Volume 225 — United States Reports

IN EQUITY. The State of West Virginia having moved the court to take up for consideration the exceptions heretofore filed in this cause by the State of Maryland to the report of Commissioners Julius K. Monroe and Samuel S. Gannett, two of the commissioners who were appointed by the decree entered in this cause on the thirty-first day of May, 1910 (see 217 U. S. 1, 577), to run, locate and permanently mark, with suitable monuments, the Deakins or Old State line, as the…

<p>A general average agreement inserted in bills of lading, providing that if the owner of the ship shall have exercised due diligence to make the ship in all respects seaworthy and properly manned, equipped and supplied, the cargo shall contribute in general average with the shipowner even if the loss resulted from negligence in the navigation of the ship, is valid under the Harter Act, and entitles the shipowner to collect a general average contribution from the cargo-owners in respect to sacrifices made and extraordinary expenditures incurred by him for the common benefit and safety of ship, cargo • and freight subsequent to a negligent stranding.</p> <p>Under § 3 of the Harter Act, the cargo-owners under the same circumstances have a right of contribution from the shipowner for sacrifices of cargo made subsequent to the stranding for the' common benefit and safety of ship, cargo and freight.</p> <p>Under the same circumstances the cargo-owners cannot recover contribution from the shipowner in respect' of general average sacrifices of cargo, without contributing to the general average sacrifices and expenditures of the shipowners made for the same purpose.</p> <p>The essence of general average contribution is that extraordinary sacrifices made and expenses incurred for the common benefit arc to be borne proportionately by all who are interested.</p> <p>The Irrawaddy, 171 U: S. 187, distinguished.</p>

Held: since the lease in substance required the putting in of improved machinery, deprived the tenant of any right to charge against the lessor the cost of such machinery, and it was expressly stipulated that the machinery so put in should become a part of the plant belonging to the owner without compensation to the lessee.

<p>Where the jurisdiction of the Circuit Court is dependent, under § 8 of the act of 1875, upon property affected being within the jurisdiction, the defendants not being therein, the fact that the bill was dismissed because complainants failed-to prove the existence of any property within the jurisdiction does not affect the right of a direct appeal to this court under § 5 of the act of 1891.</p> <p>The burden of proof as to the existence of property to be affected by the decree within the jurisdiction of the Circuit Court in order to give it jurisdiction under § 8 of the act of March 3, 1875, c. 137, 18 Stat. 472, is on the complainant.</p> <p>While averments of some jurisdictional facts may -prima facie be taken as true where the questions do not address themselves to want of all foundation of jurisdiction, and in such cases the burden is on the one assailing sufficiency or verity, the burden of proving an averment of a fact absolutely necessary to the exertion of the power of • the court to render a binding decree is on the party pleading. .</p> <p>The jurisdiction conferred by § 8 of the act of 1875 rests upon a real and not an imaginary or constructive basis.</p> <p>The Circuit Court docs not have jurisdiction of a suit against an absent executor in the State where the will was probated, unless the property to be affected by the decree is actually within the jurisdiction of the court.</p> <p>The fact that the state court might by virtue of its authority in a ■particular contingency exert jurisdiction over an absent executor ■of a will probated in the courts of that State as to the disposition of property beyond its territorial jurisdiction does not clothe a Circuit Court of the United States with jurisdiction under § 8 of the act of 1875.</p>

Held: in this case, that an escrow of securities made by a banking firm in New York to secure its drafts upon a foreign bank amounted to a lien on the securities to be preferred to the claim of the trustee in bankruptcy, notwithstanding that the New York firm retained physical power over the securities, as agent for the foreign house, and had the right to substitute other securities for those withdrawn and sold.

<p>Decided on authority, of Southern Railway Company v. Reid, 222 U. S. 424, and Southern Railway Company v. Reid & Beam, 222 U. S. 444.</p>

Held: the corn had been carried to Texarkana upon a contract for interstate shipment, and the reshipment five days later upon a new contract was an independent intrastate shipment. It is evident from this statement of facts that the case is quite different from the one under consideration.

The facts, which involve the question of whether the Massachusetts courts gave to a New York judgment pleaded as a bar in a Massachusetts suit the full faith and credit which is required by § 1 of Art. IV of the. Constitution of the United States and § 905, Revised Statutes, are stated in the opinion.

The facts, which involve the construction of the act of March 3, 1875, granting station grounds on the public lands to railroad companies, and the conflicting rights of a company claiming thereunder and-an entryman, are stated in the opinion.

Held: that one convicted by a jury and sentenced to death was not denied due process of law because after the verdict one of the jurors became insane and the court, after an inquiry hadih accordance with the established procedure of the State, found by a preponderance of evidence that the juror was of sufficient mental capacity during the trial to act as such and therefore refused to set the verdict aside.

