Volume 73 — United States Reports

<p>Error to the Circuit Court for Massachusetts.</p> <p>Mauran brought suit in that court against the Alliance. Insurance Company on a policy of insurance upon the ship Marshall for one year from the 29th November, 1860, covering the sum of $8000. The insurance, as stipulated in the body of the policy, was “against the adventures and perils of the seas, fire, enemies, pirates, assailing thieves, restraints, and detainments of all kings, princes, or people of what nation or quality soever,”</p> <p>In the margin of the policy was the following:</p> <p>“Warranted by the assured free from Iqss or expense arising from capture, seizure, or detention, or the consequences of any attempt thereat, any stipulations in this policy to the cont fary notwithstanding.”</p> <p>The vessel was seized on the afternoon of the 17th of May, 1861, two or three miles inside of the bar at the mouth of the Mississippi River, on her way up to New Orleans, by the officers and crew of the steamer Music, belonging to the so-called Confederate States. Some persons on board the steamer at the time of the seizure, hoisted the Confederate flag to the mast-head of the Marshall, and informed the captain and pilot that the ship was “ a prize to the Confederate States.” Yerdict and judgment having been given in favor of the insurance company, the question here on error was, whether this taking of the vessel by the naval forces of the so-called Confederate States was a capture within the warranty of the assured in the margin of the policy ? If it was, then the loss was not one of the perils insured against, and the judgment below was right.</p>

), who sat for the Circuit Court, having been thus: The 122d section of the internal revenue act of 1864, provides that “any railroad company indebted for any money for which bonds have been issued upon which interest is payable shall be subject to and pay a duty of five per cent, on the amount of all such interest whenever the same shall be payable, and said company are authorized to deduct and withhold from all payments on account of any interest or coupons due and payable…

Pitz, of Boston, was owner of goods to the value of $8300, shipped at Surinam on board the AmeWe, a Dutch vessel owned in Amsterdam, and to be delivered to him in Boston. The vessel when she left her port was apparently seaworthy and well provided, but having been struck with lightning in the course of her voyage, and encountering perils of the sea, was compelled to seek some harbor, and with difficulty she made Port au Prince.

The Constitution of the United States ordains that Congress shall have the power to “regulate commerce with foreign natious and among the several States;” that “no State shall, without the consent of the Congress, lay .any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws;” and that “ no State shall, without the consent of.

Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868), was a landmark decision of the US Supreme Court that affirmed that a state cannot inhibit people from leaving the state by taxing them. The decision was written by Justice Miller. Chief Justice Chase and Justice Clifford concurred.

Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1868), also called the Library Case, was a case in which the Supreme Court of the United States held that the court does not hold jurisdiction over the political question of enforcement of the Reconstruction Acts against the Southern States. The court did recognize its original jurisdiction in the matter and its ability to decide issues of the rights of persons or property. Nevertheless, the case before it was not one of persons or property, but the political question of whether the federal government could annul state governments and replace them with new ones. Since it found that the issue raised by the three Southern States was a political one, the court decided it did not possess jurisdiction over the subject matter of the case.

Appeal (submitted) from the District Court of the United States for Western Arkansas. Aird being indebted, and having subsequently failed, either sold, or conveyed under a pretence of a sale, certain town lots, at Fort Smith, Arkansas, which he owned, and which had cost him, it seemed, $1900, to one Spring.

<p>The alteration of the date in any commercial paper, — though the alteration delay the time of payment, — is a material alteration, and if made without the consent of the party sought to be charged, extinguishes his liability. The fact that it was made by one of the parties signing the paper before it had passed fr'm his hands, does not alter the case as respects another party (a surety), who had signed previously.</p>

By the fourteenth article of a treaty made in 1830, between the Choctaw Indians and the United States, by which the Choctaws ceded their territories to the United States, it was thus stipulated: “ Each Choctaw head of a family being desirous to remain and become a citizen of the States, shall be permitted to do so by signifying his intention to the agents, &c., and thereupon be entitled to a reservation of one section of six hundred and forty acres of land, to be bounded by…

In that court the schooner Watchful and cargo had been libelled as prize of war, and a decree rendered dismissing the libel, and restoring the property to the claimant. The claimant, one Wallis, to whom the property plainly belonged, was a citizen of Pennsylvania, residing at Philadelphia, and the evidence showed no reason to doubt his loyalty to the Federal government during the recent war.

Caldwell being owner of a distillery, subject to a mortgage to Hoppock, leased it to Chapin & Co. for three yeai’s; it being agreed by the lease itself that the rent, so much a year, should be paid by Chapin & Co. directly to Caldwell the mortgagee, so as to keep down in part the interest on the mortgage.

