Volume 128 — United States Reports

Kidd v. Pearson, 128 U.S. 1 (1888), was a case in which the Supreme Court of the United States held that a distinction between manufacturing and commerce meant that an Iowa law that prohibited the manufacture of alcohol (in this case for sale out-of-state) was constitutional as it did not conflict with the power of the US Congress to regulate interstate commerce.

■These cases came here on writs of error to the Supremp Court of thé District of Columbia to review several judgments of that court refusing orders upon the Commissioner of Pensions to show cause why in- each case a writ of mandamus should not issue, requiring him to increase the pension of the petitioner. The cases were argued together, and-in each the facts which makes the case here are stated in the opinion of the court.

Held: that while the Constitution expressly provides that the powers conferred upon justices of the peace “shall not. in any case trench upon the jurisdiction of the several courts of record” — thereby indicating that the jurisdiction conferred upon the several courts of record ..should be exclusive as against justices of the peace — rno analogous provision was made as between the courts of record; and that, consequently,…

<p>ERROR TO THE SUPREME COURT OP THE STATE OF ALABAMA.</p> <p>The case is stated in the opinion of the court.</p>

Held: that the consolidation was authorized and that the privilege of re- . ceiving the subscription passed to the consolidated company. The vote having contemplated the construction of the railroad which the consolidated company built, there was no diversion from the pui-pose ■ contemplated by the vote, in the fact that the stock was subscribed, and the bonds issued, to the consolidated company.

errob to the court of Appeals of the state of texas. On the application of the plaintiff in, error a writ of habeas corpus, issued from a state court of Texas, to inquire into the validity of his imprisonment under the provisions of a statute of the State alleged to be in conflict with the Constitution of. the United States. In the Court of Appeals of Texas final judgment was given against the petitioner. This writ of error was sued out to bring that judgment under review.

<p>ERROR TO THE COURT OF APPEALS OF THE STATE OF MARYLAND.</p> <p>Motion to dismiss oe affirm. The case is stated in the opinion of the court.</p>

The original action was brought by the United States against Howard S'. Lovejoy, Thomas W. Means and others upon a bond, executed by Lovejoy as principal and by the other defendants' as sureties, conditioned for his faithful dis* charge of the duties of receiver of public moneys for the district. of lands subject to sale at Niobrara in the State of Nebraska. The sureties, in their answer, denied their execution of the ■bond declared on, and its validity as against them.

Held: on- an application for an injunction in this case, that this delegation of authority by the legislature to the commissioners, to prescribe what shall •be reasonable and just rates for the carriage and transportation of persons and property over railroads within its- limits, was a proper exercise of its own power to provide protection to its citizens against- unjust rates for such transportation and to prevent unjust…

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

Held: on demurrer to the bill that, so far as appeared, the remedy was in equity, and the bill was sufficient on its face. The case is stated in the

This was a petition for a writ of habeas corpus, and for a writ of certiorari. The alleged grounds for the issue of the writ are stated in the opinion of the court. The writ was denied and the petitioner took this appeal.

On the 23d of April, 1872, in consideration of an annual premium of $230.89, the Life Insurance Company óf Virginia issued at Petersburgh, in that Commonwealth, a' policy of insurance on the life of Thomas L. Hume of Washington, D. C... for the. term of his natural life, in the sum of $10,000, for the sole use and benefit of his wife, Annie Graham Hume and his children, payment to be made to' them, their heirs, executors, or assigns, at Petersburgh, Virginia.

<p>APPEAL FROM THE CIRCUIT COURT .OF THE UNITED ^STATES FOR THE EASTERN DISTRICT OF LOUISIANA.</p> <p>In equity. Defendant demurred. The demurrer was sustained and the bill. dismissed. The complainant appealed. The case is stated in the opinion of the court.</p>

<p>ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF MISSISSIPPI.</p> <p>Ths/ case is stated in the opinion of the court.</p>

<p>APPEAL FROM THE COURT OF CLAIMS.</p> <p>■ The case is stated in the opinion of the court.</p>

Held: responsible for the application of the purchase money.

This was an appeal from a decree for the foreclosure of two mortgages. Held: responsible for the application of the purchase money.

Banks v. Manchester, 128 U.S. 244 (1888), was a United States Supreme Court ruling that dealt with copyright.

<p>APPEAL PROM THE COURT OP CLAIMS.</p> <p>The case is stated in the opinion of the court.</p>

This was a case from the Court of Claims. Its nature and object are fully explained by the following extract from the petition: “Your petitioner is the inventor, patentee and owner of the improvements in infantry equipments, for which, were granted letters-patent, Nos. 139,731 and 167,537, dated, respectively, June 10, 1873, and December 8, 1874. A board— consisting of Lieutenant-Colonels W. R. Shatter, A. McD.

