Volume 138 — United States Reports

Held: ( 29 Fed. Rep. 546 ,) that, under the contracts, the Colorado company had the right to use, on such terms and subject to such regulations as to the court seemed equitable, the Wabash tracks through the park, and from- the park down to the connection with the Union Depot tracks at Eighteenth Street in the city ; and on those points it overruled all the exceptions and confirmed the master’s reports.

prepared by the court, as follows: “ 1. The constitutionality of the legislative act providing for a Supreme Court Commission is not necessarily involved upon the petition for a rehearing of a cause which had been referred to the commission in pursuance of said act. “ 2. Courts ordinarily decline to determine the constitutionality of legislative enactments in a case where the record presents some other and clear ground upon which the judgment may -rest. “ 3.

This case being reached in its order on the docket on the 17th of December, 1890, argument was begun. The court, however, ordered the case to be passed, to be heard before a full bench. On the 9th of January, 1891, it was again called, and was argued. The case, -as stated by the court, was as follows:- ■ In December, 1871, the appellee gave the first information, to the proper officers of the United States, of a violation of the internal revenue laws by one William Stout.

Held: that the act is void, as being in restraint of commerce among the states, and as imposing a discriminating tax' upon the products and industries of some States in favor of the products and industries of Virginia.

<p>APPEAL FROM THE COURT OF CLAIMS.</p> <p>The case is stated iu the opinion.</p>

This was an appeal by. the United States from a judgment of the Court of Claims, 24 0. Cl. 219, awarding to the petitioner, Joseph F. Kingsley, $73.30 for “ retained pay,” and for transportation and subsistence from the place of his discharge to that of his enlistment. The finding of the Court of Claims was as follows: “ Findings .of fact. “ This case having been heard before the Court of Claims, the court, upon the evidence, finds the facts to be as follows; “ 1.

This was a writ of error to reverse a judgment of the Circuit Court for the District of Nebraska in favor of the defendants in error, upon certain orders accepted by the city,of Superior. The case was practically decided in overruling a demurrer to the petition, which set forth, in substance, the following facts: 1.

Held: There was no error in refusing to transfer the action at law to the equity docket; (2) That the instrument in question was not, under therlocal law of ' Texas, an assignment for the benefit of creditors, but a chattel mortgage^; ' ( . - (3) That the vefdict- of the jury determined the solvency of the grantor and the validity of the instrument; (4) That it'wasjnoreia'or to permit the counsel to testify, as his…

<p>APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO.</p> <p>The case is stated in the opinion.</p>

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF PENNSYLVANIA.</p> <p>In equity. Decree dismissing the bill. Plaintiff appealed. The case is stated in the opinion.</p>

Held: that the title of the State was confirmed by the act of 1866, by the return of the land as swamp and overflowed on the survey of the United States and the township plat, approved by-the United States surveyor general and filed in the local land office in 1864.

There was, in July, 1888, a parallelogram of unorganized public land extending from the 100th meridian on the east to the 103d on the west, and from latitude 36° 30' to latitude 37°. It was called “ Public Land ” upon the maps, but was commonly known as “No Man’s Land.” It was originally a part of the Republic of Texas; but, in the annexation, the parallel of 36° 30' was made the northerly line of the State, presumably in order to apply the rule of the Missouri Compromise.

Held: in accordance with the principles announced in Kihlberg v. United States, 97 U. S. 398 , and Sweeney v. United States, 109 U. S. 618 , that the declaration was fatally defective in that it contained “ no averment that the engineer had been guilty of fraud, or had made such gross mistake in his estimates as necessarily implied bad faith, or had failed to exercise an honest judgment in discharging the duty imposed…

Held: ' (1) That the parties intended to make a full compromise and settlement of all claims and demands on either side, and that the decree of the court below was right, and should be affirmed; (2) That no objection having been raised, until after decision rendered, to the proceeding by petition instead of by supplemental or cross-bill, the decree should not be vacated or disturbed on that , account; especially as the…

<p>Where the interest of a plaintiff, whose bill in equity was dismissed on the merits by the Circuit Court, in the subject matter of the suit, did not exceed $5000, her appeal to this court was dismissed for want of jurisdiction.</p>

Held: consistently with the terms of the deed, that he intended to retain to himself any interest in the fee of the bed of the river. The accretion or sand-bar mentioned in the deed evidently existed at its date, and it was the nucleus of the bar which subsequently developed into the land in dispute.

