Volume 117 — United States Reports

These cases were commenced by defendants in error as plaintiffs below to compel plaintiffs in error to give them respectively the express facilities on the several lines of railway which they had previously enjoyed by contract, and of which they had-been dispossessed by notice given in accordance with the terms of the contracts. Judgments below in favor of the. express companies, from which the railroad companies appealed. The causes were argued together.

Held: that the Legislature . may declare the right to carry on any business or occupation to be a privilege, to be purchased from- the State on such con'ditions as the statute law may prescribe, and that it is illegal to •carry on such business without complying with those conditions.

<p>The ease of Pickard r. Pullman Southern Oar Co., ante, p. 34, confirmed and applied to a privilege tax of $75 a year, on each sleeping car, imposed by the act of Tennessee, of April 7, 1881, Laws of 1881, ch. 149, p. 202.</p>

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE • DISTRICT OF SOUTH CAROLINA. These two oases were heard together in thé Circuit Court upon the same testimony, and the same decree passed in each. The facts, common to both, were as follows:.

<p>The Kentucky' and Great Eastern Railway Construction Company, which had a contract with the Kentucky and Great Eastern Railway Company, made May 22, 1878, to construct for it a railway in Kentucky, from Newport to Catlettsburg, and did work between Maysville and Catlettsburg, completing about seven miles of road, and purchasing and putting down the iron rails and other materials, acquired no lien on the road or on any part of its line, completed or not completed.</p> <p>The Kentucky and Great Eastern Railway Company having previously, under a contract made by it January 15, 1873, with the owners of the Maysville and Big Sandy railroad, for a conditional sale of that railroad, taken possession of it, and the Construction Company having notice of that contract, when the construction contract was made, and the vendors having declared that contract to be void, according to its terms, and resumed possession of the railroad, with the consent of the vendee, the Construction Company acquired no rights in regard to so much of the line, completed or not completed, between Maysville and Catlettsburg, as was part of the line of the Maysville and Big Sandy railroad, which were not subject to the rights of the vendors of that road.</p> <p>A mortgage having been made by the Kentucky and Great Eastern Railway Company on February 15, 1872, to a trustee, to secure bonds, on the line from Newport to Catlettsburg, the trustee acquired under it no greater rights at any time than the Railway Company had, and, no bonds having been issued before-the conditional sale of the Maysville and Big Sandy railroad was made, on January 15,1878, the trustee had, as against the vendors of that road, only such rights as the mortgagor had.</p>

<p>ERROR TO THE CIROUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF IOWA.</p> <p>The facts which make the case are stated in the opinion of the court.</p>

This was a suit in mandamus brought by the Staté of Tennessee, in the Circuit Court of Davidson County, against George K. "Whitworth, the trustee and tax collector of that county, to require him to assess for taxation the shares of stock in the Nashville, Chattanooga and St. Louis Railroad Company.

This, like tbe case between tbe same parties just decided, ante 129, was a suit in mandamus brought-by tbe State of Tennessee to require tbe trustee and tax collector of Davidson County to assess for taxation tbe shares of tbe capital stock of tbe railroad company, and tbe only question- not already disposed of was, whether the Nashville and’Decatur Railroad Company bad tbe same charter contract for tbe exemption of its capital stock from taxation as the Nashville and…

<p>Property of the United States is exempt by the Constitution of the United States from taxation under the authority of a State.</p> <p>Land in a State which, pursuant to'acts of Congress for the laying and collecting of direct taxes, is sold, struck off and purchased by the United States for the amount of the tax thereon, and is afterwards sold by the United States for a larger sum, or redeemed by the former owner, is exempt from taxation by the State, while so owned by the United States; and, for nonpayment of taxes assessed by the State during that time, cannot be sold afterwards.</p>

Held: and to tell, her that, unless they were paid immediately, he would have to take it out of her property.” This is probably what he said; and it was well calculated to mislead the complainant as to her real position and the • defendant’s intentions and power. She would not understand, from what he said, that her property was in any immediate peril.

