Volume 115 — United States Reports

from page 2 intentionally omitted] John F. Dillon , for plaintiffs in error, in Nos. 291, 461, 810, and 980. W. Hallett Phillips , for defendants in error, in Nos. 291, 461, 810, and 980; and W. H. Munger , for defendants in error, in No. 810. W. D. Davidge , for plaintiffs in error, in Nos. 610, 797, and 824. W. H. Phillips and ,A. H. Garland , for defendants in error, in Nos. 610, 797, and 824.

The questions argued and decided in these cases arose under the statutes regulating the removal of causes from State courts. The facts in regard to each case are stated in the opinion of the court.

This was a suit to recover back duties alleged to have been illegally exacted. The facts are stated in the. opinion of the court.

Held: That there was a legal contract between the parties ; (2) That C was not estopped from setting it up against A ; (3) That the contract was.- not repudiated and terminated by C in such manner as to discharge A from further obligation ; (4) That Á was bound to accept from C, between August 1 and October 1, any amount of rails between the ■ limits of two hundred tons and six hundred tons.

This was an action in tort commenced in a State court against several defendants on a joint cause of action; removed' to the Circuit Court as a separable controversy after filing of separate answers,' and thence remanded to the State court. This writ of error was brought to review this judgment of the Circuit Court. The facts are stated in the opinion of the court.

These were proceedings under BeV. Stat. §§ 2325, 2326 to determine adverse claims to a mineral location. The.facts are stated'in the opinion of the court.

Held: That these resolutions were not inconsistent with the control of the mine by A. *52 The facts which make the case. are stated in the

The only question involved in this appeal was the rightfulness of the removal of the cause from -a State court to a Circuit Court of the United States. The facts which raise,, the question are, stated in the opinion of the court.

This was a bill in equity by creditors to reach property of the debtor alleged to have been fraudulently transferred, as against the creditors.

<p>IN ERROR TO THE SUPREME COURT OE THE STATE OE CALIFORNIA.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL PROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.</p> <p>Tbis was a collision case in admiralty. The facts are stated in the opinion of the court.</p>

<p>APPEAL EEOM THE CIRCUIT COURT OP THE UNITED STATES EOR THE NORTHERN DISTRICT OP ILLINOIS.</p> <p>This was a bill in equity to restrain infringements of a patent. The facts are stated in the opinion of the court.</p>

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.</p> <p>The facts which make the case are stated in the opinion of the court.</p>

This was an action in the nature of ejectment to recover possession of a tract of land in California. The facts which make the ease are stated in the opinion of the court.

Held: That this judgment against the old company could not be enforced in equity against its former property in the hands of the new company, thus transferred before the time when the alleged cause of action arose. The facts which make the case are stated in the

The Spartanburg and Asheville Railroad Company — a' corporation created by the consolidation, in the year 1874, of a railroad company of the same name, organized under the laws of South Carolina, and of the Greenville and French Broad Railroad Company, of North Carolina — executed, under date of October 1, 1876, a deed -of trust, whereby, for the purpose of securing the payment of its bonds, with interest coupons attached, it conveyed its franchises, railroad, rights, lands,…

The facts shown by the record wére as follows: On March 30,1860, Walter O. Wind, of the Parish of Rapides, in the State of Louisiana, made and delivered to the firm of Rotchfórd, Brown & Co., of the city of New Orleans, his nine promissory notes, each for the payment to their order of $5,000, four of which were to become due and payable on November 10,1860, and five on December 10, 1860.

Held: that this was a final decree settling the rights of the parties and disposing of the whole cause of-aetion, and that one of the complainants could not reopen it for the purpose of obtaining relief in that suit against a co-complainant.

Held: as the joint property of himself and Angelo, six houses and lots in the City of Mobile, valued at $26,000; subsequently to 1848 he bought a large amount of real estate, which he paid for out of the profit and incomes derived from the trust funds and from the slaves, and business jointly owned by himself and his brother.

