Volume 184 — United States Reports

Edward B. Nugent was adjudicated a bankrupt March 23, 1900, on the petition of the Wayne Knitting Mills and others, his creditors, filed in the District Court of the United States for the District of Kentucky, February 19, 1900, and the matter was referred to a referee.

Held: That as to these sums the assignee asserted adverse claims existing at the time the petition was filed, which • could not be disposed of on summary proceeding. (2) That the bare -fact that the assignee was named as one of the defendants to the petition in bankruptcy did not make him a party to the bankruptcy proceedings for all purposes.

Held: in the case of the Louisville & Nashville Railroad Company v. Ken tucky, 183 U. S. 503 , that the section of the Kentucky constitution above set forth, as applied to places, all of which are within the State, violates no provision, of the Federal Constitution.

This is a continuation of the case which was before this court and decided in 1897. 168 TJ. S. 1. It was brought to quiet the title of the Government to some seven hundred thousand acres of land within the limits of the forfeited grant to the Atlantic and Pacific Railroad Company, and claimed by the defendants under certain junior grants to the Southern Pacific Railroad Company.

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

Held: That a bill to recover the assessment in question was not brought upon a contract in writing, but upon an implied contract not in writing, or upon a liability created by statute, and that the suit was barred.

<p>APPEAL PROM THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.</p> <p>The case is stated in the opinion of the court.</p>

The appellants seek a review in this court of the judgment of the Court of Appeals of the District of Columbia, in this case, affirming a judgment of the Supreme Court of the District enjoining the appellants from thé further prosecution of an action of ejectment brought by them against appellee Coleman in the Supreme Court of the District, to recover a one fifth interest in a house and lot in the city of Washington, in the possession of -Coleman as tenant of appellee,…

<p>ERROR TO THE SUPREME COURT OP THE STATE OP OHIO.</p> <p>This is a writ of error, to review the judgment of the Supreme Court of the State of Ohio, which sustained the ruling of the Court of Common Pleas of Cuyahoga County, dismissing upon the demurrer of the defendant in error the petition of the plaintiff in error praying for an order and decree restraining the collection of taxes levied upon the shares'of the stockholders of plaintiff in error. 62 Ohio, 266.</p> <p>The plaintiff (plaintiff in error was plaintiff in the court below) is a banking corporation with a capital stock of $500,000, divided into 5000 shares of $100 each, all of which are paid up, and for which certificates are outstanding and owned by a large number of persons,- most of whom reside in Ohio.</p> <p>The plaintiff made in due time return of its resources and liabilities, in accordance with section 2765 of the Revised Statutes of Ohio, to the auditor of the county, together with a full statement of the names and residences of the stockholders of the company, and with the number of shares held by each and the par value thereof, as required by the statute. The return included its real estate and one hundred and seventy-four bonds of the United States of the denomination of $1000 each, “ then and for a long time prior thereto owned by the plaintiff and in which the plaintiff had invested its capital stock.” The plaintiff valued these bonds at the sum of $213,274.81, and in its return deducted that sum from the $500,000 par value of paid-in capital stock included among the liabilities of the plaintiff, leaving a balance of $286,725.19.</p> <p>The county auditor refused to allow the deduction of the government bonds, and fixed the value of the shares of the capital stock at $338,700, exclusive of the assessed value of the real estate. No notice of this action was given plaintiff or its stockholders, nor did plaintiff or its stockholders know until the 11th of November, 1898, that said bonds had been included in fixing the valuation of the shares of the bank.</p> <p>It is alleged in the petition that it is the custom of banks and banking institutions throughout the State of Ohio to deduct the value of government bonds from the paid-in capital stock returned, “ although not so apparent upon the face of their returns to the several county auditors ; that said bonds were by the banks and banking associations of this State so deducted in the return for 1897; that similar deductions of the United States government bonds are likewise made by unincorporated banks in the State of Ohio under and by virtue of the Revised Statutes of the State of Ohio, sec. 2759; that the auditor of Cuyahoga County and the county auditors elsewhere throughout the State, as this plaintiff is informed and believes, did not include United States government bonds so owned in fixing the total value for ■,1898 of the shares of the several incorporated banks of Ohio, as directed by section 2766 of the Revised Statutes of Ohio.”</p> <p>The county auditor entered the valuation of the property of plaintiff, including said government bonds, upon the tax duplicate of the county, and assessed taxes against the same at the rate of .02955 cents on each dollar’s valuation of the shares, making an excess of taxation of $4283.71, and wat that sum stands against said shareholders upon the tax duplicate in the hands of the defendant, “ together with the remaining amount of taxes lawfully assessed against them upon the valuation so fixed by the county auditor.”</p> <p>The plaintiff tendered the sum which it regarded as legally due, and alleged the grounds upon which it claimed equitable relief.</p> <p>The error in the judgment of the Supreme Court of the State is assigned as follows :</p> <p>“ First. The court erred in affirming the judgment of the circuit court in sustaining the judgment of the Court of Common Pleas on the demurrer of the defendant to the petition of the plaintiff.</p> <p>“ Second. The court erred in holding and deciding that the Cleveland Trust Company was not entitled, in making its statement to the auditor of Cuyahoga County, Ohio, under section 2765 of the Revised Statutes of Ohio, to deduct, for the purpose of taxation, from its capital and surplus, the amount of the United States government bonds owned by it under and by virtue of section 3701 of the Revised Statutes of the United States, as claimed in the original petition, of the plaintiff.”</p>

This is a bill in equity brought by plaintiff in error in the circuit court for Wayne County, Michigan, to restrain the sale of his lands for an assessment levied by the city of Detroit, for the city improvements, on the ground that the law under which the assessment was imposed is repugnant to the Fourteenth Amendment of the Constitution of the United States, and that the assessment, therefore, puts a cloud upon plaintiff’s title.

