Volume 127 — United States Reports

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF N'EW TORE.</p> <p>This was an action to recover damages for injuries resulting to the widow and children of Charles C. Clare by reason of his death, alleged to have been caused by the negligence of the steamship company as common carriers, while he was a passenger on one of their steamers. Yerdict for plaintiff and judgment on the verdict. Defendant sued out this writ of error. The case is stated in the opinion.</p>

<p>In order to make a claim against the United States one arising out of a treaty within the meaning of Rev. Stat. § 1066, excluding it from the jurisdiction of the Court of Claims, the right itself, which the petition ma'kes to be the foundation of the claim, must derive its life and existence from some treaty stipulation.</p> <p>A claim against the United States made under the provisions of the act of June 5, 1882, 22 Stat. 98, c. 195, “ reestablishing the Court of Commissioners of Alabama Claims and for the distribution of unappropriated moneys of the Geneva Award,” is not a claim growing out of the treaty of Washington within the sense of the word “.treaty,” as used in Rev. Stat. § 1066.</p> <p>The payment of the expenses of the Geneva Arbitration has not been charged by Congress upon the fund received under the award made there.</p>

Held: in the present case, that while the laws of that State (Gen. Stat. 1865, c. 124, § 16,-to 19; Bev. Stat. 1879, § 238 to 241,) required notice by pub-, lication of the final settlement of executors and administrators, notice was not required in respect to settlements of special *60 administrators in whose hands the property of a testator is placed pending a contest as to the validity of his will.

Held: That though the order embraced both a finding and a judgment, it was not for that reason a nullity; (2) That it was not a general finding for the plaintiffs, but a finding for them as to the part of the land described in the order, and that the judgment for the possession of this part of the premises was in accordance with the local law of the district in which the cause was tried, Rev. Stat.

<p>Under § 51 of the Revised Statutes, a person elected a representative in Congress, to fill a vacancy, caused by a resolution of the House that the sitting member was not elected and that the seat was vacant, the sitting member having received the proper credentials, and been placed on the roll, and been sworn in, and taken his seat, and voted, and served on committees and drawn his salary and mileage, is entitled to compensation only from the time the compensation of such sitting member ceased.</p>

Held: That this provision requiring the presentation of their claims was obligatory on claimants, and that they were bound by the judgment of the board, if confirmed'by the courts of the United States on appeal, and by the survey and location of the claim by the officers of the Land Department, following the final decree of confirmation.