These were three motions: the'first two to dismiss appeals from the Court of Claims, one in the case of Adams, and one in the case of Johnson; the third, in the case of Clark, a, motion for a certiorari designed to require that court to make a more extended statement of the evidence on which they bad made a particular finding. The motion in the first two; cases resting on more grounds than one; in the third, on One ground only.

<p>[See infra, next case, Osterman v. Baldwin, in regard to this same section 15 of the Texas statute of limitations. — Rep.]</p>

In 1839, prior to the admission of Texas into our Union, and that country beiug then an independent republic, Baldwin, a citizen of New York, and an alien, of course, to Texas, purchased and paid for three lots in Galveston, from the Galveston City Company, a corporation created by law, with power to sell real estate, aud which owned the lots sold. As the company was not at the moment ready to execute deeds, he received certificates of the purchase.

the word “ rebellion.” Vol. 16 contains the decisions rendered from January, 1861, to February, 1862, the judges being the same which held office before secession. The reports do not contain the slightest allusion to the political circumstances under which it was produced.

¿Etna Insurance Company, at East Saginaw, in Michigan, and was duly authorized to make insurances, by policies of the company countersigned by himself, against loss by the perils of inland navigation. To facilitate the making of such insurances with promptitude, the agent was furnished with blank policies duly signed by the president and secretary of the company, and requiring nothing to make them obligatory contracts except to be filled up and countersigned by him.

The case was this: The code of civil procedure of Ohio provides that every action must be prosecuted “in the name of the real party in interest,” &c.; and “that the distinction between actions at law and euits in equity, and the forms of all such actions and suits heretofore existing, are abolished; and in their place there shall be, hereafter, but one form of action, which shall be called a civil action With this provision of the code in force, the Central Ohio and another…

The twelfth section of the Judiciary Act provides: “That if a suit be eomrnenced in any State court against an alien, or by a citizen of tbe State in which the suit is brought, against a citizen of another State, .... and the defendant shall, at the time of entering his appearance, file his petition for the removal of the cause for trial in the nest Circuit Court, .... and offer good and sufficient surety for his entering appearance in such State court, on the first day of…

<p>Error to the Supreme Court of Arkansas; the question in the court below being the validity of a title set up by Ashley’s executors on bill to a piece of land in that State, south of the Arkansas River, near Little Rock, as against a title set up on the other hand by Rector on cross-bill, each party seeking to have his title quieted as against the other.</p> <p>The title of the respective parties was thus:</p> <p>Ashley claimed under a certain act of Congress of June 23d, 1836,* granting to the State of Arkansas, for the purpose of completing the public buildings at Little Rock, a quantity of land, not exceeding five sections, to be located under the authority of the General Assembly of that State, on any of the unappropriated lands of the United States in Arkansas. Such proceedings were had under this act, that on the 8ih day of June, 1838, the legal title to the land in controversy became vested in Ashley, unless it had been previously appropriated by virtue of the proceedings under a certain act of Congress of February 17th, 1815, through which Rector set up a prior equitable ownership of the same land. This last-mentioned act provided that any person owning lands in the county of New Madrid, in Missouri (then recently visited by earthquakes), and whose lands had been materially injured by them, should be authorized to locate the like quantity of land on any of the public lands of the said territory, the sale of which was authorized by law, not exceeding six hundred and forty acres.</p> <p>The material facts relating to the title of Rector thus set up, as far as they were disclosed by the record, -were these: On the 80th November, 1815, there was issued to Henry Cockerham, by Frederick Bates, i’ecorder of laud titles at St. Louis, a certificate of the loss of six hundred and forty acres of land by the earthquake, entitling him to locate the same quantity on any of the public lands of the Territory of Missouri, the sale of.which was authorized by law. Next in order was a paper signed by William O’Hara, directed to the surveyor of the lands of the United States for the States of Illinois and Missouri, and the Territory of Arkansas, referring to this certificate, and stating that the said O’Hara, as the legal representative of Cockerham, located the said six hundred aud forty acres on the south side of the Arkansas River, near Little Rock; describing the location so as to enable the surveyor to identify it, and praying an order of survey. This paper was dated St. Louis, October 30th, 1820, but no evidence was given that it was ever filed in the surveyor’s office, nor any to show from whence it was produced ; though for the purpose of the opinion given by it, this court considered that it might be conceded that it was regularly filed in the surveyor’s office at the time it bore date, and that O’Hara had authority to act as the representative of Cockerham in the matter.</p> <p>Then followed in the record, a survey purporting to be made under Cockerham’s certificate, dated May 30th, 1838, and this was certified on the 16th day of June, 1838, fo be then on file in his office, by F. R. Conway, recorder of land titles at St. Louis; and he further certified that by virtue thereof, the said Cockerham, or his legal representative, was entitled to a patent for the tract so surveyed, amounting to six hundred and forty acres of land. This appeared to be a transcript from the records of the General Land Office. There was also, in another part of the record, a survey dated May 2d, 1839, purporting to be made under the same certificate, apparently not identical with the former survey, and which was certified to be a copy from the records of the surveyor of public lands for the district of Arkansas. There was nothing to show whether this survey was ever filed in the office of the recorder of land titles or not. It was understood that the description in the order of O’Hara to the surveyor, and the first of these surveys, and probably the second also, covered the land in dispute.</p> <p>It was this title thus set up under the act of 1815 which Rector sought to have quiéted and confirmed by his cross-bill. In the pleadings the titles were rested on the two acts of Congress respectively; though in the original bill in support of Ashley’s title, filed by his executrix and one Beebe, it was averred, after a full statement of the title derived under the act of 1836 — which title alone was set forth as the substantive ground of Ashley’s bill — that Rector had “ never had anything more than temporary actual possession or occupation ” of any part of the said lands “alleged to have been located by virtue of the said pretended New Madrid location, except,” &c.; while it was stated on the other baud that Ashley and his representatives “ have continuously had actual and constructive possession of the same.” Beyond this the pleadings showed no reference to possession and lapse of time as an element of title.</p> <p>The Supreme Court of Arkausas decided the case in favor of Ashley, giving a learned opinion (which was now in print before this court, but forming no part of the record sent up), to the effect that the land had not been “appropriated” until after Ashley’s title was fixed, and going also into an argument to show’’ that under the statute of limitations of the State of Arkansas, Rector was barred by lapse of time. By a statute of Arkansas the opinions of the court are required to be filed among the papers of the case. Judgment was accordingly given in favor of Ashley’s executors, and the case was now here under the twenty-fifth section of the Judiciary Act, which declares that a final decree of the highest court of a State, where is drawn in question the construction of any statute of the United States, and the decision is against the title, right or privilege so setup, may be reviewed here.</p> <p>The two questions here were, 1st, jurisdiction; 2d, the validity of the claim of Rector.</p>

