Volume 57 — United States Reports

This was an appeal from the District Court of the United States for the Northérn District of Alabama, exercising Circuit Court equity jurisdiction, under the act of Congress of February 19, 1831, ch. 28, (4 Stat. at Large, p. 444.)- .The following is the statement contained in the brief of the counsel for the appellant, which is adopted by the court, in their opinion. ■ A bill was filed March 16, 1846, by the appellee against the appellant — alleging, that in the year 1822,…

This case was brought up by writ of error from the Circuit Court of the United States for the District of Maryland. The facts of -the case are set forth in the opinion of the court, to which the reader is referred.

This was an appeal from the District Court of the United States for "the Northern District of Alabama, sitting as a court of equity. It was a bill filed by John C. Yerger, a minor, suing by bis next friend, against William Brandon in'his lifetime, and after his death revived against his executors.

<p>in 11- Howard, 480, it is said, “Where a witness was examined for the plaintiff, and the defendant offered in evidence declarations which he had made of a contradictory character, and then the plaintiff offered to give in evidence others, afBrmatory of the first, these last affirmalory declarations were not admissiblo, being made at a time posterior to that at which he made the contradictory declarations given in evidence by the defendant.”</p> <p>The case having been remanded to the Gircuit Court under a venire facias de novo, the plaintiff gave in evidence, upon-the new trial, the deposition taken under a recent commission, of -the same witness- whose deposition was the subject of the former examination, when the defendant offered to give in evidence the same affirmatory declarations which upon the former trial were offered as rebutting evidence by the plaintiff.</p> <p>The object of the defendant being to discredit and contradict the deposition of the witness taken under the recent commission, the. evidence was not admis-ihlo. He should have been interrogated respecting the statements, when lie was examined under the commission.</p> <p>'If his declarations had been made subsequent to the commission, a new commission should have been sued out, whether his declarations hod been written or verbal.</p>

Held: that the lands continue to be reserved as heretofore. In Perry v. O’Hanlon, 11 Mo. 596 , they say: “ What then was the condition of the land, the title to which is now in controversy, in 1847, when the patent issued ? The act of July 9th, 1832, directed the Commissioners to divide the claims submitted to them into two classes.

Held: in many cases, in this court, that a decree in Chancery is equally as conclusive as a judgment in a court of common law.

This was an appeal from the Circuit Court of the United States for the Eastern District of Louisiana.. The controversy between the parties had been at several different times, in various shapes before this court, as will be seen by reference to 6 Howard, 206, 7 Howard, 160, and 14 Howard, 313.

This case was brought up from the Supreme Court of the State of Missouri, by a writ of error issued under the 25th section of the Judiciary Act. It was an action of ejectment commenced by the plaintiff against the defendant in the State' Circuit Court of Missouri, where the defendant had judgment, which, on appeal by the plaintiff to the Supreme Court of the State of Missouri, was affirmed by that court. The plaintiff’s title rested on a concession by the.

<p>"Where a judgment in a patent case was affirmed by this court with a blank in the record for costs, and the Circuit Court afterwards taxed these costs at a sum less than two thousand dollars, and allowed a writ of error to this court, this writ must be dismissed on motion.</p> <p>.The writ of error brings up only the proceedings subsequent to the mandate; and there is no jurisdiction where the amount is less than two thousand dollars, either under the general law or the discretion allowed by the patent law. The latter only relates to cases which involve the construction of the patent laws and the claims and rights of patentees under them.</p> <p>As a matter of practice this court decides, that it is proper for circuit courts to allow costs to be taxed, nunc pro tunc, after the receipt of the mandate from this court.</p>

This case was brought up, by writ of error, -from the Circuit. Court of the. United States for the Western. District of Pennsylvania. The facts in the case are stated in the opinion of the court.

This case was brought up from the High Court of Errors and Appeals of the State of Mississippi,- by a writ of error issuedunder the twenty-fifth section of the Judiciary Act. The facts of the case are stated in the opinion of the court.

Held: by the courts of Alabama, that the sheriff may discharge himself from responsibility by showing due diligence; and to enable him to do this nothing more is necessary than to traverse the facts contained in the suggestion. But, if the defence consists of new matter or matters of avoidance, he must then plead it. 3 Ala. R. 28.

