Volume 180 — United States Reports

Held: first, that the legislature could not grant an exemption .to a railway company under the constitution of 1869; second, that it could not grant an irrepealable exemption under that constitution; third, that a new company was formed by *14 the consolidation of October 24,1892, and no exemption passed into it; fourth, that if the consolidation were a technical merger, still section 180 of the constitution of 1890…

'E- OF MISSISSIPPI. This was an action against the Yazoo Company and the Illinois Central Company for state, county, municipal and privilege taxes for the year*lS98, upon the property of the Louisville, New Orleans and Texas Company, which became the property of the Yazoo Company by virtue of the consolidation of October 24, 1892, and has since been operated by the defendants.

<p>An appeal to this court from a Circuit Court will not be dismissed upon the ground that, after an injunction against the collection of certain taxes was refused by the Circuit Court, and while the suit was still pending in that court, defendant brought suit in the state court and recovered the taxes in question. The defence of res adjudicata cannot be made available upon motion to dismiss an appeal.</p> <p>Jurisdiction, is the right to put the wheels of justice in motion, and to proceed to the final determination of the cause upon the pleadings and evi-' dence. It exists in the Circuit Courts, if the plaintiff be a citizen of one State, the defendant a citizen of another, if the amount in controversy . e.xceed $2000, and if the defendant be properly served with process within the district.</p> <p>A failure to allege a compliance with the Ninety-fourth rule in equity concerning bills brought by stockholders of corporations against the corporation and other parties, does not raise a question of jurisdiction but of the authority of the plaintiff to maintain his bill.</p> <p>As the bill set up a contract with the State in a railway charter, and .also averred that such contract had been impaired bysubsequent legislation, it was held that the bill presented a case under the Constitution of the United States, and that jurisdiction might be sustained upon,that ground alone.</p> <p>The question whether a suit, nominally against an individual by name, is in reality a suit against the State within the Eleventh Amendment to the Constitution! is a defence to the merits rather than to the jurisdiction of the court.</p> <p>Such defence.should be raised either by demurrer or other appropriate pleadings, and cannot be made available upon motion to dismiss.</p> <p>Motions are generally appropriate only in the absence of remedies by regular pleadings, and- cannot be made available to settle important questions of law, or to dispose of the merits of the case.</p> <p>As tire suit was against a revenue agent appointed by the State who represented all the parties interested, to enjoin the collection of a gross sum far exceeding the jurisdictional amount, the fact that such sum when col- ' lected would ultimately be distributed in small amounts to the various municipalities interested, does not defeat the jurisdiction of the court. ■</p>

This was an action begun in the circuit court of Hinds County, Mississippi, by Adams, as state revenue agent, suing for tbe use and benefit of certain cities and towns through which the defendant railway runs, to recover municipal taxes upon its property for the years 1893 to 1896, inclusive.

Held: that the failure to present the claim was not a bar to the right of recovery, the restriction of presentment of claims without reference to the time of loss being unreasonable. The court seemed to assume that the stipulation imposed a restriction- which in many cases would deny a right of action, and thereby permit the carrier to contract against his negligence, which is never allowed.

<p>error to the court of appeals of THE DISTRICT OF COLUMBIA.</p> <p>The case is stated in the opinion of the court;</p>

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

<p>APPEAL FROM THE CIRCUIT COURT FOR THE EASTERN DISTRICT OF -' LOUISIANA.</p> <p>The case is stated in the opinion of the court.</p>

<p>EBBOB TO THE SUPBEME COUBT OP THE STATE OP LOUISIANA.</p> <p>This was a motion to dismiss or affirm. The case is stated in the opinion of the court.</p>

Held: That as there .was no evidence of a formal grant, and as the District relied upon an alleged dedication of the trust to the uses to which the District put it, the issue was properly submitted to the jury: (2) That the Court did not err in holding and instructing the jury that the use of the tract by the.public must have been adverse.to the owner of the fee; (3) That there was no error in holding and instructing the…

<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 of the court.</p>

This was an action brought on June 25, 1895, in the Circuit Court of the United- States for the Northern District of Illinois, by Michael F. Dooley, as receiver of the First National Bank of Willimantic, Connecticut, against James Pease, a citizen of the State of Illinois. The declaration complained of a trespass by the defendant, who was sheriff of Cook County,.

Held: That it was not intended by the parties that the policy.should become void unless the fireproof safe was one that was absolutely sufficient against every fire that might occur; but that it was sufficient if the safe was such as was commonly used, and such as, in the judgment of prudent men in the locality of the property insured, was sufficient: (2) That if the plaintiffs had the right, under the terms of the…

Held: that the question could not be said to be free from doubt, but that it was the settled doctrine of the court that in case of ambiguity the Judicial Department will lean in favor of a construction given to a statute by the Depai’tment charged with the execution of such statute, and, if suoh construction be acted upon for a number of years, will look with disfavor upon any sudden change, whereby parties, who have…

This action was commenced in the Superior Court of the State of Washington for Garfield County.

This action was commenced in one of the courts of the State of Washington by the present plaintiffs in error.

On the 12th day of December, 1888, the Northern Pacific Railroad Company selected the northeast quarter of section 3, in township 13 north of range 42 east, Willamette meridian, fin Garfield County, Washington, under the direction of the Secretary of the Interior, as indemnity in lieu of other lands.

<p>CEETIOEAEI TO THE CIB0UIT COUET OF APPEALS FOE THE FIFTH CIBOUIT.</p> <p>This was a bill filed by Mrs. M. M. Fisber, joined and authorized by her husband, John Fisher, citizens of the Kingdom of. Spain, May 11, 1896, against the city of New Orleans, in the Circuit Court of the United States for the Eastern District of. Louisiana, which alleged — ■</p> <p>“ That she recovered a judgment in this hon. court against the board of school directors, a corporation created by the laws of the State of Louisiana, and a citizen thereof, in the sum of more than ten thousand dollars, as more fully appears by the record of said suit; "</p> <p>“ That your oratrix obtained two other judgments against the same school board, before the civil district court for the parish of Orleans, amounting in the aggregate to many thousand dollars;</p> <p>“ That all of said judgments are now final; that they are made payable out of the school taxes levied by the city of New Orleans, prior to 1879.</p> <p>“ Your oratrix .avers that the school taxes out of which said judgments have been made payable, is a trust fund levied by the city of New Orleans, for the purpose of paying the expenses of the public schools of the city of New Orleans.</p> <p>“1st. That the city of New Orleans has failed to collect the said taxes punctually and that it was through her fault and negligence that the same remain uncollected, and by reason of her neglect she. has become liable for the amount of taxes yet remaining uncollected,</p> <p>“ 2d. Your oratrix further complains and says that said taxes, under the law, carried interest at the rate of ten per cent per annum and that the city of New Orleans has never paid to the school board any of the interest due on said taxes, but-she has misapplied and diverted the same to other unlawful uses.</p> <p>“ 3d. Yoúr oratrix further avers that the school board created the obligation against said school taxes, by virtue of contracts which were legally entered into and your oratrix was protected by the Constitution of the United States from any impairment of her contract.</p> <p>“ That in violation of this constitutional right, the State of Louisiana passed act 82 of 1884, which directed that the property of delinquent taxpayers should be sold for what it would bring and that all taxes due thereon should by virtue of said sale be cancelled.</p> <p>“ That by reason of said law, the city of New Orleans allowed the property on which the school taxes were due to be sold for state taxes, and she caused the city taxes, including the school-taxes, to be cancelled; that she was thus guilty, 1st, as a delinquent trustee for not having enforced the collection of the said tax; and 2d, for having failed to. protect the interest of your oratrix at said state tax sale; that the cancellations thus made amount to many thousands of dollars.</p> <p>“ 4th. That the said city of New Orleans at various times passed ordinances cancelling and annulling the said taxes and remitting the interest thereon:</p> <p>“That your oratrix is unable to give the exact amount of each kind of violations of her obligations by the trustee, and it is absolutely necessary to make the city of New Orleans account for the various amounts which have been lost to your oratrix through the unfaithfulness of said trustee.</p> <p>“ That the board of school directors to whom the city of New Orleans should account have refused to demand such an account and will continue so to do and your oratrix would be left without a remedy.</p> <p>“That the fund which the city'of New Orleans administers seems now to be sufficient to satisfy the demands of all the creditors who are entitled to be paid out of the same.</p> <p>“ Your oratrix further avers that her judgments are made directly payable out of the school taxes levied prior to 1879 and she has an equitable lien thereagainst enforceable before a court of equity.</p> <p>“ She further avers that under the law her certificates which are merged in her judgments have been under the law, received by the city of New Orleans, directly in payment of the school taxes without the intervention of the board of school directors.</p> <p>“ That for those reasons your oratrix brings her bill against the city of New Orleans and the board of directors of the city schools of New Orleans for an account.</p> <p>“Your oratrix brings this bill for herself and all parties similarly situated who are willing to appear and contribute to the costs thereof, they being too numerous to be made parties hereto.”</p> <p>The prayer was that ■ the city school board and the city answer, and “ give a full, fair and perfect account of all the school, taxes collected by the city of New Orleans for the years 1873, 1874, 1875, 1876, 1877 and 1878; of all the interest received thereon by said city and never accounted for ; of all. the taxes which were not collected for -want of proper enforcement, and which have since been cancelled both by sales made by the state tax collectors and by ordinance adopted by the city council ; ” and for general relief.</p> <p>Subsequently a supplemental bill was filed in respect of property alleged to have been acquired by the city through seizures for taxes.</p> <p>The bill was taken as confessed as against the school board, and general demurrers were, filed by the city, and overruled.</p> <p>The .city thereupon, March 12, 1897, answered, admitting “that oratrix recovered judgments .against the board of school directors, a corporation of the State of. Louisiana, and a citizen thereof, both in this honorable court'and in the civil district, court for the parish of Orleans as is set forth in oratrix’s bill of: complaint and records annexed thereto and referred to therein; ” i “ that all of said judgments are now final and are payable as decreed and provided for in the said judgments; ” but denying “ that the school taxes out of which said judgments have been made payable is a trust fund levied by the city of New Orleans for the purpose of paying the expenses of the public schools of said city; ” and “ that it has ever failed to collect said taxes punctually, and denies that any of the same remain uncollected, and denies that if any of the same remain uncollected, they so remain by reason of any negligence on the part of this defendant, and denies that defendant is liable at all for the amount of any such taxes yet remaining uncollected, if any such there be.”</p> <p>Also admitting “ that the city of New Orleans had never paid to the school board any interest which she may have collected on any back taxes, and defendant denies that any such interest, if same has ever been collected, was due to the school board, and defendant denies that she has ever misapplied of diverted to unlawful uses any interest that she may have collected from delinquent taxpayers or back taxes, and defendant avers and shows that by express provision of law all interest which she may collect on any back taxes is especially set aside for certain purposes and cannot by her be used for school purposes or for any other purpose than that commanded by law; ” and denying “ that the school board created the.obligatio.ns against the school taxes, set forth in oratrix’s bill of complaint, by virtue of any contracts legally entered into, and denies that the oratrix has any right to invoke the protection of the Constitution of the United States herein, and denies that the provisions of the same regarding impairment of contract have been in any manner violated by this defendant“ that act No. 82 of 1884 was passed in violation of any constitutional rights of oratrix in the premises,- and defendant declares that whatever was done by the State of Louisiana in passing the said act, if it was done, was within the legislative authority, and the said taxes and legislative provisions were ■subject to change, amendment and repeal by the same authority which created .them, and -defendant shows and avers that the city of New Orleans had no authority or control over the action of the legislature in the premises; ” “ that the city of New Orleans allowed any property on which school taxes were due, to be sold for said taxes, and denies that she caused the city taxes, including the school taxes, to be cancelled; ” “ that she has been or is guilty as a delinquent trustee for not having enforced the collection of said taxes, denies that she ever was a trustee-in the matter, denies that she ever failed to enforce the collection of any taxes which it was her duty to enforce, denies that it ever was her duty to protect the interests, if any she had, of oratrix, at said tax sales, denies that oratrix had any such interest and denies that there were any such tax sales“that any cancellations amounting to many thousands of dollars, or to any amount, were made by reason of said sales as set forth in oratrix’s bill of complaint;” “that the city of New Orleans passed ordinances cancelling and annulling any taxes, or remitting any interest thereon, but if any taxes were so cancelled or remitted, defendant avers the same was done by authority of law or by judgment of a competent court. Defendant denies that there was or is any obligation on the part of the city to . account either to the school board or to the oratrix for any taxes, moneys or appropriations such as are set forth in oratrix’s bill of complaint.” •</p> <p>The answer further denied “ that it was the duty of the school board to call' this defendant to account, and denies that the school board or the' oratrix herein has any cause of action against-this defendant for such an account. Defendant denies that there was any privity between the school board and this defendant, or between Mrs. Fisher and this defendant. And further answering defendant says, that if any such cause of action for an accounting ever did exist in favor of said school board or of said oratrix, the same was effective and executory in the year 1880, and became actionable and exigent in the year 1880, and in the years following the year 1873 up to 1879 inclusive; that said action of accounting was personal to said school board and could only be exercised and availed of by the said school board, which action is prescribed by the lapse of ten years from and after each of the said years, and that oratrix has no right or cause of action in the premises; ” and “ that there is any fund now administered, or. which ever was administered by the city of New Orleans, derived either from appropriations, taxes or money said to be due said school board, and denies that if there is or was any such fund, that the said school board or oratrix has any rights in the premises.”</p> <p>It was admitted “ that the judgments of oratrix are payable as stipulated in said judgments,” but denied “ that oratrix has any equitable lien enforceable against the city of New Orleans before a court of equity by reason thereof;” and also “that under the law were the services which she alleges have been merged in her judgments ever received by the city of New Orleans directly in payment of the school taxes without the intervention of the board of school directors.”</p> <p>The city further denied the purchase of property “ for the taxes due for the years during which oratrix’s claim is alleged to have arisen;” any resulting trust if purchases had been made; any statutory lien; and “ that the oratrix has any right or reason to invoke the equitable jurisdiction of this honorable court.”</p> <p>Replication was filed, and-the cause referred to a master “ to take a full, true, fair and perfect account of all the funds, principal and interest; received by the city of New Orleans from the school taxes levied in 1871, 1873, 1874, 1875, 1876, 1877 and 1878, and of all interest remitted illegally, and of all properties purchased for said taxes as more fully prayed in the bill and supplemental bill filed .herein, and to that effect the parties shall produce before said master all books, papers, documents to be examined and which may be necessary or proper in the premises.”</p> <p>Numerous persons claiming to have judgments against the School Board, similar to the judgments of Mrs. Fisher, intervened and asked to share in the proceeds of any amount found to be due by the city of New Orleans on the accounting. May 22,1897, the master reported:</p> <p>“1st. The city of New Orleans owes the school board for the principal of school taxes collected and not paid over from the years 1871 to 1878, both inclusive, the amount of ,$23,180.03.</p> <p>“ 2d. The proportion of the interest actually collected by the city of New Orleans on the taxes of the years 18.71 to 1878, both inclusive, up to January 1st, 1897, to which the school board will be entitled, if it is entitled to the same proportion of the interest as of the principal of said taxes, is $48,758.75.</p> <p>“ It is a question of law whether the school board is entitled to any part of the interest. I think it is — the interest as a mere accessory of the principal belongs in my opinion to the same person .to whom the principal belongs. Accordingly in my opinion the amount the city of New Orleans now owes to the school board for taxes collected, and for interest on the taxes collected, is as above stated, $71,938.78.”</p> <p>That complainant had abandoned the attempt to show that the city owed anything on account of properties purchased for taxes. That the city was not chargeable “ with the calculated amount of interest not .collected.” And “that the following parties have proved their claims-against the fund herein, by judgments rendered in their favor against the school board, in the civil district court for the parish of Orleans, namely:</p> <p>“M. M. Fisher .........!................. $11,094 87</p> <p>“ ........................'..... 8,802 39</p> <p>“ ....•.................... .5,864 64</p> <p>T. J. Gasquet.........-.............'....... 57,059 69</p> <p>Jose Venta............................... 21,297 72”</p> <p>Complainants with several intervenors filed exceptions to the master’s report, and on June 7, 1897, the city of New Orleans filed exceptions as follows:</p> <p>■ “ Defendant excepts to that part of the report of the master wherein he expresses his opinion that the interest on taxes is a mere accessory of the principal, and belongs to the person to whom the principal belongs, and that, therefore, in his opinion, the city of New Orleans owes the school board for taxes collected and interest collected. Exceptor excepts to this on the ground that:</p> <p>“ 1st. It was no part of the master’s duty, under his reference, to decide this question or to express any opinion upon the question.of law involved therein, but in the event that the court overrules this exception and holds that such was his duty, then and in that case the city of New Orleans excepts to his conclusions of law, and asserts that, on the contrary, his conclusion is erroneous; that the interest does not follow the taxes, and does not belong to the party to whom the taxes belong.</p> <p>“ Defendant excepts to the statement of the master that the amount reported as collected out of the school taxes from 1871 to 1878, inclusive, is due by the city to the school board or to the board of liquidation at any time since its collection.”</p> <p>June 29, 1897, the city filed an exception to the jurisdiction of the court rations materia etpersona, averring “that plaintiff’s petition contains no averment that the suit could have been maintained by the assignors of the claim sued upon by Mrs. M. M. Fisher in the suit which forms the basis of this action; ” and on July 1, a plea in abatement “ that plaintiff, Mrs. M. M. Fisher, and defendant are both citizens of the State of Louisiana, and that by reason thereof this court is without jurisdiction ratione persona.” This exception hnd plea were afterwards stricken from the files as irregular and not filed in accordance with the rul.es. The city then offered in open court to file a motion and a plea further attacking the jurisdiction of the court, but leave was refusedand thereafter the case came on for final hearing on the bill, answer, replication, exhibits, proofs and testimony, and master’s report.</p> <p>Included in the evidence offered on behalf of complainant were the pleadings and judgment in the cause of Mrs. Fisher against the School Board, in which judgment was rendered in the Circuit Court, May 19,. 1892. The petition in that case alleged that Mrs. Fisher and her husband were “ both citizens of the Kingdom of Spain residing in the island of Cuba; ” counted upon a judgment against the School Board rendered by the civil district court of the parish of Orleans; and stated that the claim which formed the basis of the judgment was for salary due petitioner as a school teacher of the public schools of the city, and for the salary of other teachers, whose claims had been trans- ■ ferred to petitioner. The defendant filed an exception to the effect that the court was without jurisdiction as the rights, credits and school warrants proceeded on were held by petitioner under assignments, and that the assignors were all citizens of the State of Louisiana and without right to sue defendant in the Circuit Court. This exception was tried before a jury and a verdict rendered in favor of petitioner, whereupon the exception was overruled, and judgment was thereupon rendered in favor of petitioner for $8097.17, the amount of the judgment rendered in the state court. It appeared that on this judgment garnishee process had been served on the city treasurer and ex officio, treasurer of the School Board and the sums of $1893.09 and of $312.56, less costs, realized in 1894,. and in 1895.</p> <p>On February 21, 1898, the court gave judgment in favor of plaintiffs and intervenors, and, among other things, decreed: “ That the city of New Orleans, trustee of the special school taxes levied and collected for the years 1871 to 1878, inclusive, be condemned to pay plaintiffs and intervenors the said taxes, received and collected by her, as follows: $71,938.78 with five per cent interest per annum on $71,139.60 from January 24, 1881, and on $799.18 from May 11,1896, until paid. And it is further ordered that this bill be retained for a further accounting and such orders and decrees as may be necessary.”</p> <p>Mrs. Fisher died February 25, 1898, and on April 22, 1898, John Fisher was made party .complainant as natural tutor of his minor children. April 23,1898, the' city filed a petition for rehearing which was denied, but the court directed the final de- -' cree to be- amended so as to only allow interest on the amount recovered, to wit: $71,139.60 from February 21, 1898, the date of said decree, instead of from January 24, 1881, as theretofore allowed. On the same day, April 23, and prior to the decision on the rehearing, a plea in abatement was put in by the city to. the effect that John Fisher, being a citizen of Spain, was unable to prosecute the suit, and that it should he abated-because a state of war existed between Spain and the United States, and the subjects and citizens thereof. On the proofs the court was satisfied that complainant was a citizen of Great Britain, whereupon the plea was overruled. From the decree of the Circuit Court both parties appealed to the Circuit Court of Appeals for the Fifth Circuit, which modified the decree so as to allow five per cent interest on the sum of $71,139.60 from January 24, 1881, and on the sum of $799.18 from May 8, 1897,- and as so. modified the decree was affirmed with costs-. 91 Fed. Rep. 574.</p>

