the Circuit Court of the United States remanding a suit to the Circuit Court of the City of St. Louis, Missouri,,from which it had.been removed upon a petition filed under the act of March 3, 1875, ch. 137, 18 Stat. 470..

Bill in equity .to restrain the infringement of a patent. The facts which make the case are stated in the opinion of the court.

Held: under the English patent laws, not to be sufficient to destroy that identity between the two competing devices, which constituted in that case the infringement all ''ged, *103 although the patent itself called only for metallic conductors.

<p>Under the rales and practice oí this court in equity a decree pro eonfesso is not a decree as of course according to the prayer of the bill nor as the complainant chooses to make it; but it should be made by the court according to whatds proper to be decreed upon the statements of the bill, assumed to be true.</p> <p>The difference between former rules in equity and those now in force pointed out.</p> <p>Whether, after a bill is taken pro eonfesso, the defendant is entitled to an order permitting him to appear before the master is not now decided.</p> <p>After entry of a decree pro eonfesso, and while it stands unrevoked, the defendant cannot set up anything in opposition to it, either below, or in this court on appeal, except" what appears.on the face of the bill.</p> <p>In-a suit in equity to restrain the infringement of a patent and for an account, the defendant cannot question the validity of the patent after a decree pro eonfesso establishing its validity.</p> <p>A delay in.applying for the reissue of'a patent which appears on the face of the proceedings, -and which, unexplained, might be regarded as unreasonable, cannot be set up against the patent by-a defendant after a decree pro eonfesso has been taken in a suit in'equity which is founded on and sets up the patent and seeks to restrain him from infringing it.</p> <p>It is irregular to introduce, pending an appeal, an original patent not introduced below, i</p> <p>Affidaijits before a master or the court below as grounds of application to re-’ open proofs, form no part of the evidence before the court,on appeal.</p> <p>■In proceedings before a master, after the bill in a suit to restrain infringement . of a patent has been taken pro eonfesso, it is not proper to inquire into the cost of .producing a result by other processes or machines ; the proper in- ■ quiry relates to the profits enjoyed by defendants" by reason of using the patented invention.</p>

Held: but neither the election nor the subscription was authorized by any act of the Legislature.

<p>■ APPEAL PROM THE CIRCUIT COURT OE THE UNITED STATES . FOR THE DISTRICT OF VERMONT.</p> <p>Bill in equity originally commenced against Mr. Marble as Commissioner of ^Patents. Mr. Butterworth, bis successor, subsequently appeared below, and brought the cause,here op appeal. The cause was argued here on its merits, and on the jurisdictional question on which it turned. The facts as to the latter are stated in the opinion of the court.</p>

<p>IN ERROR TO THE SUPREME COURT OF THE STATE OF MICHIGAN.'</p> <p>This was a motion to dismiss, 'because the record did not show that any federal question was involved in the case in the State court.</p>

Held: That this was within the prohibition of § S Act of March 3,1875, 18 Stat. 472 , as to parties improperly or pollusively made for 'the purpose- of creating a case cognizable by- a Circuit Court of the United States.

Held: That the petitioner was not entitled to the writ. Application for a writ of mandamus. The facts which make the case are stated in the

John Stephenson, the appellant, was the plaintiff in the Circuit Court. He brought his bill to restrain the infringement by the Brooklyn Cross-Town Railroad Company, the appellee, of three letters patent.

Held: that the assignee, being in possession of the land, could maintain a suit in equity, in the Circuit Court of the United States for the Western District of Michigan, to remove the cloud on' his title, and that that court could, under the exception in Eev. Stat. § .720, restrain by injunction a sale under the levy and a further levy. On the 10th of October, 1873, John Whittlesey, a creditor of Benjamin 0.

This' suit was begun, by a bill in .equity in a court of the State of West Yirginia against the auditor of that State to restrain the collection of a tax, alleged to be illegal, ón stho ground' that the plaintiff in error enjoyed an immunity from taxation. • Being, decided against the claim of exemption, the cause was brought here by writ of error. The grounds of the claim and the other facts which make the federal question are stated in the opinion of the court.

<p>APPEAL PROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ILLINOIS.</p> <p>This was a bill in chancery to enforce payment of moneys .loaned to a municipality in Violation of law, and for which it had been held that an action could not. be maintained at law. Buchanan v. Litchfield, 102 U. S. 278. The facts mailing the case are stated in the opinion of the court.</p>