Oil motions. Two motions were made in this cause. The first by the appellees, to dismiss the appeal, the other by the appellants to reduce the amount of the bond given on appeal. This had been required in double the amount of the decree; one for $310,752.72. The first motion was founded on the allegation that the final decree of the Circuit Court was entered on the 28th of November, 1866, while the appeal w-as taken to the December Term, 1867, of this court.

Keene having conveyed to Savery a piece of land, Savery gave him- a mortgage on the same to secure the purchase-money. Keene died before receiving payment of this money; and the administratrix of his estate, Mrs. Sypher, filed a bill to foreclose the mortgage.

ErmoR to tbe Supremo Court of Illinois; the case, which was one of ejectment, being thus: In 1784, after the War of the Devolution, the State, of Virginia then claiming the Northwest Territory, a part of which makes the now State of Illinois — and in which, from early times, inhabitants of Canada, while Canada was yet a French province, had settled — yielded her claim and title in the territory to the United States, on condition “that the French and Canadian inhabitants, and…

Held: in 24th Howard, * that he was entitled to the writ. This was decided only seven years ago, and is the first instance in which a *202 Federal court ever issued a writ of mandamus to a State officer in the history of tins government.

<p>In this case, where the questions presented for decision were the same as those decided in the preceding case, the doctrine of that case was affirmed.</p>

This was a libel filed in the District Court for the Northern District of Illinois, against that part of the Rock Island Railroad Bridge which is situated in the Northern District of Illinois, for alleged damages done by that part of the bridge to two steamboats, the property of the libellant, employed in the navigation of the Mississippi River.

Chapin libelled the propeller Hypodame for a collision which had occurred on the Hudson River, on a December night, 1862, a little below Dunderberg, between the propeller just named, then going up the river, and a schooner of his descending it, by which the schooner was struck on its port side near the cathead, split open for ten feet or more, and sunk before she could be towed into shallow water.

On the morning of May 16th, 1863, the steam-tug Hubbard was slowly descending the west side of the Hudson River, here one thousand or more feet wide. She was about one hundred and seventy-five feet from the shore, and had in tow four canal-boats, of which the Canisteo was one. She was now opposite the lower part of Troy, a city on the east Bide of the river.

Held: notwithstanding the special proceedings which they authorize against the parties not served to bring them afterwards before the court, if found Avithin the State, that such parties may be sued upon the original demand. In Bonesteel v. Todd, † an action of covenant was brought *240 against two parties to recover rent reserved upon a lease.

<p>Though there is bo general rule of court in regard to the matter, yet where a party desires to file a bill in original jurisdiction in equity, it has been usual to hear a motion in his behalf for leave to do so. This motion, except in peculiar circumstances (as where the hill asked to be filed was against the President of the United States), is heard only on the part of the complainant. Ten printed copies of the hill were in this case ordered to he filed with the clerk.</p>

The schooner Sea Witch was captured in the Gulf of Mexico on the 31st of December, 1864, by the United States war steamer Metacomet, for alleged breach of the blockade of the Texas coast, then established by our government.