<p>APPEAL EEOM THE CIRCUIT COURT OF THE UNITED STATES FOR- THE WESTERN DISTRICT OF NORTH CAROLINA.</p> <p>- This was an appeal from a decree of the Circuit Court of the United States for the Western District of North Carolina, dismissing a bill brought by Paul B. Means, assignee in bankruptcy of Charles G. Montgomery and Charles D. Dowd, partners, composing the firm of Montgomery & Dowd, against Clement Dowd, A. B: Davidson, Charles.G. Montgomery and Charles D. Dowd. t</p> <p>On and prior to the 24th day of April, 1876, the firm of Montgomery & Dowd carried on a mercantile business in the town of Concord, North Carolina. About that time they became embarrassed, and on that date made a conveyance in writing of all their goods and personal property to A. B. Davidson and Clement Dowd of Charlotte, in the same State, which instrument- is variously called a “deed of trust,” an “assignment,” or a “mortgage.” Although the grantors asserted that they did.not consider themselves as being insol vent at1 the time, it is very evident now, in the light of subsequent circumstances, that they were entirely so. They had a very considerable stock of goods, which'does not seem to have been inventoried in reference to this transfer, and a large amount relatively to their business was outstanding debts due them growing out of that business. The stock of goods was old and needed replenishing; the notes and accounts due them were in many, cases worthless and never have been paid. They were also indebted in a large amount (quite as much probably as they were worth) to certain banks in Charlotte' upon promissory notes, indorsed by A. B. Davidson and Clement Dowd, sometimes jointly and in other cases- separately.</p> <p>Davidson was the father-in-law of Charles G. Montgomery and the vice-president of the Merchants’ and Farmers’ National Bank, one¡ of the creditors secured by this conveyance. Clement Dowd, the other grantee, was a brother of Charles D. Dowd, one of the grantors, and also president of the Commercial National Bank, a preferred creditor. W. J. Montgomery was a brother Nof Charles G. Montgomery, and he and Davidson and Clément Dowd appear as indorsers upon some • of the notes set forth in the'instrument referred to.</p> <p>■ This conveyance, although made in April, was not placed on record until the 12th day of July, 1876, thereafter, and the grantors, Montgomery .& Dowd, remained in possession and had absolute control of the property^ until shortly after that period. The instrument itself was filed as “ Exhibit A,” and was as follows:</p> <p>“ Exhibit A.</p> <p>“.This indenture, made this 24th day of April, 1876, by Chas. G. Montgomery and- Chas. D. -Dowd, partners, trading pnder the. firm and style of Montgomery & Dowd, of Concord, North Carolina, parties of the first part, and A. B. Davidson and C. Dowd, of Charlotte, in the State aforesaid, ■parties of the. second part,-witnesseth: That' whereas thé parties of the first part are indebted as follows:-By a certain promissory note, of even.date with these presents, given t'o the. Commercial National Bank of Charlotte, N. C., for three thousand dollars, and'endorsed by the said A. B. Davidson and C. Dowd; also by a certain other note to the said bank for one thousand dollars,-dated the — day .of —-, 1876, due at sixty days, and endorsed by W. J. Montgomery; also by another note of five hundred dollars to the said bank of even date herewith, endorsed by .0. Dowd, and due at sixty days; also by another note to said bank of thirty-four hundred dollars, secured by customer’s notes in the hands of Montgomery & Everitt, att’ys, bearing date the — day of-, and due at sixty days; also by two other notes of one thousand dollars each to the First National Bank of Charlotte, endorsed by A. B. Davidson, dated, respectively,, on the 25th March and 5th April, 1876, and running to maturity at sixty days; also by a note to the Merchants’ & Farmers’ National Bank of Charlotte for one thousand dollars, dated the ■ — ■ day of-, 1876, at sixty days, and endorsed by A. B. Davidson ; also by-another note to the last-named bank for five hundred dollars, endorsed by "W. H. Lilly; also by another note to said M. F.' National Bank for one thousand dollars, endorsed by J. R. Neis-' ler, and by another note to said bank for five hundred dollars, endorsed by R. S. Harris; also by.a note to Martin Boyer, Jr., -dollars, and note to D. P. Boger for--; also by a note to J. A. Lilly for four hundred dollars:</p> <p>“ Now, in order to provide for the payment of the said debts, and to indemnify and save harmless the said endorsers, the parties of the first part do hereby bargain, sell, convey, and transfer unto the said A. B. Davidson and C. Dowd the following property, to wit: The entire stock of goods, wares, and merchandise of every kind and description now in the, possession of the parties of the first part and in and about their store in Concord, together -with all the fixtures and personal property used in connection with the said store and, business; also such goods, wares; and merchandise as the parties of the first part may purchase to renew or replenish the said stock; also all the notes, accounts, mortgages, judgments, and other evidences of debt due and belonging to the parties of the first part, from whomsoever and howsoever the same may be due.</p> <p>“ To have and to hold the said property and the said choses in action and evidences of debt to the said A. B. Davidson and C. Dowd, their executors and assigns, in special trust",as follows:</p> <p>“ The said, parties of the first part are to remain in the possession of the said property and choses in action and continue to sell the goods for cash only and to collect, under the direction and control of the parties of the second part, the proceeds to be deposited weekly in the Commercial National Bank of Charlotte, N. C., and applied under the direction of the parties of the second- part to replenish the stock by such small bills as may be agreed upon and to the payment of the debts of the said firm as follows: First, after deducting* and retaining the commissions and other expenses of this trust, to the payment of the note of three thousand dollars to the Commercial National Bank of Charlotte, of even date herewith, endorsed by the said A. B. Davidson and C. Dowd, the same being given for money this day borrowed for the exclusive use and ■ benefit of the said firm- and also to the payment of any renewal' or substitution of the said note and of any other note .or notes that may hereafter be given by said firm, and endorsed by the said parties of the. second part, or either of them, ■riot being renewals of the notes endorsed by them, or either of them, mentioned and provided for in the next class; secondly, to the payment of all the debts hereinafter mentioned, except the debt of three thousand dollars and other possible indebtedness hereafter to' be incurred, as provided for in the first class above named; thirdly, to -the payments of all the other indebtedness of the said firm, .howsoever and to whomsoever the same may be due, any surplus to.be paid over to the parties of the first part or their legal representatives or assigns.</p> <p>“ And it is further the understanding and agreement that if any of the said debts or any renewal or substitution of them, or aaiy of them shall not be paid when the same shall become due, or if, for any other cause,- the parties of the second part may so elect, then and in that ease it shall be lawful for the parties of the second part, and they are hereby expressly authorized, to take possession of the said goods and merchandise, and all the property and choses in action conveyed herein, .and dispose of the ’same at public or private sale, as they may deem best, applying the proceeds as hereinbefore directed.</p> <p>“ In .witness whereof the parties of the first part do hereto set their hands and seals the day and year aforesaid.</p> <p>■ “ (S’g’d) Chas. Gr. Montgomery, [seal;]</p> <p>“ Chas. D. Dowd. [seal.]</p> <p>“ Witness: W. P. Simpson.</p> <p>“Probated July 11th, 1876. Registered same day.”</p> <p>It appeared that at the term of the Concord Superior Court, held in July, 1876, a suit was pending against the bankrupts in favor of Calvin‘Chestnut, one of the unsecured creditors, .which had been in the hands of an attorney for collection since, sometime during the preceding April. Several of the New York creditors also commenced proceedings during the autumn of that year, against the insolvent firm, and obtained-judgments at the October Term of the United States Circuit Court against Charles G-. Montgdmery and the firm of..Mont-' gomery & Dowd. After executions issued thereon had been returned nulla bona, these creditors filed,a bill to set aside the ■ deed executed by the firm as fraudulent and void.</p> <p>In December,'1876, proceedings were instituted by which' the firm of Montgomery & Dowd were adjudicated bankrupts, and the appellant, Means, was duly appointed their assignee-inbankruptcy. Yery soon afterwards he commenced the present suit in the Circuit Court to set aside the conveyance above recited as being fraudulent and void under the statute of .13 Eliz. and the United States bankrupt act. After the filing of this bill the complainants in the first one, the New York creditors above referred to, proved their debts in bankruptcy, and asserted their lien upon the assets created by the bill'in equity filed in December, 1876, and the first suit has beeh considered in abeyance ever since and treated as merged, in' the proceeding instituted by the assignee in bankruptcy.</p> <p>To the bill brought by the assignee both of the grantors and the grantees in the deed of assignment were made defendants, and each of them filed answers. There was the usual denial of apy fraudulent purpose in the transaction, and allegations that the parties -were doing the best they’could under the circumstances to secure a proper distribution of their prop-</p> <p>erty among their creditors. After considerable testimony, was taken, in which all the parties to the deed were sworn, the Circuit Court dismissed the bill, and it was from that decree that the assignee took the present appeal.</p>

