Volume 153 — United States Reports

Held: to extend to waters owned by the State. It was probably designed, on the analogy of statutes making wilful trespasses criminal, to afford a remedy more efficient than a suit for damages.

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.</p> <p>The defendant in error (plaintiff below) sued to recover duties which, he claimed, had been illegally exacted on certain importations of tobacco. The case, by stipulation, was submitted without the intervention of a jury. The court found the facts to be as follows: The Rayner & Baxter Cigar Company imported the tobacco in question, which consisted of “ clippings from the ends of cigars and pieces broken from the tobacco of which cigars are manufactured in the process of such manufacture, the said clippings and pieces not being fit for any use in the condition in which the same are imported, and their only use being to be manufactured into cigarettes and smoking tobacco.” The collector assessed upon the tobacco a duty of forty cents per pound, under Rev. Stat. § 2502 as amended by the act of March 3, 1883, c. 121, 22 Stat. 488, 491, 503, which took effect on March 3, 1883, including it within the terms of the fifth paragraph of Schedule F of that act, which reads as follows: “ Tobacco, manufactured, of all descriptions, and stem tobacco, not specially enumerated or provided for in this aGt, forty cents per pound.”</p> <p>The importer seasonably protested, contending that the tobacco was not dutiable under the above paragraph of Schedule F, but was so under the seventh paragraph of the same,' which reads as follows: “Tobacco, unmanufactured, not. specially enumerated or provided for in this act, thirty per centum ad valorem.”</p> <p>From an adverse ruling of the collector an appeal was duly brought to the Secretary of the Treasury. Pending this appeal, the importer sold the tobacco, in bond, to the plaintiff below, who, upon the affirmance of the collector’s ruling by the Secretary, paid the duties, and in due time brought this suit to recover.</p> <p>Upon the facts thus found the defendant asked the court to rule, first, that the plaintiff,- as purchaser pending the decision of the Secretary, could not maintain the suit; second, that the defendant was, as a matter of law, entitled to a judgment. Reserving these questions, which were adversely decided, the defendant brought the case here.</p>

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

Held: waived their exceptions. Bogk v. Gassert, 149 U. S. 17 , 23. Nor did they renew their motion upon the conclusion of the entire testimony, as they might have done.

<p>On November 12, .1890, In the Indian country, within the boundaries of Oklahoma Territory, as defined by the act of May 2, 1890, c. 182, 26 Stat. 81,- horse stealing was not a crime against the' United States, punishable under the act of February 15, 1888, c. 10, 25 Stat. 33; but as to the Cherokee outlet, it remained Indian country after the passage of the Act of May 2, 1890, and such an offence, committed there, continued to be an offence against the United States.</p> <p>An indictment in the District Court of the United States within and for Logan County in Oklahoma Territory, and for the Indian country attached thereto, charging the commission of the offence of horse stealing in November, 1890, and laying the venue of the offence “ at and within that part of the Territory of Oklahoma attached for judicial purposes to Logan County,” with a description of territory .which included part of Oklahoma and part of the Cherokee Outlet not in Oklahoma, and which averred the same to be “ then and there Indian country, and a place then and there under the sole and exclusive jurisdiction of the United States of America,” will not be held to be fatally defective when attacked collaterally by writ of habeas corpus.</p> <p>Under a writ of habeas corpus the inquiry is not addressed to errors, but to the question whether the proceedings and judgment are nullities; and unless it appears that the judgment or sentence under which the prisoner .is confined is void, he is not entitled to his discharge.</p> <p>Where a court has jurisdiction of the person and the offence, the imposition of a sentence in excess of what the law permits, does not render the legal or authorized portion of the sentence void, but only leaves such part of it as may be in excess open to question and attack.</p> <p>In accordance with this principle the court answers the third question certified in the negative, without expressing an opinion as to what would have been the proper action of the Circuit Court in dealing with the prisoner’s application.</p>

This was a libel and cross-libel for a collision between the American barkentine Freda A. Willey and the British steamship Martello,'which occurred on the 8th day of May, 1887, at 8 o’clock in the morning, about two miles to the northward and eastward of the Sandy Hook lightship, in a fog, and resulted in the sinking of the barkentine. The District Court found both vessels to have been in fault for excessive speed, and entered a decree dividing the damages and costs.