The facts, which involve' the question of whether a payment was an illegal preference under the Bankruptcy Act of 1898, are stated in the opinion. Payment of the note was preferential. The uncontradicted evidence shows that the debtor was insolvent at the time of the payment. There was a payment or transfer of property to defendant or for its benefit.

The certificate in these cases is as follows: “The libels in the'above cases involve the question of power of a State to make pilotage regulations for certain classes of registered sea going steam vessels when entering and leaving harbors within the confines of the State. “The steamers ‘Queen’ and ‘Umatilla’ were regularly-sailing under register and were either on a voyage from the port of San Francisco in the State of California to a United States port on Puget Sound or…

The facts, which involve the distribution of funds in the’hands of a trustee in bankruptcy of a government contractor, are stated in the opinion.

Held: forbid individuals and associations from acquiring public coal land in excess of the quantities prescribed, whether directly by entries in their own names or indirectly by entries made for their benefit in the names of others.

Held: one year at least; and that during that time he has behaved as a man of a good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same; but the oath of the applicant shall in no case be allowed to prove his residence.” “Sec. 2170.

<p>Under § 5 of the act of 1891, the jurisdiction of the Federal court as such must be involved. The direct writ will not lie if the question' is one which might arise in a court of general jurisdiction, such as insufficiency of the pleadings.</p> <p>Under the act of June 18, 1910, 36 Stat. 539, 554, c. 309, the state courts as well as the appropriate Federal courts can take cognizance of a claim based on an award of reparation of the Interstate Com-morco Commission.</p> <p>Whether plaintiff’s declaration in a case for reparation for excessive rates is sufficient without an averment of previous action by the Interstate Commerce'Commission is a question which would arise in any court, state or Federal, in which the case was brought and does not go to the jurisdiction of the Federal court as such; a direct writ of error therefore will not lie from this court under § 5 of the Court of Appeals Act of 1891.</p>

Held: That an association whose primary object was fraternal or benevolent, first appropriating and using an arbitrary or fanciful name acquires an exclusive right to the same; b. That a subsequent unauthorized use by others of such name or a colorable imitation thereof would be unlawful; c. That in the absence of laches if as a result of such wrongful use injury was occasioned to the rightful owner by the unlawful…

Held: as to ' the. enforcement of such a statute which has been in force in the State of Virginia since-1817. - The facts,' which involve the jurisdiction of this court under § 709, Rev. Stat., and the power of a State under the Fourteenth Amendment to suspend tolls on a turnpike pending the making of repairs properly ordered by state, authority, are stated in the opinion.

Held: that the Circuit Court in taking jurisdiction and deciding the cause on the merits, notwithstanding there was a partial demurrer to the. jurisdiction, maintained its power and jurisdiction as a Circuit Court, and also necessarily decided questions arising under the Constitution expressly alleged in the bill.

Held: a, that it had jurisdiction of the cause, and that the refusal of the Interstate Commerce Commission to afford relief to the Procter & Gamble Company was, for the purposes of jurisdiction of the court, the exact equivalent of an order of the Commission granting affirmative relief, and, 6, as a corollary of this power it was further decided that there was jurisdiction to award pecuniary relief for demurrage if any…

Held: that there was np abuse of power in issuing the order for an.injunction pendente lite and the order is affirmed and the case remanded so that there may be opportunity to dispose of it in'the forum selected by Congress for that purpose. The facts, which involve the jurisdiction of the Commerce Court and its power to issue restraining orders, and injunctions, are stated in the opinion.

Held: That it is unlawful for carriers to make special and discriminatory divisions of joint rates upon locomotive fuel as between an originating or participating carrier and a purchasing carrier. In the division of joint rates a railroad must be treated precisely as any other shipper is treated, and the Commission will-regard any special division as a device to defeat the published rate.

Hyde v. United States, 225 U.S. 347 (1912), is a United States Supreme Court criminal case interpreting attempt. The court held that for an act to be a criminal attempt, it must be so near the result that the danger of its success must be very large. The case is notable for Justice Oliver Wendell Holmes's formulation in the dissent that attempt is present when a defendant's conduct bears "a dangerous proximity to success."

Held: following United States v. Kissel, 218 U. S. 601 , 54 L. ed. 1168, 31 Sup. Ct. Rep. 124, that conspiracy might be a continuous crime.

Held: after elaborate dis *410 cussion, three members of the court dissenting, that a plea to the indictment was not a matter of form, but of substance, and should be shown by the record. In the discussion and in the cases cited the arraignment was considered as distinct from the plea and consisted of formally calling the accused to the bar for the purpose of a trial.

The facts are stated in the opinion. Section 211 of the Penal Code is unconstitutional' Congress exceeded its constitutional power in not confining the depositing matter in some authorized receptacle of the United States, or for delivery through the United States mail.

