Volume 71 — United States Reports

The fourteenth rule of this court declares that no certiorari for diminution of the record shall be awarded unless the motion be made at the first term of the entry of the cause, and “unless upon special cause shown to the court accounting satisfactorily for the delay.” The present case having been continued to the next term, Mr. Gushing asked leave, although more than one term had passed since the entry of the cause, to file a suggestion of diminution of the record.

This case came bere on a certificate of division from tbe Circuit Court of tbe United States for tbe Eastern District of Pennsylvania. The record showed a litigation in respect to an alleged fraud in obtaining a deed of large tracts of land by the principal defendant from tbe complainant.

court, being thus: In 1850, the United States granted, by act of Congress, to the State of Arkansas, all the swamp and overflowed government lands within its limits, on condition that the proceeds of the lands, or the lands themselves, should be applied, as far as necessary, in reclaiming them for cultivation by means of levees and drains.

On a motion for prohibition. At the last term of this court the relator made application for a writ of prohibition to the judge of the District Court of the Horthern District of California, to prevent that court from proceeding further in a certain cause in admiralty.

The United States had recovered judgment against Walker in the Circuit Court for the Eastern District of Louisiana, “ for the sum of $2000, with interest thereon at the rate of six per cent,” &c., and the case was now here on writ of error.

A petition was filed in the Orphans’ Court of the District of Columbia, by John Wiley and Emily his wife, setting forth that the said Emily was the child of Tillotson Brown, deceased, and his sole heir and distributee; that her mother, Elizabeth Brown, the widow of the said Tillotson, had duly administered upon his estate; that a surplus was left in her hands from the assets of the estate, and praying that such portion of the same as the petitioner was entitled to might be…

The legislature of Louisiana enacted, A.D. 1850— “ That each of the municipalities of said city shall be and is hereby empowered to levy a tax on capital on the assessment roll for the year 1848, and a tax on capital on the assessment roll for the year 1849: Provided, that the taxes on capital on said assessment rolls, for the years 1848 and 1849, shall not exceed the amounts already imposed by existing ordinances of the said municipalities.” Under the authority of this act…

<p>Sturdy brought ejectment against Jackaway in one of the State courts of Arkansas to recover a tract of land in that State, the action being brought not in the English fictitious form used still in some States of the Union, but in the way now more common with us — and which prevails in Arkansas —where the parties sue, as in other cases, in their true names, and where the land claimed is described so as to be capable of complete identification. J udgment was given for the defendant; and the case having gone to the Supreme Court of Arkansas the judgment was there affirmed. He then brought another ejectment for the same premises in the Circuit Court of the United States for the Eastern District of Arkansas, and the defendant having pleaded the former j udgment the plaintiff demurred. The judges of the Circuit Court being opposed in opinion as to the sufficiency of the demurrer, the following questions were certified to the court:</p> <p>1st. Is said plea good in law as a bar to this action ?</p> <p>2d. Is a final judgment pronounced in an action of ejectment, where the claim of title in fee simple absolute by the parties respectively was the sole subject of controversy, instituted and prosecuted under and according to the forms and in the manner prescribed by the statute laws of the State of Arkansas, a valid, legal bar to a like action, subsequently instituted between the same parties, for the same lands or premises, involving the same identical title and rights to the possession of such lands or premises, and none other ?</p> <p>There was nothing shown by the record or otherwise to indicate that the statute law of Arkansas made a distinction between ejectment and other actions as to the conclusiveness of a verdict and judgment.</p>

