Volume 151 — United States Reports

Held: That the burden was on. the prosecution to prove that' hp was a white man; (2) That the testimony offered by the government had no legitimate ' •' tendency to prove that.the murdered man was not an Indian.

Held: *57 (1) That the savings association was a necessary and indispensable party to the relief sought foi-, and as that defendant was a citizen- of the same State with the plaintiff there was no right of removal on the ground that it was a formal, unnecessary, or nominal party; (2) That the removal could not be sustained on the ground that the controversy was a separable controversy between the plaintiff and the parties…

This was a bill in equity in the Supreme Court of the District of Columbia by Ida May Stansbury to enforce a trust under a deed dated June 10, 1870, by which Gustavus R. Dixon and Ada Georgiana Amanda, his wife, conveyed land of his in the city of Washington to Joseph Inglehart, his heirs and assigns, in trust for the sole and separate use and benefit of the wife during her life or widowhood and no longer, with remainder in fee to the heirs of the body of the husband, and,…

EEEOE TO THE CIRCUIT COUET OF THE UNITED STATES FOE ‘ THE EASTERN DISTRICT OF TEXAS. This was- an action brought by Henry Saunders, June 4, 1888- in the Circuit Court of the United States for the Eas'tern District of Texas against John C. Brown, the receiver of the Texas and Pacific Bail way Company, to recover damages for injuries sustained by Saunders through the negligence of the receiver, his agents, arid employes, as he. alleged.

Held: in Morse v. Macrum, 22 Oregon, 229, that the will, as a general rule, speaks from the death of the testator, and not from its date, unless its language, by a fair construction, indicates a contrary intention; in' this respect adopting the rule laid down by the Supreme Court of Connecticut in Canfield v. Bostwick, 21 Connecticut, 550; Gold v. Judson, 21 Connecticut, 616, where it is stated to be the general rule that…

Held: in Bank v. Morgan, 132 U. S. 141 , tliat such exemption was a personal privilege which could be waived by appearing to such a suit brought in another county, and making defence without claiming the immunity granted by Congress.

Held: that this court had no jurisdiction over a writ of error to a court of that State, when the only error alleged was the -want of such notice, Which, it was charged, invalidated the proceedings as repugnant to the Constitution of the United States. *138 Motion to dismiss. The case is stated in the opinion. Mr. John K. Cowen and Mr. William Irvine Cross for the Motion. Mr. Nicholas P. Bond opposing.

Held: that the contract was of such a nature as to admit of a fraudulent and deceitful execution, and that the fraud' was in fact concealed from the knowledge of the pláintiffs. So in Manufacturers' National Bank v. Perry, 144 Mass. 313 , a bank overpaid to the clerk of the defendant the sum of $200 on a check drawn by the defendant.

Held: that he had no ground of exception to a refusal to instruct that if at the time of the killing he was so drunk as to render the formation of any specific intent to-take her life impossible on his part, and before being drunk he entertained no malice towards her and no intention to take her life, he could not be con- • vi'cted of murder.

This was an action, begun May 22, 1888, against the collector of the port of Philadelphia, to recover an excess of duties paid under protest upon four lots of earthenware, consisting of small cups, saucers and mugs, and plates five or six inches in diameter, having upon them pictures of animals and of other objects, and letters of the alphabet, imported by the plaintiffs during tho winter of 1887 — Sí?, invoiced as toyi, and which the plaintiffs contended should have been…

Held: That the refusal of the Circuit Court to approve the account of the commissioner, though no bar to the recovery, might be a matter for consideration in respect to the good faith of the transaction; (2) That the payment of the claim for-the 77 cases conceded the suffi- - cieucy of the complaint on which, in each case, the proceeding was founded; (3) That when a defendant was arrested and an examination held, there…

<p>APPEAL PROM THE CIRCUIT COURT OP THE UNITED STATES POR THE SOUTHERN DISTRICT OP IOWA.</p> <p>Ix equit}7 for the infringement of letters patent. The case is stated in the opinion.</p>

Held: among other things, that “Wollensak’s device is, in the first place, a ‘lifter’ designed for raising against gravity a transom, hinged and swinging horizontally.