Held: “ if the plaintiff was the party against wrhom the information was filed, and for whose arrest the warrant was issued, although there was a mistake in his name, he could not recover as for false imprisonment or for assault and battery done under the authority of the process, even if innocent of the offence charged.” See also Bailey v. Wiggins, 5 Harrington, (Del.) 462.

Held: is not entitled to mileage for travel in going to his home every Saturday, and in returning to the place of holding court the following Monday morning, during the continuous session of the court. Sunday is a non-judicial day, which does not interrupt the continuity of a term of court.

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

Held: however, to be unnecessary to enter upon this inquiry, “ because Congress must be understood to use the word in its known commercial sense.” “The object of the duty laws,” said Mr. Justice Story, “ is to -raise revenue, and for this purpose to class substances according to the general usage and known denomina *108 tions of trade.

J. D, IIegler, a citizen of the State of Ohio, brought an action in the District Court of Richardson County, Nebraska, on October 4, 1878, against George Faulkner, James Cottier, August Schoenheit, and Edwin S. Towle, citizens of the State of Nebraska, to recover from the defendants the possession of certain land situated in. the county of Richardson, to which land the plaintiff, in his petition, claimed title, and also to recover the rents and profits of the said property…

On October 30, 1889, the appellee, Fred H. Daniels, commenced suit against the defendant in the Circuit Court of the United States for the District of Massachusetts.

Held: per Blatchford, J., as follows: “ Under the circumstances, the Northfield had the Hunter on her own starboard- side, and it was the duty of *143 the Northfield, under the rule, to ‘ keep out of the way ’ of the. Hunter. It was equally the duty of the Hunter ‘ to keep her course.’ The Northfield ported her helm to a sufficient extent to enable her to pass safely under the stern. of the Hunter.

Wharton v. Wise, 153 U.S. 155 (1894), is a 9-to-0 ruling by the Supreme Court of the United States, which denied a citizen of the state of Maryland a writ of habeas corpus. The appellant, tried and convicted of illegally harvesting oysters from Pocomoke Sound in the Chesapeake Bay, had argued that his right to fish was protected by an interstate compact and that this compact also barred the state of Virginia from trying him. The Supreme Court disagreed on both counts.

This was an action to recover duties paid under protest on certain goods imported in September, 1889, and invoiced as Boonekamp Bitters. The collector rated them under the paragraph in Schedule H of section 2502, (act of March 3, 1883, c. 121, amending Bev. Stat.

The plaintiff in error, a white man and not an Indian, was charged by indictment in the Circuit Court of the United States for the Western District of Arkansas with the crime of having, on the first day of November, 1892, at the Choctaw Nation, in the Indian Territory, within the above District, feloniously, wilfully, and with malice aforethought killed and murdered one Peter Carbo.

Held: after able arguments^ and full consideration, that the phrase “ a suit in which there is controversy between a citizen of thé State in which the suit is brought and a citizen of another State ” had the same meaning as the shorter description, in the act of 1789, of “ a suit between ” such parties ; that each term implied a proceeding in a court of justice by a party plaintiff against a party defendant ; and…

Held: That these were findings determined by the interpretation which the law put upon the circumstances of the transaction as stated in the previous findings, and, as such, open to revision here; (2) That these deductions were" incorrect, and the specific conclusions of law did not follow.

Held: That the power granted by R. to Q. was outstanding when the agreement was executed; (2) That the agreement made by Q. with B. was. authorized by the power; *217 (3) That E., having taken an assignment of the respective interests of his co-contractors, stood in their shoes, and that evidence touching the transaction, admissible against an assigning co-contractor, was admissible against him.

