Volume 130 — United States Reports

<p>When there is a general finding in favor of the plaintiff, on the issues of fact.raised bythe pleadings in an action for the recovery of duties illegaily exacted, the facts must be taken to be as alleged by him in the pleadings.</p> <p>Since the enactment of § 7 of the act of March 3,1883,; c, 121, 22 Stat. 488, 523, the value of an importation of goods is to be asiertained for the purposes of customs duties by their actual market value, without reference to the “charges” specified in §§ 2907,'2908, Rev. Stat.; and it appearing in this case that under' an appraisement of imported oranges, • the invoiced value of such “ charges” was reduced,.and the amount of such reduction added to the invoiced value of the fruit, although such-invoice value represented its true market value; Held; that such addition to the true invoice value was illegal, and that the power 'of the collector to make it was apart from any question .of fraud in the appraisement, and could be raised in an action at law when the importer had taken such steps as entitled him to bring suit for the recovery of the duties so illegally exacted.</p>

Held: that, without deciding whether the statute of the Territory, is applicable to a sale undei- a decree of foreclosure, a court of' equity should refuse aid to a party, asserting under it a right of redemption, who has neglected, at least without sufficient cause; before the "expiration of six months from. the. confirmation of the sale, to invoke the authority of the proper court or judge to compel the recognition of…

Held: that if such a -course could properly be taken’ in’ any case, it would be improper.to take it' in this case; but that, as the appellant might be subjected to great injustice if the cause should go to hearing on the appeal in the present condition of the record, the cause should be remanded with instructions to the Circuit Court to allow the defendant below to file such supplemental bill as he might be advised, in…

Held: that whether this qualified disclaimer was or was not effectual, it was, in view of the fact that the screw-rod and movable jaw of the patent had no different effect from the screw-sleeve and movable jaw of the prior Dixie wrench upon the other parts of the combination, an admission that the second claim of the patent is void for want of novelty. The third claim of the patent is also void for want of novelty.

-ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO. Trover. Yerdict for the plaintiff and judgment on the verdict. Defendant moved for a new trial. The court decided that the motion should be denied if the plaintiff would remit a part of the verdict specified by the court, which was done. The defendant then sued out this writ of error. The case is stated in the opinion.

<p>The time of the service of a cadet in the Military Academy at West Point is to be regarded as a part of the time he served in the army within the meaning of the act of July.5, 1838, 5 Stat. 256, and should be counted in computing his longevity pay; and in'an action to recover that pay he is-.entitled to judgment for so much of the amount thereon thus computed. as is not barred by the Statute of Limitations.</p>

Held: That the authority given to substitute imprisonment at hard «labor in the penitentiary for life for the punishment by death, when the accused is found guilty of ,murder in the first degree, depends upon a previous recommendation to that effect by the fury; (2) That when a person is on trial charged with the commission of mur *84 der in the first degree, it is the duty of the court to inform the jury of their right,…

The case, as stated by the court in its opinion, was as follows: Tallmadge E. Brown filed his bill in the Supreme Court of the District of Columbia on the 14th day of April, 1880, counting upon three patents alleged to have been infringed by the respondent, namely: Patent No. 101,590, issued to Turner Cowing, April 5, 1870, for “ a new mode of constructing wood pavóments for streets.” The specification and claim are as follows: “ The nature of my invention consists in…

Held: that the motion must be denied. Where an appeal is allowed in open court at the same term the decree is made yet if the bond to perfect the appeal is not accepted at or during that term, a citation is necessary. The issuing of a citation may be- waived by the .appellee, and a general appearance by him is a waiver of a citation.

Held: as described, by the lips of the jaw-levers, all as and for the purpose set forth,” are invalid, because Johnson was not the first inventor of the’ combination claimed in the patent. In equity for infringement of letters patent. Decree dismissing tbe bill. Complainant appealed. The case is stated in the opinion. Mr. Horace Barnard for appellant. Mr. Amos Broadnax for appellees.