<p>CERTIORARI TO THE CIRCUIT OOIJRT OE APPEALS FOR THE FIFTH CIRCUIT. •</p> <p>This was a writ of certiorari to review a decree of the Court of Appeals, rendered May 1,1900,'affirming a decree of the Circuit Court for the Eastern District of Louisiana, rendered March 26, 1900, which overruled certain exceptions of the defendant, the city of New Orleans, to a master’s report upon the amounts due under a decree rendered by the Court of Appeals, May 7,1898, and affirmed by this court January 15, 1900. 175 U. S. 120.</p> <p>. The decree of the Circuit Court of Appeals, affirmed by this court, contained the following paragraphs:</p> <p>1. That the city of New Orleans was indebted to John G. Warner in the sum, of $6000 with interest, and that he was entitled to be paid such sum out of the drainage assessments set forth in the bill.</p> <p>2. That such drainage assessments constituted a trust fund in the hands of the city for the purpose of paying the claims of the complainant and holders of the same class of warrants issued under the act of sale from Warner Van Norden, transferee, to said city under authority of act No. 16 of the legislature of Louisiana, approved February 24, 1876.</p> <p>3. That it be referred to. a master to take and state an account of all said drainage assessments; that warrant holders be entitled to establish their claims before the master without formal interventions or special leave of the court, and that, upon the coming in of his report, complainant and other claimants would be .entitled to an absolute decree for the amounts due them, if the fund established by the accounting be sufficient, but if not sufficient to pay such claims in full, then for the proper pro rata thereof, etc. The other provisions of the decree are immaterial.</p> <p>Upon this reference warrants to the amount of $316,000, of a total of $320,000, ($4000 having been paid,) were presented by different parties, including Warner, and the master found, (1) that all these warrants were “ issued to Warner Van Norden, transferee of the Mexican Gulf Ship Canal Company, by the defendant, the city of New Orleans, in payment of the consideration of the agreement and-contract of sale between himself and said city, by act (of sale) . . . dated June 7,1876, as in said act specified, pursuant to the authority of the acf of the legislature of Louisiana, No; 16, datecFFebruary 24, 1876, as set forth in the complainant’s bill, etc.; , . . . that each of said warrants was indorsed in blank by Warner Van Norden, transferee, to whose order they were made payable, and delivered to said claimants, or other parties through whom they have acquired title; andthatthe'said'VanNordenhassince . . . formally transferred to the complainant, and to all holders of warrants who might intervene in this cause, any and all interest he ever had in said warrants, and subrogated .them to all his rights of-actions and remedies against the defendant appertaining to the same.”</p> <p>Exceptions were filed to this report upon the ground (1) that the advantages of the decree extended only to such warrants as were issued in payment of the property purchased by the act of sale, which said property as shown by the inventory and appraisement of T. S. Hardee, city surveyor, amounted to $153,750; “ that the balance of drainage warrants issued under said act were not in payment of the price of the property thereby sold, and hence were not purchase warrants in the sense of the opinions and decrees of the Circuit Court of Appeals and of the Supreme Court herein; that such balance of said warrants wbre issued in settlement of a claim for darnages urged by the Mississippi and Mexican Gulf Ship Canal Company, and Warner Yan Norden, against the city of New Orleans.” (2) “ That of said warrants the sum of $20,000 were issued, as will appear by the express terms of the act, in payment of work which had, been done by said Yan Norden, that is, digging canals and building levees, which, at the time of the passage of said act, had not been surveyed or measured by the city surveyor; and hence, that as to these warrants there could- be no recovery or allowance made.”</p> <p>In a supplemental report upon these exceptions the master found that the city issued warrants Nos. 313 to 392, inclusive, in discharge of the consideration of the agreement of sale passed before Le Gardeur, notary public, amounting to $300,000, and also issued warrants. Nos. 393 to 402, ^inclusive, aggiegating $20,000, not for work, but as a compromise for drainage taxes collected and misappropriated, as stated in -the said act of sale.</p>

In January, 1900, the State of Missouri filed in this court a bill of complaint against the State of Illinois and the Sanitary District of Chicago, a corporation of the latter State, in the following terms: “ The complainant, the State of Missouri, and one of the States of the United States, brings this its bill of complaint against the State of Illinois, one of the States of the United States, and the Sanitary District of Chicago, a public corporation, organized under the…

<p>APPEAL FROM THIS COURT OF CLAIMS.</p> <p>The case is stated in the opinion of the court.</p>

<p>The legislation in respect of the United States court in the Indian Territory considered: it is held that an appeal does not lie directly to this court from a decree of the trial court in the Indian Territory, although the suit in which the decree is rendered may have involved the constitutionality of an act of Congress. Whether an appeal lies to this court from the Court of Appeals of the Indian Territory in such cases is a question which does not arise on this record.</p>

Montoya v. United States (180 U.S. 261), was a 1901 decision of the United States Supreme Court. The decision was unanimous, with the opinion authored by Justice Henry Billings Brown. This United States Supreme court case came about when the surviving partner of the firm of E. Montoya & Sons petitioned against the United States and the Mescalero Apache Indians for the value their livestock which was taken in March 1880. It was believed that the livestock was taken by "Victorio's Band" which was a group of these American Indians. It was argued that the group of American Indians who had taken the livestock were distinct from any other American Indian tribal group, and therefore the Mescalero Apache American Indian tribe should not be held responsible for what had occurred.

This was also, as in the last case, a claim for live stock taken and destroyed in October, 1878, by certain bands of the Cheyenne and Arapahoe Indians, the suit being against the United States and Dull Knife’s and Little Wolf’s bands of Northern Cheyennes and the Northern and Southern Cheyennes and Arapahoe Indians.

Held: resulting in a majority vote for incorporation — persons voting who lived inside and outside of the limits of the special charter.

This was the case of a bill in equity filed, in January, 1891, in the Circuit Court of the United States for the Southern District of New York, by James Holly, a citizen of the State of Pennsylvania, against the Domestic'and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America, a corporation of the State of New York, and E. Walter Eoberts, treasurer of the same. The case came to issue on bill, answer and replication.

Held: that the case was not one in which the bank was estop- • ped'by having assumed an apparent ownership of the stock. By the more act of bidding in this stock at a nominal price, the Southern National Bank is not to be regarded as having subjected itself to liability as the real owner thereof.