ERROR ’ TO THE SUPREME COURT OF THE STATE OF. MISSOURI. This was a motion to dismiss a writ of error “ because the •record and mandate of the said Supreme Oourt of Missouri in this cause, brought up by such writ of error, shows on the face thereof that no final judgment' or decree was rendered or made in this cause by said Supreme Oourt of Missouri; but on the ' contrary thereof, it -appears from such record and mandate, that the judgment and decree of the inferior court, to…

Held: such attachment would be dissolved upon the process instituted in the courts of said State. . But the plaintiff insists that the partnership of Carriere & Sons having been dissolved on June 4, 1884, by'the death of Antoine Carriere, the surviving members of the firm had no *205 power to surrender the assets of the firm for the benefit of its creditors, and the plaintiff’s attachment of said assets was therefore good.

Held: That the testator intended to dispose of all his real estate, and thought he had done so ; (2) That in the devise to H he believed he was giving him one of his own lots ; (3) That evidence might properly be received to show that the testátor did not, and ■ ’ never did, own lot No. 6, in square 403, which had no improvements thereon ; but did own lot No. 3, in square 406, which had a house thereon, occupied by his…

This case was before the court at October Term, 1884, 113 IT. S. 618. The questions which arose in the execution of .the mandate, and which were brought up by the second appeal, are stated in the opinion of (the court.

Held: any rule of court to the contrary notwithstanding.” It is urged that this is a civil cause, but not an equity or an Admiralty cause, and that the provisions of sections 126 and 386 of the Civil Code of Practice of Kentucky, which took effect Jannary 1, 1877,'apply to it. Those sections are as follows: “§ 126 [153].

Held: does not require the courts of the United States, by adopting the forms and modes of the State courts, to divest themselves of a jurisdiction once lawfully acquired under an act of Congress.

Held: upon full consideration, that “ a State court of original jurisdiction, having the parties before it, may, consistently with existing Federal, legislation, determine cases at law or in' equity, arising under the Constitution and laws of the United States, or involving rights dependent upon such Constitution or laws; ” and that “ upon the State courts, equally with the courts of the Union, rests the. obligation to…

<p>If the trial below is by the court without a jury, and the findings of facts are general, only such rulings of the court in the progress of the trial can be reviewed as are presented by a bill of exceptions.</p>

<p>APPEAL FROM' THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN' DISTRICT OF ARKANSAS.</p> <p>The case is stated in the opinion of the court.</p>

Held: on. full consideration, that a suit for malicious prosecution, brought by a citizen of Minnesota against citizens of Minnesota and citizens of Illinois, was not removable by the citizens of Illinois, under the second clause of § 2 of the act of 1875,'on the ground that, as the action was in tort, it was severable for the purposes of removal.

<p>A creditor’s bill, to subject incumbered property to the payment of his judgment, by sale and distribution of the proceeds among lien-holders according to priority, creates no separate controversy, as to the separate lien-holders parties respondent, within the meaning of the removal acts, although their respective defences may be separate.</p>

Held: That the exceptions applied to the whole facts in the record to which the ruling of law excepted to applied. A bill of sale of personal property was made at nine o’clock in the evening. The property was twenty-three miles distant.

Held: it is true, for the common benefit of all the Cherokees, but that does not mean that each member had such an interest, as a tenant in common, that he could claim a pro rata proportion of the proceeds of sales made of any part of them.

This was a bill in equity to set aside a- deed made by Samuel Lipse, executor of Moses Lipse, and to obtain payment of a bond executed by Glasgow’s testator in bis lifetime. Tbe case is stated in tbe opinion of tbe court.

<p>In. an action at law in a. Circuit Court oí the United States against a township to recover on bonds issued by the township, the plaintiff is not entitled to recover on bonds transferred to him by citizens of the State in which the town is situated for the mere purpose of being sued in a court of the United States. Bernard, Township v. Stebbins, 109 U. S. 341, affirmed and applied.</p> <p>A municipal bond in the ordinary form is a promissory note negotiable by the law merchant within the meaning of that term in the act of March 3, 1875. Ackley School District v. Hall, .113 U. S. 135, affirmed and applied.</p> <p>The issue of township bonds by commissioners under the act of the legislature of New Jersey of April 9,1868, “ to authorize certain towns in the counties • of Somerset, Morris, Essex and Union to issue bonds and take stock in the Passaic Valley and Peapack Railroad Company,” was conclusive as to the amount that could be put out under the statute and estopped the township from setting up against a bona fide holder that the issue was in excess of the amount authorized.</p> <p>In order to avail to stop costs, an offer to submit to entry of judgment should be made in open court, and the court be asked to act thereon, after due notice to the other party.</p>

Held: That the petition of A to remove the cause to the Circuit Court of the United States should be denied, as B.was a necessary party to the suit. The right to take steps for the removal of a cause to a Circuit Court of the United States on the ground of a separable controversy is confined to the parties actually interested in such controversy.