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.</p> <p>This was a bill in equity, filed April 24, 1886, against James A. Mackenzie and Samuel R. Murphy, by Lewis E. Waterman, claiming to be the sole and exclusive owner of a patent granted to him by the United States on February 12, 1884, for an improvement in fountain pens, and of the invention thereby secured; alleging an infringement thereof by the defendants; and praying for an injunction, a discovery, an account of ■profits and damages.</p> <p>The defendants filed a plea, which alleged that the plaintiff, at the time of filing the bill, was hot possessed, either of the patent, or of an exclusive right under it to the whole or any specified part of the United States; for that certain assignments in writing under seal of the patent and invention, from the plaintiff to Sarah E. Waterman, his wife, from her to the firm of Asa L. Shipman’s Sons, and from that firm to Asa L. Shipman, were made by the parties thereto, and were recorded in the Patent Office, at the dates stated below, and that Ship-man continued to be possessed of the patent and invention until and including the time of the filing of the bill.</p> <p>The plaintiff filed a general replication. At the hearing on the issue thus joined, the following instruments, executed in New York by and between citizens of that State, were duly proved:</p> <p>1st. An assignment, made February 13, 1884, and recorded March 27, 1884, from Lewis E. Waterman, the plaintiff, to Sarah E. Waterman, his wife, of the whole patent and invention.</p> <p>2d. A “license agreement,” made between Mr. and Mrs. Waterman on November 20, 1884, and never recorded, by which she granted to him “ the sole and exclusive right and license to manufacture and sell fountain penholders containing the said patented improvement throughout the United States,” and he agreed to pay her “ the sum of twenty-five cents as a license fee upon every fountain penholder so manufactured by him.”</p> <p>3d. An assignment, made'November 25, 1884, and recorded November 29, 1884, from Mrs. Waterman to the firm of Asa L. Shipman’s Sons, of the whole patent and invention, expressed to-be made in consideration of the payment of the sum of $6500, and containing this provision : “ The consideration of this assignment is, that whereas the said Lewis E. Waterman and- the said Sarah E; Watermán have, on this 25th day of November, 1884, made a joint note of hand for the sum of $6500, payable to the said Asa L. Shipman’s Sons three years from this date, withfinterest at six per cent; now, if the said Lewis E. Waterman and myself,-or either of us, shall’ well and truly pay the said note, according to its tenor, then- this assignment and transfer shall be null and void, otherwise to be and remain in full force and effect.” It also contained covenants of full right to assign, and against all incumbrances, “ except a license to the said Lewis E. Waterman to manufacture and sell pens ” under the patent, being the license abóte mentioned.</p> <p>4th. An assignment, made November 25, 1884, in consideration of the payment of the sum of $6500, and recorded November 29, 1884, from the firm of Asa L. Shipman’s Sorts to Asa L. Shipman, of all the right and title acquired by the assignment made to therta by Mrs. Waterman, as well as the promissory note thereby secured.</p> <p>5th. An assignment, made April 16, 1886, and recorded April 22, 1886, from Mrs. Waterman to the plaintiff, of all her right, title and interest in the patent and invention, and all her claims or causes of action for the infringement of the patent, and rights to damages or profits by reason thereof.</p> <p>The Circuit Court allowed the plea, for reasons stated in its opinion, as follows: “ The transfer to Asa L. Shipman is in language so emphatic and exact that there is little opportunity for misapprehension. It matters not what the instrument is called. It matters not that it may be defeated by the payment of $6500 on November 25, 1881. The fact remains that by virtue of this assignment or mortgage the title to the patent was, on April 24, 1886, when this action was commenced, outstanding in Asa L. Shipman. If it was not absolute, it was a present, existing title, defeasible upon a condition subsequent. On April 16, therefore, when Sarah E. Waterman assigned all her right, title and interest to the complainant, she had nothing to assign which could at all change the legal status of the parties. She could not vest a clear title to the patent in the complainant, for the obvious reason that she had previously disposed of it and did not own it. The agreement of November 20, 1884, being a license and nothing more, does not enable the complainant to maintain this action without joining the holder of the legal title. The suggestion that, irrespectively of the Shipman assignment, the complainant is entitled to prosecute for infringements alleged to have occurred between February 12 and November 25, 1884, is equally unavailing; for, assuming such a right of action to exist, it could only be maintained on the law and not on the equity side of the court. The plea is allowed. The complainant may amend, upon payment of costs, within ten days!” 29 Fed. Eep. 316.</p> <p>The plaintiff not having filed an amended bill within the ten days, a final decree was' entered dismissing his bill, with costs, and he appealed to this court.</p>