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO. :</p> <p>The case as stated by the court was as follows:</p> <p>The cause of action set out in the first count of the complaint is, that the defendant in error, who was the defendant below, agreed with the plaintiff in error that if the latter assisted the former and his agents, in purchasing the interest of Julia Webber in the Emma lode mining claim at a price not exceeding forty thousand dollars, he should receive for his services' the sum of ten thousand dollars, but only five thousand dollars if the defendant was compelled to pay more than forty thousand dollars for said interest. The complaint alleges that, in consequence of services rendered by the plaintiff under that agreement, the defendant ivas, on the 22d of November, 1884, enabled to buy said interest at a sum exceeding forty thousand dollars, whereby the latter became indebted to plains tiff in the sum of five thousand dollars.</p> <p>The defendant in his answer denies that he made any' sqgh agreement as that alleged, or that he was enabled to purchase the interest of Julia Webber, by reason of any services rendered by the plaintiff.</p> <p>The second count of the complaint sets forth the following cause of action:</p> <p>On the 29th of November, 1882, one Henry Webber was the owner of an undivided of the Emma lode mining claim in Colorado, one Archie C. Fisk being the owner of and Charles F. Abbey the owner of the remaining -J-|. In 1883 Fisk commenced proceedings under the statutes of the Hnited" States in advertising the interest of Webber “out of said claim ” on account of alleged non-payment of assessment work done by Fisk on said claim in 1882. After the period of the publication of said advertisement, Fisk asserted ownership of ■£•§• of said mining claim.</p> <p>On the 20th of November, 1883, Fisk leased to Abbey said f-f. Webber, desiring to secure possession of said claim, procured from Abbey, November 26, 1883, a lease in the name of Nevitt, his brother-in-law, of an undivided the latter being the nominal and Webber the real owner of the lease. On the 18th of April, 1884, the defendant, Wheeler, by conveyances, had become the owner of all the interest claimed by Fisk. During the same month Webber commenced suit against the grantor of Wheeler, and the admin- ' istrator and heirs-at-law of Abbey, to recover his interest of -f# in said premises.</p> <p>On the 28th of April, 1884, Webber gave to the plaintiff, Rucker, a quit-claim deed in and to an undivided one-twelfth interest (J^) in said mining claim, as his compensation for legal services rendered and to be rendered in the prosecution of said action. In the same year Wheeler and the administrator and heirs-at-law of Abbey commenced an action against Nevitt for the possession of said premises, and to restrain him and his agents from working and mining the same.</p> <p>At the time the quit-claim deed was made to Rucker, it was agreed between him and Webber that Rucker’s interest would not be subject to the burden of the lease made by Abbey to' Nevitt. In consideration of that deed and agreement the plaintiff entered upon the performance of the legal services necessary to establish Webber’s title to said interest of •§•$.</p> <p>On the 26th of September, 1884 — the defendant being then the owner of both the Abbey and Fisk interests in said claim — the plaintiff, for and on behalf of Webber, and acting nominally for Webber, together with the defendant’s attorney, prepared a written agreement, which was signed and executed by Webber, Nevitt, and the defendant. It had for its object the compromise of the pending litigation between the parties. That agreement was as follows:</p> <p>“ This agreement, made and entered into on this 26th day of September, a.d. 1884, by and between J. B. Wheeler, of the first part, and 0. E. Nevitt, of the second part, and Henry Webber.</p> <p>“ Witnesseth, That whereas the said party of the first part is the owner of certain interests in the Emma mine, situate' in Pitkin County, State of Colorado, and a suit is now pending in the District Court of said county on behalf of said Webber against said party of the first part and others for a one-third (J) interest in said mine; and whereas another suit-is pending in said court in behalf of the said J. B. Wheeler and others against, the said second party to recover possession of said mine; and the said second party in his defence thereto claims to hold a lease of said mine expiring on the 20th day of November, 1884, in which said suit the District Judge of said court has made an order allowing the possession of said property to remain in the hands of said second party during the period of said lease, two-thirds (§) of the proceeds thereof to be paid to John Hulbert, ueceiver, to be held by him to await the determination of said suit or the further order of the- court, less a royalty of fifteen (15) per cent; and whereas said party • of the second part has been for some time in the possession of said mine and has extracted a large quantity of ore, a greater portion of which is now on hand undisposed of; and whereas said second party, being desirous of compromising and settling said actions, it is agreed, in consideration of the premises, the said first party will, upon the ensealing of these presents, make, execute, and deliver a sufficient deed of quit-claim to said Webber, his grantees or' assigns, for an undivided one-fourth (J) interest in' said mine, and said Webber, on receipt of said deed, agrees to release, waive, and does hereby release and waive, unto said party of the first part all claims which he may have to any further or other interest in said property..</p> <p>“And the suit aforesaid between the said parties to be dismissed upon each, party paying their own costs therein. That the suit aforesaid between said first party and said second party shall likewise be dismissed upon the same terms, and the said second party hereby releases and waives to said first party all right and title as to said lease, save and except a one-third (J) interest therein, and at th¿ end of said term to release and surrender the whole thereof and possession thereunder peaceably to said owners, their grantees or assigns.</p> <p>“ It is further agreed that the proceeds of the ore now on hand, after payment of the cost of production and after the payment of the costs of hauling and treatment, shall be divided as follows: The said party of the second part to receive one-third (¡j.-) thereof, less a royalty of fifteen per cent on said one-third interest, according to the terms set forth in his said lease, and the said party of the first part to receive three-fóurths (£) of the remaining two-thirds (-§■), and the said Webber, his grantees or assigns, one-fourth (£) of the said remaining two-thirds (f), and during the remainder of the term of said lease, namely, up to and inclusive of the 20th day of 'November, a.d. 1884, the proceeds of the mine to be divided in the same manner and in the same proportions aforesaid, such division also to apply to and include the said royalty to. be paid by the second party as aforesaid.