On motion. Boon filed a bill in a State court of Orégon against McClane, to enjoin him from prosecuting an action at law to recover the possession of a lot of land, for which a patent had been issued to McClane by the United States, and praying that the same might be held by McClane as trustee for the benefit of him, Boon. The court dismissed the bill. On an appeal to the Supreme Court, that court reversed the decree, and rendered one for the plaintiff.

For this cause (Mr. Justice MILLER, announcing the order), the writ of error was dismissed under the authority of the cases of Carroll v. Dorsey,‡ Insurance. Company v. Mordecai,§ and Porter v. Foley,|| heretofore decided by this court.

( Error to the Circuit Court for the Middle District of Tennessee; the case being thus: The Constitution of the United States ordains, that “the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish ,” and that this power “ shall extend to all cases, in law and equity, arising under this Constitution and the laws of the United States.” With this provision in force as…

In March, 1859, the plaintiff purchased four slaves of the defendant at New Orleans, giving a draft payable at a future day for the payment.

On motion to dismiss the writ for want of jurisdiction. Hartupee brought an action aga.nst Millingar as garnishee of Gearing, in one of the courts of Alleghany County, Pennsylvania; the object of the suit having been to subject certain moneys of Gearing, alleged to be in the hands of Millirigar, to the satisfaction of a judgment recovered by Hartupee against Gearing in that court.

■ The Scud and her cargo were captured during the late rebellion, by the United States Steamer Princess Royal, at the mouth of the Rio Grande, on the 12th August, 1863, and brought into New Orleans for condemnation.

<p>1. Neither an enemy nor a neutral acting the part of an enemy can demand restitution on the sole ground of capture in neutral waters. The Sir W. Peel (5 Wallace, 535), affirmed.</p> <p>2. A vessel condemned for intended breach of the blockade established by the United States of her southern coast during the late rebellion; the vessel having been found near Great Abaco Island, with no destination sufficiently proved, without sufficient documents, with a cargo of which much the largest part consisted of contraband of war, and with many letters addressed to one of the blockaded ports, for which the chief officer stated distinctly that she meant to run.</p>

Held: that an answer was evasive and insufficient, when answering that the defendant “ has no recollection of. making said statement, nor does he believe that he stated that W. H. would redeem his land,” and that he “believes the charge that he stated to the bystanders attending that 6ale that he would do so, to be untrue.” 4.

In July, 1851, Lum made two promissory notes at Natchez, Mississippi, in favor of Robertson, as trustee of the Commercial Bank of Natchez, or order. On these notes suit was brought below in the name of Robertson, for the use of Alexander Ferguson.

Held: not coming within this term. Another act — one of February 28th, 1839 — enacts thus: That wjiere, in any suit at law or in equity, commenced in any court of the United States, there shall be several defendants, any one or more of whom shall not be inhabitants of or found within the district where the suit is brought or shall not voluntarily appear thereto, it shall be lawful for the court to entertain jurisdiction,…

These were cross-appeals in equity from the District Court for the Western District of Texas. Clements and Sheldon, judgment creditors of James Nicholson, filed in that court their original and amended bill (the last apparently without leave of court, as required by Rule 45*) against Nicholson, his wife, and a certain Moore, to set aside on the ground of fraud— 1. A sale by Nicholson of his entire stock of merchandise (dry goods); and 2.

Thompson, Ford, and Powell, being owners of real estate in Texas, Powell agreed wdth one Bowman, that if he would find a purchaser, he should have a commission of ten per cent, on a sale. Bowman found a purchaser, and the commission not being paid, he brought suit'for it, the suit in the court below.

Motion to dismiss an appeal from the Circuit Court for the District of Mississippi; the case being thus : The Judiciary Act of 1789,* enacts: “That either of the justices of the Supreme Court as well as judges of the District Courts, shall have power to grant writs of habeas corpus, for the purpose of an inquiry into the cause of commitment; Provided, That writs of habeas corpus, shall in no ease extend to prisoners in jail, unless where they are in custody under or by color…

Unna sued four different parties, of whom Selz and Leopold were one, for a tortious levy which they had made on his property, assuming it to be the property of one of their debtors.

Held: that a child born after the will, and before the decease of the father, was intentionally omitted; as appeared plainly on the face of the instrument. It is, doubtless, more difficult to establish that the omission was intentional, in the case of children born after the will, than if born before, and living at its date.

Held: on consideration of the previous cases, and on principle, that unless the transcript from the court below was returned before the end of the term next succeeding the allowance of the appeal, this court had no jurisdiction.