These are cross appeals. The appellees in No. 127, appellants in No. 128, filed three separate petitions against the United States in the Court of Claims for extra work done and extra materials furnished under a contract with the United States.' The petitions were consolidated and tried as one case. On some of the claims the decision was in favor of petitioners and on others in favor of the United States.

<p>APPEAL FROM THE COURT OF CLAIMS.</p> <p>The Government appeals from a judgment of the Court of Claims awarding to the petitioner the sum of $1264.83, upon a readjustment of salarjr for his services as postmaster at Gadsden, in the State of Alabama, between July 1, 1866, and June 30, 1874. The original petition was filed in October, 1888, in consequence of the passage of the act of March 3, 1883, c. 119, 22 Stat. 487, which reads as follows:</p> <p>.“ That the Postmaster General be, and he is hereby, authorized and directed to readjust the salaries of all postmasters and late postmasters of the third, fourth and fifth classes, under the classification provided for in the act of July first, eighteen hundred and sixty-four, whose salaries have not heretofore been readjusted under the terms of section eight of the act of June 12th, eighteen hundred and sixty-six, who made sworn returns of receipts and business for readjustment of salary to the Postmaster General, the First Assistant Postmaster General, or the Third Assistant Postmaster General, or who made quarterly returns in conformity to the then existing laws and regulations, showing that the salary allbwed was ten per centum less than it would have been upon the basis of commissions under the act of eighteen hundred and fifty-four; such readjustments to be made in accordance with the mode presented in section 8 of the act of June 12th, eighteen hundred and sixty-six, and to date from the beginning of the quarter succeeding that in which such sworn returns of receipts and business, or quarterly returns were made: Provided, That every readjustment of salary under this act shall be upon "a written application signed by the postmaster or late postmaster or legal representative entitled to said readjustment; and that each payment made shall be by warrant'or check on the Treasurer or some assistant treasurer of the United States, made payable to the order of said applicant, and forwarded by mail to him at the post office within whose delivery he resides, and which address shall be set forth in the application above provided for.”</p> <p>The petitioner claimed that by a readjustment of his salary under that act he was entitled to be paid a difference of $1264.83 between the salary actually paid him and the amount to which he was entitled by reason of such act.</p> <p>By the act of June 22, 1854, 10 Stat. 298, Congress provided for the compensation of postmasters by allowing them commissions on the postage collected at their respective offices in each quarter of the year, and in due proportion for any period less than a quarter. The compensation awarded was as follows :</p> <p>On any sum not exceeding $100, 60 per centum;</p> <p>On any sum over and above $100, and not exceeding $400, 50 per centum;</p> <p>On any sum over and above $400, and not exceeding $2400, 40 per centum; •</p> <p>On all sums over $2400, 15 per centum.</p> <p>This method of compensation was changed by Congress by the, passage of the act of J uly 1,1864. 13 Stat. 335. By that act it was provided that the annual compensation of postmasters should be at a fixed salary in lieu of commissions, the postmasters to be divided into five classes, with compensation respectively as follows:</p> <p>First class to receive not more than $4000, nor less than $3000;</p> <p>Second class to receive less than $3000, and not less than $2000;</p> <p>Third class to receive less than $2000, and not less than $1000;'</p> <p>Fourth class to receive less than $1000, and not less than $100;</p> <p>Fifth class to receive less than $100.</p> <p>The first section of the act then proceeds as follows:</p> <p>“ Whenever the compensation of postmasters of the several offices, (except the office of New York,) for the two consecutive years next preceding the first day of July, 1864, shall have amounted to an average annual sum not less than $3000, such offices, shall be assigned to. the first class; whenever it shall have amounted to less than $3000, but not less than $2000f such offices shall be assigned to the second class; whenever it shall have amounted to less than $2000, but not less than $1000, such offices shall be assigned to the third class; whenever it shall have amounted to less than $1000, but not less .than $100, such offices shall be assigned to the fourth class; and whenever it shall have amounted to less than' $100, such offices shall be assigned to the fifth class. To offices of the first, second and third classes shall be severally assigned salaries, in even hundreds of dollars, as nearly as practicable in amount the same as, but not exceeding, the average compensation of the postmasters thereof. for the two years next preceding; and to offices of the fourth class shall be assigned severally salaries, in even tens of -.dollars, as nearly as practicable in amount the same as, but not exceeding, such average compensation for the two years next preceding ; and to offices of the fifth class shall be severally assigned salaries, in even dollars, as nearly as practicable in amount the same as, but not exceeding, such average compensation for the two years next preceding. "Whenever returns showing the average of annual compensation of postmasters for the two years next preceding the first day of July, 1864, shall not have been received at the Post Office Department at the time'of adjustment, the same may be estimated by the Postmaster General for the purpose of adjusting the salaries of postmasters herein provided for. And it shall be the duty of the Auditor of the Treasury for the Post Office Department, to obtain from postmasters their quarterly accounts with the vouchers necessary to a correct adjustment thereof, and to report to the Postmaster General all failures of postmasters to render such returns within a proper period after the close of each quarter.</p> <p>“ Sec. 2. And be it further enacted, That the Postmaster General shall review once in two years, and in special cases, upon satisfactory representation, as much oftener as he may deem expedient, and readjust, on the basis of the preceding section, the salary assigned by him to any office; but any change made in such salary shall not take effect until the first day of the quarter next following such order, and all orders made assigning or changing salaries shall be made in writing and recorded in his journal, and notified to the Auditor for the Post Office Department.”</p> <p>Subsequently by section 8 of the act of June 12, 1866, 14 Stat. 59, 60, section 2 of the act of 1864 was amended by adding the following:</p> <p>“ Provided, That when the quarterly returns of any postmaster of the third, fourth or the fifth class show that the salary allowed is ten per centum less than it would be on the. basis of commissions under the act of 1854, fixing compensation, then the Postmaster General shall review and readjust under the provisions of said section.”</p> <p>The Court of Claims finds that the petitioner was, as postmaster of Gadsden, Alabama, paid:</p> <p>“ For his" services between July 1, 1866, and</p> <p>June 30,1868, $73 per year, or for two years $146 00</p> <p>Amoutit brought forward, $ 146 00</p> <p>For his services between July 1, 1868, and June 30, 1870, at $220 per year, or for two-years .................................. 440 00</p> <p>For his services between July 1, 1870, and Juñe 30, 1872, at $460 per year, or for two years........... 920 00</p> <p>For his services between July 1, 1870, and June 30, 1874, at $540 per year, or for two years ...-................ 1080 00</p> <p>Jn addition thereto since said service for the two years between July 1,1868, and June 30,1870, $45.95 per year, amounting for the two years to____.................................. 9190</p> <p>And for the two years between July-1,1870, and June 30, 1872, $47.50 per year, amounting for the two years to.............,............. ' 95 00</p> <p>Amounting in all to.................. $2772 90</p> <p>“During his first biennial term his' adjusted salary was less than $100.</p> <p>“ During his second, third and fourth biennial terms his adjusted salary was more than $100 and less than $1000 per annum.</p> <p>“ III. He made application in writing to the Postmaster General for readjustment and payment of salary (under chapter 119 of the laws of 1883) for service as postmaster, in accordance with chapter 61- of the laws of 1854 and section 8 of ■chapter 114 of the laws of 1866. This he did prior to January 1, 18871 The Postmaster General thereupon stated plaintiff’s account, as shown later in these findings. This statement shows that (if plaintiff be correct in his contention as to the law) his .salary for the .four biennial terms between July 1, 1866, and June , 30, 1874, should have been $4037.73, whereas he has been'paid-in all fqr said terms but $2772.90; so (if he be cor-' rect) there is still due him as readjusted salary $1264.83.”</p> <p>The court .also sets out certain correspondence between its clerk (under its direction) and the Postmaster General in regard to papers in the Post Office Department, showing or tending to show what action, if any, had been taken by the Department on request of petitioner for readjustment of salary under the act of 1883. It does not clearly appear therefrom that Postmaster General Wanamaker, to whom the clerk addressed his communication, had readjusted the salary, but subsequently to the correspondence the Court of Claims finds, in its fifth finding, that on November 19, 1897, Postmaster General G&ry certified and returned to the Court of Claims a readjustment of the petitioner’s salary and documents relating to the action of the Post Office Department in this and similar cases, and the court in such fifth finding concludes thus:</p> <p>“ If the foregoing readjustment of Postmaster General Wanamakerfis the readjustment prescribed and intended by'the statutes therein referred to, there is no balance of salary remaining due the plaintiff.. If .the readjustment hereinafter set forth of Postmaster General Gary is the readjustment prescribed and intended by the said statutes, there remains due to the plaintiff the sum of $1264:83.”</p> <p>Put the court, by its conclusion of law, finds that no legal readjustment of salary was made by Postmaster General Wanamaker, and that the readjustment made by Postmaster General Gary was valid under the statute, and therefore ordered judgment for $1264.83.</p>