Held: that the agreement was one which the attorneys had power to make in the exercise of their general authority, and as incidental to the management of the interests entrusted to them, and that the principals should not be permitted to disregard it to the injury of one who purchased, in good faith, at a judicial sale.

Held: that the confirmation of the report was not a final decree deciding and' disposing of the whole merits of the cause, and discharging, the parties from further attendance; that the court could not dispose of the case by piecemeal; and that until the boundary line throughout its extent is determined, all orders in the case will be interlocutory.

Held: the use of which jail or peni-, tentiary is allowed by the legislature of the State for that purpose.” And section 5542 provides for a similar imprisonment in a state jail or penitentiary where the person has been convicted of any offence against the United States and sentenced to imprisonment and confinement at hard labor.

Held: with which said revolver he, the said Enoch Davis, her, the said Louisa Davis, upon the head did then and there wilfully, feloniously, and of his deliberately premeditated malice aforethought beat, bruise, and wound, thereby then and there inflicting upon the head of her, the said Louisa Davis, one mortal wound, of which the said Louisa Davis then and there instantly died, and so the grand jurors aforesaid so say…

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FQR THE DISTRICT OF COLORADO.</p> <p>IN equity. Decree dismissing the bill, from which complainant appealed. The case is stated in the opinion.</p>

On October 24, Í889, Michael Haughey filed a bill of complaint against Jesse Lee, Lewis S. Lee, and Walter Lee, as partners, under the style of Jesse Lee & Sons, alleging that the United States had, on March 20, 1888, granted him letters patent (No. 379,644) for ah improvement in interfering devices for horses; that the defendants were infringing' complainant’s rights as such patentee; and praying for an injunction and account.

THE UNITED STATES FOR THE • NORTHERN DISTRICT OF TEXAS. The Smith Bridge Company, a private corporation, incorporated under the laws of Ohio, and having'its domicil in the city of Toledo in that State, brought this action against the Fort 'Worth City Company, incorporated under the laws of, and having its domicil in, the city of Fort Worth in the State of Texas, in the Circuit.

Sam Downing, alias Sam Hickory, and Tom Shade, two Cherokees, were indicted and tried for the murder of Joseph Wilson, a United States deputy marshal, the trial resulting in the acquittal of Shade and the conviction of Hickory, who, being sentenced to death, prosecuted this writ of error.

Motion to dismiss. Charles Hecht filed his petition in the Circuit Court of the United States for the District of Nebraska, October 14, 1890, against the plaintiffs in error, alleging that the amount in controversy in the suit exceeded the sum or value of $2000 exclusive of interest and costs, and that he had been damaged in the sum of $2500 by reason of the purchase upon defendants’ false and fraudulent representations in writing of certain land for which he paid the sum of…

Held: and further adjudged that the said three hundred and forty-one bonds “ were negotiated and sold to bona fide purchasers for value, and are valid and subsisting obligations and are unpaid, and a valid and subsisting charge and lien upon the railroad and property described in said bill of complaint, and are entitled to be paid out of the proceeds arising from the sale of .§aid mortgaged property.” October 24, 1891,…

Held: That IV. had assumed the payment of the claims of the assignees in bankruptcy and of their counsel, and that these claims were a lien in equity upon the stock of the new corporation in his hands; (2) That W., having, received in the final arrangement a less amount of stock than was awarded to him when the amount of the claims in litigation was determined, tiróse claims wore subject to be scaled • down…

Motiok to dismiss. The motion stated that “ the judgment brought here by writ of error for review, is a judgment of the Supreme Court of the State of South Carolina, which simply affirmed a decision of the lower court overruling a demurrer, and thereby remanded the case to the court below for a hearing on the merits.

This was a claim by a professor of mathematics in the Navy for $32.87, alleged .to be due him for longevity pay from November 11, 1890, to November 30, inclusive.