<p>This was a motion by Mr. Templin to dismiss a writ of error to the Supreme Court of Iowa, issued under the twenty-fifth section of the Judiciary Act, which gives authority to the Supreme Court of the United States to review final judgments in the highest court of a State “ where is drawn in question the validity of a statute of or an authority exercised under any State, on the ground of their being repugnant to the Constitution of the United States, and the decision is in favor of such validity; or where is drawn in question the construction of any clause of the Constitution, &c., of the United States, and the decision is against the title, right, &e., specially set up or claimed under such clause.” The case was thus:</p> <p>Rock, on behalf of himself and the other resident taxpayers of Iowa County, filed his bill in the proper State court against the Missouri and Mississippi Railroad Company, plaintiff in error, and "Wallace, county judge of the said county. He prayed that certain bonds, purporting to be the bonds of the County of Iowa, which he alleged to be then in the possession of the plaintiff in error, should be-declared void, and that plaintiff should be enjoined from negotiating them; and that the county judge should be enjoined from levying or collecting any tax to pay said bonds or the interest on them.</p> <p>The bill of complainant asked for relief on two grounds:</p> <p>1. That the county judge disregarded the requirements of a certain statute set forth in the bill, in the submission to the vote of the people of the question of issuing the bonds.</p> <p>2. That the county judge and the Railroad Company, to whom they were first issued, were guilty of fraud in the issue of the bonds.</p> <p>The court decreed as prayed by Rock, and the Railroad. Company appealed to the Supreme Court of Iowa, which affirmed that decree.</p> <p>More than two years after this affirmance, the chief justice of that court certified that, upon the hearing in that case, there was drawn in question:</p> <p>1. The validity of the Constitution of the State of Iowa as being repugnant to the Constitution of the United States.</p> <p>2. That clause of the Constitution of the United States which provides that no State shall pass any law impairing the obligation of contracts.</p> <p>3. That clause of the Constitution of the United States which provides that said Constitution shall be the supreme law of the land.</p> <p>And it was further certified, that the decision was against the right claimed under the Constitution of the United States .and the several clauses thereof.</p> <p>'The ground of the motion made to dismiss was, that it nowhere appeared by the record that the question of the re-pugnancy of the laws and Constitution of Iowa to the Constitution and laws of the United States was passed upon; and that the certificate of the judge would not of itself conclude the court on that matter.</p> <p>In Armstrong v. The Treasurer of Athens Co.,* the chief justice of the State court attached to the record his certificate that the decision drew into question the validity of that clause in the Constitution- of the United States, which provides that no State can pass a law impairing the obligation of contracts, and that the decision was against the clause. The certificate in the case at bar is drawn up and signed as was that in the authority cited; and this will he seen by reference to that authority.</p> <p>In that case the - court says:</p> <p>“We presume the certificate of the presiding judge was made by authority of the court, and as the hill and answer show that such a point might have arisen, and this certificate on the record states that it did arise and was decided, the case comes within the fourth clause, and this court must take jurisdiction.”</p> <p>But independently of the certificate we have an -authoritative report of the case now brought here from the Supreme Court of Iowa, in the printed reports of that court’s decisions. Volume 14th of the series gives us the very case now here on error. It removes all difficulty. The court say that the hill was filed to cancel certain bonds for the want of power in the county judge to issue the same, and because of certain alleged irregularities attending their issue, and they add: “ Following Stokes v. Scott Co.,* and B. & M. R. R. Co. v. Wapello,† we affirm the judgment below.”</p> <p>How in both the eases cited and followed,- the Supreme Court of Iowa held the bonds unconstitutional while yet unissued, and in the present case it applied this principle of unconstitutionality to bonds issued and in the hands of bona fide holders.</p> <p>The ease then fairly presented the constitutional question, and the point which was decided by the Supreme Court of Iowa was, that these bonds (issued and delivered in November, 1858, to bona fide holder’s, and at a time when, as is well known, the Supreme Court of the State held them to be constitutional, and valid), were unconstitutional and invalid, null and void. The Supreme Court of Iowa, then, have made a decision in this case which impairs the obligation of contracts. The judicial interpretation of a law is part of the law as much as if written in it.</p>

The suit was brought on the official bond of Dashiel, a paymaster in the army of the United States, and Paschall, one of his sureties,\for breach of the condition in not paying over or accounting for public money that came into his hands.

Allsbury had become bound as surety in the official bond of Dashiel, paymaster. Suit having been brought on this bond against Dashiel, and Paschall, one of the sureties, to recover what the United States alleged was due, to wit, $20,085, a defence was set up to part of the claim; and the defence being sustained by the court below, the United States had verdict and judgment for but $10,318.22. Error was taken to that judgment, and the judgment reversed.

A statute of Louisiana* enacts “ that notaries shall keep a book, in which they shall transcribe all the protests by them made, with mention made of the notices which they shall ■have given to drawers and indorsers, &c.; which declaration, duly recorded under the signature of the notary public and two witnesses, shall be received as a legal proof of the notices.” With this statute in force, Leeanu sued Leftwiteh and others in the Circuit Court of the United States for the…

’ The action below was brought by W. P. Sheffield, against the Mayor, &c., of Hew York, to recover damages for injuries received by him from stumbling over a stump at the edge of the sidewalk around the lower end of the City Hall Park, iu the city of Hew York. Upon the trial it appeared that on the 16th December, 1857, Sheffield, while crossing, in the evening,, the lower end of the.

case being essentially thus: By the Mexican colonization law of August 18th, 1824, and the legislation of Coahuila and Texas authorized by it, the Governor of the State just mentioned had power to grant lands for colonization; but it was declared that the territory comprised within twenty leagues of the boundaries of a foreign nation, or within ten leagues of the sea-coast, could not he colonized without the previous approval of the supreme executive power.

Held: that it does not warrant the review of an adjudication upon a mere question of boundary. The fact that the land to which the boundary relates is held by a title derived from an act of Congress does not change the result.

It was claimed that this compact had been broken by the decision of the Supreme Court of Arkansas in this case. The facts on which the claim was based were these: On the 23d day of May, 1828, a portion of the public domain, within the limits of the Territory of Arkansas, was, by treaty, ceded to the Cherokee Indians, west of the Mississippi Elver, and suitable provision made for the removal of the settlers from it.

’ The appellant, Butherford, was, in 1850, the owner of the steam propeller Stanton, and had put her in charge of the towboat Diana, which was to tow her to sea from Hew Orleans. The Diana proceeded down the Mississippi with her tow, the Stanton, and on the 23d of January a collision took place between the Diana and the steamship Ohio-, coming up the river. The Stanton was struck and sunk, and the Diana greatly injured.

Held: 1st. That the ejectment must have been for the same land. 2d. That in the trial the same title should have been passed upon. 3d. That the parties should be the same, or should stand in privity with those who were. “ It is certainly not enough that the former ejectment was upon the same land, on the same title, and under same deed, under which parties at present claim; it is necessary, besides, that the parties be…

, United States v. Stone, 2 Wallace, 525. — Rep.] The second case was a petitory action, brought by Sewall and Hudson, claimants under Goodbee, having for its object the vacation of the patent, the annulment of the above judgment against Sewall, then pending on appeal in the Supreme Court of the State, the recovery of damages, and the obtaining of an injunction. No judgment was passed upon the merits of any matter alleged.

Held: that while the judgment remained in force it was itself evidence of the right to the thing adjudged, and that errors, however apparent, can only be examined by the appellate power.