thus: “ A contempt of court, being a criminal offence, no person ' can be punished for such unless the specific offence charged against him be distinctly stated and an opportunity given him of answering. “ A barrister engaged in his professional duties before the Supreme Court at Hong Kong, was, without notice of the •alleged contempt, or rule to show cause, and without being . heard in defence, by an order of that court, fined and ad- . judged to have been guilty of several…

Held: after very full argument, and after a due consideration of the proposition here stated, that in regard to patents issued by the •government for lands’conveyed to individuals or to corporations, the Circuit Courts of the United States do have jurisdiction to set aside and cancel them for frauds committed by the parties to whom they were issued. This class of cases will be considered further on.

.-APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOE THE EASTERN DISTRICT OF ARKANSAS. ■ This was a suit in equity brought in the United States Gir- . cuit Court in 1883 by the appellees, George Christian and Jerry Stuart, against the appellant, Joel Johnson, praying an injunction to restrain him from enforcing a judgment in, ejectment which he obtained in that court against said appellees, for the recovery of certain lands in their possession, and to quiet their title…

<p>error to the circuit court of the united states for the DISTRICT OF NEBRASKA.</p> <p>The case is stated in the opinion of the court.</p>

' Samuel W. Fordyce recovered in the Circuit Court of the , United States for the Eastern District of Arkansas, December ■ 7, 1882, a judgment in ejectment against Thomas J. Cogswell and Anna M. Cogswell.

<p>ERROR TO THE COURT OE QUARTER SESSIONS OF THE PEACE FOR THE COUNTY OF ALLEGHANY, STATE OF PENNSYLVANIA.</p> <p>' The case is stated in the opinion of the court.</p>

<p>.Section 13 of the Revised Statutes, which enacts that “the repeal of any statute.shall not have the effect to release or extinguish any penalty, ■ forfeiture, or liability incurred under such statute, unless the repealing .- act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability,” clearly excepts from the operation Qf c. 181, § 1 of the act of July 4,1884, ' 23 Stat. 98, 99, repealing the act of June 20,; 1878, “relating to claim agents and attorneys in pension cases,” 20 Stat. 243, c. 367, all offences- • committed before the passage of that repealing act.</p> <p>The'words “penalty,” “liability” and “forfeiture,” as used in Rev. Stat.,- - § 13, are synonymous with the word “ punishment,” in connection with crimes' of the highest grade, and-apply to offences against the act of June -20, 1878, 20 Stat. 243, c. 367, relating to claim agents and attorneys in pension cases. '</p>

Held: that time was not of its essence. In equity.