Held: . (1) That the transaction must be regarded in equity as if McDonald and McKay had conveyed to Moore, and Moore had conveyed to his wife, she holding one half of the interest conveyed to her, being one sixth of the whole, in trust for Monroe and his heirs ;• (2) That Moore was guilty of a fraud in preventing the conveyance to himself which would have inured to' the benefit of Monroe, and that his wife, by accepting…

Held: that the above orders and subscriptions were not binding, and did not amount to contracts of subscription, because the County Court had no authority under the statute to appoint a commissioner or agent-to make the subscription.

The case, as stated by tbe court, in its opinion, was as follows: — The original complainants, John M. Westcott and Charles W. West, allege in their bill'that they are the owners, by assignment from the patentee, of two patents to Hiram Moore for improvements in seeding machines, one issued November 20, 1860, and extended for seven years from November 20, 1874, and the other issued March 28,1861, for seventeen years; that since the assignment the defendants have made, used,…

Held: by which the county seat of Brown County, D. T., was removed from Columbia to Aberdeen, is in conflict with the act of Congress, approved July 30, 1886, prohibiting special legislation in the Territories of the United States. “ Second. That the appellant has such an interest in the subject matter as enables him to maintain this action. *172 . “Third.

The case, as stated by- the court in its opinion* was as follows : This is a suit in equity* brought by the appellee in thé Supreme Court of the District of Columbia, to remove clouds from, and to quiet the title to, certain real estate in the city of Washington.

Held: The provision of the first statute was repealed; (2) The legislature could constitutionally repeal the power of taxation given by the first statute; *190 (3) The first statute did not create a contract between the State and the township, the obligation of which could not be constitutionally impaired by its repeal.

Held: that the plaintiff was not bound by the former judgment on the question of priority, not being a party to the suit. The casé was brought to this court by writ of error and a question was made as to jurisdiction. This court sustained the jurisdiction. Mr. Justice Bradley, in delivering the

<p>ERROR TO THE SUPREME COURT OE THE DISTRICT OE COLUMBIA.</p> <p>Motion to dismiss for want of jurisdiction. The case is stated in the opinion of the court.</p>

The case as stated by the court .was as follows : This action was commenced on the 25th day of July, 1881, in one of the courts of Missouri, by the defendant in error against the Texas and Atlantic Refrigerator Car Company, a corporation of that State, Robert S. Stevens and Henry ID. Mirick.

<p>ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA.</p> <p>The .case which' makes the federal question is stated in the opinion of the court.</p>

Botiller v. Dominguez, 130 U.S. 238 (1889), was a decision by the United States Supreme Court dealing with the validity of Spanish or Mexican land grants in the Mexican Cession, the region of the present day southwestern United States that was ceded to the U.S. by Mexico in 1848 under the Treaty of Guadalupe Hidalgo. The action was in the nature of ejectment, brought in the Superior Court of the Los Angeles County by Dominga Dominguez against Brigido Botiller and others, to recover possession of a tract of land situated in said county, known as Rancho Las Virgenes.

Held: in that case, that the rule enforced in the Circuit and District Courts of the United States, that a bill in equity to quiet title or remove clouds must show a legal and equitable title in the plaintiff, and set forth the facts and circumstances on which he relies for relief, does not apply to an action in the territorial court founded upon territorial statutes, which unite legal and equitable remedies in one form’…

<p>APPEAL EKOM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS.</p> <p>The case is stated in the opinion.</p>

Held: that the bank was liable to W. for the amount of the note and the value of the bonds. A suit in equity by W. against the bank for the return of the property or the payment of its value, would lie, as it was a suit to charge the bank, as a trustee, for a breach of trust in regard to'a special deposit. In equity. The case is stated in the opinion.