This was a claim for $1000, alleged to be due for longevity pay as an assistant engineer in the Eavy from June 10,' 1882, to August 10,1887. The petitioner alleged that he was entitled to this amount, “ after deducting all just credits and offsets.” The answer was a general traverse. The findings of fact by the Court of Claims were as follows : “Claimant entered the Naval Academy, September 14, 1876; graduated June 10, 1880; and was commissioned assistant engineer.

Held: (89 Tennessee, 1; 90 Tennessee, 306,) that the companies so paying were entitled to be subrogated to the rights of the owners or consignees against the railroad company under its bills of lading, and that the railroad company was entitled to have the insurance-which had been taken out by tlie compress company collected for its benefit.

Held: that this ruling presented no Federal question for the consideration of this court. What is necessary to give this court jurisdiction on writ of error to the highest court of a State again stated.

Held: that,the prisoner haying been thus brought face to face with the jury during these proceedings, the proceedings were regular. Lewis v. United States, 116 U. S. 376 , adhered to and distinguished from this case.

Held: in that case, that the wife was entitled to be credited in the account between her and her husband with the proceeds of the sale of her property,, although they had been applied to defray family expenses with her consent and approval.

This was an action brought, at January Term, 1891, in the Circuit Court of the United States for the District of Nebraska, by Margaret J. Power,’ a citizen of the State of Iowa, against the city of Lincoln, a municipal corporation of the State of Nebraska, for personal injuries which the plaintiff incurred while passing along-a street of said city, and whicli she alleged had been occasioned by the carelessness and negligence of the municipal authorities in permitting a hole…

<p>APPEAL PROM THE SUPREME COURT OF THE TERRITORY OF UTAH. .</p> <p>The case is stated in the opinion.</p>

•APPEAL FROM THE SOTEEME COÜET OE THE" TERRITORY OF UTAH. Taylor and another, brought suit against the Mammoth Mining Company in the District Court of the First Judicial District of Utah Territory to foreclose a mechanics’ lien under the statute of Utah in that behalf, and the Salt Lake Foundry and Machine Company, having been made a party defendant, filed its cross complaint therein against its codefendant, the Mammoth Mining Company, for the enforcement of a similar lien…

Held: in the case just cited, that taxes are uniform when the rate of taxation is the same on assessments ascertained by the same method.

Held: that it was barred by the statute of limitations.

Held: however, by Mr. Justice Story, that where a party defendant was a citizen of the United States, but resident in a foreign country, having no .inhabitancy in any State of the Union, the Circuit Courts had no jurisdiction over him in a suit brought by an alien, though his property were attached in the district.

Held: however, that the goods were dutiable under the countable clause, although the number of threads constituting the warp and woof could only be counted by cutting out a square inch of the cloth and counting the unravelled threads.

Held: (X) That the decision of the state court of appeal, which construed the original decree granting the injunction, neither raised nor presented any Federal question .whatever; *528 - (2)- That the act of that court in ordering the court below to discharge the rule for contempt was not subject to review here; • (3) Whether such an order was the final judgment of the highest court ’ of the State,' queers* When the…

.APPEAL FROM THE OOURT OF CLAIMS. This was a petition for mileage from the navy-yard at Mare Island, in the harbor of San Francisco, to New York. 'The Court of Claims found the following to be the facts: (1) The claimant is an officer in the navy, to wit, a lieutenant-commander. He was serving as such on the 22d day of May, 1890, when he was ordered to proceed by steamer from. San Francisco to New York via the Isthmus of Panama, in charge of. a detachment of men.

This was an action brought, by the plaintiff in error, plaintiff below, against David D. Withers to recover possession of a tract of land containing 80 acres, and described as follows: Lot's 5 and 6, of section 22, township 3, range 5 west, Wilkinson County, Mississippi. A jury was waived and the case tried by the court. Findings of fact were made and a judgment 'entered thereon in favor of the defendant, which judgment was brought before this court by writ of error.