Held: that it would be inequitable to allow him, either a preference over those to whom he had sold the bonds, or coequal rights with them. The court stated the case as follows: This is an appeal by interveners in the suit, one branch of which has been disposed of in the preceding case of Brown v. Guarantee Trust and Safe Deposit Company, ante, 403.

This was an appeal from a judgment against the United States in favor of the plaintiff, Foster, for the sum of $1393.40, as the amount due him under what is known as the longevity, acts of Congress. Prior to November 28, 1861, he served in the navy as an enlisted man for six years and forty days; and he served as gunner in the regular navy from November 28, 1861, until April 14, 1868, a period of six; years and 145 days, when he resigned.

<p>APPEAL FROM THE ' CIRCUIT COURT OF ’ THE UNITED STATES FOR , THE DISTRICT OF MINNESOTA.</p> <p>The court stated the case as follows:</p> <p>The appellees, S. B. Wool worth, and Clara Woolworth, his wife, the plaintiffs below, claiming to have been for more than ten years prior to the 13th of June, 1883, in the constant, actual and lawful possession of lots 4 and 9, block 20, Robert and Randall’s addition to St. Paul, Minnesota, and averring that the appellant, the defendant below, wrongfully asserted an interest therein adverse to them, brought this suit in one of the courts of the State, for the purpose of obtaining a decree adjudging that the defendant has no right, title, estate, lien, or interest in those lots, and for such other relief as was proper. The suit was based upon a statute of Minnesota providing that “ an action may be brought by any person in .possession, by himself or his tenant, of real property, against any person .who claims an estate or interest therein, or lien upon the same, adverse to him, for the purpose of determining such adverse claim, estate, lien,' or interest; and any person having or claiming title to vacant or unoccupied real estate may bring an action against any person claiming an estate or interest therein adverse to him, for the purpose of determining such adverse claim, and the rights of the parties respectively.” General. Statutes of Minnesota 1878, c. 75, § 2, p. 814. The suit was subsequently removed into the Circuit Court of' the United States.</p> <p>The original complaint having been ordered to stand as a complaint in equity in the Circuit Court, the defendant filed an answer controverting all of its material allegations, and, also, by leave filed a cross-bill, seeking a decree for the. specific execution of a written agreement, which was put upon record, and is alleged to have been made between him and the plaintiffs on the 23d of December, 1881, for the sale and conveyance by them to him of the lots in question. That agreement is as follows:</p> <p>“ Received at St. Paul, Minn., this 23d day of December, 1881, of David J. Hennessey, of Dubuque, Iowa, the sum of fifty dollars as earnest and in part payment of the .price of lots four (4) and nine (9), in block twenty (20), of Robert and Randall’s addition to St. Paul, Minn., which, as the authorized agent of Clara Woolworth and S. B. Woolworth, her husband, of the last-named city and State, I have bargained and sold to the said Hennessey for ten thousand dollars to be paid, and which the said Hennessey stipulates to pay, as follows, to wit; twenty-five hundred dollars, less aforesaid earnest money, on delivery to the said Hennessey of good warranty deed with full covenants, which shall convey to the said Hennessey from the said Wool worths good, clear, and perfect title, except as to the notes and mortgages hereinafter mentioned, to said property and to all improvements and appurtenances thereunto belonging, and after the said Hennessey shall have been furbished by the said Wool worths with a complete, official, and certified abstract of title to the said property, which shall show title in them thereto as aforesaid, and nineteen hundred dollars on or before one year, and nineteén hundred dollars on or before two years, and nineteen hundred dollars on or before three years from the.delivery as aforesaid and the giving to said Hennessey of possession of said premises and the emoluments, with interest , at the. rate of-seven per centum per annum, payable annually, except in case of a note taken up before due, and the three last-mentioned sums are to be secured by mortgage back on the said premises, and the said Hennessey is to assume, from and after the last-mentioned date and from And after that date only, a certain note and mortgage for eighteen hundred dollars, which plaintiffs made August 10th, 1880, and running from Seth B. Woolworth and. Clara Woolworth to Edwin W. Bice, which said mortgage is recorded in the office of the register of deeds of said Ramsay County, in Book 59 of Mortgages, on page 218, and which the said Hennessey agrees, under and in accordance with the said stipulations herein contained, and each of them, to pay when due.</p> <p>“It is, moreover, agreed that if there are any clouds or defects in the title to the said property they and each of them shall be removed and cured with becoming diligence by the said Woolworths, and if not removable or curable the aforesaid fifty dollars is to be refunded and this contract to be null and void, at the option of the said Hénnessey, and to be void, also, at the option of the said Hennessey, in the event of the neglect orfailyre on the part of the said Woolworths to remove or cure the clouds or defects which may be on said title.</p> <p>“P. T. Kavanaugh,</p> <p>“Agent of- Gima Wool/worth and S. B. Woolworth. “Witnesses: “David J. Hennessey.</p> <p>“ H. A. Estes. -</p> <p>“ 11, M’Carthy.”</p> <p>Replications to the answer and cross-bill were filed by the plaintiffs, and a decree rendered dismissing the cross-bill and giving them the relief asked by the original bill or complaint. By that decree it was, among other things, adjudged that the instrument of Dec. 23, 1881, was not authorized by the plaintiffs, or either of them, and was void; that the defendant has no right or interest in said lots in virtue of that writing. The defendant and all persons claiming under him were enjoined from asserting any interest in the lots as against the title or possession of the plaintiffs or either of them.</p> <p>It was in proof that the plaintiffs, under date of • December 8, 1881, executed and delivered to Kavanaugh a writing as follows:</p> <p>“St. Paul, Deo. 8,.1881.</p> <p>“P. T. Kavanaugh: We hereby authorize you to sell for us lots 1 and 9, block 20, Eobert & Eandall’s Addition to St. Paul, for ten thousand dollars net to us.</p> <p>“Clara Woolworth.</p> <p>“S. B. Woolworth.”</p> <p>There was some evidence tending to show that when Hennessey purchased there was exhibited to him a writing pur-, porting to be signed by the plaintiff, and which authorized Kavanaugh to make sale of these lots upon substantially the terms embodied in the written agreement of December 23, 1881.</p> <p>' The lots, it should be stated, were the property of Mrs.' Woolworth, having been purchased with her means.</p>