</p> <p>“And it is mutually agreed by and between the parties hereto that during the remainder of the term- of said lease the said mine shall be under the superintendence of Joseph Ruse, who shall operate, work, and develop the said property for the mutual interest of all the parties hereto, and with a view to developing and preserving the said property as-a workable mine as well as the production of ore therefrom, said work to be done by said Joseph Ruse in as economical a manner as possible, and- to limit the production therefrom so as to correspond to the expense • incident to mining, and the price for which said ore can be sold, and any failure upon, the part of said Joseph Ruse to comply with the conditions herein mentioned shall be the cause for removal from such position of superintendent.</p> <p>“ The said Joseph Ruse during his continuance as superintendent shall be under the advisory contrpl of said first party. And the said second party and the said Webber shall have-the right at all times' to make suggestions in the matter of the authority of the said party of the first part- respecting the management of the said mine.</p> <p>“ In witness whereof we hereto set our hands and seal's on the day and year first herein above written.</p> <p>“J. B. Wheeler, [seal.]</p> <p>“ C. E. Nevitt. [seal.]. ■</p> <p>“ Henry Webber, [seal.] ” ,</p> <p>At the time this agreement was executed the defendant, the complaint alleges, “knew that said Nevitt was representing the said Webber, and that said lease was in fact owned by the said Webber, and that plaintiff was entitled to of the proceeds of said mine out of the thereof awarded to said Webber under and in virtue of said agreement; that in pursuance of said agreement the management and control of the working of said mine'was given over to the said defendant, who recovered the proceeds thereof and placed the same in his ■ banking-house to the credit of the mine.”</p> <p>On the 21st of October, 1884, the defendant purchased said leasehold interest from Nevitt, who was acting for Webber as aforesaid, and took an assignment thereof to- himself; that by virtue of said purchase he became entitled tp more of the ore then on hand, and f{¡- of that produced thereafter and until November 21, 1884.</p> <p>On the 17th of November, 1884, Henry Webber sold his interest, to his wife, who, November 22, 1884, sold and con- - veyed. to the defendant. Up to tb- -_-3 of Mrs. Webber’s sale to the defendant a large sum of money was realized from the sale of the ore, and there was on hand, unsold, a large quantity taken from the mine subsequent- to September 26, . 1884, the money thus realized being in defendant’s bank to- the credit of the mine. The plaintiff claims that at the time the defendant purchased said leasehold interest there was due to him, on account of his -/¶ out of the of the proceeds of the ■ mine accorded to Webber and his grantees and assigns bv the agreement of September 26 a balance of $2262.30; that on the same basis there was due him $2630.66 at the time of defendant’s purchase of Mrs. Webber’s interest; which sums the defendant placed to his own account and converted to his own use.</p> <p>The complaint further alleges:</p> <p>“ That at the time of the purchase of said leasehold interest' and at the time of the purchase of said Julia Webber’s title by the defendant the said defendant well knew that the plaintiff and the said Henry Webber had agreed at the time of the plaintiff obtaining his title aforesaid that plaintiff’s interest w¡as not subject to the burden of said lease, and that he, the .said plaintiff, was to receive out of the interest of the said Webber, as the grantee of said Webber, his full one-twelfth share and interest in the ore produced and to be produced from said mine, and he well knew that by virtue of the terms of said agreement of the 26th day of September, 1884, plaintiff was entitled to his five-sixtieths of the proceeds of all ores extracted from said mine out of the ten-sixtieths aforesaid accorded to the said Webber by virtue of said agreement. ■</p> <p>“That by virtue of the sale made by said Henry Webber to the said Julia Webber no part of the proceeds of said mine theretofore produced were sold to said Julia Webber, and that when said Julia Webber received said conveyance she also knew that plaintiff’s five-sixtieths interest in the proceeds of the ore theretofore extracted from said mine was to come out of the ten-sixtieths thereof accorded to said Henry Webber under and by virtue of said agreement of the 26th of September, 1884, and that she also knew and understood that by virtue of said agreement made between the plaintiff and said Henry Webber at the time of his conveyance to said plaintiff that his, said plaintiff’s, interest was not subject to the burden of said leasehold interest, and that said leasehold interest was owned and controlled by said Henry Webber.”</p> <p>Such is the case made by the complaint.</p> <p>The defendant in his answer admits many of the allegations of the complaint, but denies that at the time of the making of the deed to' him by Webber, or at any other time, it was agreed between them that the plaintiff’s interest would not be subject to the burden of the lease made by Abbey to Nevitt, or that he, defendant, knew, either at the time of the signing and execution of' the agreement of September 26, 1884, or at any other time, that Nevitt was representing Webber, or that said lease was onyied by Webber, or that the plaintiff was en- < titled to 6% of the proceeds of the mine out of the -’4} awarded to Webber under said agreement.</p> <p>He admits that up to the time of the sale to him by Julia Webber of the interest previously held by her husband, “there had been a large sum of money realized from the sale ■ of ore taken from the said mine, together with a large amount unsold,” and that “ the moneys belonging to said interests v^ere by him purchased with the said interests, and that he consequently realized the amount thereof.” But he denies that any part or portion of the said proceeds of ores belonging to the plaintiff were ever withheld from him. He denies that at the time of his purchase from Julia Webber he ever knew, or that Henry Webber and plaintiff ever agreed at the time the latter got his title, “that plaintiffs interest was not subject to the burden of said lease, or that plaintiff was to receive out of the interest of said Webber, as the grantee of said Webber, his full share or interest of the ore produced or to be produced from said mine.” He denies that -“ he well knew, or knew at all, either by virtue of the terms of said agreement of the 26th of September, 1884, or at any other time, that the plaintiff was entitled to or any other amount of the proceeds of ores extracted from said mine out: of the accorded to said Webber by virtue of said agreement, or any other sum ; but, on the contrary, alleges that the said plaintiff was to receive his proportion, to wit, & of the proceeds of all the said ores, less the proportion which the ¶5¶ interest should bear of the burden of the said lease upon the said -|- interest in said mine.” He denies that Julia Webber knew or understood that by virtue of the agreement of September 26, 1884, or of any agreement,’ the plaintiff’s interest was not subject to the burden of the said leasehold interest, or that said interest was owned or controlled by said Henry Webber.</p> <p>Yerdict for defendant, and judgment on the verdict. Defendant sued out this writ of error.</p>