By this action, which was commenced in a court of the State of Minnesota, recovery was sought from the First National Bank of Lake Benton, Minnesota, plaintiff in error here, of twice the amount of the entire interest which it was alleged had been paid to that bank by Watt, plaintiff below, who is the defendant in error on this record.

<p>ERROR TO THE SUPREME COURT OE THE STATE OE TEXAS.</p> <p>On August 6, 1898, the State of Texas filed a petition in the district court of San Augustine County, Texas, averring that the defendant was justly indebted to the State of Texas and the county of San Augustine in the sum of $1305.87, on account of taxes, interest, penalties and costs due on certain described lands for the years 1884, 1885, 1886, 1887, 1888, 1889, 1890, 1891, 1892, 1894, 1895 and 1896. The prayer was for a recovery of the taxes, interest, etc., and for a decree establishing and enforcing a lien upon the several tracts for the amounts found due upon each. An answer was filed and a trial bad, which resulted, on September 9, 1889, in a finding that there was due the State tbe amount claimed for taxes, etc., a decree that the State recover the amount thereof from the defendant, and adjudging a lien upon the several tracts therefor, and directing a foreclosure and sale. On appeal to the Court of Civil Appeals the decree was modified by striking out the taxes of 1884, all penalties and the personal judgment against the defendant, leaving the decree to stand as a finding of the amount due for taxes subsequent to the year 1884, interest and costs, and a foreclosure of a lien therefor upon the several tracts. ' This modification reduced the amount of the recovery to $1232.77, with interest at 6 per cent from September 9, 1899, the date of the decree in the district court. On error to the Supreme Court of the State the decree of the Court of Civil Appeals was affirmed, 93 Texas, 553 ; whereupon this writ of error was sued out.</p>

Held: that questions of this kind may be examined, upon motion supported by affidavits, and that it is the duty of a court to make such inquiry.