<p>The statute of Massachusetts of 1887. c. 435, by which “whoever has been twice convicted of crime, sentenced and committed to prison, in this or any other State, or once in"this and once at least in any other State, for terms of not less than three years each, shall, upon conviction of a felony committed in this State after the passage of this act, be deemed to be an ' habitual criminal, and shall be punished by imprisonment in the State prison for twenty-five years,’ ’ is constitutional.</p>

<p>' Under section 56 of the Oregon Code referred to in the opinion of the court as in force in the District of Alaska, when an affidavit shows that the defendant is a non-resident of the district, and that personal service cannot be made upon him, and the marshal or other public officer to whom the summons was delivered returns it with his indorsement that after due and diligent search he cannot find the defendant, such proof is sufficient to give jurisdiction to the court or judge to decide the question of foreclosure of a mortgage on real estate of the defendant situated in that district. /</p> <p>in such a case facts must appear from which it will be a just and reasonable inference that the defendant could not, after due diligence, be found, and that due diligence has been exercised; and such an inference is reasonable when proof is made that the defendant is a non-resident of the State, Territory or district, and there is an affidavit that personal service cannot be made upon him within its borders and there is a certificate of the marshal to the effect of the one which appears in this case.</p>

<p>ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA.</p> <p>This is a writ of error to the Supreme Court of the State of Louisiana, brought for the purpose of reviewing a judgment of that court affirming a judgment of the Civil District Court for the parish of Orleans, decreeing the charter of the corporation plaintiff in error, under color of which it claimed corporate existence, to be null, void and of no effect. The suit was in the nature of a quo warranto. The attorney general of Louisiana, pursuant to statute, filed a petition in the trial court against the New Orleans Debenture Redemption Company of Louisiana, Limited, as sole defendant, and in that petition alleged that the defendant was not organized for any purpose for which the law authorized the formation of corporations in the State of Louisiana; that it was a debenture company formed for the sole purpose of. selling or borrowing money upon its own obligations or debentures, to be paid for in monthly instalments, the company binding itself to pay the holders of debentures a profit of fifty per cent upon the amount invested. A description of the manner in which the business was to be conducted was given in the petition, and it was alleged that the whole system. amounted to a mere gambling venture, demoralizing as such, and was unlawful. It is also alleged that the company in its modes of organization had not complied with the requirements prescribed for corporations of any of the classes authorized by law, and that the act (No. 36 of the Laws of 1888), under which it claimed to have been incorporated did not authorize the business which the company was doing. It was also alleged that the company and its officers, agents, managers, directors and stockholders were unlawfully exercising a corporate franchise, and were acting as a corporation in the State without having been legally incorporated, and in violation of law, and that the public interest and common justice required that the company be enjoined from declaring forfeited or lapsed the rights of any debenture holder who did not continue paying his monthly instalments during the pendency of the suit, and the prayer-Avas that the affairs of the company be liquidated according to law under the direction of the court for the common benefit of all creditors and other persons interested Recording to their respective rights. The attorney general further prayed that if it should be held that the organization of the company Avas authorized by law, that then the charter be forfeited on account of the subséquent violation of law by the company in not insisting upon cash in payment for its shares of stock. A preliminary injunction was asked and granted, enjoining the defendant from forfeiting or declaring lapsed the rights of any debenture holder during the pendency of the suit; This preliminary injunction was, upon an order to show cause, subsequently dissolved.</p> <p>Process was served upon the president of the company in accordance with its charter. The defendant appeared and filed “ peremptory exceptions to the petition, founded on law,” which were overruled by the court. The defendant thereupon answered denying the material allegations in the complaint, and alleging that it was a duly and legally constituted private corporation, organized in conformity with the laws of the State, and expressly authorized by act No. 36 of the Laws of the year 1888, for the pursuit of the private enterprise and purposes set forth in its charter, and that stock had been issued to the extent of $50,000 and paid for to it, and that in doing business it had made many legal contracts which Were outstanding, and that its debenture holders wished the company to keep on doing business, and it denied any gambling or wagering feature in connection with its contracts.</p> <p>By supplemental answer it alleged that the purpose of the suit was to deprive the defendant, a duly and legally organized corporation under the laws of the State, of the legal right to engage in or pursue its business in any manner, and that the suit as instituted and prosecuted had for its object one which was in violation of the constitution of the State of Louisiana and of the Constitution and laws of the United States, in that it deprived the defendant of its property without due process of law, and denied to it the equal protection of the laws of the State of Louisiana and of the United States, and that it violated the laws of the United States in that the purpose of the suit was to deprive the defendant of its lawful right to pursue a lawful business, and was an unlawful discrimination against the defendant and a denial to it of the equal protection of the laws in the pursuit of its business.</p> <p>The parties went to trial and evidence was given in support of the petition as to the character of the business, and also that the stock which had been issued by the defendant to shareholders bad not in fact been paid for in cash as required by the statute. The charter was put in evidence, from which, together with testimony taken in the case, it appeared that in all probability the company would be unable to perform its contracts with those who remained debenture holders until the maturity of their debentures, without the benefit which the company was to receive from lapses and forfeitures on the part of other debenture holders, resulting in a forfeiture to the company of all prior payments made by such holders. Ability to pay was even then claimed to be a matter of great doubt. It Avas stated by the trial- court that with fair management and in the five years of its existence the company had more’ liabilities than assets. Much evidence was given on the trial of the case for the purpose of showing the general character of the business transacted by the company, and that it was, as alleged in the petition, of a gambling nature, and hence against the public policy of the State, and illegal.</p> <p>There was no contradictory evidence on the trial regarding the facts as to the manner and plan of conducting the business of the defendant. 'Whether that business as thus conducted by it as a corporation and under its charter Avas or was not illegal, became a simple question of law. The trial judge held in favor of the State, deciding that the business done by the defendant was an unlawful business, not permitted to be pursuéd by any corporation, and that defendant Avas illegally doing business as a corporation, and decreed that the pretended charter under color of which the defendant claimed corporate existence Avas null and of no effect. A decree Avas thereupon entered adjudging that the president, secretary and general manager, as also the agents, directors, stockholders and members of the so-called corporation, were and had ever been without legal authority to act in a corporate capacity in the name of the defendant or under color of its pretended charter. It. was also decreed that the injunction theretofore issued prohibiting and restraining the company, its officers, directors, agents and representatives, from removing the assets and funds of the company from the State or beyond the jurisdiction of the court, and from receiving any money or instalments from its debenture holders, and from paying out any money on surrenders or withdrawals, or in redemption of debentures, and from making loans on and from forfeiting any of said debentures, or the rights of any of the holders thereof, should be and was thereby confirmed and made absolute, and the company and its officers, representatives and members wereperpetually enjoined and restrained from acting in á corporate capacity.</p> <p>A motion for a new trial was made and the constitutional objections again advanced, but the motion was denied.</p> <p>After the entry of the final decree and the denial of the motion for a new trial, one August M. Benedict, a resident of the parish of Orleans, presented his petition to the trial court, in which he alleged that he had been appointed by the Governor of the State the liquidator of the defendant, after the Governor had been officially informed of the judgment rendered by the court, and he asked to be recognized as such liquidator. The trial court upon the presentation of the petition, with the annexed commission of the Governor, made an order recognizing Benedict as liquidator upon his taking oath and furnishing bond in the sum of $10,000 ; the court further ordered that the officers of the defendant transfer and turn over to the liquidator all the assets, books and other property of whatever nature or kind belonging to the defendant corporation. The liquidator duly filed his bond, which was approved, and letters were • granted him by the' judge of the trial court. Thereupon the defendant corporation prayed for a suspensive and devolutive appeal tó the Supreme Court, which was granted. Upon the same day a petition under the Louisiana practice was duly presented by the individual stockholders and the board of directors of the company to the court for .leave to intervene in the suit, and in the petition they .alleged the giving of judgment in the case against the company, which was the sole defendant therein, and that none of the individual incorporators or other persons interested were ever in any manner made parties to the suit, and that the sole issue in the suit was in regard to the legality of the business done by the company and the legality and validity of the charter adopted and executed by the corporators, and they represented that the right to be a corporation or the right to legal existence as such was not a franchise of the corporation itself, but belonged to the corporators solely and exclusively. The petitioners further represented that they and each of them felt aggrieved by the judgment and by the injunction which had been issued and by the order for the appointment of a liquidator, and the order for the transfer of the property to his possession, all of which they alleged had been highly prejudicial to their legal rights, and they therefore asked to intervene in the cause for the purpose of taking and prosecuting an appeal, devolutive and suspensive, from the final judgment, and from all orders, decrees or proceedings had in the cause, including the order and proceedings under the writ of injunction therein ordered or issued, and including all orders, decrees -and proceedings made or had therein for the appointment of a receiver or liquidator for said company, to the'end that on said appeal they might be enabled to be heard and to obtain a reversal of all such proceedings.</p> <p>Service of the petition was made on the. attorney general, who accepted the same, waived citation, and acquiesced in the order granting the petitioners leave as asked for. 'Thereupon the directors and stockholders duly.appealed to the Supreme Court from the final judgment and also from the various orders in regard to the liquidator. All of these appeals were heard in the Supreme Court and the decree of the court below was affirmed, but the separate appeal taken by the shareholders from the order recognizing Benedict as liquidator under the-Governor’s appointment was sustained, reserving to the State of Louisiana' and all other parties in interest the question whether the appointment of a liquidator lies with the Governor, or of a receiver with the court, or with the parties in interest; such question to be thereafter determined by the court below as an open question.</p>

<p>ERROR TO THE SUPREME COURT OF THE STATE OE CALIFORNIA.</p> <p>This case comes here on writ of error to the Supreme Court of California to review the judgment of that court affirming a judgment of the Superior Court of California for the county of San Francisco sustaining a demurrer to the complaint. The case involves a large amount of real property belonging in his lifetime to one Thomas H. Blythe, who was a naturalized citizen of the United States, and died intestate on the 4th of April, 1883, a resident of the city and county of San Francisco. Questions relating to the title to this property have been in litigation for over fifteen years, and -various suits have been instituted in the state and Federal courts in California during that time, all of which have resulted favorably to the interests of the defendant in error herein, who claims to be the owner of the property. Three suits have been before this court upon a writ of error or by appeals brought by some of the parties interested, and have been dismissed for want of jurisdiction. Blythe v. Hinckley, 167 U. S. 746; Blythe Company v. Blythe, 172 U. S. 644; Blythe v. Hinckley, 173 U. S. 501.</p> <p>. The sole question which plaintiff in error herein seeks to have decided is whether the defendant in error was capable of taking the property of the intestate under the laws of California, the plaintiff in error claiming as one of the next of kin ánd -heirs at law of the intestate, and objecting that the defendant in error could not take the property because she was an alien and a subject of the Queen of the United Kingdom of Great Britain and Ireland at the time .of the death of the intestate, and that in the absence of a treaty between the United States and Great Britain, permitting and providing for such taking on the part of an alien, there was no .power in the State of California to legislate upon the subject, and the statute of that State assuming to permit such alien to take was a violation of that part of section 10 of article 1 of the Constitution' of the United States, which provides that “ no State shall enter into any treaty, alliance or confederation; . . and the attempt of the State of California to legislate upon this subject was therefore an invasion of and an encroachment upon the treaty-making power of the United States.</p> <p>The facts upon which the question arises are set forth in the complaint, which stated in substance that the defendant in error was an alien and illegitimate daughter of an unmarried woman, and that prior to the death of the intestate neither the defendant nor her mother had ever been outside of Great Britain, and that she was incapable by the common law of England, and of California and by the Constitution of the United States, section 10, article 1, and by section 1928 of the Revised Statutes, of inheriting the real property described in the complaint; that there was at the time of the death of the intestate no treaty between the United States and Great Britain which provided for the inheritance of aliens in the United States. After the death of the intestate the defendant in error came to the United States and claimed (falsely as alleged,) that she had been adopted by the intestate as his daughter in his lifetime under the provisions of section 230, Civil Code of California ; also that he had adopted her as his heir, under the provision's of section 1387 of that Code, Some time in 1885 she therefore instituted by her guardian, under section 1664 of the same Code, a proceeding for the purpose of establishing her claim as such adopted daughter or as such heir to succeed to the estate left by the intestate. Upon the trial it was made to appear that the defendant in error was an illegitimate child and an alien, and the complaint herein then alleges that it was the duty of the court before which the trial was going on to dismiss the proceeding for want of'" jurisdiction to decree that defendant in error was an heir to the real estate or capable of taking by descent. The court, however, as the complaint alleged, decided otherwise, and upon the evidence determined and adjudged that the defendant was the natural h¿ir of the intestate and that in his lifetime he had adopted her as his daughter under section 230 of the California Civil Code, or had instituted her as his heir under section 1387 of that Code.</p> <p>It was further alleged that the seventeenth section of article 1 of the new constitution of California, permitting aliens to acquire, possess, enjoy, transmit and inherit property the same as native born citizens, was void as an attempt by the people of the State of California to encroach upon the treaty-making power of the United States, and was in violation of section 10 of article 1 of the Federal Constitution. It was then alleged that the court in the proceeding mentioned did not in legal effect determine the question of heirship, title or interest in the real estate for want of jurisdiction, and that the legislature of the State had no power or authority to enact any law which gave to the defendant in error the right to inherit the real estate of the intestate.</p> <p>The complaint further stated that an appeal was taken to the Supreme Court of the State and that all of the above matters were made to appear to that court, which nevertheless affirmed the judgment. The same averments of the lack of jurisdiction to make such decree were made with regard to the Supreme Court as were set forth regarding the lower court, and the plaintiff in error alleged that the judgment of the Supreme Court was void for lack of jurisdiction. It was also alleged that after this affirmance of the decree of the lower court, by which the rights of the defendant in error to take the property were formally determined, she instituted a proceeding pursuant to the provisions of the California Code, in the Superior Court in San Francisco, where the administration of the estate^of the intestate was pending, to have distributed the estate of the intestate in accordance with the judgments of the Superior and the Supreme Courts in the proceeding already mentioned. This was opposed by the parties interested adversely to the defendant in error upon the same grounds which had béen set up as a defence in the former suit. Upon the trial of the latter proceeding the record in the former suit was offered in evidence and objected to as void for want of jurisdiction, but it was received by the court and held by it to be conclusive evidence of the rights of the parties, and the court then made a decree of distribution in favor of the defendant in error. An appeal was taken to the Supreme Court where the judgment was affirmed, although, as alleged, the court was without jurisdiction. Pursuant to that-decree the defendant in error obtained possession of the real property in December, 1895.</p> <p>It was further alleged that all the claims of the defendant in error to inherit or to hold the real property were groundless and unfounded in fact or in law, and judgment was asked declaring the claims of the defendant to any of the property to Be illegal and unfounded, and that plaintiff, as against her, was the lawful owner in fee of the real property mentioned, and was entitled to the income and profits thereof, and decreeing that his title thereto and estate therein should be quieted and the defendant-perpetually enjoined from setting up any claim whatever to the property, and that the .possession and accumulated rents of the property in the hands of the receiver be delivered to the plaintiff.</p> <p>The portions of the Federal and state constitutions and the various statutes referred to in the complaint are set forth in the' margin.1</p> <p>The defendant demurred to this complaint on the grounds, among others, (1) that the complaint stated no cause of action; (2) that the judgment of distribution set forth in the complaint was a conclusive bar and estoppel against the plaintiff and prevented him from maintaining the action. The demurrer was sustained and judgment entered in favor of the defendant on the merits, and upon appeal it was affirmed by the Supreme Court of California. A writ of error has been allowed by the Chief Justice of the Supreme Court of that State. A motion is now made to dismiss the writ of error for lack of jurisdiction or to affirm the judgment.</p>

