Volume 169 — United States Reports

<p>APPEALS FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.</p> <p>The case is stated in the opinion.</p>

This case came to this court on the following certificate from the United States Circuit Court of Appeals for the Second Circuit: “ A judgment or decree of the Circuit Court of the United States for the.

Held: If the plaintiff did not own all of original Tot one, she was entitled to recover damages for any injury done to such part of it as She did own; , (2) The plaintiff, being the owner of all the sub-lots, was entitled, under the deed, to close the alleys altogether; anu therefore it was error to instruct the jury that she could not have conveyed a good title to the land marked on the plat as alleys; (3) Tlie plaintiff…

<p>No number.</p> <p>The case is stated in the opinion. .'</p>

<p>The court below having dismissed the bill in this case on the ground that it had no jurisdiction, as the matter in dispute was determined not to exceed $2000 exclusive of interest and costs, this court examines the bill at length in its opinion, and holds that upon the face of the pleading the matter in dispute is sufficient to give the court below jurisdiction, and remands the case for further proceedings, without determining any of the other questions on the merits.</p>

The appellants herein brought this suit in the Supreme Court of. the District of Columbia for the purpose of obtaining partition of certain lands in the city of Washington, known as square 53 of the ground plan of that city. Upon the trial it appeared that the common source of title was one George W. Peter, who, in January, .1837, conveyed the premises to Henry Huntt and Benjamin Ogle Tayloe as tenants in common.

This was an action of assumpsit, brought September 21,1894-, in the Circuit Court of the United States for the Eastern District of Michigan, by Aultman, Miller & Co., a corporation of the State of Ohio, against William Holder, a citizen of the State of Michigan, to recover the price of agricultural machines furnished by the plaintiff to the defendant, and sold'by the defendant, under a contract in writing, the material parts of which were as follows: “This agreement, made…

This action was brought September 7, 1893, in an inferior court of the State of Kentucky, by Powers against the Chesapeake and Ohio Railway Company, as well as against Boyer, Evans and Hickey, the conductor, engineer -and fireman of a railway train of the company, to recover damages for injuries suffered by the plaintiff from the running of the train against him by the negligence of the defendants. The summons was not served on Hickey, but was served on the other defendants.

■ This was an action of ejectment, brought in the Circuit Court of the United States for the Eastern District of Tennessee, to recover a tract of land in Polk County. • The declara- • tion alleged that the land was worth more than two thousand dollars. The defendants disclaimed as to a portion of the land, and pleaded .not guilty and the statute of limitations as to the remainder.

<p>On a motion to dismiss for want of jurisdiction, this court being of opinion that the ruling of the state court on the points upon which the case turned there was obviously correct, does not feel constrained to retain the case for further argument, and accordingly affirms the judgment.</p>

<p>ERROR TO THE SUPREME COURT OF THE STATE OF IOWA.</p> <p>The case is stated in the opinion.</p>

Held: If the assured understood what he was doing, and the consequences of his act or acts, to himself as well as to others — in other . woTds, if he understood, as a man of sound mind would, the consequences to follow from his contemplated suicide, to himself, his character, his family and others, and was able to comprehend the wrongfulness of what he was about to do, as a sane man would, then he is to be regarded as…

Held: that this judgment of the Circuit Court of Appeals was final, and could not be appealed from. The case is stated in the opinion. Mr. J. D. Bouse for appellant. Mr. William Grant was on his brief. Mr. Branch K. Miller for appellees. Mr. Chikp

A2FEAL FBOM THJB COBBS OF TBIVATB LAND CLAIMS. On January 9, 1898, the appellants as plaintiffs filed their •petition in the Court of Private Land Claims, praying that their title to a tract of land in the Territory of New Mexico, and near to the city 'of El Paso, Texas, be confirmed. The plaintiffs named as defendants, besides the United States, the unknown owners of the Dona Ana Bead Colony, Mesilla Colony and Braoito Grants.

This suit was commenced by appellee Cummings on February 1, 1890, by a bill filed on the equity side of the Supreme Court of the District of Columbia against Baker, the appellant.

<p>CERTIORARI TO THE COURT OF APPEALS FOR THE SECOND CIRCUIT.</p> <p>On the thirtieth day of August, a.d. 1894, John F. Klumpp and others, doing business as a partnership under the name of Alexander Murphy & Co., imported into New York certain merchandise consisting of women’s and childrén’s dress goods composéd of worsted. . The collector classified this merchandise and assessed it for duty under paragraph 395 of the tariff act of October 1, 1890, c. 1244, 26 Stat. 567, at twelve cents .per square yard and fifty per cent ad valorem. The importers protested, claiming the goods to be dutiable under paragraph 283 of the tariff act of August 27, 1894, c. 349, 28 Stat. 509, at forty per cent, or fifty per cent ad valorem, according to the value per pound.</p> <p>The Board of General Appraisers overruled the protest (G. A. 2769), and the importers carried the matter to the Circuit Court, which reversed the decision of the Board of General Appraisers. Murphy v. United States, 68 Fed. Rep. 908. On an appeal to the Circuit Court of Appeals for the Second Circuit, the decision of the Circuit Court was affirmed. Murphy v. United States, 38 U. S. App. 467. The case was then brought here on certiorari.</p> <p>It was admitted belpw “that the classification of the merchandise by the collector was worsted dress goods, at twelve cents per square yard and fifty per cent ad valorem under schedule K, paragraph 395 of the tariff act of October 1,1890.”</p> <p>And “ that the merchandise in controversy is worsted dress goods, made from the fleece of the sheep, which has been combed and spun into worsted yarn, and is not composed of the hair of the camel, goat, alpaca or other animal than sheep.”</p> <p>Paragraph 395 of Schedule K of the act of October 1, 1890, entitled “Wool and Manufactures of Wool,” read: “On women’s and children’s dress goods, coat linings, Italian cloth, bunting, and goods of similar description or character cony-posed wholly or in part of wool, worsted, the hair of ^he camel, goat, alpaca or other animals, and not specially provided for in this'act, the duty shall be twelve cents per square yard, and in addition thereto fifty per centum ad valorem: Provided, That on all such goods weighing over four ounces per- square yard the duty per pound shall be four times the duty imposed by this act on a pound of unwashed wool of the first .class, and in addition thereto fifty per centum ad valorem.”</p> <p>Paragraph 283 of Schedule K of'the-act of August 27,1894, c. 349, entitled “Wool and Manufactures of Wool,” provided : “ On women’s and children’s dress goods, coat linings, Italian cloth, bunting or goods of similar description or character, and on all manufactures, composed wholly or in part of wool, worsted, the hair of the camel, goat, alpaca or other animals, including such as have india rubber as a component material, and not specially provided for in this act, valued at not over fifty cents per pound, forty per centum ad valorem; valued at more than fifty cents per pound, fifty per centum ad valorem.”</p> <p>Paragraphs 280 to 286, inclusive, under this schedule, provided for duties on articles made, or composed, “ wholly or in part of wool, worsted or the hair of the camel, goat, alpaca or other animals,” except that paragraph 282, which referred to blankets, etc., omitted the word “ worsted.”</p> <p>Paragraphs 287 to 296, inclusive, related to carpets, mats, etc., and the concluding paragraph of the schedule read: “297. The reduction of the rates of duty herein provided for manufactures of wool shall take effect January first, eighteen hundred and ninety-five.”</p> <p>Paragraph 685, one of the paragraphs of the free list, was as follows: “685. All wool of the sheep, hair of the camel, goat, alpaca and other like animals, and all wool and hair on the skin, noils, yarn waste, card waste, bur waste, stubbing waste, roving waste, ring waAe and all waste,' or rags composed wholly or in part of wool, all the foregoing not otherwise herein provided for.”</p>

Barrett v. United States, 169 U.S. 218 (1898), was a case in which the Supreme Court of the United States held that South Carolina had never effectively been subdivided into separate judicial districts. Therefore, it was held, a criminal defendant allegedly tried in one district for a crime committed in the other had in fact been permissibly been tried in a separate division of a single district.