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

<p>In Alabama, when a defendant pleads specially and generally, and the special plea contains nothing of which the defendant cannot avail himself under the general issue, an error in sustaining a demurrer to the special plea, as it works no injury, constitutes no ground for reversal.</p> <p>In Alabama a written agreement between the parties may be read in evidence without proof of its execution, unless the execution is denied by plea, verified by affidavit.</p> <p>The agreement which formed the subject of controversy in this action related to a renewal of the existing contract of the plaintiff in error for lighting certain streets in Montgomery, and not to an enlargement of that contract so as to include other streets; and being so construed, the requisite renewal was effected by the acts of the parties referred to in the opinion of the court, without a written contract, covering a fixed ■period of time.</p> <p>Covenants aré tó be considered dependent or independent, according to the intention of .the parties, to be deduced from the whole instrument;- and • ,m this case the covenants of the plaintiff in error, to pay money for goods sold, and delivered, were independent of the covenants of the defendant ' in error,to transfer certificates of stock in a corporation.</p>

<p>In. Wisconsin an equitable defence may be set up in an action at law; but it must b<j separately stated, in order that it may be considered on its distinctive merits, and in order that, if established, the appropriate relief may be administered.</p> <p>Wliftn, under the practice prevailing in a State, an equitable defence is set up in an action for the possession of land, the grounds.set forth mqst be sufficient to entitle the defendant to a decree that the property be transferred from the plaintiff to him, or that the plaintiff be enjoined from prosecuting the action for the possession of the property.</p> <p>When an entry .is made of two or more tracts, one of which is not at the disposal of the United States by reason of being within a swamp-land grant to a State, the validity of the entry of the remainder is not affected thereby.</p> <p>When an entry is made upon public land subject to entry, and the purchase ■ money for it is paid, the United States then holds the legal title for the benefit of the purchaser, and is bound, on proper application, to issue to him a patent therefor; and if they afterwards convey that title to another, the purchaser, with notice, takes subject to the equitable claim of the first purchaser, who can compel its transfer to him.</p> <p>The power of supervision possessed by the Commissioner of the General Land Office over the acts of the register and receiver of the local land offices is not unlimited or arbitrary, but can.only be exerted when an entry is made upon false testimony, or without authority of law; and cannot be exercised so as to deprive a person of land lawfully entered and paid for.</p> <p>When the Commissioner of the General Land Office, without authority of law, makes an order for the cancellation of an entry of public land made in accordance with law, and accompanied by the payment of the purchase money, the person making the entry and those claiming under him ’ can stand upon it, and are not obliged to invoke the subsequent rein- ' statement of the entry by the Commissioner.</p>