Ejectment for a town lot in Montana. Defendant in error as plaintiff below claimed under a deed from the Probate Judge as trustee and mesne conveyances, and relied on a continued possession under claim of title from August, 1870, to October, 1877. The defendant below also claimed title from the Probate Judge as trustee through mesne conveyances. Judgment for plaintiff,' which was affirmed by the Supreme Court of the Territory. The defendant brought this writ' of error.

Trespass on the case. Plaintiffs in error, Core and Compton, were defendants below. The', action Avas commenced July, 1816, in the Circuit Court of Woods County, West Virginia. Defendants pleaded jointly in abatement that Compton was a resident in Michigan and had no estate in Woods County. This being overruled, they filed a joint plea of not guilty, in 1878, on which issue ivas joined. Trial was had in March, 1879. Verdict and judgment for plaintiff.

<p>CERTIFICATE OF DIVISION IN OPINION FROM THE .CIRCUIT COURT ■ OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.</p> <p>■ This was an information filed by the District Attorney on January 20, 1885, in the District Court of the United States for the Northern District of Illinois, on § 5440 of the Revised Statutes, which is as follows:</p> <p>“If two or more persons conspire, either to commit any offence against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not less than .$1000, and not more than $10,000, and to imprisonment not more than two years.”</p> <p>The information contained seven counts, which were respectively for conspiracies to commit offences within § 5512, § 5511, ■and § 5403. The substance of the offence, ■ as, alleged in different forms in the various counts, was the breaking open of a package containing a return, by the judges and clerks of election, of an election held in a district of the city of Chicago to choose a Representative in Congress and certain State and county officers; the alteration of the certificate of the result of the election, the poll book, the tally list of the votes cast for each candidate, and a large number of the ballots; and the substitution of spurious papers in their stead:</p> <p>In the District Court, the defendants were tried by a jury and convicted, and on March 21, 1885, were sentenced to pay a fine of $5000 each, and to be imprisoned for two years in the penitentiary of the State of Illinois at Joliet in said District.</p> <p>A writ of error was sued out by the defendants, returnable at May Term, 1885, of the Circuit Court. At the hearing in that court, the two judges presiding were divided in opinion upon five questions of law, and, at the request of the counsel for both parties, certified to this court those questions, two of which were as follows :</p> <p>“ 1. Whether the crimes, or any of them, charged against the defendants in the counts of the information, are infamous crimes, within the meaning of the Fifth Article of Amendment to the Constitution of the United States ?</p> <p>“ 2. Whether the defendants can or not be held to answer in the courts of the United States for the crimes charged, or any of them, against them herein, otherwise than on the presentment or indictment of a grand jury ? ”</p> <p>The other questions certified'related to the sufficiency of the several counts as setting forth any offence, and need not be particularly stated.</p>

• The findings in this case were before the court on a motion for a certiorari, reported in 116 U. S. 402. After that motion was denied the cause came on for hearing and decision on the merits. The case is stated in the opinion of the court.-

Held: That the legacy was not subject to a legacy tas. Mason v. Sargent, 104 U. S. 689 , applied. *364 .This.was a suit against the executors of the will of Thomas T. Sturges to recover a legacy tax.

This suit was commenced July 19,1880, in the Circuit Court for Milwaukee County, Wisconsin, by the plaintiff in error against the defendant in error ' to recover sums of ' money alleged to have been received by him as its agent and converted to his own use; and was put at issue August 26, 1880, by a plea of the general issue.

<p>APPEAL PROM THE SUPREME .COURT OF THE DISTRICT OF COLUMBIA.</p> <p>The case is stated in the opinion of the court.</p>

<p>The feature of varying eeeentrieity in the rollers is ah essential part of the invention protected by letters patent No. 98,622 granted to James Sargent, January 4, 1870, for an improvement in permutation locks.</p>

Held: That this order nunc pro tune was proper in order to prevent injustice, and was within the power of the court. A verdict on an issue from chancery was taken on the law side of the court, and was subsequently set aside there, and a new trial ordered there, which was had with a second verdict on the same issue.