Held: as will be seen by reference to the case, that the right existed, and that the tax would have been legal, except for a single defect in the enabling act passed by the legislature of New York in 1865, which consisted in an omission to re-enact'a provision of the act of Congress which required, that “ the tax so imposed under the laws of any State upon the shares of the associations authorized by this act, shall not…

On the 22d of April, 1841, a grant of land, was issued to one Mayors by the Governor of California. The grant describes the land granted as that formerly occupied by Francis Moss, and known by the name of Zayante, bordering on the village of Brancoforte and Mission of Santa Cruz, and as being in extent “longitudinally one league, and latitudinally one-half league, more or less,” as explained by an accompanying diagram.

A bill was filed in the court below to foreclose a mortgage executed by C. B. Bass, now deceased, and Eugenie his wife, on the 22d November, 1851, to Brown, to secure the payment of two promissory notes — one for the sum of $1704.03, and the other for $1703.16 — payable respectively 15th January, 1854, and 1855, at a house in New Orleans.

<p>ERROR to the Circuit Court of the United States for the District of Iowa.</p>

<p>Error to the Circuit Court of the United States for the District of Iowa.</p>

Cummings v. Missouri, 71 U.S. 277 (1867), 4 Wall 277, 18 L. 350, also known as the Test-Oath case, is an 1867 landmark decision of the Supreme Court of the United States, in which the court held in a 5-4 decision that both state and national oath laws are unconstitutional. Cummings was a companion case of Ex parte Garland, which were also referred to as the Test-Oath Cases. Cummings involved Fr John A. Cummings, a Catholic priest who refused to take an anti-Confederacy oath that was required by the Missouri Constitution; the lower court found him guilty of perjury and sentenced to pay a $500 fine and imprisonment of not less than two years.

Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867), was an important United States Supreme Court case involving the disbarment of former Confederate officials.

Its twenty-ninth section provides that “ every judgment in the action of ejectment rendered upon a verdict shall be conclusive as to the title established in such action, upon the party against whom the same is rendered, and against all persons claiming from, through, or under such party, by title accruing after the commencement of such action, subject to the exceptions hereinafter named,” exceptions not material to be noticed.

This was a certificate of division of opinion between tbe judges of the Circuit Court of the United States for the Eastern District of Michigan. The suit was brought to recover a duty of ten per centum ad valorem, under the tariff act of 14th July, 1862, on staves for pipes, hogsheads, and other casks, imported by the defendants in November, 1863, from Canada into the United States.

This suit was brought to recover the duties on “ split timbers ” imported from Canada into the United States, and claimed to be exempt under the Reciprocity Treaty, as in the case just disposed of. The treaty exempts from duty 11 timber and lumber of all kinds, round, hewed, and sawed, unmanufactured, in whole or in- part.” The articles consisted of six hundred and sixteen cords of split white-ash timber, chiefly designed to be used in the manufacture of long shovel handles.

<p>Eiutoii to the Circuit Court of the United States for the District of Wisconsin. The case was a submitted one.</p>

Held: and added that “the proceedings in such actions must be governed by the principles and forms *428 of admiralty courts, except where otherwise controlled or directed by the act.” This j urisdiction of the courts of California was asserted and is maintained upon the'assumed ground that the cognizance by the Federal courts “ of civil causes of admiralty and maritime jurisdiction” is not exclusive, as declared by the…

Held: in Field v. Seabury, * that the question of the validity of a patent for land is “a question exclusively between the sovereignty making the grant and the grantee.” The courts of California, carrying out this doctrine, have held, that “ a patent imports absolute verity, and that it can only be vacated and set aside by direct proceedings instituted by the government, or by parties acting in the name and by the…

” With this statute in force, the State Bank, relator in the the holder of certain coupon bonds of the County Island, originally issued and negotiated in payment I^Hmck of the "Warsaw and Bockford Bailroad Company, which the county had subscribed. They were issued ¡■Pursuant to law. f The coupons representing the interest for one year were paid by the county; the necessary tax having been levied and collected for that purpose.

McMahon, of New Orleans, against Davidson, on a bill of.exchange drawn, as was alleged, by Davidson and others, and judgment hav ing been given in favor of the plaintiff.

This was a writ of error to the Supreme Court of Illinois. The case came before that eoui't on an appeal from a decision of the Board of Supervisors of the County of Peoria, by which they had refused to assess a state and county tax on the shares of Bradley and Ilowell in the First and Second National Banks of Peoria. The appeal was taken by the auditor of public accounts, in behalf of the State. The Supreme.

Thompson sued Bowie, in the Supreme Court for the District of Columbia, on three promissory notes for $1000, all dated on the 1st January, 1857, and all drawn payable to and indorsed by one Steer.

Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867), was the first suit to be brought against a President of the United States in the United States Supreme Court. The state of Mississippi attempted to sue President Andrew Johnson for enforcing the Reconstruction Acts. The court decided, based on a previous decision of Marbury v. Madison that the President has two kinds of tasks: ministerial and discretionary. Discretionary tasks are ones the president can choose to do or not to do, while ministerial tasks are ones required by his office: those whose failure to perform could leave him in violation of the Constitution.

This was a suit by the heirs of one Saulet for a lot of alluvion (or “ batture” as it is called in Louisiana) fronting the city of blew Orleans, on the Mississippi.