<p>CERTIFICATE of division in opinion from the circuit court of THE UNITED STATES FOR THE MIDDLE DISTRICT OF TENNESSEE.</p> <p>Motion to dismiss. The case is stated in the opinion.</p>

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.</p> <p>The case is stated in the opinion.</p>

<p>ERROR TO THE SUPREME COURT OE THE TERRITORY. OF MONTANA.</p> <p>The case is stated in. tbe opinion, of tbe court..</p>

This was an action in contract to recover on bonds issued by the municipality of Watertown, in Wisconsin. Judgment for the. defendant. The plaintiffs sued out this writ of error. The case is stated in the opinion.

Held: that as there, is no person to bring suit, the statute is suspended for a reasonable period, in order to give an opportunity to those interested to have the proper representative appointed. Blanshardon Limitations, pp; 104-112; Wood on Limitations, 11, n. 4.

. This was an action in contract to recover on bonds issued by the municipality, of Watertown, in Wisconsin. Judgment for the defendant. The plaintiffs sued out this writ of error. The' case is stated in the opinion.

<p>Under §§ 823 and 839 of the Revised Statutes, the clerk of a District Court in the Territory of Utah is not entitled, for his personal compensation, over and above office expenses, to more than $3500 a year.</p> <p>This view is not affected by the provisions of § 7 of the act of June 23,1874, c. 469, 18 Stat. 253, or those of § 1883 of the Revised Statutes.</p>

The Northwestern Fuel Company, a Minnesota corporation, brought this action, February 18, 1882, to recover .from the plaintiffs in error, citizens of Iowa, the sum of $1309.50, alleged' 'to be due under a written.contract, made.July 21,1881, between the lattér and the What Cheer Land and Coal Company, a corporation alleged to be “doing business'in. the State of Iowa; ” the benefits of which contract were assigned by that company to the plaintiff.

<p>ORIGINAL.</p> <p>Petition for a writ of habeas corpus. The case is stated in the opinion of the court.</p>

<p>ORIGINAL.</p> <p>Petition for writ of habeas corpus. The case is stated in the opinion.</p>

The case, as stated by the court in its opinion, was as follows: On the 14th' of June, 1877, Frederick Dumont, August Henry Reine, and John David Moekel, who composed the firm of‘F. Dumont & Co., filed.-their bill in the Circuit 'Court of the United States for the Southern District of New York against Charles M. Fry, trustee óf Schuchardt. & Sons, bankrupts ; Francois Laborde and.E. H. Reynes, assignees of Charles' Cavaroc & Son, bankrupts; the Louisiana National Bank of New…

The case, as stated by the court in its opinion, was as follows; Plaintiff in error brought this action in the Circuit Court of the United States for the District of Maryland against the defendant in error,, “a corporation duly incorporated under the laws of Maryland, for money payable by the defendant to the plaintiff,” as stated in the “ bill of particulars of plaintiff’s claim,” “for services'rendered by me at your request in negotiating and consummating an arrangement…

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.</p> <p>The case is stated in the opinion.</p>

The court, in. its opinion, stated the' case as follows': This action was brought to recover damages» for injuries alleged to have been done by the defendant in error to certain improved lots on Union Street, in Bellaire, Ohio, of which'the plaintiff in error, who was the plaintiff below, claims to be the owner.

Albert Slauson brpught two actions against the town- of Andes in the Circuit Court of the United States for the Northern District of New York, alleging in the complaint in each action that he was a citizen of the State of New Jerseyand th¿ defendant was a municipal corporation of the State of New York ; that the defendant subscribed to the stock of the .

Held: if they accept or hold diplomatic or consular appointment, to have resigned their places in the army; but this does not change the general policy of the law, and does not entitle them to pay as army officers during the period of time when they are absent from their country in the discharge of continuous official duties inconsistent.with subjection to the *452 rules and articles of ‘ war, and the other incidents of…

Held: that this was a waiver of-the defence based upon the statute of limitations,'but not a waiver of the defence based on the general principle of law that the United States are not liable for unauthorized wrongs inflicted on the citizen by their officers while engaged in the discharge of official duties. .The case is stated in the opinion. Mr. Assistant 'Attorney General Howard for the United States.