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

<p>Decree affirmed on a question of fact only.</p>

This was a bill in equity filed in the United States Circuit Court for the District of Minnesota, by the widow (since remarried) and heirs at law of George W. Remsen against the Minnesota Railway Transfer Company, and over two hundred other defendants, to establish title to one hundred and sixty acres of land situate within the corporate limits of the city of St. Paul, which the complainants contended was held in trust for them by the defendants.

Held: that the decree of the Supreme Court of Iowa was right, and that it should be affirmed. The facts in this case are as follows: On June 25, 1889, plaintiff in error, Daniel Dull, being the owner of the tract of land in controversy, conveyed the same by warranty deed executed by himself and wife to John E. Blackman.

This is an appeal from a judgment of the Court of Claims in favor of the city of Louisville, based upon a petition filed in that court for the recovery of seventeen thousand and some odd dollars, alleged to be due the city from the Government on account of taxes improperly collected.

Held: the claim .for taxes paid on account of stock dividends was illegal and unauthorized, and this suit is brought to recover the sum which was rejected by the Comptroller, and which he refused to pay. The Court.of Claims gave judgment in favor of the Government and dismissed the petition of claimants, who have appealed to this court from the judgment of dismissal.

Held: or the revenue enjoyed under its protection ; and though this can never be arrived at with accuracy, through the operation of any general rule, and would not be wholly just if it could be, experience has given us no better standard, and it is applied in a great variety of forms, and with more or less approximation to justice and equality.

Held: one of which was drawing near its close at the time that the petitioner filed his petition, December 9, 1896, and the petitioner then makes this allegation: that “ While this petitioner, together with his co-defendants who have been arrested and placed in recognizance, have stood ready and anxious for trial upon said indictment, yet said case has not even been called by the court for trial, nor has said cause been…

This was a summary process to recover possession of land in the city of Washington, under section 684 of the Revised Statutes of the District of Columbia, commenced September 17, 1894, by complaint before a justice of the peace, by the Eastern Trust and Banking Company against Edward M. Willis and William. G. Johnson, each of whom pleaded title in Johnson; and the case was thereupon certified to tho Supreme Court of the District of Columbia.

<p>ERROR TO THE SUPREME COURT OP APPEALS OP THE STATE OP VIRGINIA.</p> <p>The case is stated in the opinion.</p>

This was an action brought by Dixon N. Garlinger, in the Court of Claims, against the United States, wherein he sought to recover for alleged extra service rendered by him while in the employ of the United States. The trial court'found the facts to be as follows: I. The claimant, a citizen of the United States, was appointéd, by the collector of the port of Baltimore, a night inspector in the customs service at Baltimore in 1882.

Payne, the appellant here, filed his bill of complaint in the District Court for the county of Logan and Territory of Oklahoma, First Judicial District, against the present appellees.

United States v. Eaton, 169 U.S. 331 (1898), was a decision of the Supreme Court of the United States involving the Appointments Clause holding that the United States Congress had the power to authorize the President of the United States to recognize a temporary diplomatic official during a period of unavailability of the congressionally approved appointee to the position. In October 1890, Sempronius H. Boyd was commissioned as Minister Resident and Consul General of the United States to Siam. He qualified and proceeded to his post, but became seriously ill in June 1892. Boyd was granted a leave of absence by the President, and before leaving Siam, Boyd asked a resident American missionary, Lewis A. Eaton, to take charge of the consulate and its archives.

The defendant in error, who was the plaintiff below, brought this action in the Circuit Court of the United States for the Northern District of California to recover the possession of certain lands described in his complaint; and also the value of the rents, issues and profits thereof.

Holden v. Hardy, 169 U.S. 366 (1898), is a US labor law case in which the US Supreme Court held a limitation on working time for miners and smelters as constitutional.

Held: on such evidence, as trustee for the party from whom the consideration proceeds, whose rigiits will be enforced as against those claiming under the record title. *399 This ease comes'within that rule, the evidence being clear and satisfactory that the oral agreement made between Mr. and Mrs. Avery, at the time when the property was conveyed to the latter, was made as asserted by the Smithsonian Institution.

Held: both by the Supreme Court of the State, and by the Circuit Court of the United States for the District of Oregon, that the State has the power to tax mortgages, though owned and held by citizens and residents of other States, of lands in Oregon.