<p>1. Where a vessel has the wind free, or is sailing before or with the wind, she must keep out of the way of the vessel which is elosehauled hy the wind or sailing hy or against it. Those elosehauled on the wind, or sailing on the starboard tack, must keep their course.</p> <p>2. But these established rules of navigation do not apply after a vessel advancing in violation of them is so near another vessel that by such other vessel’s adhering to them a collision would be inevitable. A departure from them, under such circumstances, by a vessel otherwise not in fault, will not impair her right to recover for injuries occasioned by the collision.</p>

<p>PuRCELL filed a hill against Coleman, Miner and wife, and others, in the Supreme Court of the District of Columbia, where the statute of frauds — enacting that all estates in lands made by parol only and not put in writing and signed by the parties making the same shall have the force and effect of estates at will only — is in force. The bill set forth that Coleman having a house in 'Washington, and he, Purcell, a farm in Virginia, “ a trade” had been made between them; and the possession and key of the house delivered to him by Coleman, and full payment admitted by Coleman’s receiving the farm, the title of which he had examined, and atlie trade” closed; and that Coleman had requested the complainant to prepare both deeds; that Purcell had done so, and had tendered and was now ready to tender to Coleman a deed for the farm according to the contract.</p> <p>The hill then went on:</p> <p>“Tour orator further avers that sevei’al weeks thereafter, to his great surprise, about the time he had commenced improving the house for the purpose of placing a tenant in it, the said Coleman, in the night-time, entered the back way, by means of a ladder, and took from the back door the key on the inside of said house, and held forcible possession of the same until he was found guilty of the charge by two justices, after hearing all the testimony and having the aid of two counsel. That the said Coleman then delivered the key to your orator, and stated in the presence of several gentlemen that the change of property was fair; that he knew its condition before trading, in relation to its value and title; that it was advantageous to him, but that his wife had a few days previous refused to go with him to the said farm, and that was his only reason for his unlawful conduct, and that he would not do it again, and that he would pay all the costs in the case, which he has failed to do.</p> <p>“Your orator further avers that notwithstanding the key, possession, and equitable title being with your orator, and that he had actually prepared a bill in equity to compel said Coleman to make him a deed for the house and lot, and was about to file it, that to his great surprise it appeared that on the 9th March, 18G1, one Miner had entered into a conditional contract with the said Coleman for the house and lot, and obtained a deed for the same in the name of his wife; the said Miner well knowing at the time he made the conditional contract with the said Coleman that your orator was entitled to the equitable estate in said house and lot, as well as the peaceable and lawful possession of the same; that the said Miner, in order to get possession of the house, in the absence of your orator prepared a false key and entered it, first having torn down the printed advertisement from the door showing the house was for rent by your orator. And that your orator had again to incur the expense, loss of time, and annoyance of prosecuting the writ of forcible entry, and tbe said Miner was found guilty as charged, and fined fifty dollars.</p> <p>“ Your orator further avers that the said Miner stated to your orator in the presence of several gentlemen that it was not necessary to make him a party to the suit to compel the legal title; that if your orator succeeded against said Coleman, that said Coleman was to convey back to him or his wife the land in Virginia, which he had conveyed to said Coleman for the houSv. and lot referred to, thereby showing that their pretended exchange was entirely depending on the right of your orator to the said house and lot, which is still in your orator’s possession, but owing to the annoyance, by said Coleman and Miner, he has been unable to rent it.</p> <p>11 Your orator further avers that it is impossible to place your orator and the said Coleman in the same situation they were in before they exchanged property, because the said Coleman not having given attention to the farm, a barn has been destroyed, and also much of the fencing, as your orator has been informed and believes, and that he has been at expense in repairing the house and lot, &e.”</p> <p>The bill prayed a specific performance of the contract set up.</p> <p>The bill was answered by Miner, denying, &c., and set out that Miner also having a farm in Virginia, he and Coleman had agreed on and actually consummated a bond fide and unconditional exchange of the house for it.</p> <p>The answer then thus went on :</p> <p>“ This defendant further says, that soon after the execution of said deed to his said wife he took possession of the premises (as this defendant was authorized to do as the property of his wife) in a peaceable, quiet, and proper manner, and that he met upon the street a locksmith, who unlocked the front door of said house and sold this defendant a key. Some days subsequently the said complainant demanded of this defendant the possession of said house and lot, which demand this defendant refused to comply with. The next day the complainant came to the premises with a large number of officers and two justices of the peace, and in their presence again demanded possession of the house and lot, which this defendant again refused to grant, hut being requested by said justices, he opened the door and allowed them to enter. The said justices immediately proceeded to try the question of possession, and, to the utter surprise and astonishment of this defendant, imposed a fine for withholding from the said complainant the possession of the said house and lot. This defendant requested the said complainant to show his title to the said house and lot which he claimed, and the said complainant exhibited some papers, but none of them were signed by said Coleman, nor were they of any consequence in reference to the support of bis pretended claim of title. This defendant immediately called upon Coleman and related to him the circumstances in reference to the claim upon the house and lot set up by the complainant, and was informed by Coleman that the complainant had no claim upon the said house and lot, but admitted that they had been negotiating for an exchange of properties, and while the negotiations were going on, he, the said Coleman, learned that the farm in "Virginia that said complainant had offered him for said house and lot did not belong to the said complainant, and that he could not give him, the said Coleman, a clear title thereto, and consequently that he, the said Coleman, had declined closing any contract with said complainant.”</p> <p>Mrs. Miner did not answer, but made default. A good deal of testimony was taken, many of the interrogatories— the parties managing their own case — being of a most leading character.</p> <p>The court below dismissed the bill, and the case was now here on appeal.</p> <p>At a moment when the complainant was entitled to a decree pro eonfesso against Mrs. Miner, the recipient of Coleman’s title, the court dismissed the bill.</p> <p>The statute of frauds is not relied on or intimated in the answer of defendants; but if it had been, it would not apply in this case. The giving possession is part performance.*</p> <p>The possession being mutually given and, taken by the parties, entitled the appellant to a specific performance of the agreement.* An exchange will be specifically decreed.†</p> <p>By the new evidence the right of complainant to specific performance would be made out.*</p> <p>In addition there was error in law, — since the legal title had passed to Mrs. Minor, — in not decreeing against her, pro con-fesso, under the rules of this court adopted by the court below.</p>

Held: by virtue of several assignments, all the territory embraced in the patent, except the State of Ohio and the northern half of the State of Illinois; and in all the territory, except as just mentioned, was assignee of all the rights of the patentee.