The facts in this case were as follows : Plaintiff in error, the plaintiff below, brought suit against the defendants to recover damages for libel. • At the December (1887) term and on April 9, 1888, a jury returned a verdict in his favor, assessing the damages at $10,000. On April 16, 1888, the defendants filed a motion for a new trial on the ground that the damages were excessive. After the entry of this motion the following appears of record : “ Edward H. Lewis Geo.

This was a petition filed in the Court of Claims by James A, M. La Tourrette, and prosecuted after his death by his executrix, to recover the sum of $333.75, for longevity pay as a chaplain in the Army from February 7, 1885, to April 26, 1887, inclusive.

Held: That it was irregular to send the entire record with a certificate of division in opinion, and that, generally, there could be no such certificate on a motion for a new trial; but that under the circumstances, this court would consider the question certified; (2) That the trial court had jurisdiction, and the motion to set aside the verdict and grant a new trial must be denied.

Held: tliat to' sustain an action of ejectment it was necessary for.the plaintiff to show that the land he sought to recover was without the limits of the tract shown to have been conveyed away-by 'himself.

This action was brought by the plaintiff in error in one .of the courts of the Territory of Dakota to recover damages for the alleged- unlawful taking by the defendant Alterton of a certain stock of merchandise in a storehouse that had been occupied by Louis S. Shauer, in the city of Mitchell, in that Territory. The defendant justified the taking under attach-• ments in favor of creditors of Louis S: Shauer, which came to liis hands as sheriff of the county.

<p>Where in an action on a contract a counter claim td-the amount o.f $10,000 is interposed by the defendant, and judgment is given for plaintiff for less than $5000, this court has jurisdiction to review that judgment when • brought here by defendant below.</p> <p>When one party contracts to set up a machine for another party, and the other party contracts to pay for it, one-tliird when the machine is steamed up ready to run, and the balance at a future time, with interest; and it is mutually agreed that the buyer shall satisfy himself before payments are due that the machine works to his satisfaction, and if it does not, that the seller shall within 60 days after notice, comply with the terms of his contract or the buyer may declare it paid in full, the proper remedy of the seller, after delivery of the machine and refusal of the buyer to accept it, is an action on the contract to recover the contract price, and not an action for broach of the contract by refusal to accept the machine.</p> <p>The requirement that an assignment of error, based upon the admission or rejection of evidence, must, in the case of a deposition, excluded in whole or in part, state the full substance of the evidence so admitted or rejected, does not apply where the witness testifies in person, and where the question propounded to him is not only proper in form, but is so framed as to clearly admit of an answer favorable to the claim or de-fence of the party producing him.</p> <p>When the court in such case does not require the party, in whose behalf, the question is put, to state the idets proposed to be proved by the answer, the rejection of the answer will lie deemed error or not, according as the question, upon its face, if proper in form, may or may not clearly admit of an answer favorable to the party in whose behalf it is propounded.</p> <p>When objection is made to a question to a witness as incompetent, irrelevant, and immaterial, and the objection is sustained, the court may or may not, within its discretion require the party, in whose behalf the question is-put, to state the facts proposed to be proved by the answer.</p>

Held: that the latter act did not impair any contract created by the former statutes and proceedings. The Pennsylvania College Cases, 13 Wall. 190 require the affirmance of the decree in the court below in this case.

<p>Under the Statutes of the United States, a ledge containing gold-bearing rock, which has formerly been profitably worked for mining purposes, bat all work upon which has been abandoned, and which, at the date of a town-site patent of the land within which it lies, is not known to be valuable for mining purposes, is not excepted from the operation of the town-site patent, although, after the town-site patent has taken effect, the land is found to be still valuable for mining purposes.</p> <p>This court, upon a writ of error to the highest court of a State in an action at law, cannot review its judgment upon a question of fact.</p>

As the constitution of the State makes it the duty of the cour t to prepare a syllabus of the points adjudicated in each casef the profession in that State look only to the syllabus to ascertain the points in judgment. When, however, we turn to the opinion of the court, nothing, I submit, is found in it justifying the conclusion this court has reached.