Held: that, as B. could not have brought the suit, the Circuit Court was forbidden to take cognizance of it, by § 1 of the act of March 3, 1873, c. 137, 18 Stat. 470 ? This suit was a suit founded on contract, in favor of an assignee, and was not a suit founded on the wrongful detention by S. of.the bond and mortgage.

Held: .That the right to proceed against the county and its officers to compel the issue of the bonds was a purely legal right, to be prosecuted at law, in mandamus, whether the proceeding was in the name of the railroad company or of its privy by assignment; (2) That the equitable nature of the complainant’s rights against the company furnished no ground for the support of such a bill in equity against the county; and…

This was an action to recover duties alleged to have been' exacted in excess of law upon an importation of tissue paper.' Judgment for defendant. Plaintiffs sued out this writ of error. The case is stated in the opinion.

<p>APPEAL PROM THE CIRCUIT COURT OE THE UNITED STATES FOR THE WESTERN DISTRICT OE YIRGINIA.</p> <p>This was a bill in equity filed by the Baltimore and Ohio Railroad Company against the taxing officer of the State of Yirginia, for the purpose of enjoining him from selling certain engines and cars, the property of the complainant, for tjie payment of a tax alleged to have ■ been illegally assessed thereon. There was a decree in the Circuit Court granting the relief prayed for, from which this appeal was prosecuted.</p> <p>The material facts in - the case were these: The Baltimore and Ohio Railroad Company is a corporation organized under the laws of Maryland, and a citizen thereof, by virtue of whose charter its rolling stock is exempt from taxation. The line of its road does not at any point lie in the State ©f Yirginia. It, however, connects with certain roads belonging to corporations incorporated by various acts of the legislature of Yirginia, to wit: the Winchester and Potomac Railroad, the Winchester and Strasburg Railroad, and the Strasburg and Harrisonburg Railroad, the last named being a part of the old Manassas Gap Railroad; and during a portion of the time embraced in the period for which the taxes in question were levied it worked the Yalley Railroad from Harrisonburg to Staunton. All of these roads were operated by the Baltimore and Ohio Railroad Company by virtue of leases or contracts, which company for that purpose furnished and used its own rolling stock, consisting of engines and cars. None of the Virginia corporations owning either of these roads was the owner of any foiling stock. The manner in which this rolling stock was employed for this purpose was thus described: “ There is no such rolling stock assigned permanently to the four lines above named, or either of them, in the State of Virginia. The trains in which the rolling stock is used on the four lines above named now start from Lexington, Virginia, arid pass through the State of Virginia, over the four lines of railroad above named, into the State of "West Virginia, and thence into the State of Maryland to the city of Baltimore, or if any of the cars are destined to western points, thence from Harper’s Berry to the West, but the trains in which the cars are hauled are run solid from Lexington, Virginia, (and formerly before the road was completed to Lexington from Staunton, Virginia,) to Baltimore. None of the rolling -stock is assigned permanently to service in the State of Virginia, nor is any of the rolling stock set apart to the four lines in that State, or to the four valley lines above mentioned at all; but such rolling stock is used interchangeably upon the main line and branches of the Baltimore and Ohio Railroad in the States of Maryland and Virginia, and indeed, also, upon the divisions of the Baltimore and Ohio Railroad in Pennsylvania, and in States west of the Ohio River, just as the necessities of the service of the company require. Sometimes this rolling stock will be found on the main line, sometimes on the Pitts-burg division, and sometimes on the trans-Ohio divisions, and there is none of it that is permanently set apart for use upon the four valley lines in Virginia above described.”</p> <p>The several Virginia corporations owning' these four railroads, respectively, made their annual reports to the auditor of public accounts as required by law, and were by the board of public works duly assessed on their roadways, tracks, depots, arid other real estate owned by them. No tax was assessed or levied as against them on account of any rolling stock, because they were not reported to be the owners of any. In the month of June, 1883, the auditor of public accounts for the State of Yirginia assessed the Baltimore and Ohio Bail-road Company for taxes on its rolling stock used on these roads for the years from 1870 to 1881, inclusive, amounting in the aggregate for eleven years to the sum of $22,249.25, and placed the assessment in the hands of the treasurer of Augusta County, Yirginia, for collection. This officer was proceeding to collect these taxes by a distraint of the rolling stock in question, the property of the complainant, when his proceedings were arrested by the injunction of the Circuit Court, afterward made perpetual by its final decree.</p> <p>The act of the General Assembly of the State of Yirginia, under which the assessment and collection of these taxes were sought to be justified, is contained in § 20, c. 119, of the acts of the Yirginia legislature, session of 1881-1882, being part of the taxing laws of the State originally enacted in 1870 and 1871, and continued with amendments to the present time. The material part of the aec applicable to this case was as follows:</p> <p>“ 19. Every railroad and canal company not exempted fr^m taxation by .virtue of its charter shall report annually on the first day of June, to the auditor of public accounts, all of its real and personal property of every description as of the first -day of February of each year, showing particularly in what county or corporation such property is located, and classifying the same under the following heads:</p> <p>“ First. Boadway and track, or canal bed.</p> <p>“ Second. Depots, depot grounds and lots, station buildings and fixtures and machine shops.</p> <p>“ Third. Beal estate not included in other classes.</p> <p>“ Fourth. Bolling stock, including passenger, freight, cattle, or stock; baggage, mail, express, sleeping, palace, and all other cars owned by or belonging to the company; boats, machinery, and equipments; houses and appurtenances occupied by lock-gate keepers and other employés.</p> <p>“ Fifth. ’ Stores.</p> <p>“ Sixth. Telegraph lines.</p> <p>“ Seventh. Miscellaneous property.</p> <p>“Every such company shall report, on or before the first day of June of each year, the gross and net receipts of the road or canal for the twelve months preceding the first day of February of each year, and in all cases the report shall be so made as to give the data on which the same is made. If such road or canal is only in part within the Commonwealth, the report shall show what part is within the Commonwealth and what proportion the same bears to the entire length of the road or .canal, and. shall apportion the receipts accordingly. The reports herein required shall be verified by the oath of the president or other proper officer. Upon the receipt of every such report it shall be the duty of the auditor of public accounts to lay the same before the board of public works, who shall, after thirty days’ notice previously given to the president, treasurer, or other proper officer, proceed to ascertain and assess the value of the property so reported, upon the best and most reliable information that can be procured; and to this end shall be authorized and empowered to send for persons and papers should it be deemed necessary.. A certified copy of the assessment, when made, shall be immediately forwarded by the secretary of the board to the president or other proper officer of every railroad or canal company so assessed, whose duty it shall be to pay into the treasury of the State, within sixty days after the receipt thereof, the tax which may be imposed thereon by law. A company failing to make, such report, or to pay the tax assessed upon its property, shall be immediately assessed, under the direction of the aüditor of the public accounts, by any person appointed by him for the purpose, rating their real estate and rolling stock at twenty thousand dollars per mile; and a tax shall at once be levied on such value at the annual rate levied upon the value of the other property for the year. Such tax so levied, as well as the sum required to be paid upon the report herein-before mentioned, if the same be not paid at the time provided herein, shall be collected by the treasurer of some county in. which such company owns property, to whom the auditor may deliver the assessment or a copy thereof. The treasurer may distrain and sell any personal property of such company, and shall pay the taxes into the treasury within three months from the time of the assessment, or a copy as aforesaid may be delivered to him. The compensation of such treasurer to be the same as he receives for collecting other taxes in his county or corporation.”</p> <p>It is admitted that this is the only legislation of the State of Virginia under which the tax in question can be justified; if it does not warrant the proceedings, there is no statute which does. The single question presented in' the case is whether the Baltimore and Ohio Railroad Company, as to the property on account of which it is sought to be taxed, is liable to taxation under the provisions of this act.</p> <p>submitted on his brief, in which he contended as follows.:</p> <p>The issue is a very narrow one, and will be presented to the court in a few words.</p> <p>The State of Virginia contends that the facts of this case do not fall within the principle, now well established by a continuous line of decisions,, that no State has the power of imposing any burden upon interstate commerce or the instruments by which it is carried on between any other State and the State imposing the burden. The State of Virginia did ' not attempt to impose a tax upon every car or locomotive run ’ into the State during the year, but assessed for taxation the property in constant use in the State. There was no hardship in this; the Company enjoyed the constant protection of the laws of Virginia for its property, and it was but fair and just that it should bear its due proportion of the expenses of the government which extended the protection. The Baltimore arid Ohio Railroad Company does not run its cars from Baltimore under its Maryland charter, but comes to Virginia and leases lines from Virginia companies, obligates itself to furnish cars and run trains regularly, the right to do which it derives only from the franchises of the Virginia corporations.</p> <p>• The Virginia corporations hold their franchises upon the condition that they perform their duty to the public as common carriers by running trains and furnishing transportation for both freight and passengers.</p> <p>All these obligations are assumed, agencies are established along the line, the necessary trains are put on and run regularly. The same cars and engines may not always be in the State, but a certain number of engines and cars are always in the State.</p> <p>The Company, by coming to Virginia and leasing these lines of road, and incurring the obligation to operate them with' engines and cars and run regular trains upon them, had voluntarily changed the situs of so much of its rolling stock as is in constant use upon the lines in Virginia, and it is therefore liable to taxation to-that extent in Virginia.</p> <p>The decree of the Circuit Court is erroneous, and should be reversed.</p> <p>No authorities are cited, because the general principle that the instruments of interstate commerce are exempt from taxation by any other State than the one in which they have their situs is well established, and the question involved here is not whether if the situs of the property is in Baltimore is it liable to taxation; but is, whether from the facts proved the situs of the property assessed for taxation is not in the State of Virginia.</p> <p>The acts of the General Assembly under which the assessment was made and the collection of the tax bill were printed with the brief of Mr. Ayers.</p> <p>contended as follows in regard to the situs of the property.</p> <p>. The authorities are clear that in the absence of legislation to the contrary, the situs for taxation of the personal property of a corporation is at its domicile, which is the State of its' creation, and within that State, in the town where it has its principal office or place of business. Burroughs on Taxation, 186; Orange & Alexandria Railroad Co. v. Alexandria, 17 Grattan, 176; Philadelphia, Wilmington, & Baltimore Railroad v. Appeal Tax Court, 50 Maryland, 397, 415; Appeal Tax Court v. Pullman Palace Car Co., 50 Maryland, 452; Appeal Tax Court v. Northern Central Railway Co., 50 Maryland, 417; St. Louis v. The Ferry Co., 11 Wall. 425; Hays v. Pacific Mail Steamship Co., 17 How. 596; Pacific Railroad Co. v. Cass County, 53 Missouri, 17, 31, 32.</p>