<p>APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.</p> <p>On the tenth day of March, 1890, the United States brought suit in the Circuit Court of the United States for-the Middle District of Alabama, against Eugene Beebe and-the heirs ;at law of one Eerris Henshaw, deceased, praying that two separate judgments in favor of the United States (one against Beebe and the other against the administrator of Henshaw) should be set aside and vacated; for the removal of the administration of the estate of Henshaw into that court; for an accounting by Beebe and the other defendants by reason of the liability of Beebe and Henshaw on the bond of Francis. "Widmer, late collector of internal'revenue in the second district of Alabama, and that the amount found due on the accounting should be made a prior lien on the land described in the- bill, and for other relief.</p> <p>The defendants demurred to the bill and the court sustained the same, after which the bill was amended and again demurred to. The defendant Beebe died August 24, 1894, and the complainant revived the suit against his heirs at law, and subsequently the court sustained the demurrers to the amended bill, and the judgment dismissing the bill was upon appeal affirmed by the Circuit Court of Appeals for the-Fifth Circuit, and from that judgment of affirmance the United States has appealed to this court.</p> <p>The following facts were set forth in the bill: Some time in 1873 one Francis Widmer was appointed collector of internal revenue for the second district of Alabama, and Eugene Beebe and Ferris Henshaw became sureties on his bond in the sum of fifty thousand dollars. Widmer defaulted and failed to account for and pay over to the Government the sum of $28,158.56 public moneys that had come into his hands as collector, which sum was due the United States, with interest thereon from January 1, 1874. Beebe and Henshaw had for many years been partners in business, and were joint owners in fee of certain real estate described in the bill and situated in the county of Montgomery and State of Alabama. Henshaw died there, intestate, April 19, 1879, leaving certain of the defendants named in the suit as his heirs at law. The administrator of the estate of Henshaw reported to the court that his estate was insolvent, and in accordance with that report the estate was on July 2, 1880, declared to b.e insolvent, and no settlement of the estate has since been had. Beebe before and since July 2, 1880, was and has been insolvent, without sufficient property to pay his debts. Ferris Henshaw was also insolvent at the time of his death. By reason of the insolvency of Eugene Beebe and Ferris Henshaw and the insolvency of the latter’s estate the United States became and was entitled to priority of payment over any and all other creditors of Beebo and Henshaw out of their property and estate, of the full amount collected, withheld and appropriated by Widmer, the collectoi’, and due to the United States. It is averred that the land above described is liable for such debt, and also that the complainant has a prior lien upon it therefor.</p> <p>On June 3, 1880, separate actions in the Circuit Court of the United States for the Middle District o(‘ Alabama were commenced, one against Beebe and the other against the administrator of the estate of Henshaw, for the recovery of the sums for which Widmer, collector, wras in default, and amounting, as stated, to over $28,000, with interest, and those suits were continued from time to time, at the request of the defendants, until February 6, 1885, when judgments were severally entered in that court against Beebe, and also against Hatchett, as administrator of Henshaw, for $100 and costs, and Beebe on July 1, 1886, paid into the Treasury of the United States the sum of $109.85 as the amount of the judgment and costs rendered against him, but the judgment against Hatchett, as administrator, remained unsatisfied to the date of the filing of the bill in this suit.</p> <p>The bill then proceeds as follows:</p> <p>“ Th'at said judgments were entered under the following circumstances : That said defendants came into court, and stated and represented in open court, and they caused to be stated and represented for them, that said Beebe and said Ferris Henshaw were poor men, and that said Beebe' and the estate of Ferris Henshaw were without property out of which the said judgments could be paid and collected; that no part of said judgments could be collected by due process of law; that nothing could be made out of them, or either of' them, or their estates, by execution, but that if the court would allow a jury and verdict to be entered against them for one hundred dollars they, and each of them, would pay said judgments and costs; that no evidence or proof was or had been introduced in said causes, or either of them; the indebtedness of said Beebe and Henshaw to the United States then being twenty-eight thousand one hundred and fifty-eight dollars and fifty-six cents ($28,158.56), and interest, or other large sum; and the statements and representations aforesaid only were before the said Circuit Court at time of the entry of said judgments; and no hearing or determination upon the law or the facts involved in said cases was ever had in said court; whereupon the court remarked that unless the district attorney of the United States objected, the causes might be disposed of as suggested aforesaid ; said district attorney did not object, and said judgments for one hundred dollars and costs were entered in each of said causes. And orator avers and charges that said statements and representations made as aforesaid by and on behalf of, and for, said Beebe and said Ferris Henshaw, and the estate of said Ferris Henshaw, were wholly untrue, and were made to deceive said court and United States attorney, and for the purpose and with the intent to defraud the United States. Orator further avers and charges that said court and United States attorney had no authority in law to accept said statements and representations, which were not made under oath nor in the course of any judicial proceeding, and were not supported nor verified by evidence or proofs; and that said acts of said court and United States attorney amounted in law and in fact to, and was, and was intended to be, a mere naked compromise of the claim and demand of the U nited States against said Eugene Beebe and Ferris Henshaw, and the estate of said Ferris Iienshaw, which said court and the United States attorney had no authority, but were inhibited by law, to make, entertain and consummate; that said court was without jurisdiction, and power to determine said causes in the manner aforesaid; and that said alleged judgments for one hundred dollars and costs are null and void ab initio, and of no effect, and should be vacated and held for naught in this court of equity.” .</p> <p>The bill then asks for the appointment of an administrator ad litem of the Henshaw estate to represent it in the proceeding. It alleges that several of the defendants, naming them, assert some claim against the property described in the bill, which claims are alleged to be subordinate to the rights of the United States to condemn and subject the land already mentioned to the satisfaction of the indebtedness of Beebe and Henshaw as sureties on the bond of Widmer, as collector, by reason of the default of the latter; and it is alleged that if any conveyance of the land has been made by Beebe or Henshaw, or the heirs of the latter, such conveyances were void and ought to be vacated and set aside. ' It is further stated that the facts and circumstances set out in the bill as the basis of the relief asked for only recently came to the knowledge of the conn plainant, to wit, on or about March 5, 1890. The bill also set forth that on March 22,1877, Beebe conveyed by deed to Ferris Henshaw, then his partner in business, all his interest and estate in the property described in the bill for certain purposes therein set forth, and this deed complainant alleges was without consideration and fraudulently made to hinder, delay and defraud the existing creditors of Beebe and was void, and all the property described in the bill was bound even in the hands of the heirs at law of Henshaw for the payment of the debts due the United States from Beebe. The complainant prayed that the judgments might be set aside and vacated, and the property sold and the proceeds thereof applied to the payment of the debts above mentioned.</p> <p>The defendants severally demurred to the bill on various grounds, (1) for want of equity; (2) that the bill showed that the matters complained of against Beebe and Henshaw, by reason of their being sureties for Widmer, the collector, had been adjudicated in the Circuit Court of the United States for the Middle District of Alabama, in a suit commenced by the complainant against them, and that no sufficient ground was shown for vacating and setting aside the judgments therein rendered ; (3) that it appeared from the allegations in the bill that the judgment against Beebe had been paid by him, and had been received and accepted by the complainant, the United States, and the bill contained no offer to refund the money, and it does not show that the same had ever been tendered to Beebe. Other grounds were stated in the demurrers.</p> <p>Upon the hearing the court sustained the demurrers and granted leave to amend the bill. On January 5, 1891, the complainant amended its bill, the amendment alleging that Beebe had executed another official bond as surety for one Dustan, deputy postmaster at Demopolis, Alabama; that a default had occurred and judgment been recovered against Beebe for $579.45 in 1878, and the judgment was still due and unpaid, and execution thereon having been issued was duly returned “ no property.”</p> <p>The amended bill also contains an averment that there was in fact no jury drawn in the cases in which the two judgments were obtained and no verdicts rendered therein, although the records of these judgments show a jury trial and a verdict in each case.</p> <p>To this bill as amended the defendants demurred, setting up the same grounds of demurrer as to the original bill, and also the additional grounds, (1) that the bill made a new case; (2) that the matters stated in the amendment were not germane to the purposes and object of the original bill, and stated new matter; (3) that the bill as amended was multifarious.</p>

Held: upon full consideration, that on an indictment charging the prisoner with poisoning A, in December, 1851, it is error to permit evidence in chief to show that she poisoned B in the month of August previous. - ' So, in Commonwealth v. Horton, 2 Gray, 354 , it was held by the Supreme Judicial Court, of Massachusetts that, under an indictment charging one act of adultery at a particular time and place, evidence of.…