Held: in Beers v. Bingham, § that “ the right to imprison (for debt) constitutes no part of the contract; and discharge of the person of the party from imprisonment does not impair the obligation of the-contract, but leaves it in full force against his property and effects;” and, in Mason v. Hake, || where A. gave a prison-limits bond, and by an act ,of the legislature was discharged from arrest and imprisonment, that the…

<p>Error to tbe Supreme Court of the State of Iowa; the case, as disclosed by the record, having been, in substance this:</p> <p>A collision occurred between the steamboats Hiñe and Sunshine, on the Mississippi River, at or near St. Louis, in which the latter vessel was injured. Some months after-wards, the owners of the Sunshine caused the Hine to be seized while she was lying at Davenport, Iowa, in & proceeding under the laws of that State, to subject her to sale-in satisfaction of the damages sustained by their vessel. The code of Iowa, under which this seizure was made, gives a lien against any boat found in the waters of that State, for injury to person or property by said boat, officers or crew, &c.; gives precedence in liens; authorizes the seizure and sale of the boat, without any process against the wroilgdoer, whether owner or master, and saves the plaintiff all his common-law rights, but makes no provision to protect the owner of the vessel.</p> <p>The owners of the Hine interposed a plea to the jurisdiction of the State court. The point being ruled against them, it was carried to the Supreme Court of the State, where the judgment of the lower court was affirmed; and by the present writ of error this court was called upon to reverse that decision.</p> <p>To comprehend the argument fully, it is here well to state that Congress had, prior to the date of this proceeding, enacted—</p> <p>1. In 1789, September 24th, by the Judiciary Act, that the District Courts of the United States “ shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under the laws of impost, navigation, or trade of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burden. . . . Saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it.”</p> <p>2. In 1845, by statute of the 26th February of that year, “ that the District Courts of the United States shall have, possess, and exercise the same jurisdiction in matters of contract and tort, arising in, upon, or concerning steamboats and other vessels of twenty tons burden and upwards, enrolled and licensed for the coasting trade, and at the same time employed in business of commerce and navigation, between ports and places in different states and territories, upon the lakes and navigable waters connecting said lakes, as is now possessed and exercised by the said courts in cases of the like steamboats and other vessels, employed in navigation and commerce upon the high seas, or tide-waters within the admiralty and maritime jurisdiction of the United States.”</p> <p>The question in the present case was, how far the jurisdiction of the District Coui’ts of the United States, in cases of admiralty arising on our navigable inland waters, is exclusive; and how far the State courts might exercise jurisdiction concurrently.</p> <p> Mr. Cook, in favor of the concurrent State jurisdiction: </p> <p>I. The Judiciary Act of 1789 invests the Federal District Courts with exclusive cognizance of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy, when the common law is competent to give it. This act was amended in 1845,- and extended the admiralty jurisdiction of the Federal courts to cases on the lakes and navigable waters connecting the same, but expressly saving to parties the right of a concurrent remedy which may be given by State laws.</p> <p>In England the jurisdiction of courts of admiralty was confined to the ebb and flow of the tide; and this court, in the cases of The Thomas Jefferson,* and The Steamboat Orleans v. Phœbus,† followed the English decisions, confining the admiralty jurisdiction. But in 1851, in the case of The Genesee Chief,‡ it overruled these two cases, and held that the jurisdiction of courts of admiralty extended to the lakes and navigable waters of the United States. But neither in this case nor in any other case decided by this court, that we recall, was it decided that the jurisdiction of the District Courts of the United States in cases of admiralty is exclusive. The judiciary acts of Congress to which we have referred expressly save to suitors, as we have remarked, common-law remedies, and any concurrent remedies provided by State laws.</p> <p>In the absence, then, of any decision by this court we may look at the action of the State courts. And in a mass of decisions, which may be referred to, we do not find one in which the jurisdiction of the State courts was denied on the ground assumed by plaintiff in this case; but, on the contrary, such jurisdiction of the State courts in this class of cases is admitted all the way through.-</p> <p>In Iowa, from which State the present case comes, there is the case of Miller v. Galland.§ That case- was an attachment against the steamboat Kentucky. A question of jurisdiction, on another point, was raised, and it was held that the court had jurisdiction. Numerous cases in Iowa, cited below,* are to the same effect.</p> <p>Ve refer to these cases, not because they explicitly and directly decide anything on the question of jurisdiction, but only to show that if the point made by taking this writ is well taken, the Supreme Court of Iowa has been deciding a great many cases over which it had no jurisdiction.</p> <p>Authorities, however, in other States support its view. The case of Germain v. The Indiana, is in Illinois.† There the court speaks of the difference between the decrees in State courts and in admiralty courts in this class of cases, and clearly upholds the jurisdiction of State courts. Many other cases have been decided in the same State, both before and since the decision in the casé last referred to, in which the jurisdiction is recognized and impliedly admitted.</p> <p>So in Hew York. The Richmond Turnpike Co. v. Vanderbilt,‡ in the Superior Court of Hew York City, was a collision in tide-water. The jurisdiction was maintained. The earlier case of Percioal v. Hickey,§ was to the same effect; and the ease is an important and well-considered one. The whole question of jurisdiction of State and admiralty courts was there considered, and the jurisdiction of the State courts upheld. ■</p> <p>If we may'cite text-writers, we have the respectable authority'of Mr. Angelí,ǁ who, after referring to authorities, says: “Ye have seen that the remedy in cases of collision lies either In the courts of common law or in the admiralty court.”</p> <p>So in Missouri. ¶ So in Ohio.**</p> <p>Above any authorities already cited is the case of Taylor v. Carryl,* in this court. It was three times argued, and the whole question of jurisdiction of State and Federal courts discussed and determined. A vessel had been seized under process of attachment issued from a State court of Pennsylvania, identical with that which issues out of the District Court of the United States sitting in admiralty. A libel was filed in the District Court of the United States for mariners’ wages. It was held that where property is levied upon it is not liable to be taken by an officer acting under another jurisdiction. The admiralty jurisdiction of the Federal court, although exclusive in some subjects, is concurrent upon others. The courts of common law deal with ships or vessels as with other personal property. In cases like the one now before the court, courts of common law, we think, have concurrent jurisdiction.</p> <p>II. Up to the time of The Genesee Chief, it was held by this court that courts of admiralty had jurisdiction only within the ebb and flow of the tide. Then, it follows that up to that time, State courts must have had exclusive jurisdiction over this class of cases, or there was no remedy in the law. Flow, if they once hall jurisdiction, there must be some law, .or provision of the Constitution, which took it from them. "We find none. But we do find the decision in that case asserting that the courts of admiralty have jurisdiction above such ebb and flow. But this does not oust State courts from their jui’isdiction.</p> <p>III. The Federal courts are of limited jurisdiction. They can only exercise the jurisdiction given by act of Congress. Flow when parties go into the Federal courts, they must show by the pleadings certain facts to give the court jurisdiction ; such as residence, citizenship of the different parties, or such other fact as may be prescribed by law, to affirmatively show jurisdiction in the court.</p> <p>Now apply the rule to the pleadings in this case. By the act of 1845 — under which alone the plaintiff in error can set up that the courts of the United States have jurisdiction— these courts have jurisdiction only in matters of contract and tort in, upon, and concerning steamboats of twenty tons burden, enrolled and licensed in the coasting trade, &c. In this case there is no averment that the steamboat was of twenty tons burden; no averment that she was enrolled and licensed for the coasting trade; and no averment that she was engaged in business of commerce and navigation upon the lakes and navigable waters, &e.; no averments, therefore, which affirmatively show jurisdiction in the District Court of the United States at all.</p>