<p>ERROR TO THE COURT OF APPEALS OF THE STATE OF NEW YORK.</p> <p>The Lebanon Springs Railroad Company was organized in the year 1852, and, by virtue of various acts of the legislatures of, New- York and Vermont, was authorized to construct and maintain a railroad extending from Chatham, New York, to Bennington, Vermont. On the 1st day of July, 1S67, the said company duly executed and delivered to the Union Trust Company of New York a mortgage of that date on all its property, rights and franchises, to secure the payment of bonds to the amount of two million of dollars, which bonds were then or soon after sold to a great number of persons. In Januar}’, 1S70, the Lebanon Springs Railroad Company consolidated with tho Bennington and Rutland Railroad Company, under the name and style of the Harlem Extension Railroad Company. Tho new company, on April 1, 1870, executed and delivered to the . said Union Trust Company a mortgage on its road and franchises to secure bonds to .the amount of four million dollars. ()f these bonds there were sold to outside parties to the amount of one million five hundred thousand dollars. The-remaining two million five hundred thousand dollars of bonds were reserved to take up and be exchanged for the two million dollars of bonds of the Lebanon Springs Railroad Company and for five hundred thousand dollars of bonds which had been issued by the Bennington and Rutland Railroad Company, but such exchange never took place, and accordingly only one million five hundred thousand dollars of the said bonds of the Harlem Extension Railroad Company were ever issued. Both said mortgages were duly recorded in the proper counties in the States of New York and Vermont.</p> <p>' On February 22, 1872, the interest upon the said bonds of the Lebanon Springs Railroad Company falling due after January, 1869 not having been paid, the Union Trust Company of New York began an action in the Supreme Court of New York to foreclose the mortgage of that company, in which action the Lebanon Springs Railroad Company and the Harlem Extension Railroad Company were made defendants.s</p> <p>’ -On November 15, 1872, the Union Trust Company of New York filed bills in the Court of Chancery in the State of Vermont to foreclose both of said mortgages, in which actions the Lebanon'Springs Railroad Company and the Harlem Extension Railroad Company were made defendants, and'said defendants duly appeared in that court prior to December 1, 1872.</p> <p>While the above-mentioned actions were pending, and on December 18, 1872, the Harlem Extension Railroad Company and the Pine Plains and Albany Railroad Company, a corporation of the State of New York, consolidated their roads, property and capital stock, under the name of the Harlem Extension Railroad Company; and on December 19, 1872, the New York, Boston and Northern Railroad Company and the said last named the Harlem Extension Railroad Company duly consolidated their roads, property and capital stock, and thus formed one company under the name of the New York. Boston and Montreal Railway Company.</p> <p>. The' above-mentioned foreclosure suits were so proceeded with that, in the said action in the Supreme Court of New York, a judgment of foreclosure of the said mortgage given by tflp Lebanon Springs Railroad Company, and for a sale of its road, property and franchises within the State of New York, and of all its right, title and interest to the railroad and franchises within the State of Vermont, was rendered on December TO, 1872; and on January 25, 1873, the property and • franchises mentioned were sold to one William Butler Duncan for the price of one hundred thousand dollars, and on said day, Charles S, Fairchild, the referee appointed by the court to effect the sale, executed and delivered to one James C. Hull his deed of conveyance of the said road, property and franchises, bearing date the said 25th January, 1873, and said deed was duly recorded in the clerks’ offices for the counties of Rensselaer and Columbia.'</p> <p>On the 7th day of December, 1872, decrees.of foreclosure of the mortgage of the Lebanon Springs Railroad Company and of the Harlem Extension Railroad Company’s mortgage, and directing a sale, were rendered; and in pursuance of such decrees the said road, property and. franchises within' the State of Vermont were, by Daniel McEwen, a special master in chancery, appointed by the court for that purpose, sold on January 20, 1873, to one Charles G. Lincoln, for the sum of fifty thousand dollars, and deeds of conveyance of that date were made and delivered to said Lincoln by the said master in chancery.</p> <p>On January 28, 1873, Hull and Lincoln, the respective purchasers at the said foreclosure sales, executed and delivered to the said William Butler Duncan and to one 'Trenor W. Park a bond in the sum of five million dollars, and a mortgage to secure the same on all the roads, property and franchises of the Harlem Extension Railroad Company, including those of the Lebanon Springs Railroad Company and of the New York and Vermont Railroad Company.</p> <p>On January 30, 1873,' Hull and wife, by their deed executed and delivered that day, conveyed all said roads, property and franchises, situated in the State of New York, to the said the New York, Boston and Montreal Railway Company, subject, however, t.o said mortgage to Duncan and Park; and, on the same day, Lincoln, by a deed executed and delivered by him, conveyed said roads, property and franchises, situated in the State of Vermont, to the said the New York, Boston and Montreal Bailway Company, subject to the said mortgage to Duncan and Park, and to the said live hundred thousand dollar mortgage on the old Bennington and Butland Bailroad.</p> <p>The New York, Boston and Montreal Bailway Company paid the sum of $807,077.05 on account of the moneys due on said bond and mortgage, which had become wholly due and payable on or before February 1, 1875, but has never paid the remainder of the money due on said bond arid mortgage.</p> <p>On March 15, 1873, the New York, Boston and Montreal Bailway Company executed and delivered a certain other mortgage in the amount of twelve million two hundred and fifty thousand dollars to Seligman, Sherman and Brown as trustees. This mortgage covered the above-mentioned railroad and other properties. On the 1st day of April, 1873, the New York, Boston and Montreal Bailway Company executed and delivered still another mortgage on the said railroad and other things in the amount of twelve million seven hundred and fifty thousand dollars, in which the New York Loan and Indemnity Company was named as trustee. Enough of the bonds of the said last two mortgages were sold to realize six millions of dollars, which were received and disbursed by Seligman and Brown. The said railroad was operated by and on behalf of the New York, Boston and Montreal Bailway Company until some time in November, 1873, when said company leased the road to the Central Vermont Bailroad, Company, by which it was operated until August 20, 1877, when said last-mentioned company withdrew from the possession of and abandoned the road. In the meantime the New York, Boston and Montreal Bailway Company had failed to fulfil its obligations and had become wholly' insolvent, and said railroad, when surrendered and abandoned by its lessee, lay unoccupied and unoperated until some time in September, 1877, when it was taken possession of by one Bussell C. Boot, who subsequently, in November, 1877, delivered possession thereof to a corporation called the Harlem Extension Bail-road South Coal Transportation Company, a corporation of the State of New York, and of which said Boot was president, and which continued to operate said railroad until it came into the possession of John "VV. Van Valkenburgh as hereinafter stated.</p> <p>On September 7, 18S9, one Marvin Sackett, claiming to be the owner of bonds to the amount of $8700, issued, as before mentioned, by the Lebanon Springs Railroad Company, brought an action in the Supreme Court of New York against the said Russell C. Root, the Harlem Extension Railroad South Coal Transportation Company, the New York, Boston and Montreal Railway Company and Daniel Butterfield, as receiver of the said last-mentioned company, praying for the sale of the whole of the said railroad property and franchises. He -claimed to bring the action in behalf of himself and all others, bondholders of the Lebanon Springs Railroad Company, similarly situated, who held any of the two million of dollars of the bonds of said company. He alleged in his complaint the fact of the mortgage, to secure his bonds, among others, to the Union Trust Company-of New York, its actions to foreclose the sales under them, the aforesaid sales to Hull and Lincoln, and their mortgage to Park and Duncan, and the conveyance by the latter to- the New York, Boston and Montreal Railway Company, and that Hull and Lincoln, and Park and Duncan; acted throughout all those matters as the agents and representatives, and" for the use and benefit of the bondholders of the Lebanon Springs Railroad Company.</p> <p>The summons and complaints were served upon the New York, Boston and Montreal Railway Company and upon Butterfield' as receiver, but they did not appear. Russell C. Root and the Harlem Extension Railroad -South- Coal Transportation Company were also served, and they put in joint answers on September 25, 1880. On October 1, 1880, the complainant Sackett moved for the appointment’ of a receiver, and on October 7, John "V. Van Valkenburgh was appointed and filed his bond as receiver.