<p>A statute entitled “An act referring to the Court ox Claims,” etc., “ for ex- • amination and report,” and enacting that “the claims” “be, and the same are hereby, referred to the Court of Claims for adjudication according to law, on the proofs heretofore presented, and such other proofs as may be adduced, and report the same to Congress ” confers upon that court full jurisdiction to proceed to final judgment, as in the exercise of its ordinary jurisdiction.</p> <p>A statute conferring upon the Court of Claims power to consider and render judgment for claims “ for property claimed to have been taken and impressed into the service of the United States in the year 1857 by orders of Colonel Albert Sidney Johnston in command of the Utah expedition, as well as for property alleged to have been sold to the government ” does not authorize that court to consider and give judgment for losses consequent upon the refusal of Colonel Johnston to permit the trains of the claimant to proceed upon their journey, arising from the mere deten- ’ tion and delay occasioned thereby.</p> <p>It appearing from the findings of the court below that “ plaintiff’s animals were often used to aid in hauling government trains; and thus did extra work on insufficient food; ” and this being a possible ground for recovery to some extent for property taken and impressed into the service of the United States; and it not appearing in the findings what amount is properly allowable therefor, the case is remanded for further proofs and findings in that respect.</p>

Held: that he had been guilty of gross negligence in the matter, which prevented him from recovering against the District. The case is stated in the

Held: that the consent of the mayor could give no greater validity to the bonds than they before had, and that the decree was not an adjudication of the question of such validity. .

Held: that the mere authority given to a municipality to subscribe for stock in a railroad company did not carry with it *176 the implied power to issue bonds therefor, especially where, as in the present case, special provisions were made for paying the subscription by taxation.

<p>Letters-patent No. 243,674, granted to James Forncrook, June 28, 1881, for an “ improvement in sectional honey-frames,” on an application filed May 13, 1879, are invalid, for want of novelty.</p> <p>The claim of the patent, namely, “As a new article of manufacture, a blank for honey-frames formed of a single piece of wood, having transverse angular grooves a, longitudinal groove d, and recesses 6, all arranged in the manner shown and described,” is not infringed by a blank which does not contain the longitudinal groove, or any substitute or equivalent for it.</p>

Held: that the State was not liable for the taxes assessed under the act of August 5, 1861, against the real property of private individuals in the State, and that the Court of Claims had jurisdiction of the action. Therefore, the judgment was affirmed.

The case, as stated by the court, was as follows: In 1882, the defendant below, the Missouri Pacific Railway Company, a corporation created under the laws of Kansas, operated lines of railway in the latter State. It also had control of two track-yards adjacent to the city of Atchison, designated respectively as the upper and lower yard, and it used two switch-engines in moving cars from one yard to the other.

<p>ERROR TO THE SUPREME COURT OF THE STATE OF MINNESOTA.</p> <p>The case is stated in the opinion.</p>

Held: that an action 'against sureties to recover on a bail bond conditioned for the appearance of the principal to answer to an indictment for making and forging checks against an assistant treasurer is not a case for the enforcement of a revenue law, within the intent of Rev. Stat. § 699.