Held: in its decision, that, as the act of March 12, 1863, contemplated that the property of loyal citizens might and would, be taken under it, and as the only remedy of a loyal citizen of a loyal State in respect to property owned by him, seized by a Treasury agent, in an insurrectionary district, as abandoned property, was by an application to the Court of Claims, pardon and amnesty could not place the disloyal citizen…

This was an action of assumpsit, brought by Arthur Nor-' rington, a citizen of Great Britain, trading under the name of A..Norrington & Go., against James A. Wright and others, citizens of Pennsylvania, trading under the name of Peter Wright & Sons, upon the following contract: “ Philadelphia, January 19, 1880. Sold to - Messrs. Peter Wright & Sons, for account of A'.

Held: and apparently with labor, that from the whole contract and circumstances of it the contracting parties might reasonably be supposed to have understood and intended that shipment of the rice during the months of March and (or) April would bring the cargo to London at .such time as the buyers would be prepared to receive it and pay for if; but that at no other time would they be so prepared.

<p>There being no assignment of error or appearance for plaintiff in error, judgment below is affirmed on motion of defendant in error, without examining the record.</p>

Held: That there was no such variance, and that the question of the existence of the defence set up was fairly put to the jury, on conflicting evidence. This court cannot review the weight of the evidence, and can look into it only to see whether there was error in not directing a verdict for the plaintiff, on the question of variance, or because there was no evidence to sustain the verdict.

Held: Í. That the representations in the circular were representations of the company, and were in no respect.the personal representations of A. *229 2. That the complainant had no right to rely on the statement concerning the length of line as materially affecting his security. 3. That it was the duty of persons purchasing the bonds to look to the mortgage for the description of the property mortgaged to secure them. 4.

Held: it is a Federal question. All the different cases, involving the existence or non-existence of such a superior right on the part of the State-have been decided by this court on the basis that they involve Federal questions. II.

<p>The Mississippi Code of 1871, § 2173," by which any action to recover property, because of the invalidity of an administrator's sale by order of a probate court, must be brought within one year, “ if such sale shall have been made in good faith and' the purchase money paid,”' does not apply to an action brought by the heir to recover land bid off by a creditor at such a sale for the .payment of his debt; and conveyed to him by the administrator, and not otherwise paid for than by giving .the administrator a receipt for the. amount of the bid.</p> <p>Under the Mississippi Code of .1880, §§ 2506, 2512, a tenant in common who has been ousted by his cotenant may maintain ejectment against him, and recover rents and profits in the same action.</p>

IN eeeoe’to the ciecuit oouet of the united states for THE DISTRICT OF KENTUCKY. Mrs. H. Estelle Wadsworth, the defendant in error in these cases, was the plaintiff in the Circuit Court, where she brought a joint action at law against the several plaintiffs in error, and John Gf. Gaines and Stephen Z. Relf.

Held: That the suit proceed at the suit of the survivors. ■The suit below was in equity and brought by George H. Wooster, the appellee, against Solomon Moses, Gotcho Blum, and Solomon Weil, partners under the name of Moses, Blum & Weil, for an infringement of letters patent. A final decree for an injunction and damages was rendered against the defendants, May 23, 1883.

These were suits commenced in a State court of Arkansas, praying in each case for a mandamus upon the defendants, a municipal corporation, to compel the issue and delivery of bonds of the' municipality, on a subscription in aid of a rail-. road. Judgment below that tfie subscription was unauthorized and void, and refusing the writ.

<p>In order to get a decision on a motion to dismiss, made before printing, the motion papers must present the case in a way which will enable the court to act understanding^ without reference to the transcript on file.</p> <p>National Bank v. Insurance Co., 100 U. S. 43, followed.</p>

Held: which were to be sent to the several Indian posts or agencies designated in that contract.

Held: That they could not afterwards maintain any action against the agent, on his promise to them. This action was brought by Richard T. Merrick and Thomas J. Durant to recover damages sustained by them in consequence of the violation of an agreement alleged to have been made by the defendant in error, in reference to compensation due them for certain legal services rendered in behalf of the State of Texas.

Held: That the absence from the sale of one of the trustees was not a sufficient reason, of itself, for setting aside the sple, as against the former owner of the land. The creditor, in this case, was the purchaser at the sale, and it was held that there was nothing shown which disqualified him from becoming such purchaser. Alleged inadequacy of price considered, and the sale upheld, as against that allegation.