<p>ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA.</p> <p>In 1834 Juan Reed applied to and received from the Mexican governor of California a grant of a tract of land. In 1854 his heirs petitioned the commission created by the United States for a confirmation of that grant. It ivas confirmed, the order therefor being in these words:</p> <p>“ In this case on hearing the proofs and allegations, it is adjudged by the commission that the said claim of the petitioners is valid, and it is therefore hereby decreed that the same be confirmed.</p> <p>“ The land of which confirmation is hereby made is the same on which said Juan Reed resided in his lifetime; is known by the name of Corte de Madera del Presidio, is situated in Marin County and bounded as follows, to wit: Commencing from the solar which faces west at a point at the slope and foot of the hills which lie in that direction and on the • edge of the forest of redwoods called Corte de Madera del Presidio, and running from thence'in a northwardly direction four thousand five hundred varas to an arroyo called Holon where is another forest of redwoods called Corte de Madera de San Pablo; thence by the waters of said arroyo and the Bay of San Francisco ten thousand varas to the Point Taburon, said point serving as a mark and limit; thence running along the borders of said bay and continuing in a westerly direction along the shore of the bay formed by Point Caballos and Point Taburon, four thousand seven hundred varas to the north of the cañada and the point of the ‘ sausal ’ which is near the Estero lying east of the house on said premises which Avas occupied by said Juan Reed in November, 1835 ; and thence continuing the measurement from east to west along the last line eight hundred varas to the place of beginning; containing one square league of land, be the same more or less; being the same land described in the testimonial of juridical possession on file in this case, as having been measured to said Juan Reed under a grant of the same to him, to which testimonial and the map therein referred to and constituting a part of the expediente, a traced copy of Avhich is filed in the case, reference is to be had.”</p> <p>An appeal was taken therefrom to the District Court of the United States, and the following order of confirmation Avas made on January 14,1856:</p> <p>“ This cause came on to be heard at a stated term of the court on appeal from the final decision of the board of commissioners to ascertain and settle the private land claims in the State of California under the act of Congress approved on the 3d of March, A. D. 1851, upon the transcript of the proceedings and decision of the board of commissioners, and the papers and evidence on which the said decision was founded, and it appearing to the court that the said transcript has been duly filed according to law, and counsel for the respective parties having been heard, it is by the court hereby ordered, adjudged and decreed that the said decision be, and the same is hereby, in all things affirmed, and it is likewise further ordered, adjudged and decreed that the claim of the appellees is a good and valid claim, and that the said claim be, and the same is hereby, confirmed to the extent and quantity of one square league, being the same land described in the'grant and of which the possession was proved to have been long enjoyed. Provided, that the said quantity of one square league now confirmed to the claimants be contained within the boundaries called for in the said grant and the map to which the grant refers, and if there be less than-.that quantity within the said boundaries, then we confirm to the claimants that less quantity.”</p> <p>No appeal was taken from this order of confirmation, and it, therefore, became final. In 1858 a survey was ordered by the Land Department, and was made by a surveyor, named Mathewson, who surveyed one square league as being the full amount of the tract confirmed to the petitioners. The petitioners claimed that their grant was of a tract described by metes and bounds and not of a given quantity within exterior boundaries, and after some controversy between them and the Land Department the latter recognized their claim, set aside the Mathewson survey and ordered a new survey. This was made in 1871. It was confirmed by the Land Department, and has never' been questioned therein. Thereupon a patent was issued to the petitioners; conveying the tract by metes and .bounds as described in the order of the commission and shown by the last survey.</p> <p>The tract in controversy is outside the limits of both surveys. Prior to the last survey Ebenezer Wormouth, the testator of defendant in error, settled upon the tract in controversy, and thereafter made application to enter the tract as public land of the United States. A contest was had between such testator and one Samuel R. Throckmorton, claiming title from the heirs of Reed, the original grantee, first in the local land office, thence carried by appeal to the General Land Office, and thereafter to the Secretary of the Interior. The right to enter was sustained and a patent issued. Thereafter this action against the plaintiffs in error holding under Throckmorton was instituted in the Superior Court of the county of Marin, California, which, at first a mere action in ejectment, became by the pleadings subsequently filed a suit in equity to try title. The decree in the trial court was in favor of Worrnouth, which was affirmed by the Supreme Court of the State, 125 California, 316, and thereafter this writ of error wras sued out.</p> <p>In the trial court the question of title was submitted to the court and findings of fact made. Among them were the following :</p> <p>“ 2d. That one of the questions decided by the United States register and receiver, and confirmed by the United States Commissioner of the General Land Office, and by the United States Secretary of the Interior in the said contest of Throckmorton v. Wormouth, mentioned in the twentieth paragraph of said cross complaint herein, was a question of fact, namely, the location of the western boundary of the grant made 'by Governor Figueroa to Juan Reed.</p> <p>“3d. That the officers of the United States Land Department, to wit, the register and receiver, the Commissioner of the General Land Office and the Secretary of the Interior, did decide and find as a fact upon the evidence produced before said register and receiver on said contest, that the land in controversy in this action was not included in the said original grant by the Mexican government to Juan Reed.”</p> <p>“ 6th. That the officers of the United States Land Department, to wit, the United States register and receiver, the Commissioner of the General Land Office and the United States Secretary of the Interior, respectively, from the evidence produced before them in said contest of Throckmorton v. Wormouth, in denying said application of Throckmorton, did not base their decision upon a question of law alone, but did find and decide as a fact that said Throckmorton was not a purchaser in good faith from Mexican grantees or their assigns.</p> <p>“ 7th. This court further finds as follows: That the rancho granted by the governor of California, under the government of Mexico, to Juan Reed, did not include within its exterior limits the land described in the deed from T. B. Deffebach et at to Julius C. McCeney of February 14, 1871, or any part thereof, except so much thereof as is included in the patent issued on or about the 25th day of February, 1885, by the United States to John J. Reed et at That the grant mentioned in the first paragraph of said cross complaint did not include any part of the land in controversy in this action. That.no grant ever made by the Mexican government to Juan Reed or to his successors in interest included any part of the land described and granted to plaintiff by the United States patent mentioned in the twenty-second paragraph of said cross complaint.</p> <p>“ 8th. That the land described in said deed of T. B. Deffebach et at to Julius C. McCeney, or any part thereof, except as in the last finding above set forth, was not within the exterior boundaries of said Mexican grant.”</p> <p>“ 12th. That none of the grantees named in the deeds mentioned or referred to in the eighteenth paragraph of said cross complaint purchased the lands or, interests described or mentioned in said deeds in good faith, or used or improved or possessed any part of the lands in controversy, except as trespassers upon the possession and right of the plaintiff, as alleged in his complaint in this action.</p> <p>“ That neither the said Throckmorton, nor his executrix, ever had any right to use or improve any-part of said lot 3 in section 28, or of said lots'2 and 3 in section 29 ; that neither said Throckmorton nor his executrix was ever in the actual possession of the same or any part thereof, except as intruders and trespassers upon the rights and possession'of the plaintiff.</p> <p>“13th. That the evidence introduced in the matter of the application and contest mentioned in the nineteenth paragraph of said cross complaint did not show without conflict, or show at all, that all of the facts set forth in the preceding paragraphs of said cross complaint were true, or that any of such facts which are denied in the plaintiff’s answer herein are or were true; that the evidence introduced in the matter of said application and contest did not establish all of said facts, or any ■material fact in favor of Throckmorton’s right to purchase said land by competent or any evidence; that there was conflict in said evidence; that there was evidence on said contest which contradicted Throckmorton’s evidence; that the evidence as alleged in said cross complaint was not true.</p> <p>“ That the register and receiver of the land office at San Francisco did not, nor did either of them, on the 9th day of February, 1886, or at any other time, base their or his decision upon the evidence as the same is alleged in said cross complaint, or upon evidence without conflict; that the said register and receiver did not, nor did either of them, rest their or his decision upon the proposition, or upon a proposition of law, that the said Throckmorton was not in law or under the law entitled to purchase the said land.</p> <p>“ That the Commissioner of the General Land Office, on appeal from the decision of the register and receiver, did not base his decision upon evidence without conflict, and did not rest his decision upon the or upon a proposition of law, in deciding that Throckmorton was not entitled to purchase the said land.</p> <p>“ That -the said Secretary of the Interior did hot rest his decision, affirming the decision of the Commissioner of ,the General Land Office, upon the or upon a proposition of law.</p> <p>“That the said Secretary of the Interior decided and found as a fact from the evidence produced on said contest of Throckmorton v. Wormouth, that said Throckmorton was not a bóna fide purchaser from Mexican grantees or their assigns of the lands described in paragraph sixteen of said cross complaint.</p> <p>“ 14th. That the said Throckmorton did, claiming to be a Iona fide purchaser from Mexican grantees, make said application (to purchase) to the register and receiver of the United States land office at San Francisco, under section 7 of the act of Congress entitled, ‘ An act to quiet land titles in California.’</p> <p>“ That the said Throckmorton was not a bona fide purchaser jfrom Mexican grantees or their assigns and was not entitled to purchase the said land' or any part thereof under said act of Congress.”</p> <p>The opinion of the Supreme Court rested upon the single proposition that the Land Department had jurisdiction of the controversy, and that its judgment was founded upon disputed questions of fact, and, therefore was not subject to review in the courts.</p>

- This wa§ an appeal by Ered'Lee Rice, Frank Rutledge and Thomas Jones from an order of the District Court for the Northern District of Illinois, denying their application for a discharge upon a writ of habeas corjms, the object of which writ was to test the validity of certain proceedings against the appellants, taken before a commissioner for that district, specially authorized to take jurisdiction of proceedings for the extradition of persons charged with crimes, under…

In this case the jurisdiction of the Circuit Court was in issue, and the question of jurisdiction ivas certified. The question Aims Avliether the matter in dispute exceeded, exclusiire of interest and costs, the sum of two thousand dollars. The Circuit Court held that jurisdiction did not exist, and dismissed the bill. 96 Fed. Rep. 865.

This was a Bill in equity by Fred H. Beach against Clarence W. Hobbs and Kichard Sugden, now deceased, (lidióse estate is represented by his executors,) doing business under the name of the Hobbs Manufacturing Company, for an injunction and a recovery of damages for the infringement of reissued letters patent No. 11,107, dated May 26, 1891, for a “Machine for attaching Stays to the Corners of Boxes.” In his specification the patentee makes the following statements : “ That…