<p>APPEAL FROM' THE CIRCUIT COURT -OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS.</p> <p>The submission of the motion to reinstate this case after. its dismissal at October term, 1887, for want of jurisdiction is reported Í27 U. S. 774. ' On the 22d October, 1888, (at the present term,) the order of dismissal made at the last term was set aside, and the case was restored to the docket, and was, on the 1st of November, submitted. The case was stated by the court as follows:</p> <p>Tunt filed' his bill in equity in the District Court for the Eastern District of Arkansas, on the 25th of June, 1881, against Sallie S. Blackburn, Charles B. Blackburn, and W. P. Smith, claiming as a purchaser for value, with the knowledge and assent of Sallie S. Blackburn, of an undivided- half of a plantation in Desha County Arkansas, of which the defendant, Sallie S. Blackburn, owned the other half; and deraigning title by sundry mesne conveyances from one Shepard to W. A. Buck, whose wife said Sallie S. then was, by Buck and wife to Drake, Drake to Winfrey, who, as Hunt alleged, purchased for value with Mrs. Buck’s knowledge and assent, Win frey’s assignee to Weatherford, and Weatherford to himself; setting up certain decrees hereinafter mentioned, and praying, after averments appropriate to such relief, that his title be quieted, and for partition.</p> <p>Defendant Sallie S. Blackburn answered, April, 25, 1883, asserting sole ownership of the lands under a deed from Shepard to W. A. Buck, her then husband and herself, and charging, in respect to the decrees upon the title, that she was misled by her attorney and confidential adviser, Weatherford,-as 'to her rights, and was not estopped thereby o'r’ by any conduct of hers, in faith of which either Winfrey or-Hunt .acted ift purchasing.</p> <p>The cause was heard and the bill dismissed March 10th, 1884, and from that decree this appeal was prosecuted.</p> <p>The case made upon the pleadings and evidence appeared to be as follows: Sallie S. Blackburn, then Sallie S. Buck, wife of Walter A. Buck, on the 24th day of April,-1808; purchased of one Shepard an undivided half of 973 acres of -land in Desha County, Arkansas, partially improved, and took. a title bond stipulating for a mode. of division to be made' between her and her vendor, as soon as practicable, so that each should have half the improved land, and for a conveyance in fee to Mrs. Buck when the division was made.' Mrs. Buck was put in possession of an undivided half in accordance with the agreement. In June, 1868, W. A: Buck, the husband, purchased the other half of Shepard., who gave him a. written memorandum evidencing the purchase. Buck then, in January, 1869, sold his half to J. S. .Drake; conveying the same to' him on .the second day of that month by warranty deed, in which his wife, Sallie S., joined, her acknowledgment being that for relinquishment of doWer.</p> <p>The evidence tends to show that during 1868- Shepard executed and delivered a deed of the .property to Mr. and Mrs, Buck; so drawn as to recognize, their, separate interests, whifch deed was not recorded, but in January, 1869; when Buck sold'' to Drake, the lattér’s then attorney was not satisfied and drew another deed of the entire property- for Shepard to execute,. which he did, running directly to Walter A. Buck and Sallie S. Buck, and bearing the same date as the deed to Drake, January 2d,' 1869.</p> <p>Drake and Buck and wife farmed the land in partnership up to 1872, when, on the 7th of February of that year, Drake sold to J. T. Winfrey, and gave him an agreement to convey. In the meantime Buck died, and on the 11th day of March, 1872, Mrs. Buck filed her sworn bill in equity against the children and heirs at law of Buck, deceased, Shepard, Drake, Winfrey, and others, in the Circuit Court of Desha County, claiming an undivided half of the land, setting forth the ownership by her husband of the other half, his sale to Drake and Drake’s to Winfrey, and praying that her title to “ said undivided half of said property” be quieted, and for partition. Upon this bill a decree was rendered September 12th, 1873, which found the purchase by Mrs. Buck of Shepard, April 24th, 1868, of an undivided half of the lands, and the subsequent purchase by Buck of the other half, and Buck’s sale and conveyance of “his half of said land” to Drake, and quieted Mrs. Buck’s title to an undivided half.</p> <p>Shepard derived title to the lands through a purchase under a deed of trust given by Henry J. Johnson to one Tate, and by mistake one parcel was omitted from the trust deed, and the mistake had been inadvertently carried through all the successive conveyances down to the Bucks. In 1872 Randolph, a judgment, creditor of Johnson, had caused an execution to be levied on the 'omitted parcel, and Mrs. Buck and Drake filed a bill in the Desha Circuit Court against Randolph, Winfrey, and others, to enjoin sale upon the execution, correct the mistake, quiet the title and compel Winfrey to complete his purchase. Pending the suit, Mrs. Buck changed her name by intermarriage with Blackburn, who was made a party, and subsequently died.</p> <p>This case went to decree, dismissing the bill, from which an appeal was prosecuted to the Supreme Court of Arkansas, the decision of which tribunal is reported under the title, Blackburn v. Randolph, in 33 Arkansas, 119. ' The opinion, after setting forth Shepard’s title, states that he sold “ an undivided half óf the lands to complainant S. S. Buck,, and still later the other undivided half to her husband, W. A. Buck, since deceased, but who in his lifetime sold his interest to complainant Drake, who afterwards sold to Winfrey.” The decree of the Circuit Court was reversed, and a decree entered in the Supreme Court, at the'November Term, 1878, “vesting in complainant Sallie S. Blackburn and defendant J. T. Winfrey, all the legal and equitable title in and to said plantation that was' in Henry J. Johnson at the time of the execution of the deed of trust to said Tate.” It appears, also, from the report of this case, that Johnson had given a mortgage on the land to one Graddy, who filed a bill to foreclose it, setting up the sale to Shepard and his sale to W. A. and Sallie S. Buck, who were made parties, and that' a decree was rendered in said cause, October 28th, 1869, confirming the title to said lands in Buck and wife under said, purchases.</p> <p>In the conveyance by Buck and wife to Drake, January 2, 1869, it was provided that if any recovery was had in the suit of Graddy against Johnson, and “it results as an incumbrance upon this property, the first party are only liable to the extent of their onfe-half interest in said lands, and the second party takes subject to this liability.”</p> <p>During 1878 Winfrey filed his voluntary petition in bankruptcy in the United States District Court for Middle Tennesr see, scheduling half, '.of the lands among his assets, and the' register in bankruptcy conveyed, November 1st, 1878, to Harry Harrison, Winfrey’s assignee. The property was sold and conveyed by the assignee to Weatherford, January 30th, 1880, and Weatherford, conveyed to Clarence P. Hunt, July 11th, 1880.</p> <p>Weatherford testifies that Mrs. Buck informed him that she had been told she could “ beat Mr. Drake out of any interest in the place,” but had replied “ that she did not wish to beat him out of it, as her husband had sold to him in good faith; all she wanted was to have him settle in accordance with the agreement made in her husband’s lifetime;” and Weatherford commended her reply, and told her he did not think “she could beat Drake if she were to try.” Exactly when this corn ■ versation took place is not clearly made out, but thé evidence tends to show that it was in 1871 or T872, and before March 11th, 1872, the date .of the commencement of the suit of Mrs. Buck against Buck’s heirs? Weatherford had drawn the original conveyance from Shepard, recognizing, as he believes, the separate interests;; -and Weatherford acted as solicitor for Drake and Mrs. Buck, afterwards Blackburn," in the litigation which resulted in the .decree by the Supreme Court of Arkansas, and for Mrs. Buck in that against Buck’s-heirs-, which went to decree in the Desha County. Circuit Court. . Originally Mrs. Buck’s attorney, he had as time went on become Drake’s attorney, ánd it was as such that he purchased- the property at the assignee’s:sale, and -then sold and conveyed to Hunt at Drake’s request, receiving himself' only the.amount of his charges, but Drake reeéiving acquittance of several thousand dollars which Hunt had advanced to him upon the strength of Drake’s interest-in the property, in respect to which Weather-ford had advised Hunt .that it Was ample to insure him against loss.</p> <p>Weatherford -was not, at this time, acting as Mrs. Blackburn’s attorney. She had resorted to another professional adviser in relation to her interest in the land in 1876, who died in 1878, when she consulted his surviving partner. So far as appears, Weatherford had no knowledge or information which would have led him to suppose, up to June, 1880, when he conveyed to Hunt, that Mrs. Blackburn was determined to claim the whole land, as her own.</p> <p>In 1875' Mrs. Blackburn wrote Weatherford: “It: is Mr. Drake’s half of the place that has been sold’ for taxes, and not mine. • I think Mr. Wfnfrey has given up all idea of having anything to do with the placeras they have all left here, and I am in possession and never intend to give it up until Drake and Winfrey settle, ánd I know to a certainty who it belongs to, so I can have a permanent division. I am having rails made, so as to fence my half when I know where it is.”</p> <p>This letter and some others' in the record wer¿ apparently written to Weatherford as a friend-rather than as an attorney; but a motion was made on behalf of Mrs. Blackburn ,to suppress Weatherford’s depositions, of which there were two, and the letters, upon the ground that the former related to matters communicated to Weatherford in confidence as her attorney, and' that the letters were equally confidential.-</p>