</p> <p>On November 12, 1880, one Bloodgood and six others, claiming to own a majority of the bonds of the Lebanon Springs Railroad Company, moved for leave to be made parties to the action. This motion was, on January 10, 1881, denied, but the plaintiff was directed to serve papers and notices of every kind on one F. L. Westbrook, who was by the order authorized to appear as counsel of the said Blood-good and the other six bondholders, upon all trials, hearings and motions. On November 6, 1880, Park and Duncan made an application to the court to be made parties to the action, alleging that they were the owners of over $300,000 of bonds of the Lebanon Springs Railroad Company, and of over $000,000 of bonds of the Harlem Extension Railroad Company, and that they were the mortgagees undSr the mortgage made by Hull and Lincoln. This application was not granted. One Henry A. Tilden, who claimed to own thirty of the bonds of the Lebanon Springs Railroad Company, was associated with Sackett in the bringing of said action, and appeared by counsel. On October 11, 18.80, the receiver filed a petition, setting forth that he had no funds with which to equip or operate the road, and asking that he might be allowed to. borrow $25,000 on certificates for that, purpose, and on October 25, 1880, the court made an order authorizing the receiver to borrow $25,000ion certificates,•'which were declared to be a first lien on the net profits of the railroad company. On February 23, 1881, the receiver filed a petition setting forth that there were large arrears of taxes, for which sales had taken place of portions of the road, that there was a necessity for the purchase of rails and superstructures, and praying that he might be authorized to issue certificates to raise the necessary moneys to redeem such portions of the road as has been sold for taxes, and to purchase rails and make other necessary repairs. Notice of this petition tvas filed on Hamilton Ward, attorney general of the State of New York; on McClellan and Brown, attorneys for Sackett, the plaintiff; on P. W. ■ Ostremder, attorney for R. C. Root, defendant, and on F. W. Westbrook, attorney designated to receive notices on behalf of Bloodgood and others.</p> <p>On March 5, 1881, the court, after hearing Edward New-comb, of counsel for said receiver, and F. L. Westbrook, of counsel in opposition thereto, appointed James H. Jones, an expert, to examine the rails, ties, bridges, roadbed, trestles, telegraph poles and all matters' pertaining to-tha„running of the Lebanon Springs Railroad, to. the. end that he should make a report to the court of the true condition of the Lebanon Springs Railroad, with his opinion thereon as to what was necessary and requisite for the protection' of said. property and the safety and successful running of said- railroad; that said report be made to said receiver,, and that said receiver should return said report,, together with a detailed statement of moneys received and expended by him,- with such other information as he should have in relation to said railroad; and further directing that said reports and papers should be served on F. L. Westbrook ten days prior to the hearing on said report before the court.</p> <p>On March 19, 1881, James H. Jones made an elaborate report' to the receiver, stating that he had, in pursuance of his appointment, made a careful examination of the said railroad, its rails, ties, bridges, roadbed, trestles,-telegraph poles and all matters appertaining to the running and management thereof; that he found the rails of iron worn to. such an extent as to render the funning of trains, even at an ordinary rate of speed, extremely dangerous; that to render the traok safe for ordinary use would require from 2500 to 3000 tons of new rails to replace the poorer conditioned of the old, ones ; that the ties were badly decayed, to replace which - would require about 87,000 new ties; that the road required new ballasting; that the bridges and trestles were in' an unsafe condition, all needing repair; that to repair the bridges and trestles and abutments would require an expenditure of some $19,000; that new telegraph poles to the number of 2030- were required; that, in fine, to put-said road in a condition to render its operation safe and successful would require about $320,000. This report was returned to court by the/receiver, ■with a statement of his receipts and-expenditures to date, and on 'April 4, 1881, the court, after considering said reports and hearing counsel for the receiver, and no one appearing in. opposition thereto, ordered the receiver to put said road ihi repair as recommended by the report of James II. Jones, and authorized him to issue receiver’s certificates, dated April 2, 1881, with interest at six per cent, for the aggregate amount of $350,000, the same to be signed by said John W. Yan Yalkenburgh, as receiver of said Lebanon Springs Railroad Company, and a certificate on each thereof duly to be signed by an officer of the Farmers’ Loan and Trust Company of New York City. It was further ordered that the said receiver should negotiate said certificates, and with the money arising therefrom pay and discharge the $25,000 of certificates theretofore authorized by the order of October 25, 1880, and to purchase all necessary materials for the repairs of said road, and pay and discharge all necessary expenses incident to said repairs. It was further ordered that said receiver’s certificates of indebtedness should be declared to be a debt of the receiver incurred for the benefit and protection of said Lebanon Springs Railroad and its owners and the bondholders thereof, and said certificates were declared and decreed to be a first lien on the railroad and every kind of property owned by the company, to be recognized as such in any reorganization of the company or in its consolidation with any other company ; and in case of any sale of the said railroad, the property in the hands of the receiver, and the franchises, under any decree of the Supreme Court, the said certificates are to be first paid from the first moneys realized thereupon by the receiver, unless sooner paid and'cancelled by him from the earnings of the railroad; but in case said railroad and property in the hands of the receiver and franchises, on any sale thereof, does hot bring sufficient to pay the full amount and interest then due on the outstanding negotiated certificates, then such unpaid amount shall remain as a first lien on the road, property and franchises in the hands of the purchaser.</p> <p>On January 12, 1885, a final decree of sale was made, appointing George .McClellan as referee to make such sale, and providing, among other things, that sale should be made subject to the payment of the undue principal and interest of the receiver’s certificates, and that the purchaser of the railroad and franchises should take said railroad, property and franchises, subject to the unpaid portion of said certificates, which should be assumed by such purchaser as part of the consideration of the purchase.</p> <p>On June 29, 1885, George McClellan, the referee, reported to the court that he had effected sale, in accordance with the terms of the decree of sale, to one William Foster, Jr., trustee, for the sum of $155,000, and that, among the terms of the sale, it was stipulated that William Foster, Jr., trustee, should take the property and assets, subject to the payment of the undue principal and interest of the receiver’s certificates.</p> <p>Subsequently, the referee executed and delivered to William Foster, Jr., and Rowland N. Hazard, as purchasers, a deed of conveyance, and received from'them $155,000, the amount of their bid ; and it appears that, out. of the amount of said purchase money, there was then paid about $60,000, the interest then due on said certificates. Afterwards, it appears by the record, that Foster and Hazard conveyed the railroad, property-and franchises to the New York, Rutland and Montreal Railway Company, to which company Reynolds, who had succeeded Yan Yalkenburgh as receiver, surrendered possession of the railroad. The balance of the purchase money was used and applied as directed by the judgment in the said Sackett suit.</p> <p>The principal of said certificates became due on the 1st day of April, 1886, and was not paid. Thereupon,’in the month of April, 1866, the Central National Bank of Boston brought an action in the Supreme Court of New York in behalf of itself as well as other holders of receiver’s certificates, against William Foster, Jr., Rowland N. Hazard, the New York, Rut-land and Montreal Railway Company and the American Loan and Trust Company of New York. All of the defendants in said action appeared and answered. After issue was joined, the said action was, on the petition of the defendants, duly removed into the Circuit Court of the United States for the Northern District of New York.