<p>APPEAL PROM THE CIRCUIT COURT OP THE UNITED STATES POR THE SOUTHERN DISTRICT OP FLORIDA.</p> <p>This was an amended bill of complaint filed November 30, 1895, in the Circuit Court of the United States for the Southern District of Florida by Charles M. Furman in his own right, and as administrator of the estate of Charles M. Furman; Bolivar B. Furman, and Alester G: Furman, all citizens of the State of South Carolina, against Henry L. Mitchell, Governor, William D. Bloxham, Comptroller, Charles B. Collins, Treasurer, William B. Lamar, Attorney General, and Lucius B. Womb-well, Commissioner of Agriculture, of the State of Florida, and citizens thereof, as the Board of Trustees of the Internal' Improvement Fund of the State of Florida; the Florida Coast Line Canal and Transportation Company, a corporation of Florida, having its principal place of business at St. Augustine; the St. Johns Railway Company, a corporation of Florida, having its principal place of business at Jacksonville; Horace S. Cummings, residing in the District of Columbia; and John A. Henderson, a citizen of the State of Florida, alleging: “ That they own and hold title in fee simple, as tenants in common, to all that tract, parcel, or piece of land lying, situate, and being in the county of St. Johns in the State of Florida, and within townships seven, eight, and. nine south of range thirty east, known as ‘Anastasia,’ or ‘Saint Anastasia,’ Island, said to contain ten thousand acres,1 but which in fact contains about seven thousand five hundred acres, excepting therefrom what was known at the time of the Spanish grant hereinafter mentioned as the King’s Quarries, the boundaries of which were marked by stakes, the same being about two hundred abres, lying on and east of the old King’s Koad, between the same and the old lighthouse, which exception does not embrace the lands or any part thereof 'hereinafter alleged to be claimed by the defendants or any of them.”</p> <p>“ That the said tract of land was granted by the government of Spain to José, or Joseph, Fish — otherwise known as Jesse Fish — (hereinafter designated as Joseph Fish), on of about the 19th day of June, A. D. 1795, which said grant was ratified and confirmed by the United States by the treaty with Spain ratified by the United States on the 19th day of February, A. D. 1821.”</p> <p>The bill then set up title to Anastasia Island as derived from Joseph Fish, through his mother Sarah Fish, her granddaughter, Jessie B. Perpall, who married Charles M. Furman, who became sole heir at law of his wife and their son, Gabriel, and left a will under which complainants claimed. It was averred that Joseph Fish'died intestate in 1798 ; that his mother died intestate in 1825 that her granddaughter died intestate in 1827; that Mrs. Furman’s son Gabriel died in infancy in 1836; and that Charles M. Furman died in 1872.</p> <p>It was further alleged that Joseph Fish was placed in pot-session of the said land so granted' and resided thereon in his dwelling house and cultivated an orange grove and fields, enclosed by a fence; that he used the woodlands on the island, and exercised such acts of possession of the whole of the islárrd as it was capable of; and that from his death to the present time those claiming under Fish have done the same.</p> <p>The bill averred that the State of Florida claimed title under the act of Congress of' September 28, 1850, relating to swamp lands, of-certain lands on Anastasia Island, which complainants asserted were part of the grant to Joseph Fish, and owned by them; these were described according to the public surveys and alleged to contain 1465.15 acres, more or less, all in township seven, south of range 30 east; and that the United States on September 18, 1856, issued its patent to the State of Florida therefor.</p> <p>That the State of Florida by anactof January 6,1855, vested in the, governor, the comptroller, the state treasurer, the attorney general, and the register of public lands, now known as the commissioner of agriculture, of that State, and their successors in office, as the board of trustees of the internal improvement fund of the State, the title to all lands granted to the State under tlie act of Congress, with power to sell and transfer the same; that defendants, Mitchell, governor, and others, now constitute the board of trustees; that the board on May 13, 1885, executed a deed of conveyance to the Florida Coast Line and Transportation Company of certain lots and parts of sections, in township seven, containing in all 549 acres, being part of the lands patented to. the State, which land, except that conveyed to Horace S. Cummings, was claimed by the Transportation Company adversely to complainants; that of these lands, the Transportation Company executed a deed of conveyance to Cummings of one hundred and sixty acres, which was claimed by Cummings adversely to complainants.</p> <p>That the board of trustees, September 21, 1886, executed a conveyance to the St. Johns Railway Company of certain lots and parts of sections in township seven, containing in all 328.10 acres, being part of the land'patented to the State, which land was claimed by the railway company adversely to complainants; .that the board of trustees on July 30, 1892, executed a deed of conveyance to defendant Henderson of certain lots in township seven, containing 286.28 acres, which land was claimed by Henderson adversely to'complainants. It was further averred that 'tbe United States issued to the State of Florida on June 27, 1895, a patent’for certain other lands, being part of Anastasia Island, described by the public surveys, in township seven, containing 393.30 acres; that the United States issued to the State of Florida on April 8, 1895, a patent for certain other lands described by the public surveys, in township seven, containing 120 acres ; that these lands were selections made by the State under an act of Congress of June 9, 1880, entitled “ An act to confirm certain entries and to warrant locations in the former Palatka Military Reservation in Florida; ” that in addition to the lands so patented the State had selected under said, act certain lands on Anastasia Island-in township seven containing 367.32 acres; that entries of these selections had been allowed by the .commissioner of the general land office of the United States, and the same were held to be patented to the State under the act of Congress of June 9, 188Q ; that the lands so patented to the State and those selected by the State for patent under the act aforesaid were in lieu of selections under the act of Congress of September 28, 1850, and were vested by the legislature of Florida, by the act of January 6, 1855, in said board of trustees, if the United States held the title .thereto at the time of the issue of the patents, and that the board of trustees claimed title to the same adversely' to complainants.</p> <p>The bill charged “that the said patents from the United States and the said deeds of those claiming, thereunder, and said entries and selections of the State of Florida,’ whereby the said defendants claim title, respectively, to the said lands as aforesaid are invalid, and do not vest a title in the said defendants to the lands so claimed by them, respectively, as aforesaid, for the reason that the United States, under whom the defendants claim, did not, at the time of issuance of such patents or at any other time, have or hold title to the said lands, or any part thereof, but that the title to the same is in your orators, holding and claiming under the said grant of the government of Spain to the said Joseph Fish as aforesaid.”</p> <p>The bill also alleged that none of the defendants were in actual possession of -the lands or any part thereof; that' the lands exceeded in value the sum of $2000; and “that this cause arises under the said treaty between the United States and Spain, which ratified and confirmed thé said grant to the said Joseph Fish, under whom your orators claim title. And the controversy involved in this case necessarily involves the construction of said treaty.”</p> <p>It was then charged “that the said patents, entries, and deeds by and under which the defendants respectively claim title to said lands as. aforesaid, are clouds upon the title of your orators in the said lands and tend to depreciate the value and sale thereof, to the great damage and injury of your orators in the premises.”</p> <p>The prayer was “ that the .said patents, entries, and deeds by and under which the said defendants respectively claimed title to the lands so respectively claimed by them as aforesaid may be set aside and declared void as clouds upon the title of your orators, and that the defendants and each of them, may be enjoined from entering upon or taking possession of said lands, or in any manner disturbing the possession of your orators thereof, and that your orators may have such other and further relief in the premises as equity may require and as to your honors shall seeni meet.”</p> <p>The defendants Mitchell and others, members of the board of trustees, moved to dismiss the bill for want of jurisdiction, which motion was overruled. Defendant Cummings made a similar motion. The trustees also filed a demurrer for want of jurisdiction, and a demurrer for want of equity. The defendants, the Canal and Transportation Company and the St. Johns Railway Company, also demurred. All the demurrers were overruled.</p> <p>The trustees and Cummings then filed their answer, denying that Anastasia Island was granted by the government of Spain to José or Joseph Fish, June 19,1795, or at any other time, or that the title to the lands in controversy was ever granted by the King of Spain or by his lawful authorities, and averring that the only pai’t of Anastasia Island, the title to which was ever granted by *the King of Spain or by his lawful authorities, was a tract of about three hundred acres granted to Lorenzo Rodriguez in 1793, and a tract of about twenty acres granted to F. X. Sanchez in 1802, both of which tracts had been confirmed by the United States and surveyed and platted as private grants upon the maps and plats of the land department of the United States. They denied that the treaty with Spain ratified or confirmed any grant of the lands in controversy in this suit to the ancestor of complainants or gave title thereto to any other person save only to the United States; and denied that Joseph Fish was placed in possession of Anastasia Island except the King’s Quarries, as a grant thereof to him by the King of Spain or his lawful authorities, or that he or his successors exercised such acts of possession of the whole of Anastasia Island except the King’s Quarries, as it was capable of, under claim of title, or that he claimed title as the'owner of said island. But they said that the occupancy and acts of possession alleged, if true, applied to no other lands than those embraced in the Fish homestead, which was a point of land on the extreme west shore of Anastasia Island, nearly surrounded by water, and cut off from the main island of Anastasia, embracing about one hundred acres of land, well known by general reputation as “Fish’s Island.” They admitted the patenting by the United States to the State of Florida of the several tracts of land described in said bill, and averred that before any patent could be issued for these lands, the State of Florida was required to estáblish before the land department of the United States that the lands were vacant and unappropriated public lands of the United States; that Furman in behalf of complainants appeared before that tribunal and contested the matter, and presented and urged their claim to the same under the same title set up in the bill, and that there was a final determination by said tribunal which was adverse to complainants’ claim, and decided that the lands were not private lands.</p> <p>Also that in addition to the lands so patented to the State of Florida, the State had selected the lands set out in the bill, and that the entries had been allowed by the land office, and were held to be patented; and said that such allowance and holding for patent Avas an adjudication of a competent tribunal that the lands were public -lands of the United States, Avhich adjudication for the issue of the patent was subject to review in the land department, and might be corrected if erroneous. They denied that the patents, deeds, entries and selections whereby defendants claim title to the lands in controversy were invalid, and asserted that the United States had title to said lands, and that it was not in complainants.</p> <p>“ They admit that this controversy involves the construction of the treaty between Spain and the United States, and they aver, that complainants in their said bill have set out as their title an incipient and inchoate title under the £ government of Spain,’ not cognizable in the courts of the Government until recognized or confirmed by the Congress of the United States; that by the rules established 'in the Territory of Florida by the authority of the King of Spain for the granting of lands, a grant from the government of Spain signified only the first concession or right of occupancy of the royal domain; that perfect or complete grants were recognized by the treaty with Spain, but incomplete grants were ratified by the treaty, to the same extent they would have been valid had the territory remained under the King of Spain; that if there had been a complete grant of the Anastasia Island at the date of the treaty the owners thereof were authorized under the laws of the. United States to have the same surveyed without expense as a private claim by the United States, but by the averments of their said bill complainants show that said lands have been surveyed as public lands.”</p> <p>The answer stated •“ that Anastasia Island is a barrier of the sea, consisting chiefly of high sand hills blown in from the sea beach, covered with ‘scrub,’ a low growth of hard wood; that through the center of the northern part, in township 7, there runs north and south a ledge of coquina rock from one half to three quarters of a mile wide; that all the lands are barren and wholly unfit for any purpose whatever save seashore residence, and of no value apart from their proximity to a city patronized as a winter resort; that on the western' shore of said island, nearly separated from the main island by. a strip of low ground or ‘swale,’ is a neck of land called Fish’s Island, containing about 60 to 100 acres, which is arable land, and on this point was an orange grove and cultivated fields of about thirty acres under enclosure, and houses and outbuildings.”</p> <p>It. was further averred that complainants or their ancestor never had any title whatever to the lands described in the bill unless it were to a part of lots two, three and six of section 29, township 7, range 30 east, which embraced the orange grove of “ Vergel” plantation, alleged to have been sold by the Spanish government in probate proceedings upon the estate of Joseph Fish about March 21, 1792 ; that to this plantation the heirs of Fish might have had an equitable title, but this had been forfeited by failure to present or record such claim and have it surveyed.</p> <p>Defendants further said that Anastasia Island was officially turned over in behalf of the King of Spain to the United States, in 1821, as one of the adjacent islands named in the treaty, and as a part of the royal domain, and the lands delivered as such by the lawful authorities of the King of Spain to the United States, whose authorities then went into actual occupancy of part, and the possession of the whole, of Anastasia Island, save two Spanish grants, one to Rodriguez and the other to F. X. Sanchez.</p> <p>That June 19,1795, the Spanish law in. force in the Floridas vesting in the Spanish governors the power to make grants of lands was the royal order of 1790, under which Governor Quesada, Spanish governor of East Florida in 1795, required ten years of continued and uninterrupted possession before full title was granted to claimants, who upon petition had received a grant or concession and had been put in possession of lands, etc.</p> <p>The answer further set forth that no person except the governor of the province was entitled to make grants of land under the Spanish law, and if any other person had authority to make grants the titles so granted were incipient until confirmed by the governor, etc.; and alleged on information and belief that any proceedings purporting to be a concession for 10,000 acres, dated June 19, 1795, to Joseph Fish, found among the archives at the date of the cession, were either forgeries, or so irregular as to render their genuineness too'doubtful to be accepted as evidence.</p> <p>Defendants averred that any claim which Fish ever had would be found to be an alleged grant purporting to be signed by one Morales, the commandant of the third battalion of Cuba, and not by the governor, an unauthorised proceeding under Spanish law ; that no authority existed in Morales to make the grant, and no other claim in East Florida is based on action by him; that the law required an official survey to be filed in the records and a certified copy delivered to claimants, but there was none in this instance; that the archives relating to property in Florida, both public and private, contain a complete list of all real titles or patents for lands granted by the lawful authorities of the King of Spain in East Florida, but that list contains none to Joseph Fish for the lands on Anastasia Island.</p> <p>The answer restated that the lands claimed by complainants to have been granted to Joseph Fish were never segregated from the royal domain, and were not measured, bounded or platted or otherwise located-by official survey, and could not be identified by natural boundaries.</p> <p>Defendants further averred that by the act of Congress of May 23, 1828, Congress confirmed all claims recommended for confirmation to the extent of a league square, and enacted that no more than a league square should be confirmed in any grant, and that no confirmation should be effectual until a full release by the claimant of all the lands claimed in any one grant in excess of a league square, but authorizing all claimants who were not willing to accept a league square to present their titles to the District Court of the United States within one year from the date of the act or be barred ; that claimants never released the excess of a league square, nor presented their claim to the District Court of the United States, as did all others having claims in Florida in excess of that amount; that the legislative council of the Territory of Florida published the acts of May 23,1828, May 26,1830, and February 8,1827, with the treaty with Spain, for circulation in Florida, and though often notified of the limitations in said acts, the claimants under Joseph Fish did not avail themselves of the acts, and abandoned and forfeited their claims to said land, so that the United States would have acquired title by prescription even if the lands were private property; that in 1833, having given public notice that unless the private claims within the district were presented to the surveyor general, he would survey the same as public land of the United States, the claim of Fish not having been presented and having been abandoned, the United States extended the surveys over all of Anastasia Island except the grants to Rodriguez and Sanchez, and in 1839 advertised the lands for sale as public lands; that on May 6, 1851, the maps and plans of said lands surveyed as public, lands were formally approved by the surveyor general for Florida; that the United States patented to the State of Florida certain lands in 1866 as vacant lands, and in 1867, 1868 and 1869 a large area of lands on Anastasia Island were entered under the homestead laws of the United States, and settled upon and improved, and wood was cut therefrom and sold; that some of the homestead settlers failed to make final proof of their entries, but final proof of homestead arid settlement under the homestead laws for lands on the island was made and final certificates issued to several persons named in 1875, in 1876 and in 1882; that in 1867 the trustees executed a conveyance for lands on that island to Rogero for lots 2 and ■3, section 29, to Hopkins and Rogero for lot 6, section 29, and to Magrudér and Logan for lots 2 and 3, section 32, all in township 7, range 30 east, being part of the lands patented to Florida; that September 16, 1868, Sanchez applied to the land department. of the United States for the issue of a patent upon the Fish claim, and in 1870 Funnan advised the land department that he claimed to be the owner of Anastasia Island under an alleged grant prior to 1763, and made application for the issue of a patent from the United States to him.</p> <p>That from 1831 to June 22, 1860, the claim was wholly barred; that June 22, 1860, Congress again authorized claimants to present their claims, if an imperfect grant, to commissioners for confirmation, but if a complete grant, to the District Court for the Northern District of Florida, but those claiming under Fish neglected to avail tb' ;r selves of this right to have the validity of their claim determined, but did apply to the land department for further adjudication; that after application to the land department for an adjudication by Furman in 1870, Congress extended tbe act of June 22, 1860, until June 10,1875, by an act approved June 10,1872, by the second section of which act no proof of title was required of claimants, provided they and those from whom they claimed had held continuous possession of the lands claimed; that having submitted their claim to a tribunal of their own choice they are now estopped to deny its jurisdiction.</p> <p>That in June and July, 1888, the State of Florida applied to the land office at Gainesville to enter certain portions of land at the north end of Anastasia Island under the act of June 8, 1880, as vacant and public land, but because there was on file at the land office a letter from the commissioner dated March 7, 1887, advising that the island was claimed by Furman, and that the claim had not been adjudicated by the land department, the register and receiver rejected the selections of Florida, and the State appealed to the commissioner; that the claim of Furman was taken under advisement by the commissioner on briefs submitted by the State, and by Furman and others claiming under Fish, and on August 2, 1890, the commissioner rendered his decision that the lands were public lands of the United States, whereupon complainants took an appeal from the decision of the commissioner to the Secretary of the Interior, and submitted arguments in support of their contention that the said lands were owned by them under a valid Spanish grant, and on June 22, 1893, the Secretary rendered his decision affirming the decision of the commissioner, that said claim had no validity; that complainants failed to file any motion for review and the decision became final, and is a complete and final adjudication of complainants’ want of title, and that the lands were public lands subject to disposal by the United States; that complainants caused a bill to be introduced in the Fifty-third Congress for confirmation and release to them by the United States of the lands on Anastasia Island as claimed under Fish, but Congress refused to consider the same.</p> <p>The answer denied that complainants were in possession of any part of the land on Anastasia Island, and set forth the possession of many persons claiming title under the United States. It averred that the St. Augustine and South Beach Railroad Company was in possession of a roadbed and right of way across the island through sections 17, 21,27 and 28 in township 7, range 30 east, under authority of an act of Congress approved March 3, 1875, granting a right of way over the public lands of the United States; that lot one of section 21 was reserved for lighthouse purposes by order of the President dated June 22, 1869; that part of lot two of section 21 of township 7 was declared a reservation for lighthouse purposes by order of the President dated February 1,1883 ; that afterwards by a like order the remainder of said lot two was declared a United States reservation for lighthouse purposes; and that by executive order dated May 4, 1893, the President reserved 700 acres of land in sections 21, 22 and 28 of township 7 for military purposes.</p> <p>That the requirement by Congress that all claimants under grants from the King of Spain in the Floridas should relinquish all in excess of a league square of the lands claimed in any one grant, was a declaration of the policy of the political department of the United States as to the territory acquired from a foreign power and a determination by Congress of the extent of the obligations imposed on the United States by the treaty with Spain.</p> <p>The answer further averred that the failure to release the excess forfeited the entire claim, and that, without any release, the excess over a league square was subject to sale as public land; that the issue of the patents depended upon the existence of facts which the land department of the United States had determined existed; that by the survey of the lands of Anastasia Island as public lands and their offer for sale by the proclamation of the President, and confirmation of portions thereof to the State of Florida by patent, the reservation of portions thereof by executive order, and the opening of all to homestead entry, the United States had become seized of the whole of said Anastasia Island by the equivalent of office found.</p> <p>The St. Johns Railway Company and the Florida Canal and Transportation Company also filed an answer of similar purport. Numerous exceptions to these answers were filed and some of them were sustained to certain paragraphs. Replication having been filed, the cause was referred to a master, who subsequently made a report containing findings of facts, findings of mixed law and fact, and conclusions of law, to which numerous exceptions were filed by defendants, all of which were overruled by the court, and a decree was entered in accordance with the prayer of the bill and the recommendations .of the report. A decreeyw confesso was entered ngainst John A. Henderson.</p> <p>From this decree all the defendants except Henderson, in respect of whom an order of severance was entered, prosecuted this appeal.</p> <p>The master also filed with his report an elaborate and careful opinion on the whole case.</p> <p>Complainants introduced in evidence from the American State Papers, Public Lands, vol. IY, Duff Green edition, 256, “ Minutes of the proceedings of the commissioners appointed to ascertain claims and titles to land in East Florida for the year 1824.”</p> <p>Meeting of the board, March 29, 1824, pursuant to an act of Congress of February 28, 1824.</p> <p>Meeting, September 13,1824, when “ Sarah Fish, 10,000 acres; same 500 acres,” and three other “ cases being called and not being prepared for trial,” were “placed at the foot of the docket.”</p> <p>Minutes of meeting, March 28, 1825, pursuant to the act of Congress of March 3, 1825. April 21,1825 : “ Permission was given by the board to the executors of the estate of Sarah Fish, deceased, to amend the memorials in the claims of said Sarah Fish.”</p> <p>December 16, 1825: “ The following claims were this day reported to Congress for confirmation, viz: . . . Sarah Fish’s heirs, for ten thousand acres; . . .”</p> <p>Report of commissioners to the Secretary of the Treasury, January 31, 1826, transmitting claims and titles examined and disposed of, class three comprehending “ claims exceeding 3500 acres, the titles to which were found among the public archives of the' country, and are ascertained by the commissioners to be valid Spanish grants, and reported accordingly to Congress for confirmation.” 