<p>APPEAL PROM THE SUPREME COURT OF THE TERRITORY OF IDAHO.</p> <p>This action was brought by the testator of the appellees, upon a writing purporting to be the promissory note of the appellant for forty-three hundred and eight dollars and eighty cents,- dated Salt Lake City, Utah, August 10, 1883, and payable one year after date, for value received, at the bank of Wells, Eargo & Co. in that city, with interest at the rate of six per cent per annum from date until paid.</p> <p>The defendant, Burke, denied his liability upon the note, and at the trial below was sworn as a witness on his own behalf. In support of his defence, as set forth in the answer filed by him, he stated the circumstances under which the note was given. He said: “ Mr. Dulaney bought this group of mines — the Live Yankee and the Mary Ellen. He came to the Walker House in Salt Lake, and wanted me to run them for him. I said I would not do it unless I got a show to get some interest in the property. He says, I will carry an interest for you, and you can take it if you want it, and if not,, you can give it back to me after you see the property.” To this testimony the plaintiff objected, and, the defendant admitting that the agreement referred to by him was oral, the objection was sustained. To this ruling he excepted.</p> <p>Being asked what he did after giving the note in suit, he answered: “I gave the note. I worked on the property, which was done some time in September; worked the property until March; settled • up all of its debts, paid them, notified Dulaney I wanted nothing more to do with the property ; that I was going to Idaho Territory, to Coeur d’Aléne mines, and as I was ready to give him a deed at any time he would send me my note. That is all.” Objection being made by the plaintiffs to this testimony, the defendant offered to prove “ that at the time of the giving of the note and prior thereto, Dulaney, the payee of the note, agreed with Mr. Burke, the maker of the note, that the note should be given to represent the price of the interest that Mr. Burke was to have, conditioned upon his demanding it after an inspection of the mining property mentioned.” He offered also to prove that after inspecting the property and testing it, the defendant notified testator that he did not want the interest; that he was prepared to make a deed for the interest to the latter, and demanded the delivery of his note. All this evidence was excluded by the court upon motion of the plaintiffs, to which ruling the defendant excepted.</p> <p>The defendant' having stated that the conversation with the testator above referred to, and which was excluded by the court, took place prior to the execution of the note, he offered to prove that at the time the note was made, the same agreement was made orally between him and the testator. This testimony was also excluded, and he excepted.</p> <p>The following question was propounded to him at the trial: “ State whether or not prior to your making the note the plaintiff agreed with you that you could explore, work, and develop the mining claims mentioned in the answer, and if at any time before the maturity of the said note you should desire' so to do that he would relinquish said option of purchase — that you could relinquish your said option of purchase, and that he, plaintiff, would cancel the note and accept the deed in full discharge of the note and the cancellation thereof.” The defendant having, admitted that the agreement referred to in the question was oral, the court excluded the evidence, and he excepted. The court also refused to allow him to state whether he examined, worked, and developed the mining claims mentioned in his answer, and whether he had refused to'take such claim under the agreement with the plaintiff.</p> <p>At the trial the defendant offered in evidence a deed executed by him to the plaintiff, conveying to the latter, in consideration of the surrender of the note in question, all His right, title, and interest in the above property — the same deed that had been filed by the defendant with his answer. The court held this evidence to be inadmissible unless the defendant proposed to show that the plaintiff accepted the deed. To this ruling the defendant excepted. The defendant was not present when Dulaney took a deed from the owner of the mining property, nor was it ever delivered to him. 23 • Pac. Rep. 915.</p>

ORIGINAL. The State of California filed its bill in this suit November -6, 1893, and its amended bill March'5, 1894, in which it contests the daims of ownership set Up by the Southern Pacific Company to lands under water in the harbor of Oakland, •opposite to San Francisco.

<p>No one can be permitted to go into a court of equity to enjoin the collection of a tax, until he has shown himself entitled to the aid of the court by paying so much of the tax assessed against him as it can be plainly seen he ought to pay.</p> <p>State Railroad Tax Oases, 92 U. S. 575, and National Bank v. Kimball, 103 IT. S. 732, affirmed and followed on this point.</p> <p>The Northern Pacific Railroad-Company, having accepted-the provisions of the act of Dakota of March 7, 1889, c. 107, became liable thereby to pay tlie designated .percentage of its gross earnings in lieu of taxes for the year 1889, which liability was not discharged by the subsequent repeal of the gross earnings act of 1889; and, having failed to make that payment, or to make a tender of what was due under one or the other modes of taxation, it is not entitled to relief in equity to enjoin the enforcement of a tax upon its property as upon the property of individuals in the counties in which the property is situated.</p>

On July 12, 1890, appellant as plaintiff filed his bill in the Circuit Court of the United States for the District of "Washington to restrain the defendant from entering and trespassing upon certain premises. Subsequently, by leave of the court,, an amended bill was filed. In that, plaintiff claimed title to three separate tracts. The allegations as to one were as follows: “2.