</p> <p>The complaint alleged in substance that the plaintiff is a banking association duly organized and11 incorporated under the laws of the United States, located and doing business in the city of Boston, in the Commonwealth of Massachusetts. It alleged the making of an order on or about April 2, 1881, by the New York Supreme Court in the Sackett suit, whereby one John W. Yan Yalkenburgh, as receiver of the Lebanon Springs Railroad Company, was authorized and directed to issue under his hand receiver’s certificates of indebtedness, dated April 2, 1881, with interest at six per cent, of $500 each, payable in five years, interest payable January 1 and July 1 in each year, to the aggregate amount of $350,000, such certificates and the interest coupons thereto attached made payable at the Farmers’ Loan and Trust Company in the city of New York, and whereby it was further ordered that the receiver negotiate said certificates to the amount aforesaid, and with the moneys arising thereupon pay and discharge certain previous certificates theretofore authorized by an order of the same court, and from the moneys arising from said certificates, that said receiver purchase all necessary materials for the repairs of said railroad, and to pay and discharge all necessary expenses incident to the repairs thereof, and all .other expenses attending the running and successful managing and operating of said railroad, together with such indebtedness as might be found due to claimants by the referee named in said order; that it wras further provided in said order that the said receiver’s certificates of indebtedness to the amount therein directed to be issued, be and the same were thereby declared to be a debt of the said receiver, incurred for the benefit and protection of the said Lebanon Springs Railroad and its owners and bondholders, and said certificates to the amount of $350,000 were by said order declared to be a first lien on the railroad and all and every kind of property owned by said railroad company or in the possession of the receiver thereof, and that said certificates were to be recognized as such in any reorganization of the company, and that in case of any sale of the railroad, the property .in the hands of the receiver, and franchises under any decree of the Supreme Court, said certificates were to be first paid from the first moneys realized therefrom by said receiver, unless sooner paid and cancelled by him from the earnings of said railroad. It was further provided in said order that in case said railroad property in the .hands of the receiver and franchises on any sale thereof should not bring sufficient to pay the full amount of principal and interest then due on the outstanding negotiated certificates in said order authorized to be issued, then the purchaser of said railroad and the property in the hands of the receiver, and franchises, should assume, as a first lien thereon, so much of said principal as at that time should remain outstanding and unpaid with interest thereon, referring to the original order or the record thereof.</p> <p>The complaint further alleged that the said Yan Yalkenburglr, as receiver, under and in pursuance of said order, did issue and negotiate such certificates of indebtedness in the manner and form by said order provided to the amount of $350,000, and that he duly applied the moneys received .from said certificates to the uses and purposes mentioned and in said order authorized; that the plaintiff is now and has for several years last past been the owner and holder of said certificates, amounting in the aggregate to $250,000 of principal thereof, and that the certificates issued and negotiated by the receiver which are not held by plaintiff, are held by divers persons and corporations, many of whose names are unknown to the plaintiff.</p> <p>The complaint further alleged that in the said Sackett suit the plaintiff appeared by its attorneys on the trial of the issues and made proof in regard to the issuing of said certificates and its title thereto, and that such proceedings were had therein that a judgment ivas rendered on or about January 12, 1885, by which it was, among other things, adjudged and decreed that the said certificates, amounting in the aggregate to $350,000, were ratified and confirmed and declared to be a first lien on the railroad anil its property, as provided in the said order, for the amount of principal and interest unpaid thereon, subject to the payment of certain costs and expenses in said judgment provided for, and whereby it ivas further adjudged and decreed that the property, franchises and rights of the said-railroad company as described in a certain mortgage therein - referred to, and in the judgment in said Sackett suit, and all the right, title and interest of any and of all the parties to the said action, including all property and assets in the hands of said receiver, be sold at public auction • under the direction of a referee therein named, for the benefit of the first mortgage bondholders of said railroad company issued July 1, 1867, for the amount of $2,000,000, and that said sale be made subject to the payment of the undue principal and interest of the said receiver’s certificates, and that the purchaser or purchasers of said railroad property and franchises should take the said railroad property and franchises subject to the unpaid principal and interest on the said receiver’s certificates, and should assume, as part of the consideration of the purchase, the payment thereof, and from the avails of said sale, after the payment of certain expenses therein provided for, the said referee should pay the amount of interest due on said receiver’s certificates; that under and in pursuance of said judgment, the referee named therein did advertise for sale on the 12th day of June, 1885, and did sell at public auction, the premises, rights, franchises and property in said judgment mentioned and described, to the defendants, William Foster, Jr., and Rowland N. Hazard, who became the purchasers thereof for the price of $155,000, and that the said William Foster, Jr., acting on behalf of himself and said Hazard, did pay the referee five per cent of the purchase price and did subscribe a certain contract of sale, which was also subscribed by said referee, whereby, among other things, he did, for himself and said Hazard, assume and agree to pay the amount of said principal and interest on said certificates of indebtedness as part of the consideration of said purchase; that the balance of said $155,000 was thereafter paid by the purchasers to the referee, and that the referee did thereafter duly execute and deliver to the defendants Foster and Hazard a deed of said premises and property in said judgment described, and paid from the said $155,000 the interest then due on said certificates, amounting to about $60,000.</p> <p>Plaintiff further .alleged in said complaint that said referee’s deed was duly accepted by the defendants Foster and Hazard, and that in and by the deed, the- grantees thereint the defendants Hazard and Foster, took said premises and property subject to the unpaid principal and interest on the receiver’s certificates, as required by the judgment aforesaid ; that the principal of said certificates with interest from January 1, 1886, became due and payable on the 2d day of April, 18S6, and that on that day the said certificates, amounting to $250,000, held by the plaintiff, were duly presented to -the Farmers’ Loan and Trust Company of the city of New York, where the same were payable, and payment thereof was demanded, but the same was refused, and that the whole of said principal with interest from the 1st day of January, 1886, is now due and unpaid. The complaint then gives a description of the railroad premises mentioned in the judgment in the Sackett suit and in the referee’s deed; alleges that -the. defendants or some of them are now in possession of the property'' above described, and are using and operating the same for-railroad purposes, and that all the defendants have or claim, to have some interest in or lien upon said premises dr some part thereof, which interest or lien; if any, has accrued subsequently to the lien of said certificates, and that there is now justly due the plaintiff upon said certificates held by it the sum of $250,000, with interest from January 1, 1886.</p> <p>The complaint then prays that the unpaid principal and interest of said receiver’s certificates may be adjudged to be a lien upon said premises ; asks for .the usual judgment of foreclosure, for a receiver and for a sale, and that out of the moneys arising from the sale of said premises, plaintiff and other holders’of said certificates who may come in and prove their title thereto and the amount due thereon, may be paid the amount due on said certificates with interest and costs, so far as the amount of such moneys properly applicable thereto will pay the same, and that the defendants Hazard and Foster may be adjudged to pay any deficiency that may remain after applying said moneys so applicable thereto, and for general relief.</p> <p>The defendants all appeared and answered. Hazard and Foster answered separately, admitting their purchase substantially as alleged in the complaint, controverting some of the other allegations, and setting up as a distinct defence that they acquired the' property mentioned in the plaintiff’s complaint with notice that the receiver’s certificates were outstanding and of the sum justly due therefor, and that they have ever since been and now are ready and willing to pay the sum justly due on account of said receiver’s certificates, but that they are advised and believe that the plaintiff is not. entitled to receive payment thereof; that when the said property came into the hands of these defendants, it was subject to a lien for the amount actually due from the receiver and his successor in the trust for the amount of said receiver’s certificates, but for no other or greater amount; and that these defendants when they acquired the property succeeded to all the rights of the prior owners of the property as well as to their obligations; that in accepting the deed of the premises, they intended only to obligate themselves to pay the amount actually due from the receiver on account of such certificates, with proper interest, and no other or greater sum by way of profit, and defendafits aver that they incurred no greater or other obligations in the premises.