Held: that McDonald should receive only his actual expenses for that part of his journey performed prior to the passage of the act of June 30th, 1876, to wit, from Callao to Panama, and mileage for that portion performed after the passage of said last-mentioned act, to wit, from Panama to Washingtonand rendered judgment in his favor accordingly for $74, that amount "being the excess of such mileage from P’anama to…

<p>ERROR TO THE SUPREME COURT OE THE STATE OF COLORADO.</p> <p>Motion to dismiss or affirm. The ease is. stated in the opinion.</p>

Trover against the marshal of the Circuit Court of the United States-for the District of Minnesota for the conversion of property seized under a writ of attachment issuing out of that court. Yerdict for the plaintiff, and judgment on the verdict. The defendant sued out this writ of error. The case is stated in the opinion.

<p>In computing the “ sixty days after the rendition of judgment,” allowed by • Sev. Stat. § 1007 to a party appealing from a judgment of a Circuit Court to give the security required by law, Sundays are excluded.</p>

The original action was brought by the Milford Five Cent Savings Institution, a New Hampshire corporation, against the Trustees of Dublin Township, Mercer County, Ohio, upon coupons attached to bonds issued by the defendants to aid in the construction of a railroad, under the statute of Ohio of April 10, 1880. 'T'T Ohio Laws, 165.

The case, as stated by the court, was as follows: — Appellees, partners in business under the -firm name of Holt & Company, filed their bill of complaint July IT, 1882, against appellants, engaged in business under the. firm name of José Menendez & Brother, alleging that they were dealers in and bought and sold flour and grain; tfiat Robert S. Holt had theretofore been for more than twenty-five years at the head' of the firm of Holt & Company, which firm had from time to…

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

Held: that, under the constitution of Illinois, which took effect July 2, 1870, the issuing of the bonds was unlawful, because it had not been authorized by a vote of the people of the county taken prior to the adoption of the constitution.

Held: the Circuit Court of the United States for the Southern' District of New York, to settle a bill of exceptions according to the truth of the matters which took place before him on the trial of an action at law in that court, brought by Theodore A. Blake against the Chateaugay Ore and Iron Company; and to sign the same, when so settled, as of the 10th of April, 1888, that being the day when such bill of exceptions was…

<p>ERROR TO THE CIRCUIT COURT OP THE UNITED STATES FOR THE NORTHERN DISTRICT OF NEW YORK.</p> <p>This was an action at law against the town of Lansing to recover on bonds issued by it in aid of the New York and Oswego Midland Railroad. Judgment for defendant; plaintiff sued out this writ of error. The case is stated in the opinion.</p>

The court stated the case as follows: The writ, of error in this case brings before us for review a judgment of the Supreme Court of 'the State of Missouri, rendered on the 11th. day of May, 1885, in a suit commenced in the St. Louis Land Court of St. Louis County, in that State, on the 15th day of September, 1853. This suit is in the nature of an action of ejectment to recover possession of about .200 acres of land.