<p>ERROR to the Circuit Court for the Eastern District of Louisiana; the case being thus:</p> <p>By the Civil Code of Louisiana it is enacted—</p> <p>1. That actions “ for the delivery of merchandise or other effects shipped on board any kind of vessel .... are prescribed by one year.”</p> <p>2. That conventional interest shall in no case exceed eight per cent., under, pain of forfeiture of the entire interest so contracted.</p> <p>'With these provisions in force, Nixon sued Newell, attaching as his property the steamboat Hill; and setting forth by petition filed April 20th, 1857 ’:</p> <p>1. That Newell was indebted to him $2585, with interest from. January 11th, 1855, at the rate of eight per cent., for this, to wit, that on the said day the said Newell and one Hamilton, since deceased, being co-owners of the steamboat Hill, . . . and in such capacity, aúz., as owners, made their note in his favor for the above-named sum, which would appear by reference to the note annexed and made part of the petition.</p> <p>2. That independently of this, Newell was indebted in the same sum for this — that he, Nixon, had shipped, at New Orleans, on the said steamboat, of which NeAvell and one Hamilton were owners, a large quantity of salt, which was never delivered at its destination.</p> <p>The note, which was annexed to the petition, was for the amount above stated, and was signed “ Newell & Hamilton, owners,” but was made payable with interest at the rate of ten per cent', per annum.</p> <p>Newell set up as defence that he never was a member of any firm known as Newell & Hamilton; and that no person had authority to bind him under any such signature; and, moreover, that the cause was barred by the “ prescription” (or “ limitation,” as it is called in many States), of one year.</p> <p>The court found as fact that the note was not signed by the defendant, Newell, but by Hamilton, now dead; that these two persons bad -no commercial partnership; that they did not transact the business of the boat under a social name, and were not accustomed to sign notes in this form; but that they were simply part owners in the Iiill — Newell owning three-fourths and Hamilton one.</p> <p>The court found, further (no bill of lading being produced and the evidence being of witnesses who received the salt), that the salt was shipped as alleged but arrived at an intermediate port in bad condition, where it was taken by the agent of the owners of the Hill, who disposed of the same with their consent and for their account, the plaintiff having refused to receive it on account of its bad condition; that the consideration of the note was the sum due by the steamboat and owners for the salt not delivered; that the defendant was aware of the making of the note and of its consideration ; that there was no evidence of his dissent from the act. It was shown also that after the death of Hamilton, his administrator made a settlement with Nixon and transferred to him Hamilton’s interest in the steamboat, for which Nixon had agreed to pay “ the debts and liabilities of the boat.” This settlement took place September 22d, 1856.</p> <p>The objections made below to the claim were :</p> <p>1. That the defendant, Newell, not having been in any sense a partner of Hamilton, the note signed by Hamilton did not bind Newell.</p> <p>2. That no bill of lading had been produced; and that one was necessary.</p> <p>8. That the suit was barred by prescription or limitation of one year.</p> <p>The court (Campbell, J.), as to the first point, admitted that as Newell was not a partner, in any sense, of Hamilton, the note could not bind Newell, unless he was connected with it by testimony other than itself. But it thought that the special facts of the case did so connect and make him liable. The term “ boat,” in the contract by which Newell assumed to pay “ the debts and liabilities of the boat,” the learned judge considered as meaning those binding the owners on account of their interest in the boat. The assumption had been made on an adequate consideration. The note on its face expressed an obligation affecting the boat, and it was given in recognition of such a liability.</p> <p>In regard to the second point, the learned judge did not consider the production of the bill of lading essential to the support of the action. The suit had not been brought on the contract of shipment, but to collect the sum acknowledged to be due in consequence of the breach of contract.</p> <p>3. To the argument of prescription the court said nothing. Judgment having been given accordingly, for the plaintiff, the same points were again presented here on exception; an additional point being made, to wit, that the court erred in allowing eight per cent, interest.</p> <p>1. As there was no commercial partnership between the defendant and Hamilton, and as they did not transact the business of the boat under a social name, Newell was not bound by the note, and, if he was liable to plaintiff, that liability must rest solely upon the original consideration, the shipment, consignment, and breach set forth in the petition. The uote itself proved nothing against the defendant; and the plaintiff was bound to prove such facts as would constitute legal responsibility on the part of defendant; that is to say, was hound to prove the shipment, the consignment, the breach, and consequent damages, exactly as if no such note had been given. He did not do this.</p> <p>2. The bill of lading was not produced; an extraordinary fact in the case of any large shipment. Nor does the plaintiff allege that he was the owner of the salt. In the absence of proof to the contrary, the consignee would be presumed to be the owner. The legal title is in him; and the mere shipper has no interest in the contract of affreightment, or in the delivery of the cargo. If the defendant was liable to the plaintiff, it was as a common carrier, for the damages resulting from the breach of the specific contract alleged. The hest pi’oof of that contract would have been the bill; and without in some way accounting for the failure to produce it, the plaintiff ought not to have been allowed to introduce secondary and oral proof of .the shipment. His character as shipper does not give him such an interest in the property as to enable him, upon that mere allegation, to maintain an action. The consignee might sue and recover upon simply alleging and proving the consignment to him, and failure to deliver; hut if the shipper sues, he must allege and prove property in himself. This court may well presume, in the absence of a contrary showing, that every important allegation has been proven to the satisfaction of the triers, when there is a general finding in 'favor of plaintiff; but it will certainly not presume in favor of plaintiff, that an important fact, essential to his right to recover, which be has not alleged, was proven.