4 Am. State Papers, Public Lands, D. G. ed., p. 276. The Fish claim was included in class No. three, as follows:</p> <p>u Register of claims to land exceeding 3500 acres in Bast Florida, which are founded on patents or royal titles derived from the Spanish Government, and which in the opinion of t1te commissioners are valid.</p> <p>Names of— Present claim-Original claim-21 Heirs of Jessie Fish. Jessie Fish Date of the concession'or order of survey. Quantity of land. Acs., hdths. By whom conceded. _ a Ut ||l ■Sag Conditions. Occupation and cultivation Where situated. Cases reported this session. 19 June, 1795. 10,000 Morales. 1790 Complied with. Anastasia Island.</p> <p>The petition of Mrs. Fish, dated August 31, 1823, asserted that she “ claims title to the island lying in front \i. e., to the east] of the city of St. Augustine, and running south about eighteen miles, more or less, along the east bank of the river Matanzas, known by the name of the island of St. Anastasia, supposed to contain ten thousand acres, as belonging to the, deceased husband, Jesse Fish, Senior, in the year 1763. That in the year 1792 this island was sold at public sale by order of the Spanish governor, Quesada, when her son, the late Jesse Fish, Jr., deceased, became the purchaser.”</p> <p>Accompanying this memorial were certain papers and proceedings as follows: A petition of Jose Fish, .(erroneously dated December 2, 1796,) stating that at the auction of his father’s property for the payment of his creditors, he purchased the place called The Yergel for $1605, which sum he gave only with a view to the fruit trees of said place, and the timber which is on the land belonging to it, as the land is entirely useless for planting; that several of the neighbors had been cutting the wood, and therefore he begs to be declared owner of the lands which his said father possessed, annexed to tbe place of the Orange Grove, which, according to the deeds granted in the time of the British possession, amounted to 10,000 acres, whether as a new settler or by the right which his deceased father had to them. That if he does not obtain this favor he will consider himself the loser of the greatest part of his purchase, because the lands will not produce crops of any kind and a great number of the fruit trees have dried up, which is likely to occur to the balance of them.</p> <p>Governor Quesada, who’ described himself as “ brigadier of the infantry of the- royal. armies, governor, commander in chief, vice royal patron, and sub-delegate of the royal domain of this city of St. Augustine, Florida, and its province, for His Majesty,” referred the petition December 15, 1794, to the assessor general, who, on the same day, reported that if Fish had asked to prevént trespassing or to recover possession, he would render an opinion, but as Fish asked to be declared owner, it was for the governor to determine judicially the extent of Fish’s purchase or his right as a new settler.</p> <p>Thereupon Governor Quesada directed Fish to make proof of the facts on which he based his right or claim to favor.</p> <p>Sundry depositions rvere then taken, and the governor on the 12th of February, 1795, referred The petition and proof to the collector of the exchequer,' that as fiscal of it he may represent him in the discharge of~his functions. February 27 the fiscal reported that at the sale of the orange grove to Joseph Fish, the boundaries of the land, wei’e not taken into consideration, and only the valuation of the trees within the orchard was made, without including the 10,000 acres of land annexed to it. And he was-of opinion that Fish was not entitled to anything more than he could prove by the inventory, valuation and sale, and that after this land had been laid off, the remainder ought to be sold as belonging to his deceased father and for the benefit of the creditors of bis estate ; that the inventory, valuation and sale of the orchard should be annexed ; and that in case Fish had occasion for the use of more public land, and without injury to a third person, the fiscal minister did not find any objection to granting them to him as a new settler; “ according to what His Majesty has commanded of this particular.”</p> <p>The governor then directed, March 6,1795, that the testimony indicated “ be placed in continuation and with it those proceedings returned to the assessor general, that he may consult with me as to what is proper as respects the other points to which the foregoing fiscal representation refers.”</p> <p>The inventory, valuation, and sale of the orange grove in 1792, was accompanied by the commission of the governor dated January 18,1792, appointing the appraisers, and specifying the “ 9th item ” thus: “ The place called ‘ El Yergel,’ which belongs to the deceased, although the title under which he enjoyed it does not appear in the proceedings.”</p> <p>March 26,1795, this entry was made by the governor: “ Seen: Passed over to Don José. Fish: Thus decrees and orders Señor Don Juan Nepomuceno de Quesada, brigadier of the infantry of the royal armies, governor, Commander General, Yice Koyal Patron, and Subdelegate of the Koyal Domain of this City of St. Augustine, Florida, and its province, for His Majesty, who signs it, with the opinion of Señor the assessor general, the twenty-sixth of March, one thousand seven hundred and ninety-five.”</p> <p>There then appears a new petition by Fish, without date, setting out that he is a new settler in the province; that the above mentioned documents have been given him, and he, being advised of their contents as also of the sale at auction of The Yergel, considers that the fiscal was in error when he reported adversely on the first petition ; that he has produced proof that his father had ancient possession of “El Yergel,” for which he paid an excessive price, and prays that a grant of “ said island” be made to him, and that a copy of the writing which he presented to the notary after the sale, asking for the island at a valuation, be placed in continuation.</p> <p>On April 17,1795, the assessor general, Ortega, who recites that he is “advocate of the ro}ral council, lieutenant governor, auditor of war, and assessor general of the city of Saint Augustine, Florida, and its province, for His Majesty, who signs it in consequence of the illness of the governor and commander-in-chief,” directed that the copy be put in continuation, and the whole passed over to the representation fiscal. The writing referred to is dated March 22, 1792, and Fish states therein that at the public sale, the day before, of the property of his father, there was no person who would bid “ for the island del Vergel;” that he obligated himself to pay $1605; and “he prays your excellency to have the kindness to order that he be placed in possession of it.” On May 4, 1795, the first officer of the chief comptroller’s department, “and who is charged with the administration and court of justice of the ro}ral treasury on account of the illness of his excellency, the governor, and. as attorney fiscal of the royal treasury,” reviewed the papers, and concluded that under the circumstances the governor might “order the boundaries of the Vergel to be marked off to the number of 10,000 acres.” This was followed by this entry: “ Having examined the proceedings, it was thus decreed and ordered by Señor Hon Bartolomé Morales, colonel of the infantry of the royal armies, commandant of the third battalion of Cuba which garrisons this city of Saint Augustine, Florida, and political and military governor of it and its province, from the indisposition of the governor, who signed it on the sixteenth of May, 1795 ; which I attest.” This was signed by Morales,. and attested by Ortega, assessor general, before the notary.</p> <p>J une 12,1795, Morales and Ortega directed notice to be given to the defender of the estate of Fish, and that the proceedings be returned.</p> <p>June 17, 1795, the defender of the estate reported that the 10,000 acres might be granted.</p> <p>Then follow the alleged grant and delivery of possession, namely:</p> <p>“ Having examined those proceedings and seen the proof adduced in them by Hon José Fish, it appears not only that his father of the same name possessed since the time of the old Spaniards and in that of the British dominion the 10,000 acres of land, possession of which he claims at the place called the Orange Grove, which he purchased at public auction, but also that he made a bid for the said land, under which his purchase ought to be understood, which defect in not explaining it thus at that time should not be prejudicial to him, and has given cause to this litigation. His excellency said that declaring it, as he declared now, he ordered in consequence that whether by the right which the burdensome acquisition of the said land gives Fish, which cost him 1605 dollars, which it appears he paid for the purchase of the Orange Grove, or by the right which the ancient possession of his father gives him to the said 10,000 acres of land, or finally in consequence of the petition of Fish, that they should be granted to him as anew settler, he be placed in possession of the said land, which it appears his said’father possessed, and which is already laid off, with the reserve of the quarries, and the remainder, which was not granted to his said father, and which the King has reserved, renewing, in case of necessity, at the cost of the interested, the boundaries by said appraisers, Hon Manuel Solana, who at the time of the old Spaniards and at the new possession by them of the province laid off by order of the government, the aforesaid quarries, to give possession, as is proven, to the father of the memoralist of the land which he claims, and let them be granted to him on the terms above set forth, the present notary, who is commissioned for the purpose, when with the said appraisers, and any other workman that may be necessary, he shall assist at marking the. boundary, at which also shall assist, to represent the rojml treasury, the person whom the minister of the royal domain may depute for the purpose. All of which shall be made appear on the proceedings with which, and the taxation of the costs, which the interested shall satisfy, this proceeding shall be held as concluded. It was thus decreed and ordered by Señor Don Bartolomé Morales, colonel of infantry of the royal armies, commandant of the third battalion of Cuba, which garrisons this city of St. Augustine, Florida, and political and military governor, who signed this, with the opinion of his honor the assessor general, on the 19th June, 1795, which I attest.</p> <p>“Bartolomé Morales.</p> <p>“ Licentiate Josef de Ortega.”</p> <p>“ Proof of boundary and,possession.</p> <p>“ Being at the plantation called the Orange Grcve, in the island of St. Anastasia, on the tenth of July, 1795, in conformity with what is provided in the foregoing decree, we proceeded to the marking the boundaries of the land comprised in these proceedings. Don Manuel Solano, the appraiser appointed for the'purpose, passing from said place to where the quarries of the King and of individuals are situated, who, passing along the ancient boundaries with Don José Lorente, chief master of the royal works, who accompanied him to inform himself, Don Tadco Arribas, officer of the royal comptroller’s office, from the employment of the collector, for his fiscal cognizance, and I, the present notary, went fixing up stakes to point out said boundaries across the island, and separated the said quarries, saying that all besides them was what corresponded to Don José Fish; to whom, being also present, I, the said notary, in discharge of the commission which was conferred upon me, put him in possession of the land pointed out, leading him into it by hand, and riding together on horseback by various places, until arriving at the dwelling house ; all of which I did as a token of said possession, which ho took quietly, peaceably, and without contradiction. In testimony of which and for the due proof I have extended the present proceedings, which all signed with the exception of Solano, who said he did not know how.”</p> <p>Signed by Arribas, Lorente and Fish.</p> <p>The Secretary of the Treasury transmitted the report of the commissioners, with the evidence and decisions, to Congress, February 21, 1826. Vol. 4, p. 400.</p> <p>The act of Congress of May 8, 1822, 3 Stat. 709, c. 129, provided tli at “for the purpose of ascertaining the claims and titles to lands within the territory of Florida, as required by the treaty,” commissioners should be appointed with power “to inquire into the justice and validity of the claims filed with them,” but not to have “power to confirm any claim or part thereof where the amount claimed is undefined in quantity, or shall exceed one thousand acres; but in all such cases shall report the testimony with their opinions to the Secretary of the Treasury, to be laid before Congress fortheir determination,” A surveyor was also to be appointed.</p> <p>Section 4 provided that “ every person, or the heirs or representatives of such persons, claiming title to lands under any patent, grant, concession, or order of survey, dated previous to the twenty-fourth day of January, one thousand eight hundred and eighteen, which were valid under the Spanish government, or by the law of nations, and which are not rejected by the treaty ceding the territory of East and West Florida to the United States, shall file, before the commissioners, his, her, or their, claims, setting forth, particularly, its situation and boundaries, if to be ascertained, with the deraignment of title, where they are not the grantees, or original claimants; which shall be recorded by the secretary, . . . and said commissioners shall proceed to examine and determine on the validity of said patents, grants, concessions, and orders of survey, agreeably to the laws and ordinances heretofore existing of the government making the grants, respectively, having due regard, in all Spanish claims, to the conditions and stipulations contained in the eighth article of a treaty concluded at Washington, between His Catholic Majesty and the United States, on the twenty-second of February, one thousand eight hundred and nineteen; but any claim not filed previous to the thirty-first day of May, one thousand eight hundred and twenty-three, shall be deemed and held to be void and of none effect.”</p> <p>This act was amended by an act approved March 3, 1823, 3 Stat. J54, c. 29, confining the-existing board of commissioners to West Florida, and authorizing the appointment of three commissioners for East Florida. The second section of this act provided that in the examination of titles, the claimant or claimants “shall not be required to produce in evidence the deraignment of title from the original grantee or patentee, but the commissioners shall confirm every claim in favor of actual settlors at the time of cession of the said territory to the United States, where the quantity claimed does not exceed thirty-five hundred acres, where such deraignment cannot be obtained, the validity of which has been recognized by the Spanish government, and where the claimant or claimants, shall produce satisfactory evidence of his, her, or their right to the land claimed. And said commissioners shall have the power, any law to the contrary notwithstanding, of deciding on the validity of all claims derived from the Spanish government in favor of actual settlers, where the quantity claimed does not exceed three thousand five hundred acres.”</p> <p>It was enacted by the fifth section “ that all claims not filed with the commissioners of the district, where the land claimed is situated, in the manner prescribed by the act to which this is an amendment, on or before the first day of December next, .shall be held to be void and of none effect.”</p> <p>The act further provided for the appointment of a surveyor for the territory, for the opening of land offices in each district, and for the appointment of a register and a receiver for each of said offices.</p> <p>February 28, 1824, an act was passed, 4 Stat. 6, c. 25, which extended the time limited for the settlement of private land .claims in Florida by the act of March 3, 1S23, until January 1, 1825 ; declared that no person should be taken and deemed to be an actual settler unless he, or those under whom he claimed title, should have been in the cultivation or occupation of the land at and before the period of the cession; and that it should be lawful for claims to be filed any time previous to September 1, 1824, “ but all and every claim not filed by that time, shall be held and deemed void.and of none effect.”</p> <p>On the third of March, 1825, another act was passed, 4 Stat. 125, c. 83, which provided that it should “ be lawful for claims to be filed before the board of commissioners in East Florida any time prior to the first day of November, one thousand eight hundred and twenty-five;” and the commissioners were authorized to continue their session until the first Monday of January, 182(1. The act provided for the appointment of keepers of the public archives.</p> <p>February 8,1821, an act was passed, 4 Stat. 202, c. 9, to confirm title to lands and lots favorably passed on or reported not exceeding thirty-five hundred acres. This act provided “ that the several claimants to land in said district, whose claims have not been heretofore decided on or filed, before the late board of commissioners, be permitted to file their claims, and the evidence in support of them, with the register and receiver of said district, and evidence in support of those .filed before said board, at any time before the first of November next, whose duty it shall be to report the same, with their decision thereon, and those already filed, to the Secretary of the Treasury, on or before the first day of' January, one thousand eight hundred and twenty-eight, to be laid before Congress at the next session.” Surveys were to be made and certificates granted, and claims for which the surveyor refused to issue certificates designated on the township plats. Holders of claims exceeding 3500 acres were required to furnish the surveyor with such information as would enable him to exhibit the claims on said plats.</p> <p>This was followed by the act of May 23,1828,4 Stat. 284, c. 70, which confirmed claims which had been recommended for confirmation “ to the extent of the quantity contained in one league square, to be located by the claimants, or their agents, within the limits of such claims or surveys filed, as aforesaid; ” “ that no more than the quantity of acres contained in a league square, shall be confirmed within the bounds of any one grant; and no confirmation shall be effectual until all the parties in interest, under the original grant, shall file with the register and receiver of the district wheré the grant may be situated, a full and final-release of all claim to the residue contained in the grant; and where there shall be any* minors incapable of acting within said territory of Florida, a relinquishment by the legal guardian shall be sufficient; and thereafter the excess in said grants, respectively, shall be liable to be sold as other public lands of the United States.”</p> <p>The fourth section provided that the register and receiver should continue to decide the remaining claims in East Florida, subject to the same limitations and in conformity with the provisions of the several a.cts of Congress for the adjustment of private land claims in Florida, until the first Monday in the next December, when they should make a final report of all the claims aforesaid in said district to the Secretary of the Treasury; and provided that it should never be lawful after that time for any of the claimants to exhibit any further evidence in support of said claims.</p> <p>It was further enacted by section six “ that all claims to land within the territory of Florida, embraced by the treaty between Spain and the United States of the twenty-second of February, one thousand eight hundred and nineteen, which shall not be decided and finally settled under the foregoing provisions of this act, containing a greatér amount of land than the commissioners were authorized to decide, and above the amount confirmed by this act; and which have not been reported, as antedated or forged, by said commissioners, the register and receiver, acting as such, shall be received and adjudicated, by the judge of the superior court of the district in which the land lies, upon the petition of the claimant, according to the forms, rules, regulations, conditions, restrictions, and limitations prescribed to the district judge, and claimants in the State of Missouri, by act of Congress, approved May twenty-six, eighteen hundred and twenty-four, entitled ‘ An act enabling the claimants to land within the limits of the State of Missouri, and territory of Arkansas, to institute proceedings to try the validity of their claims;’ Provided, That nothing in this section shall be construed to authorize said judges to take cognizance of any claim annulled by the said treaty, or the decree ratifying the same by the King of Spain, nor any claim not presented to. the commissioners or register and receiver, in conformity with the several acts of Congress, providing for" the settlement of private land claims in Florida.” An appeal was provided for from the decision of the Judge of the District Court to this court within four months after the decision should be pronounced.</p> <p>The twelfth section read : That any claims to lands, tenements, or hereditaments, within the purview of this act, which shall not be brought by petition before said court within one year from the passage of this act, or which, after being brought before' said court, shall on account of the neglect or delay of the claimant, not be prosecuted to a final decision'within two years, shall be forever barred, both at law and in equity; and no other action at common law, or proceeding in equity, shall ever thereafter be sustained in any court whatever.”</p> <p>The act of May 26, 1824, 4 Stat. 52, c. 173, in respect of land claims in Missouri and Arkansas, which “ might have been perfected into a complete title ” under the prior government, provided that it might be lawful.for claimants to lands in Missouri and Arkansas to institute proceedings to try the validity of their claims in the manner set forth; that the court should have full power and authority “ to settle and determine the question of the validity of_ the title, according to the law of nations, the stipulations of any treaty, and proceedings under the same; .the several acts, of Congress in relation thereto; and the laws and ordinances of the government from which it is alleged to have been derived; and all other questions properly arising between the claimants and the United States.”</p> <p>The decision of this court, if an appeal were taken, or, if not, of the court below, was to be .final and conclusive. By the fifth section of the act, any claim not brought before the court within two years, or not prosecuted to final decision within three years, was barred.</p> <p>May 26, 1830, 4 St-at. 405, c. 106, an act was passed confirming the claims and titles to lands filed before the register and receiver of the land office acting as commissioners in the district of East Florida under the quantity contained in one league square, which had been recommended for confirmation, and referred to Congress January 14, 1830; “ and all the remaining claims which have been presented according to law, and not finally acted upon, shall be adjudicated and finally settled upon the same conditions, restrictions, and limitations, in every respect, as are prescribed by the act of Congress approved twenty-third May, one thousand eight hundred and twenty-eight.” ' ,</p> <p>• By the eighth section, claimants who were entitled to avail themselves of the act of .May 23, 1828, or might avail themselves of ■■the provisions of this act, by taking a quantity of land equal to a league square in lieu of the whole grant, were allowed a fuHher time of 'one year from the passage of the act in which to make their relinquishments, etc.</p> <p>By an act of June 22, 1860, 12 Stat. 85, c. 187, “for the final adjustment of private land claims in the States of Florida, Louisiana and Missouri, and for other purposes,” claimants of lands lying within those States by virtue of any grant, concession, order of survey, permission to settle, or other written evidence of title, emanating from any foreign government, bearing date prior to the cession to the United States, were authorized to make application for confirmation of their title to lands so claimed, and the registers and receivers of the land offices in Florida were appointed commissioners to hear and decide under' such instructions as might be prescribed by the commissioner of .the general land office, and according to justice and equity, in a summary manner, such claims within the district aforesaid as came within the provisions of the act. The claims were to .be divided into three classes, first, all claims which in their opinion ought to be confirmed where the lands claimed had been in possession and cultivation by the, private claimants or those under whom they derived title for a period of at least twenty years preceding the date of the filing of the claim, by virtue of some grant, concession, order of survey or permission to survey, or other written evidence of title; second, all claims which in their opinion ought to be confirmed, where the lands were claimed under written evidence of title, but where there had been no actual cultivation or possession for a period of twenty years; third, all claims which in their opinion ought to be rejected; -that whenever the commissioner of the general land office should approve the report of the commissioners in cases embraced in classes first and second, he should report the same to Congress for its action; and that whenever it should appear that the' lands claimed and the title to which might be confirmed had been sold in whole or in part by the United States prior to confirmation, or where the same could not be surveyed or located, the party in whose favor the title was confirmed should have the right to enter upon any of the public lands of the United States'a quantity of land equal in extent to that sold by the government.</p> <p>Section 11 provided for proceedings where lands had not been possessed or cultivated for twenty years, but were claimed “by complete grant, or concession, or order of survey, duly executed, or by other mode of investiture of the title thereto in the original claimant or claimants, by separation thereof from the mass of the public domain,” by petition in any District Court of the United States, within whose jurisdiction the lands or any part thereof might lie; and for an appeal from the decree to this court.</p> <p>Section 12 enacted that the act. should remain in force for five years, unless sooner repealed, “ and all claims presented or sued upon according to the provisions of this act within the said term of five years, may be prosecuted to final determination and decision, notwithstanding the said term of five years may have expired before such final determination and decision.”</p> <p>The provisions of this act were extended by an act of June 10, 1872, 17. Stat. 878, c. 421, puttiug it in force for a period of three years; and it was provided that all persons claiming land as specified in the first section of the act might have their claims confirmed, in all cases where it should be satisfactorily proved that the claimants, and those from whom they derived title, had “ held continuous possession of the land claimed, from the date of the cession to the United States of the territory out of which ” the State of Florida was formed.</p>