Held: "that, whenever by the laws of a State, or by State authority, a tax, assessment, servitude, or other burden is imposed upon property for the public use, whether it be of the whole State, or of some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed, in the ordinary courts of justice, with such notice to the person, or such proceeding in…

Held: Chief Justice Shaw delivering the opinion, that where it was the usage of a hotel to deposit all letters left at the bar, in an urn kept for that'purpose, whence they were sent frequently throughout the day to the rooms of the different guests to whom they were directed, it will be presumed that a letter addressed to one of the guests and left at the bar was received by him.

Dana Sargent, one of the appellants, was the sole plaintiff at the commencement of the suit in the Circuit Court. His bill was filed July 10,1879.

Held: no error in law, for which the charterers could have . the decree reversed in this court.

Edward P. Allis, the defendant in error, was the plaintiff in -the Circuit Court. He brought his suit to recover from the defendants, Thomas J. Pope and James E. Pope, now the plaintiffs in error, the sum of $17,840, the price of five hundred tons of pig iron, which he alleged he had bought from them and paid for, but which he refused to accept because it was not of the quality which the defendants had agreed to furnish.

Held: That the bill was prematurely protested, it not appearing that days of grace were allowed. *374 This suit was brought in the Circuit Court of the United States for the Northern District of Illinois, by the First National Bank of Chicago, as indorsee, against the plaintiffs in error, copartners under the name of Humphrey Bell & Co., as the drawers of three bills of exchange.

This was a suit in equity to compel the Merchants’ Exchange National Bank of the City of New York, one of the defendants below, and the appellant here, to surrender to the board of chosen freeholders of the county of Bergen, New Jersey, one hundred and two bonds of $500 each, drawn in the form of, and purporting to be, negotiable obligations of the board, on the ground that they were never issued by its authority.

This was an action to recover a parcel of mineral land, situated in the county of Lawrence, in the Territory of Dakota, claimed by the plaintiff under a patent of the United States bearing date on. the 31st of January, 1832.

This was an action to recover a parcel of mining ground, situated in Lawrence County, in the Territory of Dakota, and claimed by the plaintiffs under a patent of the United States, bearing date March 22,1880, and issued to them upon an entry made November 80,1877.

Held: That the liability of the officers and stockholders to the State, was statutory only,'and that the • facts stated in the declaration were not such as to bring the defendants within the liability clause- in the statute ; (1) because the suit was not brought to recover the payment of bonds the indorsement of which had been fraud uently obtained ; and (2) because the declaration did not show that the losses sued for…

The bill in equity, which was dismissed on the merits by the decree appealed from, was filed by the appellant to restrain the alleged infringement of reissued letters patent No. 6315, dated March 2,1875, based on the original patent, No, 142,154, dated August 26, 1873, issued to James Eachus, the complainant.

Held: That after the last-named day the mortgagee was not bound to transfer the debt and suit, but could proceed at law on the mortgage and'judgment. A single verdict and judgment in ejectment in Pennsylvania, not being conclusive under the laws of that State, is not conclusive in the.courts of the *440 United States, although entitled to peculiar respect, when the questions decided arise upon the local law of the State.

Held: for naught as against plaintiff, and that the deeds be delivered .up and cancelled. Mr. Augustus Ff. Gage and Mr. Albert G. Riddle for appellant. I. The service of notice upon which the tax deed issued to appellant Septémber 6,1877, and the affidavits filed with the county clerk to show such service of notice, were sufficient to authorize the county clerk to issue the deed to appellant.

<p>IN error to the circuit court oe the united states eor the EASTERN DISTRICT OE LOUISIANA.</p> <p>The facts are stated in the opinion of the court.</p>

<p>ORIGINAL MOTIONS MADE IN OASES PENDING IN THIS COURT ON APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS.</p> <p>This was a motion for a modification of the supersedeas, or more properly, perhaps, for a modification of the injunction contained in the decree appealed from. The bill prayed, among other things, for an injunction restraining “ the defendant, Leonard, from cutting or removing any trees, logs or timber, or any staves manufactured from any trees or timber,'from any of the lands ” in controversy. In the decree, the defendants were “perpetually enjoined from cutting or removing any timber from said lands.” The appeal operated as a supersedeas, it having been taken within sixty days after the disposition of the motion, which was made during the same term, to vacate the decree, and the bond being in the form required for that purpose. The decree was rendered by the judge of the District Court of Arkansas, sitting as circuit judge. The same judge allowed the appeal, and, in doing so, directed that it should “ not operate to suspend or affect so much of the decree . . . as enjoins the defendants from cutting or otherwise trespassing on the lands in controversy, ... or removing staves or- timber cut thereon.” The appellant moves this court “ to vacate so much of the decree of the court below granting an appeal" and accepting appeal bond as qualifies the said appeal and prevents the same from superseding the decree rendered for the appellees, and especially so much of the said decree granting said appeal as prevents said appellant, J. W-Leonard, from removing the staves made on the land in controversy before service or entry of the decree in favor of the appellees.”</p>