<p>ERROR TO THE SUPREME COURT OF THE STATE OF WASHINGTON.</p> <p>The case is statéd in the opinion. This case was argued with Mann v. Tacoma Lcmd Company, ante, 278, where will be found the argument of Mr. Mitchell for the plaintiff in error.</p>

Held: Mr.- Justice Harlan alone dissenting, that a statute of New York imposing a tax upon the corporate franchise or business of every corporation, organized under a law of any other State, to be computed by a percentage upon its whole capital stock, was. not an unconstitutional interference with interstate commerce, when applied to a manufacturing corporation organized under the laws of Utah, and doing a greater part of…

Held: that it was irrelevant and was properly excluded. The refusal by a Federal court to grant a new trial cannot be reviewed on a writ of error.

<p>The statutes of New Mexico, Compiled Laws 1884, §§ 1736-1738, do not permit the receiving of usurious interest by way of, or under the guise of discount, commission, agency, or other subterfuge.</p> <p>"Those statutes make void a contract of loan providing for usurious interest only as to the interest in excess of what the statute allows.</p> <p>The limitation of three years, under the statutes of New Mexico, within which the borrower may sue for double the amount of usurious interest collected and received from him does not commence to run, and consequently the right of action therefor does not accrue, until the lender has collected or received more than the original debt with interest.</p>

At the March term, 1890, of the Circuit Court of the United States for the Northern District of Illinois the Gates Iron Works, a corporation organized under the laws of the State of Illinois, filed its bill of complaint against David R. Fraser, Thomas Chalmers, and Hiram H. Scoville, alleging that' the said complainant was the sole owner of several letters patent of the United States, namely, No. 56,793, issued to Henry Pearce, July 31, 1866; No. 201,646, issued to Charles…

This was a motion to dismiss for want of jurisdiction a writ of error to review a judgment of the Court of Appeals of the District of Columbia, denying a writ of mandamus to the Commissioner of Patents to register a trade-mark under the' act of March 3, 1881, c. 138. '21 Stat. 502. The cash is stated in the opinion.

Held: upon the authorities cited and for the reasons given, that, on the facts appearing in that record, the Circuit Court of Appeals could not review by writ of error the judgment of the Circuit Court.

Held: reversing the decision of Judge McCrary in 2 McCrary, 370 , that by the true construction of the will the widow “took under it an estate for life in. the testator’s lands, subject to be divested on her ceasing to be his widow, with power to convey her qualified life estate only; ” and that “ her estate in the land and that of her grantees- determined on her marriage with Pickering.” Giles v. Little, 104 U. S. 299 ,…

This case was submitted on the 15th day of December, 1892. On the 16th of October, 1893, the court ordered it to be restored to the docket, for argument- before a full bench, and argument was had accordingly April 26, 1891. The case then made is stated by the court as follows: Norman Brass, the plaintiff in error, owns and operates a grain elevator in the village of Grand Harbor, in the State of North Dakota.

Held: that the assignee of a judgment founded on contract could not maintain a suit thereon in a court of the United States unless such a suit might have been prosecuted there if an assignment had not been made. Mississippi Mills v. Cohn, 150 U. S. 202 .

Held: “ The terms of the act, indeed, include every railroad and canal company not exempt from taxation by virtue of its charter, but that language, according to .a general rule of interpretation, must be confined to corporations deriving their authority from the laws of'Virginia.” Marye v. Baltimore & Ohio Railroad, 127 U. S. 117 . IV.

The Insurance Company, plaintiff in error, was incorporated on March 22, 1850, by an act of the General Assembly of Ohio,1 48 Ohio Laws, 498. Sections 3654 and 3655 of the Revised Statutes of Ohio read as follows : “Sec. 3654.