<p>. ERROR TO THE COURT OE. APPEALS OE THE COMMONWEALTH OE KENTUCKY.</p> <p>These were motions to dismiss or affirm, under Bule 6, Paragraph 5,108 U. S. 575. The case is stated in the opinion.</p>

APPEAL ERÓM THE CIRCUIT COURT 0E THE UNITED STATES EOR THE WESTERN DISTRICT QE NORTH CAROLINA. It has been the custom with the court to make a general order, immediately before the commencement of the February recess, for the issue of mandates in every case disposed of prior to the 1st of January, if application therefor should be made, except in cases in which a .petition for rehearing might be pending, and cases docketed and dismissed under the 9th rule.

<p>ERROR to the circuit court of the united states for the WESTERN DISTRICT OF WISCONSIN.</p> <p>The case is stated in the opinion of the court.</p>

Held: in a suit upon a collector’s bond, that the sureties who signed it could prove by parol evidence that they did so on an express agreement that they were not to be bound until other persons who were named became bound also by signing the bond.

Held: that “ the trademark must, either by itself or by association, point distinctively to the origin or ownership of the article to which it is applied.

Callaghan v. Myers, 128 U.S. 617 (1888), was a United States Supreme Court ruling dealing with copyright.

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.</p> <p>This was a bill in equity for specific performance, filed November 12,1887, by a citizen of New York against a citizen of Illinois, and contained the following allegations:</p> <p>On July 10, 1881, the defendant, in consideration of the sum of $10,000, paid by the plaintiff to him, made an assignment to the plaintiff of an interest of one half in two patents previously obtained by the defendant for steam boilers; and also made a written contract, acknowledged before a notary public and recorded in the Patent Office, by which the defendant agreed to assign to the plaintiff any and all patents ¡which the defendant, might thereafter obtain from the United States or the Dominion of Canada, for inventions in improvements in steam boilers, and further agreed not to assign such inventions, or the patents obtained therefor, to any other person.</p> <p>In 1885, the defendant publicly stated that he had invented such an improvement, and explained its general plan and construction; and afterwards combined and confederated with one Goulding to avoid and' evade the effect of the contract of July 10, 1881; and for that purpose the defendant caused to be prepared at his expense, but in the name of Goulding, the necessary papers to procure letters patent for this invention; and Goulding, without any consideration received from the defendant therefor, assented to be used in that regard as the alleged inventor of the improvement, and, at the request and by the procurement of the defendant, filed an application under oath for a patent for it, which application was allowed; and Goulding, before the issue-of the patent, assigned in writing to the defendant all his interest in the improvement and in the patent therefor; and on December 11, 1886, a patent was issued to the defendant accordingly as assignee of Goulding, a certified copy of which was made part of the bill.</p> <p>The bill farther alleged that the defendant was, and Goulding was not, the original and first inventor of the improvement so patented; that the defendant had engaged in the manufacture and sale of boilers under this patent, and had received and was receiving great benefits therefrom; and that the patent was of value exceeding the suip of $5000, exclusive of interest and costs.</p> <p>The bill prayed for a decree that the defendant assign this patent to the plaintiff, for an adjudication that the title to it equitably vested in the plaintiff at the date of its issue, for an account of profits received by the defendant from its use, for a preliminary injunction against transferring or incumbering the patent, or manufacturing or selling boilers containing the improvement described therein, and for further relief.</p> <p>The defendant demurred to the bill: 1st. For want of equity. 2d. For multifariousness, in embracing two separate and distinct causes of action, one to enforce specific performance of a contract, the other for the infringement of a patent. 3d. Because, as appeared by the allegations of the bill, the patent was absolutely void, and no suit could be maintained; either to compel its transfer, or for infringement thereof.</p> <p>The Circuit Court sustained the demurrer, for the third reason, and dismissed the bill. 33 Fed. Rep. 293. The plaintiff appealed to this court.</p>

Held: are also different. Rev. Stat. §§. 2320, 2322, 2325, 2333 ; Smelting Co. v. Kemp, 104 U. S. 636 , 651; Iron Silver Mining Co. v. Reynolds, 124 U. S. 374 . The patent for the Stinson claim contained the following conditions: First.

, This was a trade-mark case. ‘ The principal relief asked by the appellants,; who were' the plaintiffs below, was a decree enjoining the appellee, who was the defendant below, his . agents and servants,. from using as a trade-name in their business of manufacturing and - selling cigars, the words “ Normandie,” or “ E. P. Normanda,” or “ La Normanda,” or “Normanda;”, such use pf those words being, it was' alleged, .a violation of the right of the plaintiffs to the exclusive…

' This was a, proceeding under a local statute of Louisiana for- the purpose of ascertaining the boundary line between coterminous proprietors. The case is stated in the opinion of the court..