<p>IN error to the supreme court of THE STATE OF MISSOURI.</p> <p>The facts are stated in the opinión of the court.</p>

<p>IN error to the circuit court of the united states for THE SOUTHERN -DISTRICT OF NEW YORK.</p> <p>The facts which make the case are stated in the opinion of the court.'</p>

This was an action of replevin, brought in the Circuit Court of the United States for the Western District of Pennsylvania, to recover a quantity of square white pine timber logs, in rafts. At the trial the court directed a verdict for the defendants, and, after a judgment accordingly, the plaintiff brought this writ of error. The defendants who pleaded, setting up property in themselves, were one Arthurs, assignee in bankruptcy of Baum and.

<p>IN ERROR TO THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO AND STATE OF CALIFORNIA.</p> <p>IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA.</p> <p>A writ of habeas corpus is not removable from a State court into a Circuit Court of the United States under the act of March 3, 1875, ch. 137, § 2.</p> <p>A police officer of a State, or a private citizen, has no authority as such, without any warrant or military order, to arrest and detain a deserter from the army of the United States.</p> <p>A writ of habeas corpus was issued on April 8,1885, by and returnable before a judge of the Superior Court of the City and County of' San Francisco, in the State of California, addressed to John Moffitt and T. W. Fields, citizens of that State, upon the petition of Stephen Kurtz, a citizen of. Pennsylvania, alleging that he was by them unlawfully imprisoned and restrained of his liberty, inasmuch as they had arrested him as a deserter from the army of the United States, and had no warrant or authority to arrest him, and were not officers of the United States.</p> <p>Moffitt and Fields, at the time of entering their appearance ■in that court, filed a petition to remove the case into the Circuit Court of the United States, because the parties were citizens of different States, and because the suit involved a question arising under the Constitution and laws of the United States, to wit, the question whether a. person who is not an officer of the United States has authority to arrest a deserter from the army of the United States. The court ordered the cáse to be so removed. •</p> <p>Moffitt and Fields thereupon signed and filed in the Circuit Court the following return:</p> <p>' “ Now come the respondents and make this their return to the writ of habeas corpus herein, and show that respondent J. Moffitt is a regular police officer of the city and county of San Francisco, and respondent T. W. Fields is a special police officer of said city and county; and being such officers as aforesaid, they arrested the petitioner, Stephen Kurtz, in the city and county of San Francisco, by the authority of the United States in this, to wit, that said Stephen Kurtz, under the name of. Stephen Noll, on the 29th day of May, 1876, at Cleveland in the State of Ohio, enlisted in the Army of the United States for the term of five years, and on the 17th day of March, 1879, he being a soldier attached to Co. D of the 21st Regiment of Infantry of the Army of the United States, stationed at Yancouver Barracks in the Territory of Washington, deserted from the Army of the United States; and your respondents hold said petitioner for the purpose of delivering him to the military authorities of the United States to be tried according to the laws of the United States.”</p> <p>The Circuit Court, upon motion and- hearing; made an order remanding the case to the Superior Court of San Francisco; and Moffitt and Fields sued out a writ of error from this court to reverse that order.</p> <p>After the case had been so remanded, Kurtz filed in the Superior Court of San Francisco a suggestion that the return was insufficient, and that he was entitled to be discharged, for the following reasons:</p> <p>“ First. It appears by said return that the defendants were not officers of the United States, but are police officers of the municipality of San Francisco, and as such they have no authority to arrest or detain the plaintiff, and as such officers they have been and aré prohibited from arresting or detaining . the plaintiff as a deserter from the United States Army by a rule of the police department which was in force at the time of the arrest of the plaintiff, and still is in force, which rule was and is as follows': ‘Police officers are prohibited from arresting deserters from the United States Army or Navy without a warrant.’</p> <p>“ Second. The desertion set up in the return is an .offence against the United States, and not against the State of California, of which Commonwealth the defendants are officers, and they are therefore incompetent to arrest or detain- the plaintiff. .</p> <p>“Third. The desertion set up in the return is barred by article 103 of section 1342 of the Revised Statutes of the United States.”</p> <p>The Superior Court, upon a hearing, ordered the writ of habeas corpus to be dismissed and Kurtz remanded to custody, and entered judgment accordingly; and he sued out a writ of error from this court to reverse that judgment, that court being the highest court of the State in which a decision bn the merits of the case could be had. See Bobb’s Case, 64 California, 431, 433, and 111 U. S. 624, 627; Barbier v. Connolly, 113 U. S. 27.</p>