<p>APPEAL PROM THE CIRCUIT COURT OP THE UNITED STATES POE THE NORTHERN- DISTRICT OP ILLINOIS.</p> <p>■The case is stated in the opinion of the court.</p>

This was an action of ejectment. -The defendants in error • were the plaintiffs iri .the Circuit Court, and were 'the heirs at1 law of John Holmes, deceased. They brought the action in August, 18Y1, to recover a tract of three thousand acres of land in Lee County, in ‘the State of Virginia. The defendants pleaded 'the general issue.

<p>ERROR TO THE SUPREME COURT OE THE TERRITORT OE MONTANA.</p> <p>Tbe case is stated in tbe opinion of tbe court.</p>

<p>The title of the railroad companies within the ten-mile limit to lands granted by Congress to Iowa by the act of May 12,1864, 18 Stat. 72, relates back to the date of the grant, and where two roads cross each other they take such granted lands in equal moieties; but the title to indemnity or lieu lands outside that limit is acquired by priority of selection, approved by the Secretary of the Interior.</p>

Held: in-cluding Gillen and Monroe’s obligation to him in reference to the land in question.

Held: That the bonds in controversy should-be surrendered to the Trustees of the Internal Improvement Fund of the State of Florida, and should be applied by them in accordance with the prayer of their answer. The case is stated in the

<p>A. State court is not bound to surrender its jurisdiction oí a suit on petition for removal, until a ease has been made which on its face shows that the petitioner has a right to the transfer; and if it decides against the removal and proceeds with the cause, its ruling is reviewable here after final judgment.</p> <p>All issues of fact made upon a petition for removal must be tried in the Cir- ' cuit Court,</p> <p>A suit between a State on the one side and citizens on the other, cannot be removed on the ground of citizenship.</p> <p>A suit against partners to recover money received, for which they are jointly liable, cannot be removed on the ground of a-separable - controversy on the petition of one of the partners.</p>

Held: (1.) Certificates issued for necessary repairs must be allowed priority. .

<p>Under §2504, Schedule M. of the Revised Statutes (p. 480, 2d ed.), “Henry’s Calcined Magnesia,” imported in glass bottles, is liable to a duty of 50 per cent; ad valorem, as being a medicinal preparation, récommended to the public as a proprietary medicine, and not to a duty of 12 cents per pound, as calcined magnesia, under the same section and schedule (p. 477).</p>

Held: as matter of law, that there was a contract executed by the plaintiffs, and to be executed by the defendants,’ who were bound to - deliver 3245T2-^j¡- tons of ice from their houses on the Kennebec River during the year of 1880; that the year meant the shipping season; and that the *493 defendants bad the whole season, if they chose to demand it, in which to make delivery, and that the letters of July 7th and 15th…

<p>ERROR TO THE OIRCUIT COÜRT OR THE UNITED ’STATES EOR THE EASTERN DISTRICT OF VIRGINIA.</p> <p>The case is stated in the opinion of the court.</p>

Held: and a majority of the legal voters of any township or incorporated town were in favor of a subscription to said railroad, then, and in that case, no other election need be had, and the amount so voted for shall be subscribed as in this act provided.

<p>The matter in dispute, on which the jurisdiction of this court depends, is the matter which is directly in dispute in the particular cause 'in which the judgment or decree sought to be reviewed has been rendered; and the court is not permitted, for the purpose of determining its sum or value, to estimate its collateral effect in a subsequent suit between the same or other parties.</p>

Held: That leave to file the petition should be denied. *517 This was a motion for leave to file a petition for a writ of habeas corpus. The averments in the petition were as follows: “ First.

Held: that the infringement caused the entire loss of the plaintiff, after allowing a proper sum for any other patented device contained in the defendant’s lock and for any óther causes which gave to the defendant an advantage in selling his lock.

This was a bill in equity brought by the appellee, Halbert S. Greenleaf, to restrain the infringement by the appellant, the Yale Look Manufacturing Company, of the first and fourth claims of the reissued letters patent granted to George Rosner, July 25, 1371, for an “improvement in permutation locks.” The original patent bore date September 18, 1860.

<p>A discharge in bankruptcy is no bar to an action on a judgment recovered against the bankrupt after his discharge in a suit, commenced -before the bankruptcy, pending -when the discharge was granted, and founded upon-a debt provable against him in bankruptcy.</p>

Held: in any case brought to our notice, that such perspn had any right to demand reimbursement of his expenses out of the trust fund, or contribution from those whose property he sought to misappropriate. The Circuit Court ivas right in not compelling the plaintiffs to pay for services rendered and expenses incurred in a proceeding adversary to their interest, and carried on for the benefit of others.