Held: that the title conveyed by the deed must be upheld.

Held: That the obvious danger resulting from the use of locomotives about so easily ignitible a material as cotton was clear and the jury would have been reasonably justified in drawing the inference that it had caused the fire; 2. That the proof *174 showed negligence in the care of the property; 3.

On the 7th day of January, 1902, came the State of Minnesota, by Wallace B. Douglas, its Attorney General, and moved the court for leave to file a bill of complaint against the Northern Securities Company, a corporation of the State of New Jersey. Thereupon, the court directed that notice of such application should be given to the defendant, and set the motion for argument on January 27, 1902, when it was duly heard.

Held: that as these amendments were made at defendant’s request, the existing conclusions of law and judgment were not thereby disturbed.

Held: in the language of Mr. Justice White: “All these alleged errors may be reduced to the simple contention that under the national banking law the Comptroller of the Currency is without power to appoint a receiver to a defaulting or insolvent national bank, or to call for a ratable assessment upon the stockholders of such bank without a previous judicial ascertainment of the necessity for the appointment of the…

<p>APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.</p> <p>August 15, A. D. 1901, Dr. Walther Wever, Imperial German Consul at Chicago, filed, his complaint before Mark A. Foote, Esq., a commissioner of the United States in and for the Northern District of Illinois, and specially authorized to issue warrants for the apprehension of fugitives from justice of foreign governments, stating that he was “ the duly accredited official agent and representative of the German Empire at Chi- ' cago and also the Kingdom of Prussia, forming a part of said German Empire,” and charging that one Gerhard Terlinden, alias Theodor Graefe, a subject of the Kingdom of Prussia, did, within the first six months of the year 1901, “commit within the jurisdiction of the said Kingdom of Prussia various crimes of forgery and counterfeiting and the utterance of forged papers,” in that as a director of the Gerhard Terlinden Stock Company, organized and doing business in said kingdom, said Terlinden forged and counterfeited certain certificates of the stock of said company amounting to about a million and a half of marks, and put out, uttered and disposed of the same to Eobert Suermont of the city of Aachen, Prussia; the Amsterdamsche Bank, Netherlands; the Discon to Gesellschaft, a corporation doing business in Berlin, Prussia; and other persons and corporations, with felonious intent to cheat and defraud them respectively. The complaint further charged that Terlinden was at the time of. committing said crimes a resident of the city of Duisburg and a citizen of said Kingdom of Prussia ; that he was a fugitive from said kingdom ; that on or about the first day of July, 1901, hp fled into the jurisdiction of the United States of America for the purpose of seeking an asylum therein; that he was now said to be concealed -withip the Northern District'of Illinois or-in the Eastern District of Wisconsin; and that the crimes with which he was charged were crimes embraced within the treaty of extradition between the United States and the Kingdom of Prussia, concluded on the 16th day of June, 1852, and ratified May 30, 1853.</p> <p>It was therefore prayed that a warrant be issued for the apprehension and commitment of Terlinden “ in order that the evidence of his criminality may be inquired into, and the said Gerhard Terlinden, alias Theodor Graefe, may be extradited and delivered up to the justice of the said Kingdom of Prussia, in accordance with the stipulations of said treaty and the acts of Congress passed in pursuance thereof.”</p> <p>The complaint was duly verified and the commissioner issued his warrant, which was placed in the hands of John C. Ames, United States marshal in and for the Northern District of Illinois, and Terlinden was apprehended and held to be dealt with according to law.</p> <p>Subsequently and on September 25, 1901, Dr. Wever, in his capacity aforesaid made another complaint before the commissioner, charging (1) the forging of a large number of stock certificates of the Gerhard Terlinden Stock Company; (2) uttering said.stock certificates, well knowing them to be forged; (3) forging and counterfeiting the steel stamp of the Royal Prussian revenue office at Duisburg, Prussia; (4) imprinting said forged steel stamp upon the forged- certificates of stock so as to make it appear that the tax required by the Prussian revenue law had been paid on said certificates issued by the company in said kingdom, and thus to give said forged certificates the appearance of genuineness; (5) uttering forged certificates of stock with said forged stamp thereon ; (6) forging the acceptance of one Heinrich Schulte to a certain draft for nine thousand five hundred and eighty-two marks and thirty-five pfennings, and uttering the same; (7) forging the acceptance of one Wilhelm Seven to two certain drafts for the sum's of twenty-six thousand two hundred and fifty marks and of twenty-five thousand nine hundred and twelve marks and forty-five pfennings, respectively, and uttering the same; or causing all these things to be done; “ contrary to the laws of the Kingdom of Prussia.”</p> <p>It was stated that these several crimes were fully shown by the testimony of a number of witnesses heard before the examining judge of the Landgericht at- Duisburg in the Kingdom .of Prussia, “a court'of competent jurisdiction in which the matter of the vpenal investigation instituted against the said Gerhard Terlinden, alias Theodor Graefe, is now pending, in order that he may answer for said several crimes; ” and with the complaint were submitted copies of the depositions of the witnesses, together with a copy of the warrant of arrest issued by that court against Terlinden, “ and of the provisions of the penal code of the German Empire applicable to said several crimes and providing punishment therefor,” all of which were duly authenticated; and also a verified English translation thereof. This second ’ complaint also showed that the crimes charged, were committed within the jurisdiction of the Kingdom of Prussia; and that Terlinden was at the time of committing the same, a subject of that kingdom; and the commissioner in accordance with the prayer of the complaint issued another warrant, which was served, on Terlinden the following day, he being discharged from arrest on the first warrant. On the 17th of October, before any evidence was taken before the commissioner, Terlinden presented to the District Court of the United States for the Northern District of Illinois his petition praying for a writ of habeas corpus on the following grounds:</p> <p>“1. No treaty or convention for the extradition of fugitives from justice exists between the United States and the German Empire.