<p>Reissued letters patent No. 4364, granted to John J. Schillinger, May 2, 1871, for an, “ improvement in concrete pavements,” on the surrender of original letters patent No. 105,599, granted to said Schillinger, July 19, 1870, were valid.</p> <p>The proper construction of the claims of the reissue stated, in view of a disclaimer filed March 1, 1875.</p> <p>The questions of utility, novelty and infringement' considered'.</p> <p>The entire profit made by the defendant from laying his pavement was given to the plaintiff, because it appeared that it.derived its entire value from the use of the plaintiff’s invention; that if it had not been laid in .that way it would not have been laid at all; and that the profit made by the defendant was a single profit derived from the construction of the pavement as an entirety.</p>

<p>On the facts of this case, it was held that the defendant was not a co-partner with another person, in his general business, and liable for his debts.</p>

Held: The bondholders were not bound by the judgment rendered in a.suit to which they were not made parties; (2) As the claims óf the creditor originated after the mortgage was made, he was bound to prove affirmatively, before the master, the existence and priority of his iien; (3) The evidence before the master did not sustain the lien for the whole amount; -(4) The proceeding in the state court could not be sustained as…

Held: in effect,, the agreement would be executed by a court of equity. This was error. ' A double agent of a real estafe agent or broker involves inconsistent duties, and it is clear, upon both principié and authority, that in case of such double employment, the contract is void.

APPEALS FROM THE CIRCUIT (JOURT OF THE UNITED STATES FOR ' THE DISTRICT OF MASSACHUSETTS. The court, in its opinion, stated the case as follows: The two cases are so intimately connected, both in the proceedings and in the questions arising therein, that it will be most convenient to consider them together.

<p>In proceedings commenced under a state statute for condemnation of land for a railroad, a published notice in compliance with the terms of the statute, specifying the section, township and range,.county and State, in which it is proposed to locate the railroad, is sufficient notice to a nonresident owner of land therein, and such publication is “ due process' of law,” as applied to such a case.</p> <p>When, after notice to the owner as required by law, land has been condemned for a railroad by commissioners regularly appointed and duly sworn, who discharged their .duties in the manner required by law, the question whether one of the commissioners was or was not a freeholder, as directed by the statute, is not open for consideration collaterally in an action of trespass by the owner against the railroad company for enter: . ing on the land after condemnation.</p>

<p>APPEAL PROM THE CIRCUIT COURT' OP THE UNITED STATES FOR THE NORTHERN DISTRICT OP FLORIDA.</p> <p>Inequity. Decree dismissing the bill. The case is stated in the opinion.</p>

<p>In & suit in equity to set aside a conveyance of a silver mine in Idaho, as • induced by false and fraudulent concealment and misrepresentations, the court, after stating the pleadings and the facts, holds, that neither the law nor the equities are with the plaintiffs.</p>

Chae Chan Ping v. United States, 130 U.S. 581 (1889), or The Chinese Exclusion Case, is a landmark decision of the Supreme Court of the United States that upheld the constitutionality of the Scott Act of 1888, a follow-up to the Chinese Exclusion Act. The Scott Act barred Chinese laborers from reentry to the United States. The case arose concerning Chae Chan Ping, a Chinese man who moved to the United States in 1875, lived in San Francisco for over a decade, and whose return voyage from a trip to British Hong Kong was pending when the Scott Act became effective. Ping's legal challenge to the prohibition on reentry was aided by Chinese immigrant groups and advocated on his behalf by an elite "dream team" of lawyers.

This writ of error -was brought to review a judgment entered upon a verdict for $10,500 in favor of the defendants in error.