<p>3. By the laws of Mexico, which prevailed in California at the date of the conquest, pueblos or towns, when once established and officially recognized, were entitled, for their benefit and the benefit of their inhabitants, to the use of lauds, embjjacing the site of such pueblos or towns, and of adjoining lands within certain prescribed limits. These laws provided for an assignment to the pueblos of such lands, which were not to exceed in extent four square leagues. The assignment was to be made by the public authoritiesand the land was to be measured off in a square or prolonged form, according to the nature and condition of the country. All lands within the general limits stated, which were required for public purposes, were reserved from the assignment.</p> <p>2. Until the lands were definitely assigned, the right of the pueblo was an imperfect one. The government might refuse to recognize it at all, or might recognize.it in a qualified form, and it might be restricted to Jess limits than the four square leagues. After the assignment, the right oí use and disposition (a limited one) was subject to the control of the government of the country.</p> <p>8. Though historical evidence and judicial decision show that there was a Mexican pueblo of some kind, on the conquest of California, at what is now the site of San Francisco, one entitled to the usual rights oi pueblos, no assignment of lands was ever made to it under the former government. Its right to any lands required, accordingly, recognition from the United States before it could be turned into an indefeasible estate; and until the land claimed under the pueblo right was set off and measured by its authority, the government could set apart and appropriate any portion of it which might be required for public uses.</p> <p>4. The necessity of such recognition by the new government is not dispensed with by the presumption raised by the fourteenth section of the act of March 3d, 1851, of a grant of land to a town which was proved to have been in existence on the 7th of July, 1846.</p> <p>5. Tb.e proceeding in the District Court of the United States in a California land case, on an appeal from the board of land commissioners, is an original suit, and the whole case is open.</p> <p>6. An appeal from a decree of the District Court to the Supreme Court, in California land cases, suspends the operation and effect of the decree only when, by a'judgment of the Supreme Court, the claim of the confirmee in the premises in controversy may be defeated.</p> <p>7. In the execution of its treaty obligations with respect to property claimed under Mexican laws, the government may, if it please, act by legislation directly upon a claim preferred, withdrawing it from further considera tion of the courts under the provisions of a general act. Accordingly, an act by which all the right and title of the United States to the land within the corporate limits of San Francisco confirmed to the city by a decree of the Circuit Court, were relinquished and granted to that city, and the claim, of the city was confirmed, subject, however, to the reservations and exceptions designated in the decree, and upon certain specified trusts, disposed of the city claim, and determined the conditions upon which it should be recognized and finally confirmed.</p> <p>8. The decree of the board of land commissioners in California land cases, or of the courts of the United States, where it becomes final, takes effect by relation as of the day when the claim was presented to the board of land commissioners.</p> <p>9. According to the practice of the government, as recognized by Congress, the President may reserve from sale and set apart for public use, parcels of land belonging to the United States. And he may modify, by reducing or enlarging it, a reservation previously made. That he has made the modification on a compromise of an opposing private claim, does not invalidate the reservation.</p>

The twenty-fifth section of the Judiciary Act provides that a final judgment in the highest court of a State where is drawn in question the validity of a statute of any State, on the ground of its being repugnant to the Constitution of the United States, and the decision is in favor of such validity, may be re-examined in this court.

United States v. Hartwell, 73 U.S. 385 (1867), was a decision of the United States Supreme Court which defined the characteristics of an "Officer of the United States" as written in the Constitution, and also the scope of two federal embezzlement statutes. The Court held that an Officer, as opposed to a mere government employee, has a tenure, duration, emolument, and duties defined by law as opposed to by contract.

A. and L. Starr, asserting themselves to be owners in possession of certain parcels of land in the city of Portland, Oregon, and derived by title from that city, tiled a bill in equity in one of the State courts of Oregon, to quiet their title to the land against an ownership set up to it by one Stark, and to have a patent for it which had issued to Stark surrendered.

Dufief, acting without compensation and merely as a friend of a certain Mrs. Fowler, then a widow, in July, 1851, lent for her $2000 (money belonging to her) to Wheeler, taking from him a note payable in one year, and a deed of trust or mortgage security amply sufficient to secure the sum lent. These were delivered to Mrs. Fowler some time previously to October, 1851. Mrs.

Mumford — plaintiff both below and in error here — brought ejectment against Wardwell for a “ one hundred-v&va, lot,” No. 186 on the official map of San Francisco. Plea, possession as owner under a good title. The record showed that the case was set down on that issue for trial August 26th, 1863, when the jury found a verdict in these words: J. E. Mumford v. C. Otis Wardwell, United States Circuit Court, Northern District of California.

Held: that it might be inferred that the bond was approved by the judge. This cause came before the court on a motion by Mr. Zander, to dismiss writ of error to the Supreme Court of Oregon. . The CHIEF JUSTICE delivered the opinion. The record shows a suit in equity to quiet title to a certain tract: of land, which belonged to the complainant’s intestate, against the alleged inequitable claims of the defendants.