The facts, which involve the question of whether an ordinance of the City of Louisville fixing rates for telephone service in that city, was unconstitutional as confiscatory of the property of the companies, are stated in the opinion.. Questions referred to a master cannot in turn be referred to an accountant in such a manner that the report of the accountant will bind the parties, the master or the court. Kimberly v. Arms, 129 U. S. 512.

Held: that, if the parties did intend to rescind only the former action as to the custody of the proceeds of the sale, they made a mistake only as to the legal effect of the rescinding resolution.

Held: that *475 the wife of a Chinese merchant entitled by treaty to come into this country and dwell here could not be required to furnish the certificate required, by the statute from Chinese persons other than laborers, as such construction of the statute would lead to absurd results in requiring a certificate from the wife of a merchant in regard to whom it would be impossible to give the particulars which the statute…

<p>To give this court jurisdiction under § 709, Rev. Stat., it must appear upon the record, and not by certificate of the judge, that a right under the Constitution 'or laws of the United' States was set up and denied. While such a certifipate may make more certain the fact that the Federal right was asserted and denied, it is insufficient to' confer jurisdiction if the record itself does not. show the fact. Louisville & Nashville R. R. v. Smith, 204 U. S. 551.</p> <p>The fact that a case in the state court asserts a claim based on a Federal statute, does not give this court jurisdiction to review the judgment' under § 709,- Rev. Stat., if' none of the exceptions are based on the' refusal of the court to make a definite construction of the act as .re? quested by the plaintiff in error.</p> <p>Where the case comes up under § 709, Rev. Stat._, this court is not one of general review. It can reexamine only those rulings which, denied Federal rights specially set up.</p> <p>It is the duty of. counsel asking in the state court for a particular construction of a-Federal statute involved in the casé to put the request in such definite terms that the record wilt show that it was a claim of Federal right specially set up as required by § 709 in order to give tills court jurisdiction.</p> <p>The trial court is not under obligation to give special charges based'on •' only a part of the evidence;</p> <p>Where the only'defense tc an action for personal injuries by an em-ployé of an interstate railway carrier is contributory negligence on the part of- the plaintiff 'in going into a car in violation of a rule requiring him to remain in another- car, no construction of the provision of the Employers’ Liability Act that the employé can only recover if injured while employed by the carrier is involved1 which-is reviewable by this, court, unless the. request is definitely set up as a Federal right specially asserted and denied.</p> <p>Excepting to a part of the charge by saying that an employe’s going from the baggage car into the express car of a train is such an act - that a reasonably prudent-man would not hgve done under the circumstances does not raise specific Questions as to the construction of the Employers’ Liability-Act under which the action was brought and give this court jurisdiction to review under § 709, Rev. Stat.</p>

The facts, which involve the construction of § 15 of the General Corporation Law of New York, and the right of foreign corporations which had not complied therewith, to sue in the Federal courts, are stated in the opinion. The judgment entered on the report of the referee is reviewable. Roberts v. Benjamin, 124 U. S. 64, 67; Chicago, M. & St. P. R. Co. v. Clark, 178 U. S. 353, 364; Bagley v. Gen: Fire Ext. Co., 150 Fed. Rep. 284.

The suit was brought by Marion W. Savage, a citizen of ■ Minnesota, .to restrain the defendant, the State Chemist of Indiana, from taking proceedings to enforce an act of the General Assembly of. that.

The facts, which involve the construction and constitutionality of the provisions in the statutes of Iowa relative to sale of feed for stock, are stated in the opinion. The tax imposed is a license fee and therefore void as a violation of the commerce clause of the Federal Constitution. Brown v. Maryland, 12 Wheat. 419; Robbins v. Shelby County, 120 U. S. 489; American Fertilizer Co. v. Board of Agriculture, 43 Fed.-Rep. 609; Lee Co. v. Webster, Í90 Fed. Rep. 353.

. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR' THE DISTRICT OF MONTANA. The facts, which involve the construction of Federal statutes relative to introduction of liquor t.o allottée Indians and on allotments to Indians, are stated in the opinion.

Held: that as the’jurisdiction of the Circuit Court depended solely upon diverse citizenship, the judgment of the Circuit Court of Appeals was final; and, notwithstanding the case involved conflicting claims to allotted lands in the Creek Nation, it was not one arising under the laws of the United States. Appeals from 170 Fed. Rep. 529 , dismissed.

Held: and its decree was to the effect, that there should be a recovery against the United States on all the items of the claim; that the recovery on all should be in the name of the Cherokee Nation; and that the recovery on items 1, 3 and 4 should be for the benefit of the Nation, and on item 2 for the benefit of the Eastern Cherokees, whether members of the Nation or otherwise; that the proceeds of-items 1, 3 and 4…

The facts, which involve the right of the Union Pacific Railroad Company to certain portions of its right of way within the Delaware Diminished Reservation, are stated in the opinion. Congress had no power to grant a right of way through the' lands in question. See treaty proclaimed Match 24, 1831, 7 Stat. 357- treaty of 1854, 10 Stat. 1048; treaty of 1860, 12 Stat. 1129.