</p> <p>The defendant the New York, Rutland and Montreal Railway Company also put in a separate answer. It alleged, among other things, that defendants Foster and Hazard had conveyed and- transferred to it all the property and franchises conveyed to them by the'referee in the Sackett suit subject to the payment of the sum justly due by said receiver, but not subject to any greater sum, and it controverts the allegations as to the amounts due on the receiver’s certificates. .</p> <p>The American Loan and Trust Company also answered separately, setting up that it was the holder of a mortgage executed to it by the New York, Rutland and Montreal Railway Company, and-denying knowledge or information as to the matters charged in the bill.</p> <p>The case came on for a hearing on pleadings and proofs, and after full argument, on March 24,1887, a decree was passed of which the following is a copy (omitting the description of the property, which is the same as that contained in the complaint in this action):</p> <p>“It was ordered, adjudged aud decreed as follows:</p> <p>“ That the certificates of indebtedness issued by John W. Van Valkenburgh, as receiver of the Lebanon Springs Railroad Company, under and in pursuance of an order of the Supreme Court of the State of New York, bearing date the 2d day of April, 1S81, made in an action in said Supreme Court, wherein one Marvin Sackett was plaintiff, and Russell C. Root and others were defendants, amounting in the aggregate to $350,000, are a lien upon the premises and property described in the bill of complaint herein, in the hands of the defendants herein, and of any persons claiming through or under the defendants Rowland N. Hazard and William Foster, Jr., the purchasers of said premises and property, at a sale thereof made under and in pursuance of the judgment rendered in said action in said Supreme Court on or about the 12th day of January, 1885; and that the complainant, the Central National Bank of Boston, is the holder and owner of certain of said certificates, amounting in the aggregate to $250,000 of principal thereof, upon which there is now due and unpaid' to the complainant the said sum of $250,000, with interest at the rate of six per cent per annum thereon from the first day of January, 1886.</p> <p>“ That it be referred to William Lansing, Esq., of the city of Albany, who is hereby appointed a master pro hac vice in this cause to examine, ascertain and report who are the holders other than the complainant of said certificates of indebtedness, and how much remains due and unpaid thereon. And the said master is hereby authorized and directed to give notice by advertising in two daily newspapers, published in the city of Albany in said district, requiring the holders of said certificates to produce the same before the said master at his office in the city of Albany, at such time as he shall designate (which shall be at least twenty days after the first publication of said notice), and make proof as to their title thereto, and the amount due thereon; and the said master is also authorized and directed to inquire, ascertain and report what would be the just proportion and amount for the said other holders of said certificates to contribute to the expenses of this suit.</p> <p>“That the premises and pi’operty described in the bill of complaint in this cause, as hereinafter set forth, or such part thereof as is sufficient to satisfy the amount due and unpaid on said certificates,' and expenses of sale and the costs of this suit, and which may be sold separately without material injury to the parties interested, be sold at public auction in the county of Rensselaer, in said district, by or under the direction of Worthington Fi’othingham, Esq., who is hereby appointed a referee for said purpose ; that the said referee give public notice of the time and place of such sale according to law and the practice of this court; that the complainant or any other party to this suit may become a purchaser on such sale; that the said referee execute to the purchaser or purchasers a deed or deeds of the premises and property sold; that out of the moneys arising from such sale, after deducting the amount of his fees and expenses on such sale, the said referee pay to the complainant or its solicitors the amount of' its costs and disbursements to be taxed herein; that he also pay to the complainant or its solicitors the amount due to it on said certificates as aforesaid, together with the interest thereon from the 1st day of January, 1886; and that he pay to the holders of the other said certificates respectively the amount of principal and ' interest due thereon, as the same may be found and reported by the said master as aforesaid; but if the moneys arising from such sale, after the payment of said costs and expenses as aforesaid, shall not be Sufficient to pay the said certificates with interest in full, then that the said referee pay and distribute the said moneys, after the payment of the fees, expenses, costs and disbursements above mentioned, to the said certificate holders, including the complainant, pro rata, in proportion to the amount of principal and interest due to said certificate holders respectively; that the said referee bring the surplus moneys arising from the said sale, if any there shall be, into court within twenty days after the same be received, to be there subject to the order of the court; that the said referee make a report of such sale, and file the same with the clerk of this court with all convenient speed; that if the proceeds of such sale be insufficient to pay the amount due to the complainant as aforesaid, with interest and costs as aforesaid, and also to pay the other certificate holders the amount due to them respectively, as may be ascertained by said master as aforesaid, the' said referee specify the amount of such deficiency in his report of sale, and that the defendants Rowland N. Hazard and "William Foster, Jr., pay to the complainant, and to the other of said certificate holders, the residue of the indebtedness on said certificates remaining unsatisfied after the sale of said property and the application of the proceeds pursuant to the directions contained herein; and that the complainant and the other of said .certificate holders, to be ascertained as aforesaid, have execution thereof; and that the purchaser or purchasers at such sale be let into possession on the production of the said referee’s deed and a certified copy of the order or decree confirming the said referee’s report of sale.</p> <p>“ And it is further ordered, adjudged and decreed that the defendants and all persons claiming under, them, or any or either of them, after the filing of the notice.of pendency of this suit, be forever barred and foreclosed of all right, title, interest and equity of redemption in the said premises so sold or any part thereof. The following is a description of the premises and property hereinbefore referred to and thereby directed to be sold, as contained in a certain mortgage made by the said the Lebanon Springs Railroad Company to the Union Trust Company, and which were conveyed by the deed executed by George McClellan, referee, to the defendants William Foster, Jr., and Rowland N. Hazard, referred to in the' bill of complaint herein.</p> <p>[Description.]</p> <p>“ Leave is hereby reserved to the complainant and to the other certificate holders above referred to, or any of them, to apply upon the foot of this decree for the appointment of a receiver to take immediate possession of the property above described, and to keep the same until the sale under this decree shall be consummated by the delivery to the purchaser or purchasers at such sale of a referee’s deed or'deeds, and to deliver the property so sold to such purchaser or purchasers, with the powers usually possessed by receivers in such cases.”</p> <p>Subsequently, in pursuance of the decree, the holders of the certificates appeared before the special master and made proof of their ownership thereof, and said master, on February 7, 1888, made a report accordingly, finding the names of the holders thereof and the amounts due them respectively.</p> <p>On March 23, 1S!)2, in pursuance of an order of sale made by the said Circuit Court of the United' States, Worthington Frothingham, as referee, sold the said' premises and property described in the complaint • (and described in the deed of George McClellan, referee, to Foster and Hazard) to William Foster, Jr.', for the sum of seventy-five hundred dollars, and on April 25, 1S92, executed and delivered a deed therefor to the said William Foster, Jr.</p> <p>On December 8,1890, Aaron R. Stevens, Harper W. Rogers, Nancy E. Wilbur, Andrew A. Douglas, as trustee under the will of W. II. Douglas, deceased, and Ida S. Harrison, for themselves and other holders and owners of bonds issued by the Lebanon Springs Company and the Harlem Extension Railroad Company, filed a petition or bill of complaint in the Supreme Court of New York against the Union Trust Company of New York, James C. Hull, William- Butler Duncan, John G. McCullough, as administrator of the goods, chattels and credits of Trenor W. Park; deceased; the New York, Boston and Montreal Railway Company, Jesse Seligman, John Crosby Brown, William Watts Sherman, Daniel Butter-field, as receiver of the property of the New Yoi-k, Boston and Montreal Railway Company; Marvin Sackett, Russell C. Root, the Harlem Extension Railroad South Coal Transportation Company, the Central National Bank of Boston, Peter Butler, as receiver of the property of the Pacific National Bank of Boston; the Massachusetts Mutual Life Insurance Company, and others.