The court stated the case as follows: The complaint in this case filed in the Court of Common Pleas in the County of Charleston, South Carolina, alleged that the plaintiff was the owner and holder of three bonds of the State of South Carolina, two designated by the numbers 850 and 851, for $500 each, and one by the number 2290, for $1000 ; that thereby the State of South Carolina promised to pay to the bearers the sums therein named on the 1st day of July, 1893, with…

Held: on the facts, that the plaintiff in a suit in equity had not established his right to a decree that lie is entitled to the one-half of the attorney’s fees in an award against Mexico by the joint United States and Mexican commission, which fees had been collected by the defendant.

Held: that it was sufficient. The Secretary, in view of the litigation, was not bound to decide between the conflicting claims.

Held: that the Secretary was not liable to pay such interest or income, because (1) The award was to be paid by the Spanish government to the government of the United States. (2) It was paid by the Spanish government to the Secretary of State of the United States, representing the government of the United States.

Held: that the reissue was void. Bill in equity for the infringement of letters patent. Decree dismissing the bill. Complainant appealed. The case is stated in the opinion. Mr. J. W. Merriam for appellant. Mr. John H. Whipple was with him on the brief. Mr. George H. Lothrop for appellee.

Held: That the claim being against the defendant as devisee and legatee, and not as executrix, and there being nó allegation in the pleadings that any jurisdiction was exercised by the probate court in the construction of the will in this respect, the adjudications in that court were no bar to the prosecution of this suit; (2) That the complainants took under the will a beneficial interest in the estate given to the wife…

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF TENNESSEE.</p> <p>This was an appeal from the Circuit Court of the United States for the Western District of Tennessee.</p> <p>The suit was originally brought in the. Chancery Court of Shelby County, held in the city of Memphis in that State, in regard to a controversy which aróse concerning the title to certain real estate situated in the State of Arkansas. The principal defendant. Asa Hodges, was a citizen of Arkansas, and upon that ground procured an order in the Chancery Court to remove the case into the Circuit Court of the United States for the Western District of Tennessee. The allegations upon which this removal was made were as follows:</p> <p>“In the Chancery Court of Shelby County, Tennessee.</p> <p>“ Anna E. Cameron et al. v. Asa Hodges et al. IR. 4593.</p> <p>“ To the Hon. W. W. McDowell, chancellor:</p> <p>“ Your petitioner states that he is, and at the time of the institution of this suit was, a citizen of the State of Arkansas and not of the State of Tennessee, and that none of the complainants are or were at that time citizens of the State of Arkansas; that said suit is of a civil nature, and the matters in controversy exceed, exclusive of costs, in value the sum of five hundred dollars; that the controversy affects the ownership of real estate in said State of Arkansas, and can be wholly decided between complainants and this defendant. Wherefore he prays an order for the removal of said cause from this court to the United States Circuit Court for the Western District of Tennessee, at Memphis, and he tenders herewith the requisite bond, as required by law, for the removal thereof.</p> <p>“ Asa Hodges, the petitioner, being sworn, says the matters set forth in the above petition are true as far as stated on his own knowlédge; the rest he believes to be true.</p> <p>Asa Hodges.</p> <p>“ Sworn to this October 2d, 1882.</p> <p>“ J. M. Bradley, Deputy Cleric and- MP</p> <p>filed the following affidavit:</p> <p>Asa Hodges, being sworn, says that he is the defendant and appellee in this cause, and that the affidavit made by him for its removal from the state court in Tennessee to the United • States court was inadvertently made less full than the facts warranted ; that at the time of the institution of said suit he was, and ever since has remained, a citizen of the State of Arkansas; and that at the same time Ann E. Cameron and J I). Cameron were citizens of the State of Mississippi; Mary F. Thompson and J. A. Thompson, and J. E. Price, were citizens of the State of Texas; E. J. Morton, L. W. Morton, L. C. Cobb, and P. "W. Cobb, were citizens of the State of Alabama; and Gasken Price, Wm. Price, Lawler Price, and Leila Price, were citizens of the State of Tennessee; and that the parties named were all the complainants in said cause.</p> <p>■ ■ A. Hodges.</p> <p>State of Tennessee, ) County of Shelby, f</p> <p>Personally appeared [before] the undersigned, notary public for said county and State, Asa Hodges, who made oath that the statements in the foregoing affidavit are true.</p> <p>Subscribed and sworn to before [me] this 20th day of April, 1888.</p> <p>[seal.] J. E. Dillard,</p> <p> Nota/ry PubUe. </p> <p>' With this affidavit they filed a brief in support of the jurisdiction of the court.</p>

of the case: ‘ - *336 u The statutory provisions that no sale for delinquent taxes shall be held invalid unless it be made to appear that all legal taxes were paid or tendered, and that all taxes shall be presumed to be legally assessed until the contrary is affirmatively shown (Comp.

This was a suit in equity brought by the Attorney General on behalf of the United States to set aside and cancel certain patents issued in favor of Roswell Beebe, in 1838 and 1839, for about 480 acres of land upon, which the present city. of Little Rock, Arkansas, is partly built. Roswell Beebe having died many years ago, this suit is prosecuted against his heirs and legal representatives.

Bill in equity, to quiet title. Decree of perpetual injunction against defendants, from which they appealed to the, Supreme Court of the Territory. The decree and judgment being affirmed there, they appealed to this court. The case is stated in the opinion.