</p> <p>“ 2. That the treaty or convention for the extradition of fugitives from justice concluded between the United States and the Kingdom of Prussia on the 16th day of June, 1852, and ratified May 30, A. D. 1853, was terminated by the creation of the German Empire and the adoption of the Constitution of said . Empire in A. D. 1871, and that no treaty or convention for the extradition of fugatives from justice has been concluded between the United States, on the one part, and the Kingdom of Prussia or the German Empire, on the other, since said time.</p> <p>“ 3. Said complaint does not charge an extraditable offence under the provisions of the treaty of 1852, concluded between the United States and Prussia and other German States, were said treaty still in force and of binding effect.</p> <p>“ 4r. Your petitioner is not guilty of any extraditable offence under the provisions of said treaty of 1852, were said treaty still in force and of binding effect.</p> <p>“ 5. All proceedings had or attempted to be had before said commissioner under said complaint and warrant are illegal, void and without authority in law because said commissioner did not have jurisdiction over the person of this petitioner.”</p> <p>The writ of habeas corpus was issued and the marshal for the Northern District of Illinois filed his return October 21, setting forth that he “ arrested said petitioner within said district on the 26th day of September, 1901, upon a warrant duly issued by Mark A. Foote, a United States commissioner specially appointed and authorized by the District Court of the United States for the Northern District of Illinois to hear applications for extradition and to issue warrants therefor, which said warrant was duly issued by said commissioner upon a complaint duly made by Walther We ver, Imperial German Consul at Chicago as representative of the Kingdom of Prussia, charging said Gerhard Terlinden, who, it appears, falsely assumed in this country the name of Theodor Graefe, with having, as a subject of the Kingdom of Prussia and within the jurisdiction of the said kingdom, committed the crimes of forgery, counterfeiting and the utterance of forged instruments, and with being a fugitive from justice of said Kingdom of Prussia. . . . ”</p> <p>The matter was brought on for hearing October 21,-and after arguments Of counsel the court gave leave to present briefs and adjourned the hearing to October 28. On that day the relator filed with the clerk of the court a traverse, reciting that with the complaint of September 26 there were filed “ copies of the original testimony and translations of the same contained in the depositions taken before certain court officials in the Empire of Germany, relative to the alleged offences with which said' complaint charges yóur petitioner; that said complaint refers to said depositions so filed in words following, to wit: ” [Then setting forth the passages of the complaint to the effect that Dr. We ver therewith submitted “ to the commissioner and files with this complaint a copy of all depositions of witnesses taken in said matter, together with a copy of the warrant of arrest issued by said court against the said Gerhard Terlinden, alias Theodor Graefe, and of the provisions of the penal code of. the German Empire applicable to - said several crimes and providing punishment therefor.”]</p> <p>The traverse then continued:</p> <p>“ That the provisions of the Criminal Code of the German Empire applicable to the facts and circumstances of this case as shown by the evidence hereto annexed are sections 240, 47, 49 first paragraph; section 360 fourth and fifth paragraphs; section 275 and section 56 of the Code of Criminal Procedure, also section 234 of the Civil Code, á correct translation of which sections are hereto annexed and marked Exhibit f B ’ and made a part hereof.</p> <p>“ That said depositions so filed do not show or tend to show that your petitioner is guilty of any extraditable offence; that a .copy of said deposition so referred to in said complaint and heretofore filed with said commissioner is hereto attached marked Exhibit£ A ’ and made a part of this traverse.</p> <p>“ Wherefore your petitioner prays that the return of the United States marshal herein be dismissed and your petitioner discharged.”</p> <p>Copies of depositions were attached to the alleged traverse; but no copy of the warrant of arrest issued by the court at Duisburg, or of the provisions of the penal code attached to the complaint.</p> <p>An affidavit accompanied the traverse to the effect that affiant as an expert had made the annexed translations of certain sections and parts of sections of the German criminal and civil codes.</p> <p>October 29, to which day the hearing of the cause had been .continued, Tetlinden presented a petition for a writ of certiorari to bring before the court “ for its consideration the depositions, provisions of the German Criminal Code and copy of the original warrant issued by said German court heretofore referred to.”</p> <p>This application was denied by the District' Court, October 31, and the court ordered “ that the question of whether since the formation of the German Empire the extradition treaty concluded between the Government of the United States and the Kingdom of Prussia in 1852 is still in force or abrogated by the .Constitution of the German Empire, be submitted to the court on briefs to be filed,”- and continued the hearing. It was also ordered ££ that said relator be remanded to the custody of the marshal, and that the motion to stay all further proceedings before the United States commissioner be and the same hereby is denied.”</p> <p>Thereafter, on November 5, the District Court entered an order finding that the petitioner was lawfully restrained of his liberty, directing the petition to be dismissed, and remanding petitioner, from which an appeal was taken to this court. Errors were assigned, in substance, that the court erred in declining to hold that no treaty exists between the United States and the Kingdom of Prussia or the German Empire; in assuming- the existence of such treaty; in denying the right to introduce evidence for the purpose of showing that no extraditable offence had been committed ; in denying the application for a certiorari; in holding that the record showed the commission of an extraditable offence.</p>

APPEAL FEOM THE UNITED STATES CIRCUIT COURT OF APPEALS FOE THE FIFTH CIRCUIT!