• ERROR TO THE CIRCUIT COURT OE THE UNITED STATES EOR THE western DISTRICT OF MISSOURI. This was an action at law upon a promissory note. The case is stated in the opinion of the court.

This was a bill in equity to foreclose a mortgage alleged to ■ have been made by the Alabama and Chattanooga Railroad .Company to the State of Alabama on certain town lots in Chattanooga. The case is stated in the opinion of the court.

The plaintiff in error owe'd the State of Yirginia'$3807 for taxes for the year 1885. He tendered the State’s tax-receivable coupons in payment thereof for identification and verification under the provisions of the act of January 14, 18'82, and at the same time he paid his tax in money. He thereupon filed his petition in the County Court, of Henrico County, praying that a jury might be empaneled to try whether his coupons were' genuine coupons, legally receivable for taxes.

Held: Th»t he wa-s bound by the terms of the contract in that respect, and by receipts given in accordance therewith. Assumpsit to recover for work and' labor done and materials furnished on the construction of a water main in Georgetown in the District of Columbia..

The material facts appearing in this record w;ere as follows: In the month of December, 1869, parts of lots 5 and 6,, in square 90, of the city of Macon, were set off under the laws of Georgia to Betsey A. Long, the wife of Francis M. Long, as a homestead. The property was at the time incumbered by a mortgage made by Francis M. Long to the Ocmulgee Building Association. Proceedings were afterwards had to foreclose this mortgage, and to save the property from sale Francis M.

Held: was a fact. to be considered by the jury, in connection with other facts, in- determining whethter the engineer exercised that caution which all the circumstances , required.x These principles were not applied in the trial of the case now before us ; for, in effect, the jury were instructed that, in deten mining the question of contributory negligence, they need only ..inquire whether plaintiff continued at his work…

' ' . This was án action brought April 3,' 1879,. in the Circuit Court of the United States .for the District of Kéntucky, by Dickinson against the County of Daviess, on bonds and coupons, alleged to 'have been issued under the statute of - Kentucky'of February 27,1867, ch. 1505, incorporating the Owens-boro and Russellville Railroad Company, the material provisions of which were as follows : By § 1, five persons named in Daviess County, and. certain other persons named in…

Held: and a new trial granted.” From this order an appeal was taken to the court in general term, December 9,1882, and on February 15,1883, the defend- ■ ant moved the court to dismiss the appeal, on the ground that an appeal would not lie from such an order made at the Circuit Court or special term.

<p>Lmade and delivered to W his promissory note for $1300 payable in ninety days, and a deed of a tract of land absolute ,on its face. It was orally agreed between them that the deed was executed as security for the pay- - inent of the note, and that, if the note was not paid at maturity, W was authorized to sell' the land. The note not being paid at maturity W, with the knowledge and assent of L, sold and conveyed the land to T and applied, the proceeds to the payment of the debt. After the completion of.the-eon-tract and execution of the deed, but before its delivery to T, a creditor of L who had recovered judgment against him, levied on this tract of land to' satisfy the judgment, and caused it to be sold'. The'purchaser at the sheriff’s sale after receiving his deed, filed a bill in equity against the heirs and' .devisees of T, praying to be admitted to redeem the land on payment of, the note. Held : (1) That the transaction was in equity a mortgage : (2) That parol evidence was-admissible to show whfen the power of sale in the mortgage became absolute : (3) That W had an absolute power of sale when the conveyance was made to T, the execution of which carried the land free from the mortgage.</p>

Held: That on the trial of this action H was not estopped by the acceptance of- the petition by the officials and their certificate upon it, or by the judgment of the county court confirming their report, from showing that the petition for the opening was not signed by the owners of the. requisite, amount of frontage. Mulligan v. Smith, 59 Cal. 20 ,6, approved and applied.

This was a bill in equity to restrain the infringement of letters patent. The case is stated in the opinion of the court.

This cause was submitted on the 18th December, 1863. On the 4th of April, 1864, the court ordered it to be argued on the second day of the following December Term. Mr. Chief Justice Taney had prepared an opinion expressing his views Upon the question of jurisdiction. This he placed in the hands of the clerk in vacation, to be delivered to the judges on their reassembling in December. Before the judges met he died. The clerk complied with his request.