This was a motion made by Mr. Donohue to dismiss an appeal from the Circuit Court of the Northern District of New York. Lockwood, the appellant, with several others, had filed a joint libel against the schooner Grace Girdler, claiming damages occasioned by her collision with the schooner Ariel. The aggregate damages sustained by the libellants amounted, according to the libel, to $2764.

Cannon, holding an imperfect claim to a tract of land in that pai't of Louisiana which, in times when the sovereignty of the region was disputed between Spain and the United States, was called the “ Neutral Territory,” brought a petitory suit, under the civil lavy of Louisiana, against White, the possessor of a legal title under a patent of the United States.

<p>Error to the Circuit Court for the Northern District of Illinois.</p>

Held: not entitled — the company (which was now insolvent) having sold bonds at 40 per cent., — to have his outstanding equity adjusted on a foreclosure of the mortgage, and his demand attached to the mortgage; bonds to the whole extent of $4,000,000 having been actually issued. Appeal from tbe Circuit Court for Wisconsin.

Held: sufficiently accounted, as the court said, for not making the motion at the last term. Mr. J. H. Bradley, in support of the motion; Mr. Wills, contra. * 5 Wallace, 824.

The lessors of the plaintiff in error brought an action of ejectment in that court to recover certain real estate now here in controversy. The parties agreed upon the facts. Under the instructions given to the jury, they found for the defendants, and judgment was rendered accordingly. The plaintiff excepted to the instructions, and this writ was prosecuted upon the ground that they were erroneous.

<p>After judgment at law for a sum of money against a municipal corporation, and execution returned unsatisfied, mandamus, not bill in equity, is the proper mode to compel the levy of a tax which the corporation was boun'd to levy to pay the judgment.</p>

Held: could not be'upheld against the government except by a mere evasion, which would be as useless in the end “ as it would be derogatory to judicial fairness.” All the court appear to have concurred in that judgment, and in our opinion it is decisive of the present controversy.

, Mrs. Smith, the appellee, having sold to McHatton a plantation in the parish of East Baton Rouge, received from him notes for $70,000 of the purchase-money, secured by a mortgage on the property sold. One of these notes for the sum of $15,000 was placed by Mrs. Smith before due in the Bank of Kentucky for collection, and that bank forwarded it for the same purpose to the Citizens’ Bank of New Orleans. The note was indorsed in blank by Mrs. Smith and by the Bank of Kentucky.

This was a motion for a supersedeas of an execution against the City of Washington, plaintiffs in error, founded upon a writ of error, bond and citation, in compliance with the twenty-second and twenty-third sections of the Judiciary Net.

This was an application for a mandamus to the judges of the Supreme Court of the District of Columbia. The petition was presented to that court praying for the award of a mandamus to the defendant, the Secretary of the Treasury, commanding him to pay to the relator the sum of $114,000, which had been awarded to him by the Secretary of War in pursuance of a joint resolution of Congress.

The libel set forth a seizure of the steamer Battle and cargo on the 18th July, 1863, on the high seas, as prize of war, which were brought into the port and harbor of Key West. She was captured about fifty miles south-southeast from Mobile Point by the United States steamer De Soto, Walker commanding. No claim of ownership for vessel or cargo was presented to the coui’t. The vessel had just run, or was in the act of running, the blockade of Mobile when Bhe was captured.

Held: that the signatures, though proper, were not essential to the validity of the law. The fact of its passage and approval was held to be provable by the certificate of the Secretary of State that the bill was duly enrolled in his office. ** * Coke, Littleton, 117b, 98b; Comyn’s Digest, tit.

The twenty-third rule of this court declares that “in all cases where a writ of error shall delay the proceedings on the judgment of the inferior court, and shall appear to have be.en sued out merely for delay, damages shall be awarded at the rate of ten per centum per annum on the amount of the judgment; and the said damages shall be calculated from the date of the judgment in the court below until the money is paid.” With this rule in force Prentice sold to Pickersgill a…

<p>3. An act of Congress passed on the admission of Iowa into the Union in 1845, having provided that the laws of the United States not locally inapplicable should have the same effect within that State as elsewhere —the “Process Act” of May 19th, 1828, — by which the modes and forms of process in common law suits were made the same in the Circuit Courts of the United States as those used in the highest State court of original jurisdiction — became applicable to the Federal courts of Iowa.</p> <p>2. Accordingly, mandamus being, in the Supreme Court of the State, the remedy to compel a municipal corporation to levy a tax to pay a judg- • ment of which a creditor has no means of obtaining payment, a party having a judgment in a Circuit Court, is entitled to the same remedy in that court.</p> <p>8. An injunction by a State court against such a levy is inoperative against a mandamus from the Federal court ordering it, though issuing subsequently to the injunction. Riggs v. Johnson County (supra, 166) affirmed.</p>