<p>Where the certificate to the transcript of a record, on a writ of error, did not comply with subdivision 1 of Rule 8, and the record was not complete, not containing the pleadings, so that, under subdivision 3 of Rule .8, this court could not hear the case, it was not dismissed, because- it had been submitted on both sides, on the merits, and the defendant in error had not moved to dismiss it for non-compliance with the rules, although more than three years had elapsed since the filing of the transcript, but leave was' given to the plaintiff in error to sue out a writ of certiorari, to bring up the omitted papers.</p>

, APPEAL FROM THE CIRCUIT COURT ' OF THE UNITED STATES FOR ■ THE SOUTHERN- DISTRICT OF OHIO. In. equity to restrain the infringement of letters patent. Decree dismissing the. bill. Plaintiff appealed. The case is’ stated in the opinion.

This was an action for the recovery of an undivided interest in a mine. Defendants demurred to the complaint and the demurrer was sustained and the action dismissed. Plaintiff sued out this writ • of error. The case is stated in the opinion.

Held: and the doctrine has been so often repeated that it is no longer an open question, that the legislature of a State may exempt the property of particular persons or corporations from taxation, either for a limited period or perpetually; but to justify the conclusion that such exemption is granted, it must appear by language so clear and unmistakable as to léave no'doubt of the purpose of the legislature.

On the 27th of March, 1879, the plaintiff below, a citizen of Colorado, purchased for the consideration of $875 a lot or parcel .of land in the town of Leadville, Colorado, described in'the. complaint, and took a conveyance of it from the defendant, the St. Louis Smelting and Refining Company, a corporation created under the laws of Missouri.

<p>When, in an action brought by an employé of a railroad company to recover damages for injuries caused by the negligence of other employés, the defence Of contributory negligence is set up, the plaintiff is entitled to have the question submitted to the jury unless no recovery could be had upon any view which could be properly taken of thq facts which the evidence tended to establish.</p> <p>This court will not, by a technical construction of an obscure record, preclude itself from correcting an error committed in- the trial below, if a construction can be given to it which will give jurisdiction.</p>

■This was. an -action brought by the United States against the principal and-süreties.on'the official bond of a collector of customs, to recover the sum of $634.6<3/which he had refused to pay. over, and claimed the right to .retain as part of the emoluments of his office. .The Circuit Court gave judgment for the defendants, and the United States sued out this writ of error, which the defendants in error moved to dismiss for want of jurisdiction.