<p>When a person from whom an internal' revenue tax has been illegally exacted accepts from the government, without objection, the payment of the sum thus illegally exacted, he thereby gives up his right to sue for interest as incidental damages.</p>

Held: after a critical examination of the contract, that upon its face it stipulated that the mortgage *480 should be divisible, and not indivisible.

Held: that the contract did not confer the right of exemption from its operation.

Held: while recognizing the general rule that the vendor has a lien for his purchase money, that the circumstances disclosed a knowledge on the part of the vendors or their agent that the vendees sought a registry of the deed of conveyance for the purpose of subdividing the property and selling it in lots, and with that knowledge assented to such registry, and also knowledge that the vendees were selling lots, and hence…

This was an action in the nature of an action of ejectment, commenced October 18, 1889, by the Slide and Spur Gold Mines, (Limited,) in the Circuit Court of the United States for the District of Colorado, to recover the possession of the mining properties which were the subject of the controversy in the case just decided, wherein said company was appellant, and Ellen E. Seymour, the wife of defendant, and William G. Pell, were appellees.

This wás a petition by the North River Bridge Company, incorporated by the act of Congress of July 11, 1890, c. 669, (the material part of which is copied in the margin,1) for the appointment under that act of commissioners to assess damages for the appropriation and condemnation, for the approaches to its bridge across the Hudson or North River, between the States of New York and New Jersey, of land of Sarah Luxton in the city of Hoboken and the county of Hudson in the…

Held: both *539 by the Supreme Court of Illinois and by this court, that the defence should have proven that the letter was unlawfully seized by the police, and should then have opposed its admission upon the ground that it was obtained by such unlawful seizure.

Charles H. Beers, as the holder of certain bonds of the Wabash, St. Louis and Pacific Kailroad Company, secured by a mortgage or trust deed on the Chicago division of that road, in 1886 filed a bill on behalf of himself and others in the Circuit Court of the United States for the Northern District of Illinois for the purpose of foreclosing the mortgage, and prayed that pending the rendition of the decree in. the cause the court would appoint some disinterested and practical…

Held: That these covenants were independent, and that the payment or tender of payment of the purchase price for the land was a condition precedent to the right to the conveyance; (2) That the party of the second part, on making the contract payments, became entitled to receive the agreed number of shares in the irrigation company, subject to the by-laws of such company, but not stock which represented the title to water…

Held: without receiving for them the amount thereof, or any part of it; in some also with aiding and abetting the cashier to misapply the funds by discounting unsecured notes; in some also with aiding and abetting the .cashier to misapply the funds through overdrafts. For the disposition of these cases it is not necessary to pass upon each count separately.

This oase was argued with No. 922, ante, 581. It was also an indictment against Evans for a wilful misapplication of the funds of the Spring Garden National Bank. The indictment originally contained 152 counts, upon all of which except 57 a nolle pros, was entered. The same proceedings were had as in the former case.

Held: per Mr. J ustice Field, that “ goods on board of a ship, in charge of a custom-house officer, preliminary to their removal to a public store ,or a bonded warehouse, and during the time necessary for that purpose, are in like custody, and so are within the spirit and intent of the law subject only to such duties as are leviable when the goods are freed from such custody.

Henry Stárr was convicted of the murder of Floyd Wilson, a white man and not an Indian, on December 13, 1892, at the Cherokee Nation in the Indian Territory, and, November 4, 1893, sentenced to be hanged on February 20, 1894, and thereupon sued out this writ of error.

Held: That considerations of public policy forbid this mode of attacking the validity of officers defacto, whatever defects there may have been in the legality of their appointment or election.

Held: and, having filed findings of fact and conclusions of law, rendered judgment for the defendant. The plaintiff sued out this writ of error.

McKane v. Durston, 153 U.S. 684 (1894), was a United States Supreme Court case in which the Court held that the appellant, John McKane, had no federal constitutional right to an appeal. They held that state courts had the right to grant appellate review at their discretion.

Held: citing The License Tax Cases, 5 Wall. 162 , that the license in question must be regarded as nothing more than a tax; that the penalty provided was a mode of enforcing its payment; and that the license, when issued, was only a receipt for the tax, and not a grant of an authority to conduct business on condition of paying the license.