Held: that this was an executed contract, by which the ownership of the stock passed to the appellee, with a reservation of title, simply as security for the purchase money. On the second question at issue the court holds that the contested facts establish a joint interest in the parties in the railroad enterprises which form the subject of the controversy, and not a mere stock transaction.

Held: That where a judge in a cause tried by the court fails to find on all the material issues* it is such error as will invalidate any judgment rendered therein.

Held: That the general law of Virginia had in it nothing in the nature of a contract; (2) That the transfer of the existing rights from the vendor to the vendee added nothing to them.

Held: That, as he was a lieutenant during some days succeeding June 30, 1870, when the act of July 15 took effect, the lowest grade he held having graduated pay was that of lieutenant.' The case is stated in the opinion. Mr. Solicitor General for appellants. Mr. John Paul Jones and Mr. Robert B. Runes for appellee.

Held: '(1) That that court had no jurisdiction over that issue of fact; (2) But that, as the application for removal was made too late, its deniaL .was right as matter of -law, .and the judgment of that court should be affirmed. *299 Motion to dismiss or affirm. The case is stated in the opinion. Mr. Luke E. Wright and Mr. George Gamtt for the motion. Mr. Wallace Pratt opposing.

Held: that, within the meaning of the statute, the debt, in respect of the wines, was not created until the wines were delivered at his place of business under the call, or, at least, until he took possession of them without paying for them, and with the intent not to pay for them.

Held: That this was not a contract, (within the meaning of the statute,) that the company should receive usurious interest, for no such contract had been attempted to be authorized by the county court; (2) That, as the allowance by the guardian of interest upon interest was under a mistaken view of the obligation of the coupons in that regard, the remedy was to treat the loan as one for only $87,780.73, making the…

<p>ERROR TO THE CIRCUIT COUET OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS.</p> <p>The case is stated in the opinion.</p>

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

Held: in regard to the discharge in bankruptcy, that the decision of this court in Hennequin v. Clews, 111 U. S. 676 , made since the original opinion and judgment, had altered its conclusions as to the effect of such discharge.

Held: that B was not entitled to compensation under the contract on which he sued, and that the court, having been requested by the defendant to so instruct the jury, should have complied with the request.

Held: That the amount involved was sufficient to give jurisdiction; (2) That the motion to remand should have been granted; (3) That the removal could not be sustained under the first clause of the act of March 3, 1875, 18 Stat. 470 , then in force, because the controversy was not between citizens of different- States, as the parties could not be so arranged on the opposite sides of the matter in dispute as to bring about…

The case, as stated by the court, was as follows : This action was brought in the District Court of Eamsey County, Minnesota, by the defendants in error, partners as Noyes Bros. & Cutler, against the plaintiffs in error, partners as Beaupré, Keogh & Co., each firm doing business in the city of St. Paul.

The following motion signed by the counsel was made and submitted in this case on behalf of the plaintiff in error. “Now comes Prentiss D. Cheney the plaintiff' in error and moves the court for leave to withdraw the transcript of the record of the court below heretofore filed herein. “ A motion to dismiss at the cost of the plaintiff in error being also filed herewith.” Mr. William A. MoKenney for the motion. No appearance on the other side.

ORIGINAL-. No number. • On the 12th day of January, 1891, Mr. Joseph H. Choate presented to the court a petition- for a writ of prohibition to be directed to the judge of the District Court of the United States in and for the Territory of Alaska, and moved for leave to file the same.