<p>Error to the Circuit Court for the Northern District of Illinois: a case submitted by Mr. Howell, for the plaintiff in error, and by Messrs. Strong and Craig, contra:</p>

Held: with the strong hand of war, any of the territory of the United States, to the exclusion of the laws and officers of the United States, that citizens thereof, then in such territory, might lawfully sell to or buy property of those rebels, whether the latter had such transaction individually or under the assumed name of a government; provided, it did not appear that the same was done with the intention and for the…

J. & B. Abbott, of New Hampshire, sued Hanger, of Arkansas, in assumpsit. The iatter pleaded the statute of limitations of Arkansas, which limits such action to three years. The former replied the rebellion, which byoke out after the cause of action accrued, and closed for more than three years all lawful courts.

The case was thus: Clark entered into a contract with the United States to furnish ail the material and make 221,000 cubic yards of embankment at the Navy Yard at Memphis, Tennessee; the-embankment to be made in such manner and places as should be directed by the engineer, and finished on or before the 15th of July, 1847.

At the trial of the cause, evidence was offered on the part of the plaintiffs, that on September 30th, 1861, several booms on the Susquehanua River were carried away by a freshet, and that a large quantity of logs for lumber were swept down the river; that telegrams were at once sent to the postmasters at Port Deposit and Havre de Grace, towns on the lower part of the river, requesting them to have the logs caught and’ saved for the owners, and that under such notices, the…

* This code provides as follows : “Sect. 407. When a judgment requires the payment of money, or the delivery of real or personal property, the same may be enforced by execution.” “ Sect. 409.

Held: i. That the lien was filed within the year. ii. That it affected only the extension or new canal.

Julian Alire filed a petition in that court setting forth that under the acts of Congress of March 3d, 1855, and of May 14th, 1856, he had made application to the commissioner of pensions for one hundred and sixty acres of bounty land, and had conformed to the provisions of the said acts, and the rules and regulations of the pension office; that the application was rejected by the commissioner, and that, on appeal to the Secretary of the Interior, the rejection bad been…

<p>Error to the Circuit Court for the Northern District of • California.</p>

The steamship Wren, a merchant vessel, left the port of Havana on- the 12th of June, 1865, for Liverpool, via Halifax, Nova Scotia, with a crew of about thirty-five persons, who, on the morning of the next day, mutinied, confined the officers in their quarters, can'ied the vessel into the port of Key West., and delivered her as prize to the acting admiral commanding at that station.

<p>Appeal from the District Court for the Northern District of California. The ease being one of fact merely.</p>

Held: in respect to such corporations, that the taxing power of the State is never presumed to be relinquished, and consequently that it exists unless the intention to relinquish it is declared in clear and unambiguous terms. † Corporate franchises are legal estates vested in the corporation itself as soon as it is in esse.

Held: as the same court ruled fifty years before, that, the assessment imposed under the fourth section of that act must be regarded as an excise or duty on the privilege or franchise of the corporation, and not as a tax on the money in their hands belonging to.the *628 depositors. The mandate of the fourth section, say the court, is clear and explicit.

<p>Appeal from the Superior Court of the Commonwealth of Massachusetts.</p> <p>This case — which was one agreed on and stated in the court below — raised, under some circumstantial variety, — the defendant in it there being a manufacturing company having capital stock, — the same substantial question raised in the two preceding cases of saving fund societies. It was thus:</p> <p>A statute of Massachusetts provides—</p> <p>“ Sect. 1. That the assessors of the several towns shall annually return to the treasurer of the commonwealth the names of all corporations having a capital stock divided into shares,’ &e., and the value of the real estate and machinery for which each is taxed in such towns.</p> <p>“ Sect. 2. That every such corporation shall annually return to the same officer ‘ the amount of the capital stock of the corporation, and thp par value and the cash market value of the shares, on the 1st day of May.’</p> <p>“ Sect. 5. That a board of commissioners shall ascertain the excess of the market value of all the capital stock of each corporation over the value of its real estate and machinery, and that the corporation shall annually pay to the commonwealth ‘ a tax of one and one-sixth per cent, upon such excess.’ ”</p> <p>"With this statute in force a return from the Hamilton Manufacturing Company, a corporation of the sort described, and incorporated by Massachusetts, showed that the cash market value of its capital stock did not exceed by more than $263,997 the value of its real estate, machinery, and of its other property, provided that from this last were excluded securities of the United States held by the company, and which, by the act of Congress authorizing their issue, were declared to be exempt from taxation by State authority, “ whether held by individuals, corporations, or associations.” But that with those securities included, the capital stock did exceed by a greater sum than that named the value of such real estate and machinery.</p> <p>A tax being demanded by the State of Massachusetts on more than the $263,997 (supposing that the tax was laid at the rate prescribed), it necessarily fell — and of course unlawfully — on the exempted Federal securities, if the tax laid by the statute was one on property.</p> <p>If, on the other hand, the tax was one on the franchise and privileges of the corporation, and such a tax, when operating as in this case, was lawful, then it was rightly demanded, even in so far as it might affect the securities of the United States. The Hamilton Company refused to pay the tax demanded; and suit was brought accordingly. The court below gave judgment for the whole sum demanded. The case was now here under the twenty-fifth section of the Judiciary Act.</p> <p>Excepting therefore a matter apparently suggested in that court, but not pressed the.re or here, as to whether the company could, under its charter, rightly hold Federal securities, the questions now were,—</p> <p>1. Whether the tax imposed by the State was to be regarded as a tax on property, or as a tax on the franchise and privileges of the corporation?</p> <p>2. Whether, if the last, and when operating as it did here, it was lawful so far as affecting the Federal securities?</p>