<p>IN ERROR TO THE SUPREME COURT OF THE STATE OF PENNSYLVANIA.</p> <p>In March, 1865, thé Gloucester Ferry Company, the plaintiff in error here, was incorporated by the Legislature of New Jersey to establish a steamboat ferry from the town of Gloucester, in that State, to the city of Philadelphia, in Pennsylvania, with a capital stock of $50,000, divided into shares of $50 each. During that year it established, and has ever since maintained, a ferry between those places, across the river Delaware, leasing or owning steam ferry-boats for that purpose. At each place it has a slip or dock on which passengers and freight are received and landed; the one in Gloucester it owns, the one in Philadelphia it leases. Its entire business consists in ferrying passengers and freight across the river between those places. It has never transacted any other business. It does not own, and has never owned, any property, real or personal, in the city of Philadelphia other than the lease of the slip or dock mentioned. All its other property consists of certain real estate in the county of' Camden, New Jersey, needed for its business, and steamboats engaged in ferriage. These boats are registered at the port of Camden, New Jersey. It has never owned any Boats registered at a port of Pennsylvania, and its boats are never allowed to remain in that State except so long as may be necessary to discharge and receive passengers and freight.</p> <p>In July, 1880, the Auditor-General and the Treasurer of the State of Pennsylvania stated an account against the company of taxes on its capital stock, based upon its appraised value, for the years 1'865-to Í879, both inclusive, finding the amount of $2,593.96 to be due the Commonwealth. From this finding an appeal was taken to the Court of Common Pleas of Philadelphia, and was there heard upon a case stated, in which it was stipulated that, if the court were of opinion that the company was liable for the tax, judgment against it in favor of the Commonwealth should be entered for the above amount; but if the court were of opinion that the company was not liable, judgment should be entered in its favor.</p> <p>A statute of Pennsylvania, passed June 7,1879, “ to provide revenue by taxation,” in its fourth section enacted as follows : “ That every company or association whatever, now or hereafter incorporated by or under any law of this Commonwealth, or now or hereafter incorporated by any other State or Territory of the United States or foreign government, and doing business in this Commonwealth, or having capital employed in this Commonwealth in the name of any other company or corporation, association or associations, person or persons, or in any other manner, except foreign insurance companies, banks and savings institutions, shall be subject to and pay into the. treasury of the Commonwealth annually a tax to'be computed as follows, namely: If the dividend' or dividends made or declared by such company or association as aforesaid, during any year ending with the first Monday of November, amount to six or more than six- per centum upon the par value of its capital stock, then the tax to be at the rate of one-half mill upon the capital stock for each one per centum of dividend so made or declared; if no dividend be made or declared, or if the dividend or dividends made or declared do not amount to six .per centum upon the par value of said capital stock, then the tax to be at the rate of three mills upon each dollar of a valuation of the said capital stock,” made in accordance with the provision of another section of the act.</p> <p>It was under, the authority of this act that the taxes in question were stated against the company by the Auditor-General and the State Treasurer.</p> <p>The Court of Common Pleas held that the taxes could not be lawfully levied, for there was no other business carried on by the company in Pennsylvania -except the landing and receiving of passengers and freight, which is a part of the commerce of the country, and protected by the Constitution from the imposition of burdens by State legislation. It, therefore, gave judgment in favor of the company. The case being carried on a writ of error to the Supreme Court of the State, the judgment was reversed and judgment ordered in favor of the Commonwealth for the amount mentioned. To review this latter judgment, the case was brought here.</p> <p>The propositions of the plaintiff in error amount to this: that the State cannot tax a foreign corporation in respect to its capital stock, if if is engaged in inter-State commerce. This cannot be true abstractly, without overturning Minot v. Philadelphia, Wilmington & Baltimore Railroad Go., 18 Wall. 206. The proposition is therefore not of universal application. The corporation with which we have to deal in this case is a ferry company, andit is, therefore, pertinent to inquire what we understand by sufch a company. In the Terms of the Law, 3385 a ferry is said to be “ a liberty by prescription, or the king’s grant, to have a boat for a passage upon a great stream, for carrying of horses and men for reasonable toll.” In Gharries River Bridge v. Warren Bridge, 11 Pet. 420, Justice Story said: “It is .a franchise which approaches so near to that of a bridge, that human ingenuity has not, as yet, been able to state any assignable difference between them, except that one includes the right of pontage, and th,e other of passage or ferriage,” p. 620. “ A public ferry,” said he, “ is a public highway of a special description, and its termini must be in places where the public have rights, as towns, or villes, or highways leading to towns or villes,” p. 622. These definitions will serve to indicate the nature of a ferry franchise as understood and declared by the older authorities.</p> <p>There is no controversy' as to the transportation; or that it takes place over-a navigable river. But it does not follow that it is “ commerce ” within the meaning which the framers of the Constitution attached- to the term. The criterion of the business called commerce in the constitutional sense is that it shall be free ■ from State or. local control, and subject only to national control. Osborne v. Mobile, 16 Wall. 419 ; Railroad ■Go. v. Maryland, 21 Wall. 456, 410. That freedom cannot be predicated of a ferry company. People are not at liberty to establish a ferriage over a navigable river separating two States, without regard, to. State authority. In saying this we are not to be understood as asserting that a ferry may not be, or in this case, is not an instrument of commerce. It is as much so, and perhaps, in the* same sense as a bridge, but in any case it is, at most, no more than a local aid or instrument, which Congress has never undertaken to regulate or control. The distinction which we are here seeking to draw was forcibly recognized by Mr. Justice Field, in County of Mobile v. Kimball, 102 IT.' S. -691, at p. 702.</p> <p>It is well settled that States have the power to establish and regulate ferries and other local aids to commerce. Gonway v. Taylor, 1 Black, 603 ; People v. Babcock, 11 Wend. 586; State. V: Hudson County, 3 Zabr.- 206; Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1, at page 203; Fanning s. Greg-orie, 16 How. 524; Wiggins Ferry Go. v. Fast St. Louis, 107 U. S. 365; Charles Fiver Bridge v. Wcurren Bridge, above cited; Trustees of Schools v. Tatmmi, 13 Ill. 27. Ferry-boats are restricted to ply between given points, and by a prescribed course. They pass and repass between their landing places without clearances under the navigation statutes. Although they are held to be common‘carriers in some senses, they are limited in their rates of toll, for, the transportation of persons and property, by the terms' of the grant under which they exist. Whilst liable for loss or injury resulting from negligence, the property in process of transportation' is always, either directly or indirectly, in the custody of others. In all these respects, the business of ferriage differs from that of ordinary commerce.</p> <p>If we look at the nature of the tax, to determine whether it was within the power of the State to impose it, we find that the act taxes the capital stock not merely of. corporations of domestic creation, but of all incorporated by any other State and doing business within the Commonwealth. As one-half •of the bed of the river Delaware is subject to the jurisdiction of Pennsylvania, it follows as a geographical fact that a company employed in a ferriage across the entire stream is doing business within the Commonwealth, within the contemplation of the act; and not being engaged in inter-State commerce,.it is within the taxing power of the State. Bank of Augusta v. Earle, 13 Pet. 519. It results from the language of the court ■ in St. Louis v. Ferry Go., 11 Wall. 423, that a ferry company is subjected to the same rules and liabilities as other corporations as to extra State business. It is, moreover, to be observed that the tax here sought to be imposed is not a tax upon the specific property of the corporation in which its capital may be invested. It is not an attempt to tax the ferry boats of this company, nor is it an effort to tax a corporation in proportion to the number of ferry boats it owns. The tax is not imposed either directly or indirectly upon them ; it is not measured in amount by their numbers; it is the same whether the company owns few or many of them, and is unaffected by the frequency of' their use. It therefore clashes with none of the following decisions which form part of the judicial argument against its validity: Gannon v. New Orleans, 20 Wall. 577; 582 ; Transportation Co. v. Wheeling, 99 U. S. 273, 283, 284; Morgan v. Parham, 16 Wall. 471, 475, 476, 478;. Hays v. Pacific Mail Steamship Co., 17 How. 596; Hoytv. Commissioners of Taxation, 23 N. Y. 224, 227. It is not ata-x “ on account of every passenger brought from a foreign country into the State ; ” it is not measured by the number of passengers or in any way affected by them, and therefore does not contravene the doctrine of The Passenger Cases, 7 How. 283. It is not a :tax upon a bill of lading, and therefore not within Almy v. California, 24 How. 169 ; nor is it a tax upon “ passengers carried out/ of the State.” Crandell v. Nevada, 6 Wall. 35. It is rather a tax upon the capital stock of the corporation, “not in separate parcels, as representing distinct properties, but as a homogeneous unit, partaking of the nature of personality,” and taxable-where its corporate functions are exercised or its business done. - The franchise itself may constitute the material part of all its property,, since not only its wharves and slips, but also its boats, might be leased, and, in that case, the tax wmuld be measured by the value of the franchise represented by the extent of its exercise within the State, and not by its tangible property situated there. The extent of its property subject to the taxing power is immaterial. Its franchise would be worthless without the leasehold interest owned by it in the city of Philadelphia. The value of its franchise depends upon that leasehold, and it will, therefore, not do to sav that it has no property within the jurisdiction of the taxing power. It does not seem necessary to inquire further as to an ownership of property within the jurisdiction of Pennsylvania.</p> <p>Ve do not deny that there is a wide' distinction between transportation by water and transportation by land, but when it is sought, by that distinction, to explain the regulation and control of railroads by the States, we submit that the same distinction prevails between the business of ferriage and that of commerce, strictly defined, and that the same authority which regulates and controls'the operations of railroads engaged in ¡inter-State traffic, may also regulate and control the business of corporations exercising ferry franchises within her borders.</p> <p>If the business of ferriage is commerce, as defined by Chief Justice Marshall, we concede that any tax laid upon such business, which comes within the ruling of the Passenger cases, or the State Freight Tax' cases, or the many other cases involving the same principle, is an' interference with commerce, and, for that reason, unconstitutional. But if the tax is not of the nature indicated by those cases, or if a ferry business is rather in aid of commerce than commerce itself, or is subject to the same exactions in respect to taxation as foreign railroad and other corporations engaged in inter-State traffic, then we submit that the tax is not an interference with commerce,, nor repugnant to the Federal Constitution, and the judgment of the Supreme Court of Pennsylvania should, consequently, be affirmed:</p>

Held: unless in obedience to express statute, to a narrower range of securities than is allowed by the law of the State of the ward’s domicil. Infants having a domicil in one State, who after the death of. both their parents take up their residence at the home of their paternal grandmother and next of kin in another State, acquire her domicil.