Held: that security must be given on a writ of error, to operate as a supersedeas for the amount of the ■judgment. By the act of 12th December, 1794, when a stay of execution is not desired, security shall be given only to answer costs. • A motion was made, in the District Court, to dismiss the allowance of the appeal, on the ground that security in the amount of the decree had not been given.

This case was brought up by writ of error from the Circuit Court of the United States for the Eastern District of Louisiana. It will be necessary to state only the judgment,' and such of the other subsequent proceedings as gave rise to the motion to dismiss, and the judgment of the court thereon. On the 23d of June, 1848, the Circuit Court pronounced a judgment which is thus recited in the writ of possession, which was issued on the 21st of July, 1848.

<p>In order to act as a super$&ieas upon a decree in chancery, the appeal bond must, be filed within ten days after the rendition of the decree. In the present case, where the bond was not filed in time, a motion for a supersedeas is not sustained by sufficient reasons, and consequently must be overruled.</p> <p>So, also, a motion is overruled to dismiss the appeal, upon the ground that the real parties in the case, were riot made parties to-the appeal. The error is amere clerical omission of certain words.</p>

Held: that the only rules for finding the rates of duty w;ere to look for the article: “ 1st. Among those named by species or 'class. 2d. Among those exempted. And 3d. If not there found, it was non-enumerated.” Such have been the decisions in Elliott v. Swartwout, 10 Pet. 137 ; Hardy v. Hoyt, 13 Pet. 292 .

■ This case came up, by wit of error, from the Circuit Court of the United States, for the Southern District of New York.' Cross, Hobson; & Co., brought an action of assumpsit to recover back from Harrison, moneys paid to him while acting as collector of customs at the port of San Francisco, in California, for tonnage on- vessels arid duties on merchandise, not of the growth, produce, or manufacture of the United States, imported by the plaintiffs from foreign places into…

This case'was brought up by writ of error, from the District Court of . the United States for the District of Iowa. if was an .action brought by petition, in the nature of an ejectment, by Chouteau, a citizen of Missouri, to recover seven undivided eighteenth parts of a large body of land, containing ■nearly one hundred and--.fifty thousand arpents; and including the whole city of Dubuque. - -Molony claimed under a patent .from the United States.

Held: that notwithstanding the Little Maramecq River, the lead stfeam, the smelting furnace, and the Grand Mine, existed as indicated on the public surveys, and as claimed to exist by the plaintiffs, still the grant was void for uncertainty, and the impossibility of locating the same.

This case was brought up by writ of error, from the Circuit Court of the United States for the Southern District of New • York. The circumstances of the case are fully stated in the opinion-of the court.

This case was brought up by writ of error, from the Circuit Court of the United States for the Southern District of New York. It was an action' brought by the plaintiffs in error against Lawrence, the collecter of the port of New York, for a return of duties alleged to have been improperly exacted upon certain importations of shawls.

This case came up by writ of error, from the Circuit Court of the United States for the District of Maryland. It was an action brought by Bartlett against Kane, who was the collector of the port of Baltimore, for the refunding of certain duties alleged to be illegally exacted upon the importation of Peruvian bark. The circumstances of the case are fully stated in the opinion of the court.

at the head of this report, and also in the opinion of the court. In August,' 1851, Carroll died, upon which the present action of ejectment was brought by three of the four branches of his heirs, to recover three undivided fourth parts of the lands mentioned in the beginning of this report.

This was an appeal from the Circuit Court of the United States for the' District of Ohio, which dismissed the bill.

This case was brought up, by writ of error, from the Circuit Court of the, United States' for the District of Maryland. Marshall, a citizen' of Virginia, sued the Railroad Company, to recover the sum of fifty thousand dollars, which he alleged that they owed him under a special contract, for his services in ■ obtaining a law from the Legislature of Virginia, granting to the company a-right of way through Virginia to the Ohio River.

(Me. Justice Curtis, having been of counsel, did not sit in the argument of this case.) This case came up by writ of error, from the Circuit Court of the United States for the Bistrict of Massachusetts. Brown, who was a citizen of Vermont, brought a writ of right to recover an undivided moiety of certain property in Boston.

Held: “that a legislative act, declaring that certain lands, which should be purchased for the Indians, should not thereafter be subject- to any tax, constituted a contract which could not be rescinded by a subsequent legislative actt Such repealing act being void under that clause of the Constitution of the United States which prohibits a State from passing any law impairing the obligation of contracts.” In 1758 the…

This case was brought up from the District Court of the State of Ohio, in and for the county of Hamilton, by a writ of error issued under the 25th section of the Judiciary Act.