Held: owned or acquired by the said party of the first part, for use in connection with its line of railroad aforesaid, and all its depot-grounds, yards, sidings, turnouts, sheds, machine-shops, leasehold rights and other terminal facilities now or hereafter owned by the said party of the first part, together with all and singular the powers and franchises thereto belonging, and the tolls, income and revenue to be levied…

<p>When, in the trial of a civil action charging a conspiracy to defraud, it appears in evidence that a loan, charged to have been an instrument in the conspiracy, was not an ordinary business transaction; that the compensation paid for it to the lender was so excessive as to be suspicious; that the purpose on the part of the borrower in taking the loan was the accomplishment of an act criminal in itself and made criminal by statute ; and when the surrounding circumstances proved in the case tend to charge the lender with knowledge of the wrongful purpose of the. borrower, the case should not be withdrawn from the jury, but it should be .submitted in order that they may determine whether the loan was made with .intent to consummate the wrong, and whether the lender knowingly assisted in accomplishing it.</p>

Held: that evidence tending to show knowledge that the plaintiff at the time of the acceptance was a limited liability company was admissible. When in a case in which the facts are found by the court instead of a jury, there is any evidence tending to support the- finding, this' court will not review it.

Held: that this was a sufficient compliance with the requirements of the Louisiana Code, Art. 1190.

<p>The surviving partner in the management of a plantation in Tennessee which belonged to the deceased partner, retained possession of it after his partner’s death, and of the slaves upon it, and continued to operate . the plantation in good faith, and for what he thought were the best interests of the estate of the deceased as well as 'his own. When the war came, the plantation was in .the theatre of the conflict, and at its close the slaves became free. JBeM, that, under the circumstances, the surviving partner in a general settlement was not accountable for the value of the slaves, but was accountable for the fair rental value of the property, including that of the slaves while they were slaves.</p> <p>An action for dower is not exempt from, or excepted out of, the act fixing the jurisdictional amount necessary for an appeal to this court.</p> <p>If several persons be joined in a suit in equity or admiralty, and have a common and undivided interest, though separable as between themselves, the amount of their joint claim or liability will be the test of jurisdiction; but where their interests are- distinct, and they are joined for the sake of convenience only, and because they form a class of parties whose rights or liabilities arose out of the same transaction, or. have relation to a common fund or mass of property sought to be administered, such distinct demands or liabilities cannot be aggregated together for the ■ purpose of giving this court jurisdiction by appeal, but each must stand or fall by itself alone.</p> <p>The words “ received on settlement to this date,” where there was a partnership account running through years, may refer to a settlement for the year, or a settlement for the whole period of the partnership; and this ambiguity, being a latent one, may be explained by evidence aliunde.</p>

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

<p>In this case it was held that a suit in- equi.ty, by persons claiming'lands in Texas, under a will, to set aside deeds under which the defendants claimed title, through a sale by an administrator of the testator with the will annexed, was barred by the laches of the plaintiffs.</p>

Held: the plaintiff had no right to a review in this court. *501 Undoubtedly,” says Chief Justice Taney, “the defendant, in pleading his discharge under the bankrupt law, claimed a right qr exemption under a law of Congress.

Held: that an appeal lay in favor of the purchaser. 'The term “ wages of employés,” as used in an order directing the payment of certain classes of debts out of the proceeds of the sale of a railroad under foreclosure, in preference to the secured liens, does not include the services of counsel employed for special purposes.

Held: that there was no error in this; that the remanding of the cause did not reopen the whole subject of the accounts, but, on the contrary, contemplated no new investigation as to past matters. Counsel should use respectful language, both in brief and in oral arguments. *510 In equity. The case is stated in the opinion. Mr. Jolm M. Butler for appellant. Mr. Henry I>. Hyde for appellee in No. 1539.

On June 16, Í880, Congress passed, an act, of which the following are the first two sections: uBeit enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That there be, and are hereby, granted to the State of Nevada two million acres of land in said State in lieu of the sixteenth and thirty-sixth sections of land heretofore granted to the State of Nevada by the United States: Provided, That the title of the State and its…

The Consolidated Association of the Planters, of Louisiana was a banking corporation established by an act of the legislature of that State of date March 16, 1827, as amended by an act dated Eebruary 19, 1828. The capital, as fixed by the first of those acts, was two millions of dollars, which was to be-raised by means of a loan obtained by the directors of the corporation.