•This was aa action brought by defendants in error against plaintiff in error, to recover the .value of thirty certificates of shares in’the bank of the plaintiff in error, owned by defendants’ intestate in his lifetime, and sold by the bank after his death. The facts are stated in the opinion of the court.

<p>APPEAL PROM THE- OIRCUÍT COURT OF THE UNITED STATES FOE THE. DISTRICT OF. CALIFORNIA.</p> <p>■This1 was an appeal from a decree of the Circuit Court for . the District of ■ California, dismissing the bill of the- United States on demurrer.</p> <p>The object of the bill was jfco..set aside and annul a patent issued by. the United States to Minor, on January 5,1876, for the northwest quarter of Section 18, Township 6, North Range ’2, East of the Humboldt Meridian. The bill as originally.'filed made in substance the following allegations:</p> <p>That said Minor, on the 23d day of October, 1871,• filed the declaratory, statement in the land office necessary to give him a right of pre-emption to the land, alleging that he had made a.settlement on it-March 20th of that,year; and on June 20, 1875, he made the usual affidavit that he had so settled on the land in March of the previous year, jhat he,had improved it, built a house on it, and contimied to reside on it from the time of said settlement, and had cultivated about one acre of it. He also made affidavit, as the law required, that he had not so settled, upon and'improved-the land with any .agreement or-contract with any person by which the'title he might acquire ■ wo.uld enure to the benefit of the latter. He also made oath that he was not the owner of 320 acres of land in any. State or Territory in the United States. These affidavits being received by the register and receiver as true, he paid the money neces-' sary to perfect his right, received of them the usual certificate, called a patent certificate, on which there was issued to him at the General Land Office in. due time the patent which is now assailed.</p> <p>The bill then charged that all these statements, made under oath before the land officers, were false and fraudulent.. That defendant had never made the settlement, nor cultivation, nor improvements mentioned; that he had never resided on the land, but durijig all the time had lived .and had his home in a village about twelve miles distant ;• and that he had not made these proofs of settlement to appropriate the land to his own use, but with intent to sell the same to some person unknown to the plaintiff. .</p> <p>It was also charged that defendant produced, in corroboration of his own statement, the affidavit of a witness, one Joseph Ohuitt, who testified, to the settlement, improvement and residence of defendant, all of which was false and fraudulent. It was- then alleged that by these false affidavits the land officers, supposing them to be true, were deceived and misled into allowing said pre-emption claim and issuing said patent, to the great injury of the United States.</p> <p>A demurrer to this bill having been sustained, plaintiff was • allowed to file an amendment, by which it was set out that one Richard Spence entered upon the west half of the quarter-Section in question on the first day of April, 1-872, with the intention of pre-empting the same as soon -as the. lands were surveyed and open to pre-emption, and that on the 22d day of-October, 1874, the approved plat of said surveys was duly filed in the land office at Humboldt, and oh the 3d. day of December thereafter Spence made his declaratory statement for the' west half of that quarter-section and the west half of the south-, west quarter of the same section. It was further alleged that Spence, having complied with the terms authorizing his preemption by actual'residence, improvement and cultivation, and having commutedThis pre-emption Tight for a homestead right, and perfected his cultivation and improvement by a five years' residence, and paid the fees of the officers, made application on the 5th day of April, 1880, for his patent, to which he was legally entitled, but it was found that Minor’s patent .-covered half his claim, to wit, the west half of the northwest quarter of the section.</p> <p>The title having passed from the United States to Minor for the entire quarter section, no patent could be issued to Spence, who was equitably entitled to 'a part of it.</p> <p>To this bill, as amended, the Circuit Court again sustained- a demurrer and dismissed it, and from that decree this appeal was taken.</p> <p>The circuit and district judges certified a division of opinion on eight propositions of law, which they believed to arise out of this demurrer, as follows:</p> <p>I. Whether the frauds and perjury alleged in the bill as the equitable grounds for vacating the patent in question are frauds extrinsic and collateral to the matter tried and determined in the land office upon which the patent issued, and constitute such frauds at entitle the complainant to relief in a court of equity % ■</p> <p>■II. Whether perjury and fajse testimony in a proceeding before the land office, such as alleged in the said amended bill, by means- of which a patent to a portion of the public land is fraudulently and wrongfully secured, is such a fraud as will require a court of equity to vacate the patent on that ground alone ?</p> <p>. III.. Whether the decision and determination of the questions involved on false and perjured testimony, as set forth in the said' amended bill, and . the'-issue of a patent thereon, aré not conclusive as- against the United States on a bill filed to vacate the patent so issued %</p> <p>IY. When the United States files a bill to vacate a patent, on the ground that it was fraudulently obtained upon false testimony, as alleged in said amended bill, whether it is necessary to offer in the bill to- return the purchase money paid for the land by . the patentee ?'</p> <p>Y. Whether' a court of equity will enforce the penalties and forfeitures imposed by § 2262 of the Revised Statutes of the United States, for obtaining a patent to land upon false affidavits %</p> <p>YI. Whether the remedy at ■ law provided by said section and an indictment for perjury are not the only remedies for the wrong alleged in the amended bill ?</p> <p>YII. The bill of complaint having been originally filed in this case on June 19, 1883, more than sevén years and five months after the issue' of the patent, whether the claim to vacate the patent on the ground of fraud is stale, and whether the bill ought to be dismissed on that ground?</p> <p>VIII. Whether the demurrer to the said amended bill should be sustained ?</p> <p>I. The first three questions can be considered-together. The decision of the officers of. the Land Department was a judicial decision, upon the testimony before them, and- is conclusive between the parties. Warren v. Yarn Brunt, 19 Wall. 646, 652; Shepley v. Oowan, 91 U. S. 330; Marquez v. Frisbie, 101 U. S. 473, 476; Moore v. Bobbins, 96 U. S. 530, 533; Quinby v. Gonlcm, 104 U. S. 420, 425; Vance v. Burbank, 101 IJ..S. 514, 519. The particular acts of fraud charged, in the bill are not such as will authorize a court of equity to set a*side or disturb the judgment and decisión of the land officers in holding that the defendant pre-emptor had •proven himself to Be entitled to the land, and awarding and issuing to him a patent therefor. Smelting Co,, v. Kemp, 104 ' U. S. 636,. 640; United States v. Throckmorton, 98 U: S. 61, 66; Vance v. Burbank, 101 U. S. 514, 519. ' In the cases in which actions have been maintained to set aside patents, it was clear that the land officers had no.jurisdiction, and upon that ground only the actions were sustained. — II. As to the fourth , question it seems too plain for. argument that, no one can have rescission without placing the other party in statu fyuo. — III. As to the fifth and sixth questions, courts of equity have no jurisdiction of matters of forfeiture unless specially, conferred by statute. Stevens v. Cady, .2 Curtis, 200; § 2262 Rev. Stat. does not confer it. — IV. .As to the seventh question, we say the bill comes too late, and the claim is stale. Badger v. Badger, 7 Wall. ■87, 94; Stearns v. Page, 9 How. 819.</p>