This war-'-a action at law brought by John Frederick May, the defendant in error, against Alexander E. Shepherd, the plaintiff in error, to recover a balance due on a promissory note.

Held: or authority exercised under the United States, and the decision is against the title, right, . ... specially set up or claimed by either party under such . . . commission or authority.” The decisions fully sustain the jurisdiction of this court upon the last-mentioned ground. New Orleans, &c., Railroad Co. v. Delamore, 114 U. S. 501 ; Factors' & Traders' Ins.

<p>In this casé, on the facts found, under. Schedule IT of section 2502 of Title XXXIII. of the Revised Statutes, as enacted by section 6 of the act ,of March 3, 1883, ch. 121, 22 Stat. 489, imposing a duty of 20 per cent, ad valorem on “ garden seeds, except seed of the sugar beet” and under “The Free List” in section 2503 of the same Title, as enacted by said act of 1883, embracing,“seeds of all kinds, except medicinal seeds not specially enumerated or provided for in this act,” certain beet and cabbage seeds were held to be “garden seeds” and subject to 20 per cent, duty, and certain mangel-wurzel and turnip seeds were held not to be “garden seeds,” and to be exempt from duty.</p>

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KENTUCKY.</p> <p>The facts which make the case .are stated in the opinion of the court.</p>

Held: That the statute in this provision sanctions the impairment of contracts, which is not, under the Federal Constitution, within the competency of the legislature of the State.

<p>IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.</p> <p>The facts are stated in the opinion óf the court.</p>

Held: that the effect of the legislation cited had been to convert the prior common-law action into one based wholly on a statutory liability, and regulated, as to all its incidents, by express statutory provisions, and, among them, “ the conditions which fix the time when the suit may begin, and prescribe the period at the end of which the right to sue shall cease; ” and that the legislation of Congress on the subject…

<p>■When separate judgments, for separate -creditors, on separate claims, are rendered in one decree in equity, and a general appeal is taken, the appeal will, on motion, be dismissed for want of jurisdiction as to all who do not recover more than $5000, and will be' retained as to those who recover in excess of $5000.</p> <p>Farmers’ Loan & Trust Co. v. Waterman, 106 U. S. 265, approved and applied.</p>

Held: in all the English courts, that, though the right of action may be barred in the country where the defendant resides or has resided, and where the contract was made, so that the bar in that jurisdiction is complete, it is no defence, if he can be found, to a suit in another country.

<p>To entitle a plaintiff to relief in equity on the ground of mistake or fraud, the mistake or fraud must be clearly established.</p> <p>On the voluminous facts in this case the court is of opinion that the plaintiffs have not established any mistake or fraud which entitles them to the relief lor which they pray.</p>

Held: that the former company “ has the sole and exclusive privilege to make and sell illumi-' nating gas in the city of New Orleans for fifty years from 1st April, 1875; ” also, that .the act of March 1,-1860, extending the charter of the New Orleans Gas-Light Company from April 1, 1875, until April 1, 1895, “is unconstitutional and void,” as having a title that did not declare the object of the act.

<p>APPEAL RROM THE CIRCUIT COURT OR THE UNITED STATES ROR THE EASTERN DISTRICT OR LOUISIANA.</p> <p>The facts which make the case are stated in the opinion of the court.</p>

Held: That the latter act contained a clear expression of the legislative intent, that the company should continue to enjoy the franchises then possessed by it for the term named in that act without being subject to have ■ its charter in that respect amended or repealed at the will of the legislature. This was a writ of error to the highest court of Kentucky.