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO.</p> <p>Bill in equity for the infringement of letters patent. Decree dismissing the bill. Complainant appealed. The case is stated in the opinion.</p>

Held: that this was a proper proceeding under the pleadings in the case.. ‘ The court below having directed a verdict for the defendant, this court reversed the judgment, on the ground that the question of similitude •was one of fact, which should have been submitted to the jury, as it appeared that the imported goods were of inferior value and material as compared with the goods to which it was claimed they bore a…

<p>Claim 1 of letters- patent’'No. 140,250 granted to James D. Cusenbary and • James A. Mars, June 24, 1873', for an “improvement in ore-stamp feed-' ers,” namely, “.The feeding cylinder I, mounted upon the movable timber H H, substantially as and for the purpose above described,” is a claim only'for malting-the timbers movable, by mounting them upon rollers, and does not involve a patentable invention.</p> <p>The defence of non-patentability can be availed-of without setting it up in an answer.</p> <p>There is no patentable combination, but merely an aggregation of the rollers . . and the feeding cylinder.</p> <p>The specification requires the feeding cylinder to have chambers or depressions, and claim 1 does not' cover a cylinder with a smooth surface not formed into chambers.</p>

<p>An action in the Circuit Court by a patentee for breach of an agreement of a licensee to make and sell the patented article and to pay royalties, in which the validity and the infringement of the patent are controverted, is a “ case touching patent rights,” of which this court has appellate jurisdiction, under § 699 of the Revised Statutes, without regard to the sum or value in dispute:</p>

This was an action brought by a smelting company, incorporated by the laws of Missouri, against a mining company, incorporated by the laws of Maine, and both doing business in Colorado by virtue of a compliance with its laws, to recover damages for the breach of a contract to deliver ore, made by the defendant with Billing and Eilers, and assigned to the plaintiff.

Bill in • equity to restrain alleged infringements of letters patent. Decree dismissing the bill. Complainant appealed. The case is stated in the opinion.

This was an action by Hosford and Gagnon on a policy of insurance, dated May 14, 1883, by which the Germania Fire Insurance Company and the Hanover Fire Insurance Company, severally and not jointly, and as if by separate policies, insured the plaintiffs, against loss by fire for a year from that date, each one half of the sum of $8000, payable in sixty days after notice and proof of loss, upon their flour-mill, elevator and machinery in the town of Rulo and State of…

Held: that the questions related only to incumbrances created by the act or with the consent of the applicant, and that an omission to disclose an existing lien created by statute for unpaid taxes was no breach of the warranty. This case was substantially like that of Hosford v. Cermania Ins.

Held: That it was not outside .of the contract. (2) That the act of February 21, 1871, 16 Stat. 419 , c. 62, forbade the Board *410 to contract except in writing, and forbade the allowance of extra compensation for work done under a written contract. (3) That the entry in the journal of the Board could not affect plaintiff’s contract. The case is stated in the

Held: as the result of the evidence adduced, that its eastern limit was at the point where the foot hills of the sierra begin to rise above the plain, near the range line between ranges 7 and 8.

This was an appeal from a judgment denying a discharge . to a prisoner, on a writ of habeas corpus. Petitioner appealed. The case is stated in the opinion.

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOE THE DISTRICT OF NEBRASKA.</p> <p>The case is stated in the opinion.</p>

Held: that the supplemental bill set up no new cause of action, but only matters operating as an estoppel which were not subject to the limitation prescribed by Rev. Stat. § 5057.

<p>A bill in equity filed in the Circuit Court of the United States in 1882 by a stockholder in a New York corporation, whose corporate term expired in 1878, to correct a deed of land in North Carolina made to the corporation in 1853, is barred by the statute of limitations in North Carolina, and by the general principles of courts of equity with regard to laches, ; unless a better reason for not instituting the suit earlier is given than the one given in this suit.</p> <p>A stockholder in a corporation which has passed the term of its corporate existence, and has long ceased to exercise its corporate franchises, who desires to obtain equitable relief for it, must, in order to maintain an action therefor in his own name, show that he has endeavored in vain to secure action on the part of the directors, if there are any, or to have the stockholders elect a new board-of directors, and must disclose when he,acquired his interest in the corporation.</p>

'APPEALS EKOM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

Held: that a postmaster was not liable for the loss of a letter* occasioned by the negligence or wrongful conduct of his clerk.

The decrees which are the subject of the present appeal were rendered in a suit brought to enforce certain deeds of trust and mortgage liens upon a tract of land in Greenbrier •County, West Yirginia, known as the White Sulphur Springs, in which it became necessary to sell the property for the payment of debts, and to marshall the liens on the same in the order of their priority.

The court stated the case as follows: On April 14, 1875, the firm of Bowen Brothers, of Chicago, borrowed of the German-American Bank of New York the sum of $27,500, for which they gave their promissory notes, payable, respectively, in two, three, and four months from date. _ As collateral security for the payment of the loan they deposited with the bank forty bonds executed by themselves, payable to bearer five years from date, with interest semiannually, of the…

The court stated the case as follows: This was an appeal from a judgment refusing, upon writ of habeas corpus, to discharge the appellant from the custody of the appellee as Marshal of the District of "Columbia.

In equity for the infringement of letters patent. Decree dismissing the bill. Complainant appealed.. The case is stated in the opinion.

In equity, for the infringement of letters patent. Decree dismissing the bill. Complainants appealed. The case is stated in the opinion.

Held: that this was error, because the hosiery was not otherwise provided for in the act of 1867, and was a manufacture made in part of wool. The case of Vietor v. Arthur, 104 U. S. 498 , commented on, and explained, and distinguished.

<p>A proposition to pave streets in a municipality, made in writing hy a contractor to the head of a board consisting of several members which by. law was charged with the care and paving of the streets, although considered and agreed to by the head of the board, and although by his directions the secretary of the board wrote under it that it was “ accepted by order of the board” and affixed his signature as secretary thereto, is not a “ contract in writing signed by the parties making the same,” if the action of the secretary was made without official acceptance of the proposition by the board, and without authority from them to write it.</p> <p>On the facts in this case the court holds: (1) that the alleged contract with the board of public works was not a valid contract;- (2) that it was never ratified by the board; (3) that it was never ratified by Congress ; (4) that the portion of the plaintiff’s claim which was for work performed was rejected by the board of audit, and that the Court of Claims was therefore without jurisdiction to entertain it.</p>

<p>APPEAL PROM THE CIRCUIT ‘COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF TEXAS.</p> <p>In equity. Decree dismissing the bij.1. Complainant appealed. The case is stated in the bill.</p>

Held: this will not generally be sufficient, either to discharge the agent or to render the principal liable' on the note,” citing Stackpole v. Arnold, 11 Mass. 27 . That case was an action against the defendant as maker of three promissory notes.