Held: That a plain and adequate remedy by appeal to the Circuit Court of Appeals was provided for by the act of Congress, of June 6, 1900, and the issue of either of the writs applied for was denied.

Held: disclosed the fact that the 89 first mortgage bonds of the Water Company were included in the proposed refunding; that purchasers were bound to take notice of the provisions of such ordinances; and *315 that the ordinances, being examined, would have disclosed the fact that the bonds, although assumed by- the city, were executed by the Water Company, and not by the city.

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

James McKeon was a retail merchant in Springfield, Massachusetts,- and became indebted to plaintiffs in error in the sum of about $4000. The indebtedness being overdue, Frank J.'Rothschild, Jr., son of one of the plaintiffs in error, went to Springfield with full power, to collect the debt. When there, he received from McKeon a quantity of fur garments, part of McKeon’s stock.

<p>APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF ARIZONA.</p> <p>This is an appeál by the defendants below from a judgment of the Supreme Court of the Territory of Arizona affirming a judgment of the district court granting a mandamus. Upon the trial of the case certain facts were agreed upon, in susbtance, that the defendants were the supervisors of the county of Yavapai, and that prior to the year 1890 the county of Yavapai had issued what were known as railroad bonds in aid of the Prescott and Arizona Central Railroad Company, upon which there was due on the 17th of September, 1897, $260,218.80, and on that day they were received in exchange by the board of loan commissioners, who thereupon issued 258 funding bonds of the Territory, each of the denomination of one thousand dollars, and bearing interest at the rate of five per centum per annum, payable semi-annually. On the 18th of November, 1896, the board of supervisors of defendant county requested the board of loan commissioners to fund the bonds issued for the aid of the railroad company, but the board subsequently and on December 5, 1896, rescinded such request before it had been acted upon, and on the 17th of September, 1897, the holders of the bonds requested the board of loan commissioners to refund the same, which they did upon such demand. The statement of facts then continues as follows:</p> <p>“ 5. At the meeting of said board of loan commissioners at which said bonds were funded, only two members of said board were present or acted; the third member of said board of loan commissioners was at the time of said meeting absent from the Territory of Arizona, and took no part in the funding of said bonds, and was not in any manner consulted with relation thereto.</p> <p>“ 6. On January 15, 1898, there became due and payable as interest on the 258 territorial funding bonds issued in exchange for the bonds of said Yavapai County as aforesaid, the sum of $1288.33 according to the tenor of said territorial funding bonds, and thereafter on the 15th days of July and January of each year there became due and payable as interest on said territorial funding bonds, according to the tenor thereof, the sum of $6150.00, payable at the office of the territorial treasurer of the Territory of Arizona.</p> <p>“ 7. In compliance with the terms and conditions of said territorial funding bonds the territorial treasurer of said Territory of Arizona has paid all the interest thereon at the times when the same became due and payable, amounting in all at the date hereof to the sum of $23,638.33, and has taken up and cancelled interest coupons attached to said bonds to that amount.”</p> <p>“ 9. Save as aforesaid, no demand was ever made by the board of supervisors of said .Yavapai County for the funding of said 3?. & A. C. Eailroad bonds, and no notice was ever given to said board of supervisors at or about the time of the funding that said bonds had been funded.</p> <p>“10. For the year 1899 the territorial board of equalization of said Territory, at its annual session for that year, levied the. sum of thirty-seven cents on each one hundred dollars of valuation of the taxable property in said Yavapai County, for the purpose of paying interest on the funded indebtedness of said county of Yavapai, including the interest on the territorial funding bonds aforesaid maturing in the jmar 1900, and the territorial auditor duly certified the levy of said tax to the board of supervisors of said Yavapai County, that the defendants, comprising the board of supervisors of said county, failed and neglected to levy said tax of thirty-seven-cents on the hundred dollars, but only levied the sum of six cents on the hundred dollars for the purpose of paying interest on the funded indebtedness of said county ; said sum of six cents on the hundred dollars was sufficient to pay the interest on all the funded indebtedness of said county other than the territorial funding bonds issued in lieu of said P. & A. C. Eailroad bonds as aforesaid, but was insufficient to pay the interest on said territorial funding bonds or any part thereof.</p> <p>“ 11. The above mentioned P. & A. C. Eailroad bonds were originally issued by the county of Yavapai in aid of the construction of the Prescott & Arizona Central Eailroad, a line of railway running from Prescott Juhction or Seligmanto Prescott, Arizona, and were granted and Issued as a subsidy to the corporation building and owning -said railroad.”</p> <p>The county having refused to levy any taxes for the purpose of collecting money to pay any of the interest maturing on the bonds of the Territory given in exchange for the bonds issued by the county, this proceeding was undertaken to compel the board of supervisors to levy a tax in accordance with the provisions of the statute, for the purpose of paying the interest which had been paid by the Territory on the bonds.</p>

Held: That the power of this court to review the judgment of the New York Court of Appeals is limited to a consideration of whether any right of the plaintiff’s protected by the Federal Constitution has been denied; *355 (2) That the water company, in applying to the village and filing its certificate with the Secretary of State under the act of 1813, acquired no contract right, express or implied, to any exclusive…

Held: That this Was not such a case as on its face equity could have no juris- ' diction over, and that, considering the public interests involved, a case is made oüt for following the general rule that a defence of want of equity jurisdiction will not be recognized where it has not been taken by answer, or in any other manner, and is not insisted upon on the hearing before the court; (2) That there can be no question in…

error’ to the court oe. civil appeals eor the third .supreme JUDICIAL DISTRICT OE THE STATE OE TEXAS. This was an action brought in the district court of Tom Green County, Texas, in May, 1899, by J. F. Standefer against T. K. Wilson, involving the title and ownership of a tract of land-containing 640 acres situated in said county. At the trial a jury was waived and an agreed statement of facts was filed,» which was as follows: £C 1.