<p>In a suit to foreclose a mortgage on land in Louisiana, given to secure the pay- ■ ment o’f negotiable promissory-notes to their holder, it was held,, .on the facts, that the-plaintiff was never the own^- of the notes, as against the mortgagor, or those holding the land under him by deeds in which they as-Mimed the payment of the notes and mortgage.</p>

Held: That'the right of action' accrued to D in July, 1871, and was barred by the two years’ limitation prescribed in § 3 of the Bankruptcy Act of March 3, 1867, 14 Stat. 618 , and.§ 6057 Rev. Stat. The facts are stated in the

<p>There is no relation of trust or confidence between mining partners, which is violated by the sale and assignment by one partner of his share in the company assets and business to one or more of his associates, without the knowledge of the other associates.</p> <p>The record in this case discloses no equitable reason why the defendants in error, who purchased the- interest of third parties in a mine in which all were jointly interested with the plaintiff in error, should be held bound to share with-the-plaintiff in error the interest so purchased.</p>

This case having been dismissed for want of jurisdiction, the defendant in error made' the following application to the court. “ The plaintiff in'error failing to print the record, the requisite amount was advanced by the defendant in' error, with the' understanding that in case of his success this would be refunded. “The Clerk now informs the defendant in error, that the amount advanced by him cannot be taxed in his favor, nor any of his other costs in this court, because…

Held: by the bank a draft indorsed b f him but which had not then matured. The bank refused to pay the checks, and afterwards, the depositor having been adjudged a bankrupt and the draft dishonored, credited the amount of-the balance on the draft, and proved in bankruptcy for the difference only. The State Court decided that the cheeks constituted an equitable assignment of the amount ■ due by the bank.

Held: 1.. That by th4 terms of that act, and. the issue of bonds and coupons in virtue of the same, a contract was made between every coupon-holder and the State that such coupons should “ be receivable at and after maturity for all taxes, debts, dues, and demands due the State; ” the right of the coupon- , holder, under which, was to have his coupons received for taxes when offered, and that any act of the State which…

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

<p>IN ERROR TO THE SUPREME COURT OF APPEALS OF THE STATE OF VIRGINIA.</p>

<p>Tie general questions arisingand argued in this case are fully discussed and decided in the case of 'Poindexter v. Greenhorn, ante, 270.</p> <p>The remedy by injunction to prevent the collection of taxes by distraint upon the rolling-stock, machinery, ears and engines, and other property of railroad corporations, after a tender of payment in tax-receivable coupons, is sanctioned by repeated decisions of this court, and has .become common .and unquestioned practice, in- similar cases, where exemptions have been claimed in virtue of the Constitution of the United States; the ground of the jurisdiction being that there is no adequate remedy at law.</p>

<p>IN EEEOE TO THE CIRCUIT COUBT OF THE UNITED STATES FOE THE EASTERN DISTRICT OF VIRGINIA.</p>

<p>ARPEAOS FBOM THE CIRCUIT COUET OF THE UNITED STATES FOR ^ THE EASTERN DISTRICT OF VIRGINIA.</p>

<p>The contract right óf a coupon-holder under the Virginia act of March 30, 1871, whereby his coupons are receivable in payment of taxes, can be exercised only by a tax-payer r and a bill in e'quity, for an injunction to restrain tax collectors from refusing to receive them, when tendered in payment of taxes, will not lie in behalf of a coupon-holder who does not . allege himself to be also a tax-payer. Such a bill calls for a decree declaring merely-an abstract right, and do'es.not show any breach of the contract, or other ground of relief.</p>

<p>Antoni v. Greenhow, 107 IJ. S. 769, deciding that the Act of Yirginia-of January 14,1882, affords an adequate remedy to the tax-payers required to pay money in lieu of coupons' in payment of a license tax affirmed ; and a writ of mandamus against an officer of that State refused.</p>

<p>IN EEEOE TO THE CIRCUIT COURT OF THE UNITED: STATES EOE THE MIDDLE DISTRICT OF ALABAMA.</p> <p>This was an action of ejectment. The facts which»make the case are stated in the opinion- of the court.</p>

This case grew out of a collision which took. place on the high seas between the Norwegian barque Luna and the Belgian steamship Belgenland, by which the former was run down and sunk.

<p>' The lands granted by Congress to the State of Kansas for the benefit of the St. Joseph & Deliver City Kailroad Company by the act of July 23, 1860, were pot open to sale or settlement after the line or route of the road was “ definitely fixed ” ; which it was when the map" of the route adopted by the company was filed with the Secretary of the Interior, and accepted by. him. Van Wyck v. Knevals, 106 U. S. 360, affirmed.</p>

Held: That this could not be done, as the transaction was entirely between the bank and the new firm. Bill in equity. The facts which make the case are stated in the

Held: to enure to plaintiff’s benefit. . Nor does the plaintiff rely on it as sufficient. His claim to the benefit of defendant’s title rests upon the selection made under State authority. ■ That is the question of federal law which this court must decide, and as we have seen, that was Well decided against him by the State court. Its decree is accordingly • • Affirmed. Aurrecoechea v. Sinclair & Others.

TENNESSEE;. This ivas a bill in equity filed in a State Court of Tennessee by the plaintiffs in error as plaintiffs below to have rights secured to them which were alleged to be invaded by legislation of that State referred to in the opinion of the court. A decree was rendered dismissing the bill, which decree was affirmed by the Supreme Court on appeal. The plaintiff below - sued out this writ of error to review the latter judgment.

Held: (1.) The contract was executed, and S. was put in possession, and the statute of frauds, 29 Car. 2, ch. 3, § 17,’did not apply. (2.) S. was entitled to have credit, on his purchase of the one-sixth, for what C. owed him on the accountsaforesaid ; and 0. was entitled to recover from S. the residue of what he had paid for the one-sixth. This was a bill in equity for an account and for other relief.

Held: replace as much as possible of the money in the sub-treasury, so as to reduce the loss to the smallest possible amount. Carter promised Hartwell that he would return all the money before the first of April, not again to come out of the sub-treasury.

This was a libel filed by Norman H. Pollock against the'' Steamboat Laura, &c., to recover penalties for the violation of Rev. Stat. § 4465 The facts which make the case are stated in the opinion of the court. The libel was dismissed in the District ’ Court. An appeal was taken to the Circuit Court, where it was again dismissed. The libellant appealed to this court.

ORIGINAL. This was a petition for a writ of habeas corpus, presented to-this court by a man confined in the House of Correction at Detroit in the State of Michigan, under a sentence to be imprisoned there for fifteen years at hard labor, passed by the District Court of the United States for the Eastern District of Arkansas, upn an information filed by the District Attorney for that district.

<p>Neither the liability for provisions supplied at a dwelling house where a husband and wife and their children are living together, nor a promissory note given by the husband, describing himself as trustee for the wife, in payment for such supplies, can be charged in equity upon the wife’s separate estate, without clear proof that she contracted the debt on her own behalf, or intended to bind her separate estate for its payment.</p> <p>When the decree below is for a sum which gives this court jurisdiction on appeal, and the appellee makes no appearance hero, but expressly declines to do so, after notice to him by order of court, it is too late to oiler proof that the amount involved does not give jurisdiction.</p> <p>An appeal bond is essential to the prosecution..of a suit in this court, if it is demanded, but not to the taking of the appeal in the court below.</p> <p>When security on appeal is not furnished until after the term at which the appeal is taken, failure to cite the appellee does not deprive this court of jurisdiction.</p>

Held: that such award of damages was improper, amd that only nominal damages should have been allowed.