<p>APPEAL PROM THE COURT OP CLAIMS.</p> <p>This was an appeal from a judgment of the Court of Claims against the District <of Columbia for $7750 and interest ón certificates of indebtedness, commonly called sewer certificates, issued -by the Board of Public Works of the District, in the following form, with coupons attached:</p> <p> </p> <p>District op Columbia.</p> <p>No. 1.380.</p> <p>Washington, July 1st, 1873.</p> <p>This certifies, that for work done under direction of the Board of Public Works, and chargeable to the private property adjoining and benefited thereby, there is due to the bearer Five Hundred Dollars, payable July 1st, 1876, with eight per centum interest, payable semiannually, as per coupons attached. Issued in accordance with act of Legislative Assembly; Secured by pledge to the Comifiissioners of the Sinking Fund of assessments made in accordance with act approved Juné 26, 1873, against private property, benefited by improvements, and receivable in payment of such assessments.</p> <p>Board of Public Works,</p> <p>By James A. Magruder, Treasurer.</p> <p>Countersigned:</p> <p>Horace J. Frost, ■ ■</p> <p>For Commissioners of Sinking Fund. > •</p> <p><D Is O «Pi ■<D © rd '•£ I l m <x> J5 3 ¿a 0 O +3 e§</p> <p>The material facts, as. found by the Court of Claims, were as follows: . .</p> <p>■' On July’ i, 1873, such certificátes to the amount of- about $2,000,000 were issued by the Board of Public Works, under an act of the legislative assembly' of the District of Columbia, approved June 26, 1873, and were paid out to contractors, jobbers and laborers, and soon became greatly depreciated in value, and were bought and sold by brokers and speculators. .</p> <p>After the creation of the board of audit by the act of Congress of June 20,1874, c. 337, § 6,.most of these certificates, including those in question, were presented to that board and redeemed jas provided in that act. 18 Stat. 119.</p> <p>The certificates so redeemed were cancelled by stamping across the face in ink with a ribbon stamp the words “ Can-celled by the Board of Audit.” They were then inclosed in jackets, tied up. in' bundles of fifty in numerical order, and placed on. a shelf under-the counter in a room in the Treasury Department, occupie'd by several clerks employed by the board. The fact of redemption was entered in a registry book.</p> <p>• After the- redemption and cancellation of the certificates, and while they were in the custody of the' board of audit, as above stá’ted, they, were stolen, in February or March, 1876,-by one George H. Farnham, who was then a clerk in the employ of the board, and occupying a desk behind the counter finder which the certificates were deposited, but whose duties were not connected with the redemption or care of the certificates. .</p> <p>■ By the use of detersive soap Farnham entirely removed from a large portion of the certificates the- marks of cancellation. From other certificates, on which some ink-marks still appeared, he cut off the. coupons and pasted them over the partially effaced marks. • In this condition no signs or marks of cancellation or redemption were visible on the certificates, but some , of them still had a soiled or stained appearance.</p> <p>The stolen certificates were sold' by Farnham to brokers in Washington, and by them to one Ritchie, and by him to the claimant, ■ and all' the purchasers' bought them for value, in good faith, and without notice that they had been redeemed or cancelled; and the certificates were then in the same condition, in respect of their appearance as to indicating signs or evidences of cancellation or redemption, as they were at the time they were first negotiated by Farnham, and as they are now.</p> <p>The judgment of the Court of Claims in favor of the claimant was for the amount of such certificates as were shown to have been so purchased by him before their maturity. 20 C. Cl. 229.</p> <p>When a municipality becomes party to a negotiable instrument, by authority of law, it is bound by all the rules of commercial law applicable to such securities. Cooke v. United States, 91 U. S. 389 ; United States v. State Bank, 96 U. S. 30.</p> <p>Purchasers of municipal securities are entitled to the full benefit of their .purchase, unaffected. by the consideration of the hardship involved in requiring the municipality to repay obligations once redeemed, and also unaffected by any circumstances merely tending to excite suspicion regarding the purchased obligation. Cromwell v. Sac County, 96 U. S. 51; Murray v. Lardner, 2 Wall. 110. And when a trusted agent of the municipality has been guilty of culpable negligence or fraud, whereby an injury is done to a purchaser of its securities, the acts of negligence or. fraud are in law those of the corporation. Atlantic Bank v. Merchants’ Bank, 10 Gray, 532; United States v. State Bank, 90 U. S. 30.</p> <p>Since it is true, as a matter of law, that the obligations in suit could be lawfully issued .and in circulation, and in fact were lawfully issued and in circulation, then the fact that such circulation, as to the particular bonds in suit, was continued, and the bonds came into the hands of claimant as a bona fide purchaser, before due, by means of the fraud and wrong-doing, of the agent of the District of Columbia, constitutes no lefence. Cooke v. United States, 91 U. S. 389; California v. Wells, Fargo & Co., 15 California, 336. These decisions-are based upon one of the settled and most familiar .rules of the law of commercial paper that where the maker of commercial negotiable paper so deals with it as, that it is stolen from Ms possession and put into circulation, through the act of the thief, and, before maturity, passes into the hands of a bona fide holder, without notice of the wrong, there the bona fide holder takes a complete title, and the maker of the note cannot set up the larceny as a defence. Wheeler v. Guild, 20 Pick. 545; S. C. 32 Am. Dec. 231; Murray v. Lardner, 2 Wall. 110; Orleans v. Platt, 99 U. S. 676; Shaw v. Railroad Co., 101 U. S. 557; Collins v. Gilbert, 94 U. S. 753; Welsh v. Sage, 47 N. Y. 143.</p> <p>If such a criminally culpable, taking up of negotiable papers, before due, shall, by this court, be held to be a withdrawal from circulation, and a destruction of, the instrument, then it will.be a new experience in the judicial history of Commercial pape?. It is a settled rule of the law merchant, which is ex-nfessed by Lord Ellenborough in Burbridge v. Manners, 3 Camp. 193, that payment! of bills before due does no more extinguish them than if the note were merely' “ discounted.’' “It. is the duty of bankers to make some .memorandum on bills and notes which.have been paid, and if they do not the holders of such securities cannot bp'affected by any payment made before they were due.”</p>