</p> <p>3. As there was no proof of demand having been made of defendant, and no pretence that he ever acknowledged his liability to plaintiff on this claim, there is nothing to take it out of the prescription; and the demand was barred.</p> <p>4. The court below erred in allowing eight per cent, interest, even if the proof makes out the liability of the defendant.</p> <p>The suit was upon the note, and one of two things is true in the matter. Either the note is obligatory upon Newell; and in that event it is void, so far as interest is concerned, because it stipulates for ten per cent.; or, it is not obligatory on him; and in that event there is no proof of a written agreement, or of any other agreement to pay conventional interest. Either there is no proof of ah agreement to pay interest, or there is proof of an agreement to pay usurious interest, which is prohibited by the law of Louisiana.</p> <p>In Reid v. Duncan,* the Louisiana courts say, in reference to the law against usury: “The statute is prohibitory. Whatever is done in contravention of a prohibitory law is void, although the nullity be not formally directed.† The agreement to pay usurious interest being in violation of a prohibitory law, we can give it no effect whatever.”</p> <p>This ease arose and was decided under Art. 2895 of the Civil Code, which affixed no penalty to the agreement to pay usurious interest. But the law applicable in this ease, attaches as a penalty the forfeiture of the entire interest so contracted. So utterly void is such an agreement, under this statute, that the debtor, if he has actually paid the usurious interest, may sue for and recover it within twelve months.*</p> <p>Without written proof of an agreement to pay it, conventional interest cannot be recovered. An agreement to pay ten per cent, cannot be maintained as a valid contract toipay eight per cent.’ If the written proof establishes an agreer ment prohibited by law, the court can give it no effect whatever, but must declare it void in toio. In Reid v„ Duncan, already cited, the court say: “We cannot say that we will let the convention stand up to the highest limit permitted by the law, and disregard it for so much as it exceeds the legal limit. The convention is a whole, and the nullity covers the whole.”</p> <p>Will it be said that there was no plea of usury in this case? That is so, and it is so for two reasons :■ 1st. Newell did not admit that the note was obligatory upon him; consequently he could not have pleaded that he had made an agreement to pay usurious interest. 2d. As the note itself, which is the only agreement touching interest, was exhibited as part of the petition, and offered in evidence, it furnishes proof of a stipulation which the law prohibits, and which the courts must reprobate. If the note were obligatory upon Newell the case would be exactly analogous, so far as the interest is concerned, to one in which a note offered in evidence should state upon its face that it is given for money lost at play. The proof of indebtedness disclosing an agreement which the courts cannot enforce, no special plea of illegality would be necessary.</p> <p>I. It is submitted that under the state of facts found by the court below, a sufficient partnership to bind Newell, even if not a truly commercial partnership did exist between Newell and Hamilton, under the laws of Louisiana. They were partners in the ownership and business of the steamboat. If so, they were bound jointly and severally for this debt, and the settlement qf the claim by the note now sued on, by one of the partners, cannot, under the facts of the case, be complained of by the other partner.</p> <p>But more clear is the fact, that the owners of the boat, Newell and Hamilton, acknowledging their liability, took the salt and disposed of it on their own account, and therefore, not only as carriers, but by appropriating the property to their own use, with the evident intention of indemnifying the owner, became responsible for the value of the property.</p> <p>Express sanction was not wanting in this case on the part of Newell. The agent of the boat sold this damaged salt, with the consent of both of the owners of the boat, ancl for their account; Newell was aware of the making of the note, and the consideration for which it was given, and never objected to Nixon’s claim; and, further, after Hamilton’s death, in August, 1855, Hamilton’s administrator transferred to him Hamilton’s fourth interest in the boat and its benefits, in ’consequence of which Newell assumed to pay all the debts and liabilities of the boat. This includes, of course, the note sued on, which, on its face, expresses an obligation affecting the boat; and the evidence is that it was given in recognition of such a liability.</p> <p>By this assumption the plaintiff in error became bound for the debt, even if' he had not been originally bound by the note. Article 1884 of the Civil Code of Louisiana is in these words:</p> <p>“A person may also, in his own name, make some advantage to a third person the condition or consideration of a commutative contract or onerous donation; and if such third person consents to avail himself of this advantage, stipulated in his favor, the contract cannot be revoked.”</p> <p>N. The counsel contend that the defendant in error was a mere shipper, and did not prove the ownership of the- salt. This was, however, acknowledged by the settlement of Hamilton with Nixon, treating him as the party in interest.</p> <p>HI. As to the plea of prescription. The owners appropriated the proceeds of our salt. The action is less for a breach of contract to carry than assumpsit for money had and received. It is so plain that the prescription of one year for the mere non-delivery of merchandise cannot apply, that the court thought it needless to make any remark about the thing at all. And so it was. After Hamilton’s direct acknowledgment of ownership and Newell’s tacit assent to the settlement, it -was certainly unnecessary to produce the bill of lading.</p> <p>IY. The allowance of eight per cent, interest on the principal of the note was right. The suit was perhaps less upon the note than on the appropriation and use of our money, the proceeds of the.salt sold. We asked eight per cent, interest, and no objection being made, it was given us. This was probably right.</p> <p>But whether right or not, it must now stand. Objection to it is now first made here. There was no plea of usury, nor was usury set up even by argument in the Circuit Court, from which the case comes.</p>