Held: among other things,— 1. That Mesdames Despau and Caillavet were not worthy of credit, and were contradicted both by Coxe and by the alimony record of 1805. 2. That the naked confession of Des Granges that he had been guilty of bigamy made to Madame Benguerel and her husband, was incompetent evidence, even admitting it was made. 3.

As we have mentioned in the preceding case, Daniel Clark died on the 16th day of August, 1813, and his last will not being found, letters testamentary on the will of 1811 were granted to Richard Relf, who remained sole executor until 21st of January, 1814, when Beverly Chew was included in the trust. De la Croix made two purchases of slaves of Relf while thus acting as sole executor.

Held: —(the eharcellor having made an order that the eastern moiety of the *724 . estate should be sold, and a third act of assembly having authorized the trustee, under the order theretofore granted, or any subsequent order, either to mortgage or sell the premises which “ the chancellor has permitted or may permit him to sell ”) — that the power to partition the estate was not exhausted by the first partition into an…

These were two appeals from tbe Circuit Court for Wisconsin, one by Crawsbay and Oddie and one by Yose, to review an order confirming tbe sale of a railroad under a mortgage. The case was shortly this : Soutter and Knapp, surviving Bronson, were trustees for tbe benefit of bondholders of a mortgage called a land-grant mortgage given by tbe La Crosse and Milwaukee Bail road Company on a part of its road.

Held: that in the absence of any specific apportionment in fact between the several divisions of the road the mortgages operated upon all the rolling stock in the order of their dates; and a decree below dismissing the bill was affirmed. 2. - A supplemental bill dismissed as relating to matters not in their nature supplemental; and a cross-bill dismissed as rendered unnecessary by the principal decree in this ease.

<p>Appeals in three decretal orders from the Circuit Court for Wisconsin.</p>

Held: that this latter decree was erroneous; the proceeding being merely ancillary to the judgment in the Circuit- Court, which could only be enforced in that court.

These were three appeals from the Circuit Court for Wisconsin. The case was this: On the 7th October, 1857, Cleveland recovered judgment for $111,727 against the La Crosse and Milwaukee Railroad Company.

Held: on the facts of the case, that the sale was fraudulent, and that.it should be set aside, and the new company perpetually enjoined from setting up any right or title under it; — the mortgage to remain as security for the bonds in the hands of bond fide holders for value, and that the judgment creditors (the present complainants) be at liberty to enforce their judgments against the defendants therein, subject to all…

Tbe suit was an action of ejectment by Cockrill against Smith, to recover the possession of several lots of land in tbe city of Leavenworth. The plaintiff claimed title >under a sale on a judgment against one Clark, recovered in a State court on the 4th of April, 1862. The sale took place on execution upon the judgment on the 23d of July, 1863, at which the plaintiff, Cockrill, became the purchaser, and received a deed from the sheriff of the lots in question.

This was an appeal from the Circuit Court of the United States for the Eastern District of Louisiana; the case being thus: An act of Congress, of August 6th, 1861, passed during the late rebellion, and entitled “ An act to confiscate property used for insurrectionary purposes,” provides, in different sections, as follows: The first section provides that property used in aid of the rebellion, with consent of the owner, shall be the “lawful subject of prize and capture…

of Louisiana, the proceeding below being one for condemnation of pi’operty as used in aid of the rebellion, and resembling in its' general featux*es the case just disposed of.

Held: that the a'ct in question did not extend to, or embrace proceedings under the act of 17th of July, 1862, providing for confiscation of the property of persons engaged in, or aiding and abetting the rebellion, of the correctness of which decision we can entertain no doubt.

” In June, 1779, the proper officer proceeded to take testimony as to the possession had of the land by Salvador, and of its boundaries and character. There were five .witnesses.

<p>Error to the District Court for the Northern District of Florida.</p>