The facts, which involve the question of negligence of a railroad company and degree of care required by one crossing a track, are stated in the opinion.. No question of law was before the Circuit Court of Appeals; no bill of exceptions had been signed. The case went up on exceptions to the court’s overruling defendant’s motion for judgment for defendant notwithstanding the verdict for plaintiff and such a motion is unknown to the common law.

Held: 173 Fed. Rep. 361 , that Claim 4 was a limited detailed claim; that the additions made by the defendant were non-infringing and valuable improvements which contributed toithe profits; that the burden of apportionment was upon plaintiff, and, having failed to separate the profits, it was only entitled to a decree for nominal damages.- The .court (one judge dissenting) also affirmed *611 the decree that Type M was not…

The facts, which involve the. constitutionality under the Fourteenth Amendment of a police law of California regulating- billiard halls, are stated in the opinion. The' police power may be exercised to protect the public health, morals, safety and the general welfare, but it is at all times subject to the constitutional limitations that it may hot arbitrarily take away the lawful rights of a citizen.

Samuel Mayer owned a plantation in Dooley County, Georgia, which he rented to Joseph Burns for one year. The rent not having been paid at maturity, Mayer, on Nov. 13, 1908, made an affidavit in conformity with the statute, and a justice of the peace thereupon issued a distress warrant, which, on the same day, was levied upon the cotton, corn and other products of the place.

The facts, which involve claims made by a railroad company for furnishing railway post-office cars to the Government, are stated in the opinion.' The parties were agreed upon the value of 60-foot postal ear lines as the maximum rate prescribed by Congress, and as such car lines were in fact used by the Government it must be held as having agreed to pay that value. Minneapolis &c. Ry. Co. v. Columbus Mill Co., 119 U. S. 149, is in no sense analogous.

<p>In. order to warrant a court of equity in restraining the enforcement of a judgment at law, the defeated party must show that it is .'manifestly unconscionable for the judgment creditor to enforce it; it is not sufficient for him-merely to show that because of newly discov--ered facts or evidence he would have a better prospect.of success on a retrial.</p> <p>It is incumbent on one seeking to have the enforcement of a judgment against him. enjoined by a court of equity on the ground of newly discovered evidence to show that his failure to discover the evidence relied upon as defense was. not attributable to his own want of diligence.</p> <p>For the purpose of equity, restraining the enforcement of a' judgment at law, a defense is not deemed to be newly discovered or to have been lost by accident or mistake, if if was, or ouglit to have been> within the knowledge, of the party when he made his defense to the action at law.</p> <p>A defendant in a libel suit who deliberately abstained from defending by justification of the charges, cannot, after verdict and judgment against him, come into equity and seek to restrain the enforcement of the judgment on the ground of newly discovered evidence tending to prove the truth of "the charges.</p> <p>Qucsre whether a defendant in a libel suit, who made a public charge of malfeasance in office without having evidence, of truth sufficient to warrant prudent counsel in making an issue of it, is not barred from relief in equity under the doctrine of clean hands.</p>

<p>Under thp saving clause of the act of June 7, 1878, 20 Stat. 99, c. 160, ■ the review of the order in this case was not provided for by the Judiciary Act of 1891.</p>

<p>In error to the Court of Appeals of the State of Maryland.</p>

<p>Appeal from the Supreme Court of the District of Columbia.;</p>

<p>Appeal from the United States Circuit Court of Appeals for the Third Circuit.</p>

<p>In error to the Supreme Court of the State of Missouri.</p>

<p>In error to the Court of Appeals, of the State of Kentucky.</p>

<p>Appeal from' the Supreme Court of the Territory of Arizona.</p>

<p>In error to the Supreme Court of the State of Oklahoma.</p>

<p>Appeal from the Court of Appeals of the District of Columbia.</p>

<p>In error to the Supreme Court of. the State of Rhode Islánd.</p>

<p>Appeal from the Circuit Court of the United States for the .Southern District of West Virginia.</p>

<p>In error to the'Supreme Court of the State of Mississippi.</p>

<p>In error to the United States Circuit Court of Appeals for the Fifth Circuit.</p>

<p>In error to the Supreme Court of the State of Minnesota.</p>

<p>Appeal from the Court of Appeals of the District of Columbia.</p>

<p>Appeal from the Supreme Court of Porto Rico.</p>

<p>Appeal from the United States Circuit Court of Appeals for the Sixth Circuit.'</p>

<p>In error to the Court of Appeals of the State of Georgia.1</p>

<p>In error to the Supreme Court of the State of Kansas.</p>

<p>In error to. ‘the Supreme Court of the State of California.</p>