The case was a suit in equity, brought by the appellant, the Western Electric Manufacturing Company, against the Ansonia Brass and Copper Conypany to, restrain the infringement of two reissued letters patent, numbered 6,954 and 6,955 respectively, granted to the appellant as the assignee of Joseph Olm-stead, both dated February 29, 1876, for improvements in insulating telegraph wires. The reissues are divisions of original letters patent No. 129,858, dated July 23, 1872.

The appellee in this court, as plaintiff in the court below, filed its bill in equity to restrain the appellants from interfering with the laying of its track in certain streets in the City of Washington. Judgment being rendered for plaintiff, defendants appealed to this court. The facts which make the cáse are stated in the opinion of the court.

<p>§ 1001 Rev. Stat. exempts insolvent national banks or the receivers thereof, bringing causes to this court by i?rit of error or bn appeal by direction of the Comptroller of the Currency, from the obligation to give security.</p> <p>It is no cause for dismissal of a writ of error brought by a receiver of a national bank that in one of the papers by clerical error he is given a wrong name.</p>

<p>APPEAL FEOM THE CIECUIT COUET OF THE UNITED STATES FOE THE EASTERN DISTRICT OF MISSOURI.</p> <p>Robert S. Cavender, the appellee, was the plaintiff in the Circuit Court. He stated his case in the bill of complaint substantially as follows:</p> <p>John Cavender, deceased, by his last will and testament, dated May 6, 1858, and proved in the Probate Court of the City — then County — of St. Louis and State of Missouri, February 4, 1862, made and constituted the defendant, John S. Cavender; executor of his estate, and, after payment of debts, as therein mentioned, bequeathed one-half of the remainder of his estate to John S. Cavender aforesaid, as trustee, to hold the same in trust for the use and benefit of the plaintiff during the term of his natural life, and by said will directed him to invest the same in real or personal securities, and to pay over the rents, profits, issues, and incomes thereof to the plaintiff semi-annually, at the end of every half year, during his lifetime.</p> <p>The Probate Court, by its order and decree made. October 5, 1878, found in the hands of the defendant, as such executor, the sum of $17,169.49 belonging to the trust estate, and directed him to pay over the same to himself as trustee; and after-wards, on December 3, 1878, the defendant executed his bond as trustee, with sureties, in the penalty of $25,000, conditioned for the faithful execution of his trust. On April 22, 1879, John S. Cavender, trustee, filed in the Probate Court his written receipt, whereby he acknowledged that he had received from John S. Cavender, executor, the sum of $17,169.49, and thereupon prayed for his discharge as executor of the said estate, -which, on the same day, the court granted.</p> <p>The bill then averred that if the said sum of $17,169.49 had thereafter been properly invested by the trustee, as by the terms of the will it became his duty to invest the same., it would have fairly yielded an annual income of six per cent., which was, by the terms of the will, payable semi-annually.</p> <p>It further alleged-that, by the obligations assumed by John S. Cavender as trustee of the plaintiff under the will, it became his duty to set apart and invest in safe and permanent securities said trust fund so acknowledged to have been received by him, in order that it might remain intact, and yield a regular and certain income to the plaintiff from-year to year. But the bill averred that Cavender had been guilty of á gross breach of his trust, that he had never set apart or invested any sum whatever in securities of any description, or in property or assets of any sort, as a trust fund for the benefit of plaintiff, or deposited in bank or elsewhere any sum of money to the credit of the trust estate, but, on the contrary, had converted to his own use and dissipated the whole of the trust -estate and all the assets and money belonging thereto, except certain lands in the State of Illinois, and that the income for the first six months from the trust funds was due, had been demanded, and was unpaid at the commencement of the suit.</p> <p>The bill further averred that there were large tracts of land in the State of Illinois belonging to the estate of John Caven-der, the proceeds and income of which were, under his will, a part of the trust estate; that the profits of said lands and the proceeds of their sale would probably be large, which John S. Cavender would be likely to convert to his own use.</p> <p>. The prayer of the bill was, that Cavender might be removed from his office of trustee, and a proper person appointed in his stead, to whom he might be ordered to pay over the said sum of seventeen thousand one hundred and sixty-nine dollars and forty-nine cents, with the interest due thei-eon.</p> <p>A demurrer was filed to the bill and overruled by the court.</p> <p>Thereupon Cavender answered, admitting that “John Cav-ender, deceased, by his last will and. testament, dated and probated as specified in the bill, did constitute the defendant executor of his estate, and bequeathed one-half the residuo of his estate, after the payment of debts, to the defendant as trustee, to hold said moiety in trust for the use and benefit of complainant during complainant’s natural life, to be invested in real or personal securities, and the income thereof only to be paid over to the complainant, semi-annually, during his lifetime,” but averring that, by the. terms of said will, after the lapse successively of the life estate of complainant and Charlotte M., his wife, in the trust property aforesaid, such property would descend to defendant and his heirs, in fee simple, forever discharged of the trust aforesaid.</p> <p>The answer also admitted “ that the Probate Court of the City of St. Louis, by its judgment of October 5, 1818, found to be due, and ordered to be paid, by this defendant, as executor to this defendant as trustee, the sum of $17,169.49, and that thereafter the defendant made and executed his bond as such trustee, with good and sufficient sureties, whereby he bound himself to the State of Missouri, to the use of all persons beneficially interested, in the penal sum of twenty-five thousand dollars, and conditioned for the faithful performance by tbis defendant as such trustee of the trust created by the provisions of said will as aforesaid,” but denied “ that on the 22d day of April, 1879, as alleged in said bill, he filed as ' such trustee in said Probate Court his written receipt, whereby he acknowledged to have received from himself as executor the said sum of $17,169.49, and was thereafter, on April 30, 1879, granted his discharge as executor by said Probate Court,” and averred the fact to be that he had “ never received as trustee, at the date of said alleged receipt, or at any other time, from himself as executor aforesaid, or from any source, the sum of seventeen thousand one hundred and sixty-nine dollars and forty-nine cents, or any other sum whatsoever, on account of said trust estate,” and denied that 'any income had accrued in his hands from said trust estate to which the plaintiff -was entitled, and admitted that no part of such income had ever been paid to the plaintiff.</p> <p>The- answer admitted that Cavender held the lands referred to in the bill, and that their proceeds and income should be set aside for the benefit of said trust estate, but denied that he would be likely to convert and absorb the same, and denied that he had mismanaged the trust estate.</p> <p>The plaintiff filed the general replication to the answer, and, upon the final - hearing, besides the admissions of the answer, offered the following evidence:</p> <p>First. A certified .copy of the original receipt of the defendant, on file in the Probate Court of the City of St. Louis, which was in the words and figures following:</p> <p>£: In the Probate Court, City of St. Louis. In the matter of the estate of John Cavender, deceased. St. Louis, April 22nd, 1879. I, John S. Cavender, trustóe of Robert S. Caven-der and others, under the last will and testament of John Oav-ender, deceased, acknowledge that I have received from John S. Cavender, executor of said deceased, the sum of' seventeen thousand one hundred and sixty-nine and Anr dollars, ordered to be paid to me by said Probate Court. Entered of record in the records of said court on the 5th day of October, 1878. John S. Cavender, Trustee.”</p> <p>Second. A certified copy of a paper writing, on file in the same Probate Court, signed by W. G. Eliot, George Partridge, E. S. Eouse andNJohn S. Cavender, entitled “ In the matter of the estate of John Cavender, deceased,” and dated St. Louis, April 23, 1879, in which it was recited that John S. Cavender,' executor of the last will of John Cavender, deceased, had, on October 5, 1878, been ordered by the said Probate Court to pay over to himself, as trustee of Robert S. Cavender, under the last will of John Cavender, the sum of $17,169.49, and after such order the said John S. Cavender, trustee, as principal, and the said Eliot, Partridge and Rouse, as sureties, executed and filed their bond, dated December 3, 1878, in the penalty of $25,000, conditioned for the faithful execution of his trust by said trustee, and that said John S. Cavender had given to himself, as said executor, his receipt, dated April 22, 1879, for the sum of $17,169.49, and, on the strength of said receipt as a’voucher, was about to apply to the said Probate Court for his discharge as such executor. The writing then proceeded as follows:</p> <p>“ Now we, ’William G. Eliot, George Partridge, and Edward S. Rouse, acknowledge, as such sureties, that said John S. Cavender, has, in law, received, and is now .bound, as such trustee, for said sum of seventeen thousand one hundred and sixty-nine and A9» dollars, as for cash actually received, and that the said bond is still in full force, and binding upon the undersigned, to all intents and purposes, in contemplation of law, touching the custody of said fund, as for cash actually received,’and the execution of said trust concerning the same.</p> <p>“ And John S. Cavender, on his own part, as trustee and principal in said bond, admits the full and binding force of the above admission.”</p> <p>Third. A certified copy of the order of the Probate Court discharging John S. Cavender as executor of the estate of John Cavender, deceased, which was .dated April 30, 1879, and was based on the ground that John S. Cavender had filed a receipt, signed by himself as trustee, acknowledging the receipt from himself, as executor, of the sum of $17,169.49, and was as follows:</p> <p>' “ Estate of John Cavender.</p> <p>‘.‘Now comes John S. Cavender, executor, and files the receipt dated April 22, 1879, given- by John S. Cavender, trustee of Robert S. Cavender and Caroline M. Cavender, to said executor, for seventeen thousand one hundred and sixty-nine -^¶ dollars, ordered-by this court October 5, 1878, to be paid by said executor to said trustee, and it appearing to the court that on the 9th day of December, 1878, said trustee filed his bond as trustee in the St. Louis Circuit Court, conditioned for the faithful execution of the trust vested in him under ’the will of said John Cavender, deceased, with William G. Eliot, George Partridge, and Edward S. Rouse, as sureties; and said trustee, with said sureties, having, on the 23d day of April, 1879, filed in this court their written aijmission that said trustee has in law received and is bound for said sum of seventeen thousand one hundred and sixty-nine XV<¡- dollars, as for cash actually received, and that said bond is in full force as to the custody of said sum as for cash actually received, and for the execution of the trust touching, the same; and said executor, asking for his discharge on the strength of said receipt and admission, and said Robert S. and ¡Caroline M. Cavender, having by counsel, T. A. Post, appeared to Said motion for discharge, and submitting the same oñ their part without argument or objection; now, therefore, in view of the premises, the court being in possession of the evidence, and having fully considered the same, doth order that said John S. Cavender be, and he is hereby, finally discharged as such executor.”</p> <p>All the foregoing evidence was received by the court without objection by the defendant.</p> <p>Fourth. The deposition of J. S. Fullerton, who testified that, money could be safely lent on real estate security in the City of St. Louis, in 1878 and part of 1879, at seven per cent, per annum, and in the latter part of 1879, and since that year, at six per cent, per annum net.</p> <p>Fifth. The deposition of John S. Cavender, the defendant, who stated that he was the trustee of Robert S. Cavender, but bad made no investments for him, and that he had placed no money to the benefit of the- trust fund in securities of any sort, 'or in bank, and* had set aside no annuities for the benefit of Robert S. Cavender or the trust estate.</p> <p>No proofs were offered for the defendant, and the court, upon the evidence above recited, made a decree removing John Sr Cavender as trustee and appointing John M. Glover in his stead, and directing Cavender, upon demand, to pay over to Glover, trustee, the said sum of $17,169.49, and such sums of money as had been received and collected by Cavender from sales of land or otherwise since April 30th, 1879, belonging to the trust fund.</p> <p>From this decree John S. Cavender appealed.</p>