</p> <p>In this petition there is a history of the Lebanon Springs Railroad Company and the Harlem Extension Railroad Company, and of the several legal proceedings whereby the roads, property and franchises of these companies became vested in the New York, Rutland and Montreal Railway Company, which is substantially the same with that heretofore made in this statement. But the petition assailed the action brought by Sackett in 1880, and which resulted in the sale to Foster and Hazard in 18S5, as fraudulent and collusive, and alleged that “the suit by Sackett was brought and conducted, not with the intention of realizing the said property for the benefit of the bondholders or any of them, or of himself as bondholder, but collusively and with the intent that he and others should receive large sums of money from the said property under color of the payment of claims, which, even if valid, were subordinate to said mortgages, and with the intent that said railroad and property should be acquired by others free from the lien of said mortgages, and without realizing anything ;to the holders of said bonds.”</p> <p>The petition further alleged that “ afterwards the defendant, the Central National Bank of Boston, claiming to own such certificates to the amount of two hundred and fifty thousand dollars, stated at par of the principal of the same, brought an action in this court against the defendants Foster and Hazard, the New York, Hut-land and Montreal Kail way' Company, and the American Loan and Trust Company ; that in that action the plaintiff prayed for the sale of the said railroad and property for the satisfaction of the certificates; that said action was removed into the Circuit Court of the United States, and such proceedings have been had therein that a decree has passed whereby it is provided that the said railroad and property be sold by a master of that court for the payment of the said certificates.”</p> <p>The prayers for relief were as follows:</p> <p>“ 1. That it may be adjudged that the owners of the bonds issued by the Lebanon Springs Kailroad Company have a first lien upon the said railroad and property, and the owners of the bonds issued by the Harlem Extension Kailroad Company a second lien thereon, in preference of all others. That the bond- and mortgage executed by the defendants Hull and Lincoln to the defendant Duncan and the said Park is held for the benefit of the owners of said bonds and represents their interest solely, and that defendants Brown and Seligman redeliver the same.</p> <p>“ 2. That the judgment in the action brought in this court by the defendant the Union Trust Company, and the decrees in the two actions brought by that company in the Court of Chancery of Yermont, be now specifically enforced, and the mortgage by the said Hull and Lincoln be now foreclosed, and that the said railroad and property be sold under said judgments and decrees, and said mortgage of Hull and Lincoln, for the benefit of this plaintiff and all other of the owners of the Lebanon Springs and Harlem extension bonds, and that all of the defendants, in this action be barred and foreclosed of all right, title, interest and equity of redemption, of, in and to the said railroad and property and any part of the same.</p> <p>“ 3. That it may be adjudged that the certificates issued by the said Yan Yalkenburgh were beyond the power of this court to issue and are of no validity except to bind the interest represented by the eight bonds of the said Marvin Sackett, and the interests of the defendants in the action brought by said Sackett.</p> <p>“ 4. That all of the defendants in this action and all other persons be enjoined, as well temporarily by order as permanently by judgment, from interfering with any part of the said railroad or property.</p> <p>“ 5. That a receiver be appointed, with the usual powers of receivers, to take possession of, preserve and operate said railroad and property until further order of the court.</p> <p>“ 6. That the plaintiffs have such other and further relief as to the court shall seem just, besides costs.”</p> <p>To this petition the Central National Bank of Boston filed its separate answer, in which, after admitting certain allegations in the petition, relative to the history of the railroad companies, the said defendant set forth the procéedings in the suit of Sackett, including the appointment of Yan Yalkenburgh as receiver, the authority given such receiver by the court to issue and negotiate the said certificates, and the purchase by the defendant of $250,000 of said certificates for full ■value. The answer further alleged, in response to the petition, that the suit was brought by Sackett for himself as bondholder and on behalf of all other bondholders; that other bondholders, representing all, or nearly all, the bonds issued by the Lebanon Springs Railroad Company, had knowledge of the pendency of said suit by Sackett, and were represented by attorneys and counsel, although not nominally made parties to the action ; that Foster and Hazard became purchasers at the sale, and that, by the terms of the sale, they had assumed the payment of the unpaid portion of said certificates as part of the consideration of the purchase; and further alleged that said judgment of the Supreme Court of New York had never been appealed from, reversed or in any way vacated or modified, and was binding and conclusive, not only upon the parties to said action, but upon the other holders of said bonds issued by the Lebanon Springs Railroad Company. The answer then proceeded to set forth proceedings in the Circuit Court of the United States, including the decree of March 24, 1887, and to pray, among other things, that the petition should be dismissed upon the merits, and that a decree may be rendered recognizing the rights, of the defendant the Central National Bank of Boston as a holder of said certificates as such rights had been theretofore established by the decree of the Circuit Court of the United States.</p> <p>The American Loan and Trust Company filed its separate answer, admitting some and denying other allegations of the petition. Hazard and Foster also filed a separate answer on their own behalf, in which they allege that the Sackett suit was brought and pursued in behalf of all the bondholders; that they, Foster and Hazard, had purchased the railroad property-and franchises in good faith, and that by the judgment, decree and sale in said suit;all the rights of said bondholders,, plaintiffs in this suit, were cut off and barred, and that they, Foster and Hazard, had thereby acquired a good and valid title to said property and franchises, and thereupon they prayed that the complaint be dismissed and that a decree be rendered establishing their rights as purchasers of said road under said'judgment and decree.</p> <p>The New York, Rutland and Montreal Railway Company likewise filed a separate answer, denying the principal allegations of the petition, and praying that the rights of said company as purchaser of said road from Foster and Hazard should he confirmed, and that the complaint be dismissed.</p> <p>Certain other individual defendants, holders of receiver’s certificates, likewise answered, denying these allegations of the petition which assailed the validity of the proceedings in the Sackett suit, and praying that the said petition should be dismissed. Separate answers were likewise filed by Seligman and Brown, and by William B. Duncan substantially to the same effect.</p> <p>Upon'the first trial of this action judgment was rendered in favor of the defendants, dismissing it on the merits. On appeal that judgment was reversed by the general term and a new trial ordered. ■ Stevens v. Union Trust Co., 57 Hun, 498.</p> <p>At the new trial judgment was rendered in favor of the plaintiffs on November 10, 1891, and this judgment, having been affirmed by the general term, was taken on appeal to the Court of Appeals, whose judgment, rendered November 27, 1894, affirmed that of the court below. Stevens v. Central Nat. Bank, 144 N. Y. 50. This writ of error was then sued out.</p> <p>Upon sale made by John L. Henning, as referee, under the judgment of the Supreme Court in this case, pending the appeals, there whs executed and delivered to said William Foster, Jr., by said referee a deed of conveyance of the railroad, property and franchises, dated May 16, 1892; and, as already stated, on March 23, 1892, the railroad was sold and conveyed .to William Foster, Jr., by the referee appointed by the decree of the United States court.</p> <p>After the judgment of November 10, 1891, William Foster, Jr., brought an action in the Supreme Court of New York against the Central National Bank and other holders of certificates, seeking .to set aside that portion of the decree of the United States Circuit Court of March 24, 1887, which adjudged that Foster, .either alone or with Hazard, pay the Central Bank and other certificate 'holders the deficiency that might exist in the payment of the certificates after the application of the proceeds of the sale of the road, and to annul and enjoin the decree that execution issue for such deficiency; and that this action, so brought by Foster, has been removed, on the petition of the ■ Central National Bank, to the Circuit Court of the United States for the Northern District of New York, where it is now pending.</p>