Held: among other things, as follows: “ In the present cáse we have a recorder of land titles, fourteen years from the passage of this act, attempting to give the evidence of title, by issuing a certificate of confirmation, and certifying the claim to the surveyor-general as one confirmed by the act of 1812.

<p>Where a libel was filed, claiming compensation for injuries sustained by a passenger in a steamboat, proceeding from Sacramento to San Francisco, in California, the case is within the admiralty jurisdiction of the courts of the United States.</p> <p>The circumstance that the passenger was a “ steamboat man,” and as such carried gratuitously, does not deprive him of the right of redress enjoyed by other passengers. It was the custom to carry such persons free.</p> <p>The master had power to bind the boat by giving such a free passage.</p> <p>The principle asserted in 14 How. 486, reaffirmed, namely, that “when carriers undertake to convey persons by the agency of steam, public policy and safety require that they should be held to the greatest possible care and diligence.</p> <p>The theory and cases examined relative to the three degrees of negligence, namely, slight, ordinary, and gross.</p> <p>Skill is required for the proper management of the boilers and machinery of a steamboat; and the failure to exert that skill, either -because it is not possessed, or from inattention, is gross negligence.</p> <p>The 13th section of the act of Congress, passed on the 7th of July, 1838, (5 Stat. at Large, 306,) makes the injurious escape of steam prima facie evidence of negligence; and the owners of the boat, in order to escape from .responsibility, must prove that there was no negligence.</p> <p>The facts in this case, as disclosed by the evidence, do not disprove negligence. On the contrary they show that the boat in question was one of two rival boats which were “ doing their best” to get ahead of each other; that efforts had been made to pass; that the engineer of the boat in question was restless, and constantly watching the hindmost boat; and that the owners of the boat have failed to prove that she carried only the small quantity of steam which they alleged.</p>

This case was brought up by writ of error, from the Circuit Court of the United States for the ¡Northern District of New York. The manner in which the suit was brought, and the charge of the Circuit Court, which was excepted to, are stated in the opinion of the court. The reporter passes over all other questions which were raised and decided, except those upon which the decision of this court turned.

This was an appeal from the Circuit Court of the United States for the Eastern District of Louisiana. Junius Amis filed his bill under the following circumstances: . The respondent, David Myers, having obtained a judgment against William D. Amis, issued execution thereon and caused to be seized seven slaves. The complainant, Junius Amis, thereupon filed his bill, claiming these slaves ■ as his property, and praying an injunction to arrest the sale of them.

This case was brought up by writ of error, from the Circuit Court of the United States for the District of Missouri. It was a petition in the nature of an ejectment brought by the plaintiffs in error, against Stoddard, in the St. Louis Court of Common Pleas. Stoddard, who was a citizen of Ohio, removed it into the Circuit Court of the United States.

This was an áppeal from the Circuit Court of the United States for the Western District of Pennsylvania, sitting as a court of equity.

This was an appeal from the District Court of the United States for the District of Iowa. It originated in the State Court, called the District Court of the County of Dubuque, and was transferred to the District Court of the United States, at the instance of Gregoire and Bogg, the .defendants. Gregoire was a .citizen and resident of Missouri, and Bogg of Illinois. The facts in the case are stated in the opinion of the court.

This was an appeal from the Circuit Court of the United States for the District of Columbia, holden. in and for the county of Washington. The facts in the case are stated in the opinion of the court.

Held: opinion by Ch. J. Boyle, that, “in general when proper for courts of law to grant a new trial during the term, it is equally proper for chancery to grant new trial on same grounds arising after the term.” *554 The distinction made in both courts, is between merely cumulative- evidence to a point before in contest, and proof of a new matter or* fact not before contested, but bearing materially on the original issue.

This was an appeal from' the Circuit' Court of the United States for the Western District of Pennsylvania. The facts of the case are stated in the opinion of tae court.

Held: that they could and ought to join in this case, being a mere personal action according to Littleton’s rule, which was held general, without relation to any privity of contract; and that the covenant being indivisible, the wrong and damages could not be distributed, because uncertain;” and he cites the same cases that Archbold does.