<p>IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA.</p> <p>The facts which make the case are stated in the opinion of the court.</p>

Held: shall prepare a jury list from which grand and petit jurors shall be drawn, to serve in the District Courts of such district, until a new list shall be made as herein provided.

This was a writ of error to reverse a judgment rendered by the Supreme Court of the Territory of Utah, affirming, upon appeal from the District Court of the Third Judicial District of the Territory, a judgment and sentence of death upon a conviction of murder. The decisions of this court, after former trials of the case, are reported in 104 U. S. 631, and 110 U. S. 574.

Held: (1.) G. was the owner of the cargoes, and sold and delivered them to A., to be paid for on delivery, free from any claim .growing out of the contract of A. with D. or R., for any breadrofithat contract, as to the time of shipping the cargoes. (2.) A'was liable to G. for the price of the cargoes, with interest from their delivery.

Held: that whem a mortgage on a railroad and its franchises was authorized by law, that the attempt of the mortgagor to enforce the mortgage would destroy the main value of the property by the destruction of its franchises.

Held: That this was a substantial compliance with the provision requiring the auditor to notify the tax-payer before making entry of the increase. ■ The act of the Legislature of Ohio of May 11, 1878, authorizing auditors to extend inquiries into returns of property for taxation, over a peiiod of four years next before that in which the inquiry is made, is no violation of that • provision in the Constitution of that State…

<p>APPEAL PROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF' CONNECTICUT.</p> <p>This was a bill in equity for infringing a patent right. The facts are stated in the opinion of the court.</p>

Held: 'that the property and franchises of a railroad company within the reservation was liable to pay taxes in the State of Kansas, imposed according to its laws. This was a suit at law brought by the plaintiff in error as plaintiff below in a District Court of the State of Kansas to recover taxes imposed upon it and paid, on its property within the Fort Leavenworth Military Reservation.

ORIGINAL. After announcement of the judgment in this cause, ante, 147, the respondent moved to tax as costs, 1, a docket fee, and 2, his disbursements for printing briefs of counsel, and objections to filing a reply to the relator to the return of the respondent.

Held: That in the absence of fraud, or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment, the action of the engineer in the premises was conclusive upon the parties, Kihlberg v. United States, 97 U. S. 398 , and Sweeney v. United States, 109 U. S. 618 , affirmed and applied. .

This action was commenced by defendants in error as plaintiffs in a court of the State of New York, to recover of the plaintiffs in error a sum which they alleged they had been compelled to pay, through false and fraudulent representations of one of the members of a partnership, consisting of the defendants, made in the course of partnership business. The defendants set up a discharge in bankruptcy.

<p>APPEAL FROM THE COÜRT OF CLAIMS.</p> <p>The facts which make the case a,re stated in the opinion of the court. ' .</p>

Held: That no restraint of liberty was shown to justify the use of the writ of habeas corpus. (2) That the court would not decide in these proceedings, whether the Surgeon-General of the Navy as Chief of the Bureau of Medicine and Surgery in the Navy, is liable to be tried by court martial for failure to perform his duties as Surgeon-General.