Sparrow brought ejectment against Strong in the District Court for the County of Story, in Nevada, for an undivided interest in a mining claim, the proceeding being in the form prevailing in Nevada, of petition, answer, and replication. On the 21st of May, 1862, a jury, after hearing the evidence and the charge of the court, rendered a general verdict for the defendants.

ERROR, to the District Court of the United States for the Northern District of Mississippi. The Mobile and Ohio Railroad Company, a corporation created by the laws of Alabama, was compelled, in order to reach its northern terminus, to pass through Mississippi, and the legislature being desirous that the road should be built, gave to the corporation the necessary powers to extend their line through the State.

Thomas brought suit against Ryan, in the St. Louis Land Court, an inferior State court of Missouri, for a tract of land in that State. The only question was as to the validity of a patent granted by the United States to a fictitious person. The inferior court held that the patent was valid; but the Supreme Court of the State, in 1857, reversed the judgment, and held that the patent to a fictitious person was a nullity.

Held: that the phrase, “king’s enemies,” does not include the violence of a mob, or riot, or civil commotion of any nature. ¶ *613 II. But if the court should hold that the libellant is entitled to recover, then the damages allowed are excessive.

The declaration alleged that there was due to the United States from the said postmaster, according to his quarterly accounts of receipts and expenditures for the last quarter of the year 1861 and the first quarter of the year 1862, a balance of $3380.43.

, a mercantile firm doing business at Wilmington, Delaware, filed a libel in admiralty, on the instance side of the District Court for the Southern District of New York, against the steamship Nassau, then in the port of New York, for repairs done to, and materials furnished for, the said vessel, in June, 1860.

This was an action of debt brought by the United States against Le Baron, surety of Beers, deputy postmaster at Mobile, on an official bond, dated the first of July, 1850.

Lindsay & Co., ship-brokers, of London, filed their petition in the Circuit Court for the Eastern District of Louisiana, in which — alleging a written contract between themselves and the Row Orleans, &c., Railroad Company, the company bound itself to pay them “ freights,” at the rate of 25s. per ton, “ in consideration of freightage to be furnished to Algiers, opposite Eew Orleans, for certain iron rails,” &c.— they averred that, in pursuance of the aforesaid contract, they…

This was an action on the case brought by the city of Chicago against Robbins. The declaration alleged that the ■city had by law exclusive control over the public streets and was bound to protect them from encroachment and injury.

Held: has not only *684 been confirmed by this government, but that the grants under the French and Spanish governments were as extensive, and the boundaries as well defined and settled, as we are of opinion they now are under the survey and location confirmed by act of Congress. JUDGMENT AFEIRMED. * Moore v. The Bank of the Metropolis, 13 Peters, 302.