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

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

This was a bill in equity filed in the circuit court for the county of Wayne by Goodrich and another against the city of Detroit and its treasurer, to enjoin the defendants from enforcing the collection of certain taxes assessed upon several parcels of property owned by the plaintiffs, for benefits derived-from the opening of Milwaukee avenue, upon the ground, amongst others, that such assessment was in violation of the Fourteenth Amendment, and deprived plaintiffs of their…

This was a petition, under tbe fourteenth section of the Court of Private Land Claims Act, for a money judgment against the United States for lands within a Spanish land claim, which lands had been patented by the United States to third parties before tbe Spanish land grant, had been acted upon or confirmed.

Held: That the present bill was an original bill as to £he land owners, and not having been filed until thirteen years after the act was declared to be unconstitutional and nearly nine years after the leave granted, there had been such laches as precluded granting the relief sought, the conditions of the property and the relations of the parties having in the meantime greatly changed as detailed in the opinion.

Held: not as positive rules, but as furnishing just analogies to regulate the practice.’'’ And it is by the force and effect of this rule that the equity courts of the United States exercise their power with respect to the exaction of security .when granting writs of injunction. Russell v. Farley, 105 U. S. 433 .

The appellants brought suit against the United States in the Court of Claims for the sum of $25,485.89, for-expenses incurred and for damages. The latter consisted of losses suffered by them by the breach of a contract entered, into by the United States through "W". S. Marshall, Captain in the Corps of Engineers.

Held: although the general rule is that the raising of a Federal question in a petition for rehearing in the highest court of the State is too late, yet when a question is thus raised and it is actually considered and decided by the state court, the right to review exists. Mallett v. North Carolina, 181 U. S. 589 , 592.

Held: that attention could not be withdrawn from the illegality of the contract by the device of taking notes for the amount claimed under that contract. So, in Miller v. Ammon, 145 U. S. 421 , 427.

In December, 1891, Juan Pedro Camou filed a petition in the Court of Private Land Claims, praying to have confirmed to him a certain tract of land situated in the county of Cochise, Territory of Arizona, known and designated as the San Rafael del Valle grant. Subsequent proceedings resulted in a trial and a decree in favor of the Government, adjudging petitioner’s claim and title invalid, and dismissing the petition.

This case came up upon certain questions of law arising in ah action brought in the Circuit Court for the Southern District of-New York' by Martinez, as ancillary administrator with the will annexed of the estate of Salvador Elizalde, against the Col- , lector of Internal Revenue, for the refund of an inheritance tax paid to the defendant upon certain personal property in the city of New York. ,.

.CERTIFICATE FROM THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. This was also an action brought in the Circuit Court for the Southern District of New York by Buckgaber, as executpr of the last will and testament of Louisa Augusta Bipley-Pinede, against the Collector of Internal Bevenue, to recover an inheritance tax paid to the defendant upon certain personal property in the city of New York. It was argued with No. 287, ante, 578.

This suit was brought by appellees against appellant for the infringement of letters patent No. 204,741, and letters patent No. 452,898, issued to Joshua W. Jones, one of the appellees. An accounting was prayed, and also an injunction, pending the suit. ’ The bill contained the usual allegations of invention and utility, and of infringement by the defendant (appellant).

On July 14, 1899, plaintiff in error, as plaintiff below, commenced this action in the Circuit Court for the Eastern District of Virginia against J. D. Brady, collector of internal revenue for the second district of Virginia.

The Reloj Cattle Company, claiming to be the owner in fee of a tract of land in the county of Cochise, Arizona, which it described as the San Pedro grant, filed its petition for confirmation in the Court of Private Land Claims, May 29, 1897.

<p>This case is governed by Reloj Cattle- Company v. United States, just decided.</p> <p>The grant was a grant by quantity, and the lawful area was south of the .international boundary line, and had been set off to the owners by Mexico.</p> <p>The right to Acquire demasías or overplus was not a vested right, and where.the conditions were unfulfilled in accordance with the terms of the grant at the time of the cession, claims to demasías cannot be con- . firmed.</p>

The statement of facts is contained in the opinion of the court. The case was argued with No. 40, Ainsa v. United States, ante, 639,- and by the same counsel.

This was a petition to the Court of Private Land Claims by Margarito Baca for the confirmation to him, and to all other persons interested, of the title to a tract of land in Yalencia ■ county-in New Mexico, known as the San Jose del Encinal tract, alleged to bare been granted to Baltazar Baca and his two sons in 1768 by the Spanish' Governor and Captain General of New Mexico.