This was a proceeding under Rev. Stat. §§ 2325, 2326, to determine adverse claims to the possession of mineral lands in Nevada. The facts are stated in the opinion of the court. By direction of the court the following explanatory map has been prepared to show the location of the several claims.

Held: That the property was not subject to any lien in favor of bonds of one of the old companies, issued after the passage of the statutes authorizing the consolidation, unsecured by any mortgage or lien before the consolidation, and the holders Of which had' not exchanged or offered to exchange them for bonds of the consolidated company before the proceedings for foreclosure.

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MARYLAND.</p> <p>This tras an appeal from a decree in equity of the. Circuit Court of the United States for the District of Maryland, restraining a judgment creditor of the Chesapeake' and Ohio Canal Company from levying upon money deposited by that company in a bank in Baltimore. The case appeared by the record to be as follows :</p> <p>The Chesapeake and Ohio Canal Company was incorporated, and constructed a canal from Georgetown in the District of Columbia to Cumberland in the State of Maryland, under statutes of Virginia and Maryland of 1824, confirmed by the act of Congress of March 3,1825, cb. 52. 4 Stat. 101, 793-802.</p> <p>Under the statute of Maryland of 1834, eh. 241, the State of Maryland lent to the company the sum of $2,000,000, to be used in the construction of the canal; and the company, on April 23, 1825, to secure the repayment of that sum. and interest, made to the State a mortgage of “ all and singular the lands and tenements, capital stock, estates and securities, goods and chattels, property and rights, now or at any time hereafter to be acquired, and the net tolls and revenues of the said company.” No part of that loan, or of the interest accrued thereon, was ever paid</p> <p>Under the statute of Maryland of 1835, ch. 395, the State subscribed and paid for 30,000 shares, and.under the statute of 1838, ch. 396,13,750 shares, together constituting a majority of the stock in the company; first receiving from the company, as required by each statute, an instrument in writing under seal, by which the company, guaranteed to the State the payment, out of the profits of the work, of six per cent, yearly on the money paid to it by the State under that statute, until the clear annual profits of the canal should be more than sufficient to dis- - charge the sums which the company should be liable' to pay annually to the State, and should be adequate to a. dividend of six per cent, among its stockholders, and further agreed that thereafter the State should receive, upon the stock by it subscribed for, a proportional dividend upon the profits of the work as declared from time to time. The company never paid to the State any part of such dividends or interest.</p> <p>On May 15,1839, the company, as required by the statute of 1838, and to secure the payment to the State of interest for three years at the yearly rate of five per cent, on stock issued by the State under that statute to the amount of $1,375,000, made another mortgage to the State of its lands and tenements, property and effects, as well as of its net tolls and revenue. No part of this interest was paid.</p> <p>The statute of Maryland of 1844, ch. 281, authorized the company to borrow money and issue its bonds to the amount of $1,700,000, to provide means for completing its canal to Cumberland, and contained the following provisions:</p> <p>Seo. 2. “ The bonds so issued as aforesaid shall appear on the face of- the same to be preferred liens on the revenues of said company, according to the provisions of this act, and with the assent of the said, company, as is hereinafter provided for; the said bonds, without any preference or priority over each other on account of date, shall be preferred liens on the revenues and tolls that may accrue to the said company from the entire and every part of the canal and its works between Georgetown and Cumberland, which are hereby pledged and appropriated' to the payment of the same, and the interest to accrue.thereon, in the manner hereinafter mentioned: Provided, however, that this State shall in no case be bound or held responsible for the payment of said bonds, or the interest thereon: And provided further, that the president and directors of the said company shall from time to time, and at all times hereafter, have the privilege and authority to use and apply such portion of said revenues and tolls as in their opinion may be necessary to put and keep the said canal in good condition and repair for transportation, provide the requisite supply of water, and pay the salaries of officers and agents, and the current expenses of the said company.”</p> <p>Sec. 4. “ That the rights and liens of this State upon the revenues of the Chesapeake and Ohio Canal Company shall be held and considered as waived, deferred and postponed in favor of the bonds that may be issued under the aforegoing sections, so as to make the said bonds, and the interest to accrue thereon, preferred and absolute liens on said revenues, according to the provisions of the second section of this act, until said bonds and interest shall be'fully paid.”</p> <p>Sec. 5. “ That semi-annually in each year, as the same shall be payable, said Chesapeake and Ohio Canal Company shall pay the interest on the bonds constituting preferred liens as afore-; said, to the party or parties respectively entitled thereto, or to their agent or agents authorized to receive the same ■ and as soon as the net revenues of said company, arising from the canal and its works between Georgetown and Cumberland as aforesaid, shall be more than sufficient to pay the interest that may become due and in arrear upon said bonds, with the costs of remittance and exchange, if there be any, and such further sum, not exceeding $5,000 annually, as may be • necessary to pay the interest on the bonds or certificates of debt heretofore issued by said company to the creditors of the Potomac Company, for claims adjusted under the twelfth section of the charter of the Chesapeake and Ohio Canal Company; the said company shall annually pay to the Treasurer of the Western. Shore of this State, who shall receive the same' under the responsibilities of his office, the surplus net revenues as aforesaid, to such amount as may be necessary as an adequate sinking fund, not exceeding the sum of $25,000 a year, on an average of years, dating from the first day of January next after the completion of the canal to Cumberland; which sum or sums shall from time to time be invested by said" treasurer, and be accumulated by him as a sinking fund to pay the principal of said bonds,- until a sufficient amount is so paid and accumulated for that purpose.”</p> <p>Seo. 6. “ That the' president and directors of the Chesapeake and Ohio Canal Company be, and-they are hereby, authorized to execute any deed, mortgage or other instrument of writing, that may hereafter be deemed necessary or expedient to give the fullest effect to the aforegoing provisions.”</p> <p>Seo. T. “ That the -Chesapeake and Ohio Canal Company shall execute to this State and deliver to the Treasurer of the Western Shore of Maryland a further mortgage on the said canal, its lands, tolls and revenues, subject to the liens and pledges by the aforegoing provisions of this act made, created or authorized, as an additional security for the payment of the loan made by this State to the said company under the act of December session eighteen hundred and, thirty-four, chapter two hundred and forty-one, and the interest due and in arrear and which hereafter may accrue thereon; which mortgage shall be submitted to the Attorney-General of this State, and be approved by him as sufficient in law.”</p> <p>On January 8, 1846, the company, pursuant to § 7 of that statute, and as an additional security for the payment of the $2,000,000 before lent by thé State of Maryland to the company, under the statute of 1834, and interest, executed a mortgage of all its lands and tenements, its canal and appurtenances, “ embracing the entire undertaking, and the tolls and revenues that may hereafter accrue,” and all its property and rights; “ subject, nevertheless, to all and singular the liens and pledges by the provisions of the before-mentioned act of 'eighteen hundred and forty-four, chapter two hundred and eighty-one, made, created or authorized, or that have been or may hereafter be made, created, given or granted by the said Chesapeake and Ohio Canal Company, or the president and directors thereof, under or in pursuance of the provisions of said act, which said liens and pledges are in nowise to be lessened', impaired or interfered with by this deed, or by anything herein contained, and subject, also, to all the other provisions of said áct.”</p> <p>. On June 5,1848, the company executed a mortgage, reciting the last provisions of the second .section, as well as the provisions of the fourth and sixth sections of the act of 1844, and conveying to William W. Corcoran and others, trustees, “ the-revenues and tolls of the entire and every part of the canal and its works between Georgetown and Cumberland,” to secure, after the payment of debts existing or thereafter contracted for repairs on the canal and providing the requisite supply of water, and for salaries and current expenses, first, the payment of interest on the bonds issued by the company under the act of 1844, second, the payment of interest to creditors of the Potomac Company, third, the creation of a sinking fund for the redemption of those bonds; with the further provisions “that so long as the said canal company shall comply with their agreement by paying all the interest upon said bonds as the same falls due, and by providing an adequate sinking fund in the manner specified according to the provisions of the said act for the final redemption of the said bonds, they shall retain the management of the canal and its works, and collect and receive the revenues and tolls; but if they fail to comply with these conditions from any cause except a deficiency of revenue arising from a failure of business without fault on the part of said company, said fault to be made to appear by the grantees aforesaid, then the grantees may demand and shall thereupon receive possession, and shall appropriate the said tolls and revenues in the manner hereinbefore provided.”</p> <p>In 1854, Charles Macalester, a citizen of Pennsylvania, recovered in an action in the Circuit Court of the United States for the District of Maryland, upon a debt not secured by any of the aforesaid mortgages, a judgment for $5,471.31 and costs. In 1867, Macalester having died, the appellant took out letters of administration upon his estate in Maryland, and became as such administrator plaintiff in that action, and judgment was entered for him against the company, and he in 1880 issued an attachment upon that judgment, and caused it to be laid in the hands of a bank -in Baltimore as garnishee upon moneys standing to the credit of the company on the books of the bank. Those moneys were in the possession of the bank on deposit, and were exclusively made up of the tolls and revenues received by the company in the course of its business, and were sufficient to. pay the judgment debt, interest and costs, but were required to meet the necessary expenses of putting and keeping the canal in proper navigable condition, after payment of the salaries of officers, and supplying the necessary quantity of water for purposes of navigation.</p> <p>In' 1882, Macalester’s administrator having applied to the court for a judgment of condemnation of so much of tho moneys in the hands of the garnishee as would satisfy' his judgment debt, interest and costs, bills in equity to restrain ■ further proceedings by him were filed by the State of Maryland, and by the trustees under the mortgage of 1848,..setting forth the facts above stated, and also alleging that- Macalester and his administrator “ had each notice, before acquiring .any of their respective rights of action in the premises, of all the liens, charges and duties affecting the revenues, tolls and property of the said Chesapeake and Ohio Canal Company, and were especially affected with knowledge that such portions of the revenues and tolls of said Chesapeake and Ohio Canal Company, as were necessary to put and keep the canal of the said company in good condition and repair for transportation, provide the requisite supply of water, and pay the salaries of officers and agents of the said company,- were dedicated and set apart to such purposes by contract with the State of Maryland, and were under said contract exclusively -applicable to said purposes.”</p> <p>The administrator filed a demurrer to each bill, which was overruled, and a final decree entered against him, and, upon his motion at the same term, the .court ordered nunc fro tune that the two suits be consolidated, “ but so that the validity, ' force and effect of neither of said decrees shall be ,by this order affected or impaired.” He then appeáled to this court.</p>