Held: that this ■ limitation was an absolute limitation upon the power of the county to contract any and all indebtedness, not only for the purposes named in the act, but for every other purpose whatever, including county warrants issued for ordinary county expenses, such as witnesses’ and jurors’ fees, election costs, charges for board of prisoners, county treasurer’s commissions, etc. The case, as stated by the court,…

Held: that the county was not estopped to deny that the bond was issued in violation of the .provisions of the Constitution. The case is stated in the opinion. Mr. Daniel E. Pa/rks and Mr. II. B. Johnson for plaintiff in error. Mr. Robert E. Foot and Mr. Willard Teller for defendant in error. 1 The docket title of this case is The Board of County Commissioners of the County of Lake v. Graham.

• This was a bill of equity, filed May 18, 1883, by Sarah M. Jones, a citizen of Pennsylvania, against Matilda A. Yan Doren, a citizen of Indiana, and Samuel J. Jones and Samuel' J. Glover, -citizens of Illinois.' The original bill alleged that Robert H. Jones died intestate in April, 1863, leaving the plaintiff, his widow, and the defendant Jones, his son and only, heir at law, and seized in fee of one fourth undivided part of certain land described, in Minnesota; that the…

<p>' ERRO i TO THE SUPREME COURT OF THE STATE OF ILLINOIS.</p> <p>This was aü action of assurdpsit, commenced by Harding and others against Hill in an inferior court of the State of Illinois, in accordance with the statutes of the State, by attachment of the defendant’s real estate. The attachment was dissolved, in accordance with those statutes, by the defendaht giving bond, or, more strictly .speaking, entering into a recognizance, with sureties, conditioned to pay to the plaintiffs “ the amount of the judgment and costs which may be rendered against him in this suit on a final trial hereof, within ninety days'after such judgment shall be rendered.” After verdict for the plaintiffs, and before judgment thereon, and ón proceedings in bankruptcy commenced more than four months after the attachment, the defendant was adjudged a bankrupt under the Bankrupt Act of the United States, and applied to the state court, under § 5106 of the Revised Statutes, for a' stay of proceedings to await the determination of the court in bankruptcy upon the question of his discharge. The application was denied,- and judgment rendered against the defendant on the verdict, and upon a bill of exceptions, stating these facts, that judgment, was affirmed by the Supreme Court of the State. 93 Illinois, 77: Upon a former writ of error, this court reversed, the judgment of that court, and remanded the case to it for further proceedings, upon the ground that the defendant was entitled to the stay applied for, without considering the question whether the court in which the suit was pending might, after the defendant had obtained his discharge in bankruptcy, fender a special judgment in favor of the plaintiffs for the purpose of charging the sureties on the recognizance given to dissolve the attachment. 107 U. S. 631, 635.