Tub appellees in the first of the above cases were the plaintiffs below, and are citizens of Massachusetts and stockholders of the Union Pacific Railway Company. They sued on behalf of themselves and all others similarly situated.

The plaintiffs in this suit, appellees here, are the President and 'Trustees of Bowdoin College, a corporation of Maine, and. a large number of individuals who are citizens of States other than California. They sued on behalf of themselves and of all other beneficiaries under a certain deed of trust made and entered into between Catharine M. Garcelon, of the first part, and John A. Stanly and Stephen W. Purington, trustees, of the second part.

Held: Avhere the property taken Avas a breAvery in *579 operation, the damages included the. necessary loss in finding another place of business. In cases where damage is by injury aside from the actual taking of property, the rule has been to make the party whole as nearly as practicable, and where it affected the rental value or enjoyment the same principle has been applied as in other cases.

Two motions were made in this case. The defendant in error made a motion to dismiss the writ on the ground of Avant of jurisdiction. The plaintiff in error obtained from this court a rule against the relator Caldwell to show cause Avhy he should not be punished as for a contempt in proceeding upon the judgment of the state court after a writ of error from this court had been allowed and a supersedeas bond duly filed. The two motions Avere heard together.

Held: the court cannot compel the defendant to perform it after his power to perform has ceased. And if a successor in office maybe substituted, he may be mulcted in costs for the default of his predecessor, without any delinquency of his own. Besides, were a demand made upon him, he might discharge the duty and render the interposition of the court unnecessary.

This was a question certified to this court by the Circuit Court of Appeals for the Sixth Circuit, involving the authority of á primary examiner of the Patent Office to reject as invalid claims of an original patent which were incorporated in an application for a reissue.

<p>The act of Kansas of 1891, c. 201, as amended and as it-appears in 2 Gen. Stats. Kansas, 1897, 761, c. 139, relating to bringing into the State cattle liable or capable of communicating Texas, splenic or Spanish fever to any domestic cattle of the State, and providing for the trial of civil actions brought to recover damages therefor, is not overridden by the act of Congress of March 29, 1884, 23 Stat. 81, c. 60, known as the Animal Industry Act, nor by the act of March 3, 1891, 26 Stat. 1044, 1049, c. 544, appropriating money to carry out the provisions of the above act, nor by section 5258 of the Revised Statutes, authorizing every railroad company in the United States, operated by steam, its successors and assigns, “ to carry upon and over its road, .boats, bridges and ferries all passengers, troops, Government supplies, mails, freight and property on their way from any State to another State, and to receive compensation therefor, and to connect with roads of other States so as to form continuous lines for the transportation of the same to the place of destination ”; as Congress has not assumed to give to any corporation, company or person the affirmative right to transport from one State to another State cattle that were liable to impart or capable of communicating contagious, infectious or communicable diseases.</p> <p>Whether a corporation transporting, or the person causing to be transported from one State to another, cattle of the class specified in the Kansas statute should be liable in a civil action for any damages sustained by the-owners of domestic cattle by reason of the introduction into their State of such diseased cattle, is a subject about which the act of March 29, 1884, c. 60, 23 Stat. 31, known as the Animal Industry Act, did not make any provision.</p> <p>The provision in the Kansas act imposing such civil liability is in aid of the objects which Congress had in view when it passed the Animal Industry Act, and it was passed in execution of a power with which the State did not part when entering the Union, namely, the power to protect the people in the enjoyment of their rights of property, and to provide for the redress of wrongs within its limits, and is not, within the meaning of the Constitution, nor in any just sense, a regulation.of commerce among the States.</p> <p>A state statute, although enacted in pursuance of a power not surrendered to the General Government, must in the execution of its provisions yield in case of conflict to a statute constitutionally enacted under . authority conferred upon Congress; and this, without regard to the source of power whence the state legislature derived its enactment..</p> <p>Neither corporations nor individuals are entitled by force alone of the Constitution of the United States and without liability for injuries resulting-therefrom to others, to bring into one State from another State cattle liable to impart or capable of communicating disease.to domestic cattle.</p> <p>Although the powers of a State must in their exercise give way to a power exerted by Congress under the Constitution, it has never been adjudged that that instrument by its own force gives any one the right to introduce into a State, against its will, cattle so affected with disease that their presence in the State will be dangerous to domestic cattle.</p> <p>Prior cases reviewed and held to proceed upon the ground that the regulation of the enjoyment of the relative rights, and the performance of the duties, of all persons within the jurisdiction of a State belongs primarily to such State under its reserved power to provide for the safety of all persons and property within its limits; and that even if the subject of such regulations be one that may be taken under the exclusive control of Congress, and be reached by national legislation, any action taken by the State upon that subject that does not directly interfere with rights secured by the Constitution of the United States or by some valid act of Congress, must be respected until Congress intervenes.</p> <p>An act of Congress that does no more than give authority to railroad companies to carry “ freight and property ” over their respective roads from one State to another State, will not authorize a railroad company to carry into a State cattle known, or which by due diligence may be known, to be in such a condition as to impart or communicate disease to the domestic cattle of such State.</p> <p>If the carrier takes diseased cattle into a State, it does so subject for any injury thereby done to domestic cattle to such liability as may arise under any law of the State, that does not go beyond the necessities of the case and burden or prohibit interstate commerce, and a statute prescribing as. a rule of civil conduct that a person or corporation shall not bring into the State cattle known, or which by proper diligence could be known, to be capable of communicating disease to domestic cattle, cannot be regarded as beyond the necessities of the- case, nor as interfering, with any right intended to be given or recognized by section 5258 of the Revised Statutes.</p> <p>If Congress could authorize the carrying of such cattle from one State into another State, and by legislation proteet the carrier against all suits for damages arising therefrom,' it has not done so, nor has it enacted any statute that prevents a State from prescribing such a rule of civil conduct as that found in the statute of Kansas.</p>

<p>APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT.</p> <p>The case is stated in the opinion.</p>

United States v. Wong Kim Ark, 169 U.S. 649 (1898), is a landmark decision of the Supreme Court of the United States which held that "a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China" became "at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution." Wong Kim Ark was the first Supreme Court case to decide on the status of children born in the United States to alien parents.