This was a writ of error by the devisees of Mary Y. Wurts to reverse a judgment confirming an assessment of commissioners for the drainage of lands under the statute of New Jersey of March 8,1871, the material provisions of which are as follows: By § 1, “ the Board of Managers of the Geological Survey, on the application of at least five owners of separate lots of land included in any tract of land in this State which is subject to overflow from freshets, or which is usually…

<p>The doctrine laid down in Railroad Go. v. Houston, 95 U. S. 697, cited and applied to the facts of this case.</p> <p>Where a person, in a sleigh drawn by one horse, on a wagon road, approaching a crossing of a railroad track, with which he was familiar, could have seen a coming train, during its progress through a distance of 70 rods from the crossing, if he had looked from a point at any distance within 600 feet from the crossing, and was struck by the train at the crossing and injured, he was guilty of contributory negligence, even though the train was not a regular one, and was running at a high rate of speed, and did not stop at a depot 70 rods from the crossing in the direction from which the train came, and did not blow a whistle or ring a bell between the depot and the crossing.</p> <p>On these facts, it was proper for the trial court to direct a verdict for the defendant.</p>

<p>An officermf volunteers, in the army, dismissed from the service during the recent civil war, by order of the President, could not be restored to his ' position merely by a subsequent revocation of that order.</p> <p>The vacancy so created could only be filled by a new appointment, by and with the advice and consent of the Senate; unless it occurred in the recess of that body, in which ease the President could have granted a commission to expire at the end of its next succeeding session.</p>

Held: I will sell within the legal hours for judicial sales, for cash and -without appraisement, such portion of the said movable property as you shall point out and deliver to me, and in case you shall not point out sufficient property that I will at once and without further delay sell for cash without appraisement the least quantity of said movable property which any bidder will buy for the amount of taxes assessed upon…

This was a writ oí error to the Supreme Court of New York to review a judgment of that court denying a motion for a re-mo val of the cause to the Circuit Court of the United States. The facts which make the federal question are stated in the opinion of the court.

<p>The statute requiring the surrender- of a fugitive from justice, found in one of the Territories, to the State in which he stands charged with treason, felony, or other crime, embraces every offence known to the laws of the demanding State, including misdemeanors.</p> <p>Bach State has the right to prescribe the forms of pleading and process to he observed in its courts, in both civil and criminal cases, subject only to those provisions of the national Constitution designed for the protection of life, liberty and property in all the States of the Union ; consequently, in a case involving the surrender; under the act of Congress, of a fugitive from justice, it may not be objected that the indictment is not framed' according to the technical rules .of criminal pleading, if it conforms substantially to the laws of the demanding State.</p> <p>Upon the executive of. the State or Territory in which the accused is found rests the responsibility of determining whether he is a fugitive from the justice of the demanding State. But the act of Congress does not direct his surrender, unless it is made to appear that he is, in fact, a fugitive from justice.</p> <p>If the determination of that fact, upon proof before the executive of the State where the alleged fugitive is found, is subject to judicial review upon ha-beas corpus, the accused, being in custody under his warrant — which recites the requisition of the demanding State, accompanied by an,authentic indictment, charging him substantially as required by its laws with' a specific crime committed within its jurisdiction — should not be discharged, because, in the judgment of the court; the proof showing that he was a fugitive from justice may not be as full as might properly have been required.</p>

Held: (1.) The affidavit was sufficient for a femoval under subdivision 3 of § 689 ; (2.) The petition made out a case for a removal under the act of 1875 ; (3.) The absence of an oath to the petition was, at most, only an informality, which the defendant waived by not taking the objection on the motion to remand. ,H., having obtained a money judgment against the City of New Orleaná, in - the Circuit Court of the United…

Held: in view of other provisions in the act, and, of the practical construction put upon it, that the lien thereby ■ created, was created to secure payment to the State'of the amount of indebtedness it thus undertook to incur, and not payment to the holders of the State bonds thus agreed to be issued ; and that the State could accept payment in other mode or modes than those pointed out by the' act or acts creating the…