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

This was a bill of complaint filed by the Lawrence Manufacturing Company, a corporation of Massachusetts, against the Tennessee Manufacturing Company, a corporation of Tennessee, in the Circuit Court of the United States for the Middle District of Tennessee, alleging. that plaintiff had been, and was, engaged in the manufacture and sale of sheetings; that in said trade several standards or classes of goods were generally recognized, the first of which included sheetings of…

The Lawrence Manufacturing Company filed its bill against the Janesville Cotton Mills on the first day of June, 1886, in the United States Circuit Court for the Western District of Wisconsin) claiming that the letters “ LL ” upon sheetings of the third-class, running four yards to the pound, belonged to it as a trademark, and averring that defendant had' been recently organized, and was in law and in fact the successor of the Janesville Cotton Manufacturing Company, having…

This was a consolidation of six actions originally begun between September 1, 1857, and March 1, 1860, in the state courts of New York, and removed to the Circuit Court of the United States. The actions were brought against the collector of customs for the port of New York to recover back duties alleged to have been illegally exacted upon certain importations of mousselines de laine made by the copartnership of which the defendants in error are the survivors.

Held: the local land officers, on the 8th of February, 1877, decided that the State had no valid claim to the land under the first section of the act of -July 23, 1866. The commissioner of the general land office affirmed that-decision on the 19th of May, 1877, and further adjudged that the State was not entitled to show the character of the land as swamp and overflowed, under the 4th clause of the 4th section of that act.

Held: that such taking possession was not part performance of the contract so as to take it out of the statute of frhuds. This was an appeal from a decree of the Supreme Court of the Territory of Montana sustaining a demurrer to a complaint originally filed in the Second Judicial District of such Territory.

Held: That the right of Mrs. Gaines to pursue the city was an equitable right, arising and accruing to her on the basis of her own claims against the said defendants, and by subrogation to their equity to be protected and indemnified by the city; (2) That the acts of settlement in this regard amounted to a declaration of the parties that Mrs. Gaines should exercise the equitable right which she possessed, and that the…

Held: that the principal object of the contract was the sale and purchase of the Dolph machines; that the sale and purchase of tbe other machines were subordinate to it; and that the court should have instructed the jury that, as to the latter, there could be none other than a recovery of nominal damages.' ' In 1882 the parties hereto entered into the following contract: “This agreement made this third day of January,…

Held: that, as to the special count the variance could be cured'by amendment, and as to *624 the general counts the notes offered conformed in legal effect to the allegations' set forth in them The heading of a notice to take a deposition in this cause read: “ United States of America, State of Illinois, County of Cook, ss: In the Circuit Court of the United States; ” and the notice was that the deposition would be taken…

Held: to protect the title of purchasers from the United States, after the passage of the act of September 28, 1850, which took- effect as a grant in pmsenti, while it was sought by the Illinois acts to secure to the counties the right to receive the money paid for the lands, as well as to the purchasers the title of the State.

Held: and which could be conveyed under the Yan Ness ordinance, had therefore passed to Shaw when the suit to quiet his title was commenced and carried to judgment in the District Court of the Twelfth Judicial District Court of the State, and whatever benefit Shaw had acquired by that decree in his favor enured to the benefit of his grantees, the public rights reserved by the Yan Ness ordinance *670 being necessarily…

Held: that the new issue was void for want of authority, and that the municipality was not estopped from setting up that defence. This was an action at law by Ábner L. Merrill, a citizen of Massachusetts, against the town of Monticello, in the State of Indiana, upon certain bonds and coupon^ issued by the town and purchased by the plaintiff in open market.

OF FLORIDA. This was a bill filed on the 25th day of August, 1885, by Gustavus W. Faber and James S. Watt, describing themselves as “ both of the city and State of New' York and citizens of the State of New York, executors of the last will of James Symington, deceased, late of the State of New York,” as such executors, against “J. C. Anderson, of Orlando, Orange County, Florida, a citizen of the State of Florida, as the administrator of Edward J. Wilson, deceased, and Thomas…