This was a complaint, in the' nature of a bill in equity, under tbe Arizona code,v^led-in the district court of Maricopa County, by the appellee, Wilson, (who had already, in a prior suit, foreclosed a mortgage upon certain real estate against John M. Armstrong, mortgagor, and Robert E. Daggs, purchaser of the premises,) against Alvin L. Johns, subsequent purchaser pendente lite of the same premises, and also against William A. Daggs, tenant in possession, Eobert E. Daggs,…

Held: That the highest court of the State having decided that the provision requiring a license was separable from other provisions, it was the duty of the Federal Court to accept that interpretation of the statute : (2) That the mere requirement of a licensee to engage in the business specified in the statute was to be referred to the general power of the State to adopt such regulations as were appropriate to protect the…

Held: as between it and the trustee of Mrs. Mitchell’s estate, could not, in law, be sustained. Although it does not appear that Mrs. Mitchell was, in form, a party to the proceedings in the state court, she *483 was in privity with the trustee who held her estate for the benefit of creditors. It was admitted at the bar that a judgment in that court in favor of the bank would have concluded the question of her liability.

<p>APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF ARIZONA.</p> <p>The case is stated in the opinion of the court.</p>

Held: that the decision of the Collector at Malone was not final, and that by the act of October 1, 1888, c. 1064, the certificate issued to him by the Chinese consul on his departure from the United States was annulled.

On February 13, 1896, in the Supreme Court of the District of Columbia, at the Circuit Court Term No. 1 thereof, a judgment was entered in favor of George A. Armes, of which the following is a copy : “ Comes here now the plaintiff, by his attorney, and prays judgment on the verdict rendered in this case on the Yth instant, which is granted.

Held: upon full consideration, that although under existing statutes a Circuit Court of the United States has'jurisdiction upon habeas corpus to discharge from the custody of state officers or tribunals one restrained of his liberty in violation of the Constitution of the United States, it is not required in every case to exercise its power to that end immediately upon application being made for the writ. “ We cannot…

The ultimate question in this case is whether the county of Wilkes, North Carolina, is liable upon certain bonds issued in 1889 in payment of a subscription in its name to the capital stock of the North Western North Carolina Railroad Company.

<p>Blackburn v. Portland Gold Mining Company, 175 U. S. 571, and Shoshone Mining Company v. Rutter, 177 U. S. 505, affirmed and applied.</p> <p>Kesort cannot be bad to judicial knowledge to raise controversies not presented by tbe pleadings.</p>

Held: referring to sections 1000 and 1007 of the Revised Statutes, that a justice of this court had authority not only to allow the writ of error but also to grant the supersedeas.

Held: that the evidence was competent as rebuttal, and should have been received.

Held: that the power so conferred by the statute of 1812 in force in 1882 could, without straining, be construed as distributive; that the city council was authorized to contract with any person or corporation to construct and maintain waterworks at such rates as might be fixed by ordinance and for a period not exceeding thirty years; that the words “ fixed by ordinance ” might be construed to mean by ordinance once for…

<p>error to the supreme court of THE STATE OF ILLINOIS.</p> <p>The case is stated in the opinion of the court.</p>

This is a petition for a writ of mandamus which was brought by the defendant in error on the 13th of December, 1897, in the circuit court of Cook County, State of Illinois, against the plaintiff in error, to compel it to furnish him water at rates fixed by an ordinance enacted by.the city of Chicago. • The defence is that such ordinance impairs the obligation of the contract which plaintiff iff error claims to 'have with the village of Rogers Park before its annexation to…