</p> <p>The case was then remanded by the Supreme Court of Illinois to. the inferior court with a direction that, upon its satisfactorily appearing that the defendant since the verdict had obtained his discharge in bankruptcy, a judgment should be entered for the plaintiff and against the defendant upon the verdict, with a perpetual stay of execution. The inferior court thereupon denied a motion of the defendant for leave to file a formal plea setting up his discharge in bankruptcy; admitted in evidence a copy of that discharge, offered by the plaintiff and.objected to by the defendant as not duly verified; refused the defendant’s request' for' a trial by jury on the question of his discharge in bankruptcy; denied a motion to enter a judgment in his favor, releasing him from all liability subsequent to the commencement ■ of the proceedings' in bankruptcy, on account of ■ all causes of action involved in this suit; and ordered-judgment on the'.verdiat, pursuant to the mandate of the Supreme Court of the State, with a perpetual .stay of execution.- .Upon a bill of exceptions the judgment and order were' affirmed by the Supreme Court of Illinois. 116 Illinois, 92. . The defendant sued out this writ of error.</p> <p>I. The courts of Illinois proceeded in hostility to the decision ’of the Supreme Court of the United States in this case, and erred in refusing plaintiff in error leave to file a plea of his discharge in bankruptcy,'.and in entering a judgment against him for . the purpose of depriving him of the benefit- of his discharge as a bankrupt. Page v. Bussell, 2 M. & S. 551; Taylor v. Mills, Cowp. 525; Paul v. Jones, 1 T. R. 599 Welsh v. Welsh, 4 M. & S. 333; Buel v. Gordon, 6 Johns. 126; Woodard v. Herbert, 24 Maine, 358 ; Ellis v. Ham, 28 Maine, 385 ; Hankin v. Bennett, 8 Exch. 107; Hinton v. Acraman, 2 C. B. 367; Eastman v. Hibbard, 54 N. H. 504; McMullen v. Bank of Penn. Township, 2 Penn. St. 343; Cake v. Lewis, 8 Penn. St. 493; Wells v. Mace, 17 Vermont, 503; Comfort v. Eisenbeis, 11 Penn. St. 13; Haddens v. Chambers, 2 Dall. 236; Page v. Cole, 123 Mass. 93; Carpenter v. Turrell, 100 Mass. 450; Hamilton v. Bryant, 114 Mass. 543; Barnstable Savings Bank v. Higgins, 124 Mass. 115; Denny v. Merrifield, 128 Mass. 228; Lincoln v. Leshure, 132 Mass. 40; McKay v. Funk, 37 Iowa, 661; Bratton v. Anderson, 5 South Carolina, 504; Bank of Clinton v. Taylor, 120 Mass. 124; Payne v. Able, 7 Bush, 344; Martin v. Kilbourn, 12 Heiskell, 331; Odell v. Wootten, 38 Georgia, 224; Wolf v. Stix, 99 U. S. 1; Empire Fire Ins. Co. v. Real Estate Trust Co., 1 Bradwell, 391; Drake v. Drake, 83 Illinois, 526.</p> <p>II. Sureties are favorites in law, and no intendments will be made against them. Law v. East India Co., 4 Ves. 824; Lang v. Pike, 27 Ohio St. 498; Kingsbury v. Westfall, 61 N. Y. 356; Stull v. Hana, 62 Illinois, 52; People v. Tompkins, 74 Illinois, 482; Pickersgill v. Lahens, 15 Wall. 140; Risley v. Brown, 67 N. Y. 160 ; Weaver v. Shyrock, 6 S. & R. 262; Kennedy v. Carpenter, 2 Wharton, 344, 362; Towne v. Ammidown, 20 Pick. 535; Wood v. Fisk, 63 N. Y. 245.</p> <p>III. A surety is under no moral obligation to pay the debt of his principal. Winston v. Fenwick, 4 Stew. & Porter (Ala.) 269; Harrison v. Field, 2 Wash. (Va.) 136; Van Derveer v. Wright, 6 Barb. 547.</p> <p>IV. The Circuit Court erred in admitting in evidence the alleged certificate of Hill’s discharge in bankruptcy. Baldwin v. Hale, 17 Johns. 272; Griswold v. Sedgwick, 1 Wend. 126; Brackett v. The People, 64 Illinois, 170.</p> <p>V. There was no verdict on which a judgment could be entered. Boynton v. Ball, 105 Illinois, 627.</p>