<p>APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.</p> <p>This -was an appeal from -a decree of the Circuit Court of Appeals for the Eighth Circuit,- affirming the decree of the Circuit Court of the.United States for the’District of Nebraska,dismissing a bill filed therein by George F. Emblen against the Lincoln Land Company, George F. Weed, and others. The bill averred'that Weed,.September 19,1885, made a cash preemption entry of the southeast quarter of section twenty-two of township two, north of range.forty-eight west, at the land office of ,the United States in the cit}r of Denver, Colorado; that October 4, 1888, Emblen filed a contest against this entry on the ground that Weed had not complied with the requirements of the law in respect of residence on the premises, and that the entry was fraudulent, and made for speculative purposes ; that Emblen’s purpose in making the contest was not only that the laws of the United States should be complied with by Weed, but that by defeating Weed’s entry he (Emblen) might be enabled to enter the land under the provisions of section 2 of chapter 89 of the laws of the United States, approved May 14, 1880, 21 Stat'. 140, c. 89, which section read as follows:</p> <p>“ Sbo. 2. In all cases where any person has contested, paid the land office fees, and procured the cancellation of any preemption, homestead, or timber culture entry, he shall be notified by the register of the land office of the district in which such land is situated of such cancellation, and shall be allowed thirty days from date of such notice to enter said lands: Provided, That said register shall be entitled to a fee of one dollar'for the giving of such notice, to be paid by the contestant, and not to be reported.”</p> <p>The bill further averred that on a hearing the register and receiver, on May 21, 1890, recommended the dismissal of the contest; that Emblen appealed to the Commissioner of the General Land Office and his appeal was sustained; that thereupon Weed moved for a rehearing, and the officials and inhabitants of the town of Yuma, which had been located on the premises, intervened for the protection of their rights; the rehearing was granted, but before it was had.a new land district was created at Akron, Colorado, which embraced the land in question; and the rehearingpvas ordered to take place at Akron on September 16, 1890; that Emblen did not appear, but filed objections to the jurisdiction, averring that the receiver at Akron was an Ínteres! ed party. On the rehearing the local officers found in favor of Weed and dismissed the contest, and thereupon Emblen appealed to the Commissioner of the General Land Office, and the Commissioner affirmed the action of the local land office, from which ruling Emblen further appealed to Mr.-Secretary Noble, then Secretary of the Interior, who, by a decision rendered January 9, 1893, affirmed the action of the local officers and of the Commissioner.</p> <p>The bill then averred that Emblen subsequently moved for.a review of the decision before Mr. Secretary Smith, on the ground, among other things, of newly discovered, evidence, and that a rehearing of the whole contest was ordered by him to be had before the local officers, in obedience to .which the register and receiver at Akron set the case for rehearing on January 2, 1894, at which time Weed and other parties interested obtained a continuance, it being charged that this continuance was obtained Tor the purpose of procuring the passage of an act of Congress confirming the title of the original entryman, which act ivas in fact passed and approved December 29, 1894, 28 Stat. 599, c. 15, and was in these words: “ That the preemption cash entry numbered forty-nine hundred and ninety, of George F. Weed, made at the district land office at Denver, Colorado, on the nineteenth of September, eighteen-hundred and eighty-five/ for the southeast quarter of section twenty-two, township two north, of range fortj-eight west, which tract embraces the town of Yuma, Colorado, the county seat of Yuma County, Colorado, be, and the same is hereby, confirmed; and that patent of the United States issue therefor to said Weed.”</p> <p>Complainant alleged that while the bill for that act was pending before both Houses of Coiigress, full information was furnished them of the exact status of the contest over the land ; that when the act was passed, the question of the title thereto was pending in the land department, which, under the Constitution and laws of the United States, is soleU charged with the duty of determining the rights of preemptors and contestants and the right to issue patent therefor to the parties entitled thereto; and that Congress had no right or power to adjudicate on the question of the title to the premises in dispute; and that, moreover, under the provisions of section two of the act of Congress of May 14, 1880, complainant had a vested right to enter the land upon the determination of the' contest then pending between himself and Weed; and that if complainant had been permitted to contintie the contest to final determination,' he would have succeeded in securing the cancellation of the Weed entry; and that the passage of the act of Congress above cited, and the issue of patent thereunder, deprived complainant of a vested right without due process of law. It was also averred that in January, 1886, the town of Yuma was located on a part of the premises, and the town and a large number of other parties were made defendants, it being charged that they had full knowledge of the facts regarding the Weed entry.</p> <p>The bill prayed that the several defendants be decreed to hold the title to the property in trust for the use and benefit of complainant, and that it be decreed that the patent issued under the act of Congress to Weed conveyed no property in the premises against the rights of complainant. The principal defendants interposed a demurrer to-the bill, which was sustained, and the bill dismissed with costs. 94 Fed. Rep. 710. The case was then carried to the Circuit Court of Appeals for the Eighth Circuit, and the decree of the Circuit Court affirmed. The opinion of Judge Shiras in the-Circuit Court was adopted as the opinion of the Circuit Court of Appeals. 102 Fed. Rep. 299. An appeal was then prosecuted to this court.</p>

On September II, 1900, the plaintiff in-error as plaintiff commenced this action in the Circuit Court of the United States for the Eastern District of Yirginia.

Held: that the appeal originally allowed to this court by the a'ct of 1851 was "repealed in 1864, and an appeal allowed to the Circuit Court of the United States; that this art was repealed by the act of 1891, which provided for an appeal to the Circuit Court of Appeals, and that the appeal to .this court" must therefore be dismissed. *670 This is an appeal from an order of the District Court óf the United States for the…

Held: was of great importance for the “ security of suitors.” The Avery, (1814), 2 Gall. 308 , 311. See also Blake v. Hawkins, 19 Fed. Rep. 204 ; In re Goodrich, 4 Dill. 230 ; Smith v. Morgan City, 39 Fed. Rep. 572 . In Fagan v. Cullen, 28 Fed.