This was an action to recover duties alleged to have been illegally assessed. Judgment for.plaintiff. Defendant appealed. The case is stated in the opinion.

<p>APPEAL PROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.</p> <p>In equity. Decree dismissing the bill. Complainant appealed. The case is stated in the opinion.</p>

<p>APPEALS FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.</p> <p>In equity. Both, parties appealed from the final decree. The case is stated in the opinion.</p>

<p>The appointment by a Circuit Court of the United States of a receiver of a corporation organized under the laws of a State does not deprive a court of the State of jurisdiction to hear and determine an application for a mandamus directing a recorder of mortgages in the State to cancel and erase from the books of his office an inscription against property of the petitioner in favor of the corporation, the petition describing it as a-mortgage on real estate, and setting forth the interest of the corporation.</p> <p>This court questions the opinion of the Supreme Court of Louisiana that the Circuit Court of the United States would have no authority to order the erasure of an incumbrance from a mortgage book within the State.</p> <p>The copies of orders made in this cause by the Circuit Court of the State after the entry of the final judgment to which the writ of error from the Supreme Court of the State was directed, although annexed to the petition for that writ, were too late in the cause to constitute a ground for importing a federal question into it.</p>

Held: a good defence. The case is stated in the opinion. Mr. Gaylord B. Cla/rk for plaintiff in error submitted on his brief. No appearance for defendant in error.

Held: that the intervenor was entitled to the protection of the court, but that the proper remedy was not the annulling of the sale, . and confirmation, and master’s deed, if the court had the power to do it, but an order for a resale of the entire property in satisfaction of the claim of the intervenor.

<p>APPEAL FROM THE SUPREME COURT OE THE DISTRICT OF COLUMBIA.</p> <p>In equity. Decree dismissing the bill. Complainant appealed. The case is stated in the opinion.</p>

<p>The Fourteenth Amendment to the Constitution was not designed to interfere with the exercise of the police power by the State for the protection of health, the prevention of fraud, and the preservation of the public morals.</p> <p>The prohibition of the manufacture out of oleaginous substances, or out of any compound thereof other than that produced from unadulterated milk or cream from unadulterated milk, of an article designed to take the place of butter or cheese produced from pure unadulterated milk or cream from unadulterated milk; or the prohibition upon the manufacture of any imitation or adulterated butter or cheese, or upon the selling or offering for sale, or having in possession with intent to sell, the same, as an article,of food, is a lawful exercise by the State of the power to protect, by police regulations, the public health.</p> <p>Whether the manufacture of oleomargarine, or imitation butter, of the kind described in the act of the legislature of Pennsylvania of .May 21, 1885, (Laws of Penn, of 1885, p. 22, No. 25,1 is, or may be, conducted in such a way, or with such skill and secrecy, as to baffle ordinary inspection, or whether it involves such danger to the public health as to require, for the protection of the people, the entire suppression of the business, rather than its regulation in such manner as to permit the manufacture ■ and sale of articles of that class that do not contain noxious ingredients, are questions of fact and of public policy, which belong to'the legislative department to determine.</p> <p>The Statute of Pennsylvania of May 21, 1885, “for the protection of the public health, and to prevent adulteration of dairy products and fraud in the sale thereof” neither denies to persons within the jurisdiction of the State the equal protection of the laws; nor deprives persons of their property without that compensation required by law; and is not repugnant in these respects to the Fourteenth Amendment to the Constitution of the United States.</p>

Held: that he was not entitled to be discharged from custody under a writ of habeas corpus from the Circuit Court of the United States.

that “under the statute of February 22, 1831, it is not indispensable to the validity of a deed executed by husband and wife that they should acknowledge it before the same officer or at .the same time and place, or that their acknowledgments should be certified by a single certificate.” Yet “ the acknowledgment 6Í the wife is not binding upon her until the deed is executed and acknowledged by the husband.” “ The husband,” the court said, “can render the wife every needed…

Held: to whom is committed the safe keeping and delivery to the board of canvassers of the poll books, the tally sheets, and the certificates of the votes, to fail or omit to perform this duty of safe-keeping and delivery.

This cause was tried at the present term, and is reported 123 U. S. 189.

ORIGINAL. This was a motion for leave to file a petition for a writ of mandamus, and for a rule to show cause why it should not issue.

Motion to dismiss “ because the citation was not served in time.” The citation in this case was made returnable on the second Monday in October, 1885. Service was had on the attorneys for Crabtree on September 16, 1885. The time intervening between the date of service and the return of the citation was less than thirty days, and the notice to the defendant in error, Crabtree, was not sufficient. Rev. Stat. § 999.

<p>A cause under submission having been dismissed by the court of its own motion for want of jurisdictional amount, the appellant moves to reinstate and submits affidavits. The court orders the motion continued, with leave to each party to file further affidavits.</p>

Held: that the motion should be denied. *776 Motion to dismiss. The case is stated in the opinion. Mr. Edga/r II. Farrar and Mr. Ernest B. Eruttschnitt for the motion. Mr. C. W. Hornor and Mr., W. K Benedict opposing. Me. Justice Miller: A motion is made to dismiss this cause because Charles Lafitte, the husband of the defendant in error, is not named in the writ of error as a party to the proceedings.