This case was brought up by writ of error-from the District Court of the United States for the Western District of Virginia. On.-the 29th of June, 1849, John Rogers, junior, and Joseph Rogers, of Cincinnati, and citizens of the State of Ohio, survivors • of the ■ firm of Rogers & Brothers, the deceased partner of which was Alfred Rogers, 'late of St. Louis, in Missouri, sued Samuel H. Early in the District Court of the United States for the Western District of Virginia.

<p>This case came up by writ of error from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington.</p> <p>It was an ejectment brought by íthoda E. Homans, to recover that part of lot number four, in square number seven hundred and thirty, in the city of Washington ;• beginning for the same at a point on the line of A street south, at the distance of thirty-two feet from the north-east corner of said square: and running thence due west with, the line of said street, fifty feet and five inches; thence due south, fifty feet; thence due eastj fifty feet and five inches; thence fifty feet to the place of beginning; and also into three messuages or tenements with the appurtenances situated thereon, in the county above named.</p> <p>Upon the trial, the plaintiff showed title in herself, and the defendant made title under a tax sale, when the jury, under the instructions of the court, found a verdict for the plaintiff. The following bill of exceptions’ explains the case.</p> <p>Defendant’s bill of exceptions.</p> <p>At the trial of the above cause, after the plaintiff’s lessor had shown a legal title in herself, a devisee of. D. Homans, who died in August, 1850, to the fifty feet five inches of ground fronting on A street by fifty feet deep, a part of lot 4, in square No. 730, in Washington city, with the houses thereon, being the premises described in the declaration; entitling her, as admitted primé facie, to recover .the same as such devisee, and that the defendant held possession thereof at the commencement of this action.^ The defendant thereupon, to maintain the. issue on his part, offered evidence of a tax title from the corporation of the city of Washington, to sustain which, and to show that the requirements of the act of 26th May, 1824, had been complied yrith, proved the notice of the time and place of the tax sale to have been given by the city collector, by advertisement in the National Intelligencer, in the following words:—</p> <p>Collector’s Office, City Hall,</p> <p>August 25th, 1848.</p> <p>“ On Wednesday, the 15th day of November next, the annexed list of property will be sold by public auction, at the City Hall in the City Hall in the city of Washington, to satisfy the corporation of said city for taxes due thereon as stated, unless the said taxes be previously paid to the collector, with such expenses and fees as may have accrued at the time of payment.” And amongst other property so advertised was the following: ■</p> <p> </p> <p>And the insertion of said advertisement was on the following days:</p> <p>Saturday, 26th Aug., 1848. Saturday, 14th Oct., 1848.</p> <p>“ 2d Sept, “ “ 21st “ “</p> <p>“ 9th “ “ “ 28th “ “</p> <p>Thursday, 14th “ “ “ . 4th Nov. “</p> <p>“ 21s't “ “ “ ' ' 11th “ “</p> <p>Saturday, 30th “ “ Wednesdáy 15th “</p> <p>“ 7th Oct., “</p> <p>And that on such last day above mentioned, the said sale took place and the defendant became the purchaser of said premises for $55. Whereupon the plaintiff prayed the opinion and instruction of the court to the jury, “ that the said sale was invalid and of no effect, and passed no title to the defendant in the premises in question; because a period of twelve full and complete weeks had not intervened betweéen the 26th August, the time of the first advertised notice of said sale, and the 15th November, 1848, the day or time of said sale, but a period of eleven weeks and four days only;” which opinion and direction the court, gave as prayed for by the plaintiff, to which opinion and direction of the court to the jury, the defendant by his counsel, prayed leave to except, and' that the court would sign and.seal these his bill of exceptions, according'to the form of the statute in such cases made and provided, which is accordingly done this 17th day of May, 1853.</p> <p>Jas. S. Morsell, [seal.'</p> <p>Jas. Dunlop, [seal.’</p> <p>Test: Jno. A. Smith, Clerk.</p>

Held: unless the jurisdiction of the Circuit or District Court appear in the record, the judgment of such court may be reversed on a writ of error. It is therefore important, that in dealing with land titles, the jurisdiction of the inferior court should appear in the proceeding.

Held: in this casé, that in an action for or upon a bank-note, payable to bearer, against the bank, it is sufficient if the holder or plaintiff is entitled to sue in the federal courts, without regard to the character of any former holder; and that such a note is payable to anybody, and is not affected by the disabilities of the nominal payee..

This case came up, by writ of error,' from the District Court of the United States for the Northern District of Florida.