Volume 76 — United States Reports

Benjamin Neale and wife filed a bill in the court just named, against John E. Neale, father of the said Benjamin, stating that, he the father, was, in 1858, owner of lots Nos. 16 and 18 in Washington; that at the time mentioned, he, the son, one of the complainants, was seeking the hand of Mary Hamilton, the other complainant, and his now wife, in marriage; that this intended marriage met with the approval and encouragement of the father, who, in promotion thereof, and as an…

Held: that the stipulation was inconsistent with the condition of a recognizance of bail, that the principal should appear for trial at any subsequent term following the then next term in regular succession; and that it released the principal from the obligation to appear at any such subsequent term. i 8.

Both parties claimed under Gear. The defendant Scales’s title, which it will most conduce to clearness to consider first, was thus: On the 2d of November, 1842, Gear and wife conveyed the land in question to James Campbell as trustee of the State Bank of Illinois, and though the patent from the United States issued to Gear ten years later, it is conceded by both parties that its effect was to make good the title conveyed by him to Campbell.

He left a widow, who was a resident and citizen of Kentucky, and certain heirs and next of kin, aliens and residents in Switzerland. By the laws of Kentucky in force in 1853, the date of his death, aliens were not allowed to inherit real estate except under certain conditions, within which Yaker’s heirs did not come, and if the matter was to depend on those laws, the widow was, by the laws then in force in Kentucky, plainly entitled to the estate.

The ease was thus: A statute of Minnesota, in force in 1866, required that criminal causes should be tried in the county where the offences were committed. The offence charged against the defendant was committed in December of that year, in the county of Brown, in that State. At that time four other counties, which were unorganized, were attached to Brown County for judicial purposes.

The United States sued Basset and another on a recognizance of bail, to which they pleaded two pleas: 1. That there was no record of any such recognizance in the court. 2.

On certificate of division in opinion between the judges of the Circuit Court for the Eastern District of Michigan) the case being this: Section 29 of the act of March 2d, 1867,* declares, “ That no pei*son shall mix for sale naphtha and illuminating oils, or shall knowingly sell or keep for sale, or offer for sale such mixture, or shall sell or offer for sale oil made from petroleum for illuminating purposes, inflammable at less temperature or fire-test than 110 degrees…

Held: that the term “appropriation” includes all taking and use of property by the army or navy, in the course of the war, not authorized by contract with the government. 2.

, are authorized to levy and collect taxes for corporate purposes, the taxes shall be uniform in respect to persons and property.

Held: 1st. That the claim was not barred by the limitation mentioned 2d. That the cotton had not been ipso facto forfeited because it had belonged to persons resident in the msurreo *62 tionary district, no proceedings having been instituted ta confiscate the same as the property of such persons. 3d. That the vendors of the property were not incompetent witnesses. 4th.

This case, like the one immediately preceding, was an appeal from the Court of Claims, and was thus: Elias Einstein, a resident of Macon, Georgia, was indebted, when the late rebellion broke out, to Grossmayer, a resident of New York, for goods sold and money lent, and while the war was in progress a correspondence on the subject was maintained through the medium of a third person, who passed back and forth several times between Macon and New York.

The case being this: Litigation had been subsisting between S. B. F. Morse and the executors of Alfred Vail, against F. O. I. Smith, arising out of cértain agreements concerning Morse’s telegraph; all suits and causes of action, however, between the parties, and also, all causes of action, of which it was alleged there were some, between Amos Kendall (who stood in certain relation to Morse and the executors) and this same P. O. 1.

Held: in United States v. Prescott * that a plea which averred positively that the money was stolen from the officer, without any fault or negligence on his part, was no defence. It would be difficult to find a stronger case for relief from a contract to keep safely and pay over the public money than this.

Fremont County, Iowa, filed a bill in one of the State courts of Iowa against the Burlington and Missouri River Railroad Company, to quiet the title to twelve thousand seven hundred and fifty-four acres of land, or thereabouts, situate in the said county, which the company claimed as belonging to it. Both parties set up title under grants by acts of Congress: Fremont County, under what is known as “the swamp-land grant” to the.

The Hannibal and St. Joseph Railroad Company brought ejectment against Smith, in one of the county courts of Mis souri, to recover possession of certain lands. The title of the railroad company was deduced from an act of Congress, entitled, “An act granting the right of way to the State of Missouri, and a portion of the public lands to aid in the construction of certain railroads in said State,” approved June 10th, 1852.

Held: in an action against the marshal for a false return, 1st, that due and legal service of the writ required the marshal to take the note into his actual custody and control; and 2d, that the return of the marshal signified that he had actually taken the note into his custody and under his control. 4.

Held: That as soon as the advances for which the rents were first pledged were paid, the husband was entitled to be subrogated to the wife’s full rights, against the tenant as existing at the time when the order in divorce was made (that is to say, exclusive of the dower third), tili his third of the two thirds, with interest from the date of the decree, was paid; d. That the tenant, for the payment of his demand under…

that parties may submit the issues of fact in civil cases, to be tried and determined by the court, without the intervention of a jury; and it declares what the effect of such finding shall be, and how and under what circumstances there may be a review of such judgments. The language of the section on this subject is thus: “ The finding of the court upon the facts, which finding shall be general or special, shall have the same effect as. the verdict of a jury.

This case, which in its original form, was a libel in the District Court of Louisiana, on a bottomry bond, and, as such, involved nothing but the correct presentation of the principles of maritime law relating to that matter, and the examination of a good deal of contradictory evidence, to see how far the particular case came within them, presented subsequently, and in consequence of the rebellion and the occupation by our army of the mere city of New Orleans, while the…

These were two appeals from the Court of Claims, in suits against the United States. They had been passed at forme terms, and early at this one. It being alleged by Mr.

“Exile 1. When steamers meet ‘head and head,’ it shall be the duty of each to pass to the right, or on the larboard side of the other, and either pilot, upon determining to pursue this course, shall give as a signal of his intention one short and distinct blast of his steam-whistle, which the other shall answer promptly by a similar blast of the whistle.

Recognizing, however, that this reservation might prove insufficient to satisfy the claims of these troops, Virginia, in ceding, March 1st, 1784, to the United States the territory beyond the Ohio River, reserved all the lands lying between the Scioto and Little Miami Rivers, to supply any deficiency of lauds in the Kentucky district. It was very soon manifest that the apprehended deficiency existed, and the second reservation, therefore, became operative.

Appear from the. Circuit Court for the District of California, the case being thus: During the recent war between Spain and the Republics of Chili and Peru, the Spanish fleet being engaged in active hostilities in the South American waters against the ports of the enemy, required supplies of steam-coal, and vessels were taken up on charter, in San Francisco, to convey cargoes for delivery at sea to the vessels of the fleet in aid of the hostile operations of blockade and…

Held: by implication at least, that no other parties were necessary, and the plaintiffs in Howard’s suit had a right to *182 file a bill as general creditors, for themselves alone, and thus gain as at law a preference by the judgment in their favor over other creditors of the same degree who may not have used equal diligence. * No right to intervene in this cause. † Messrs.

The tract covered eighteen square leagues, and included the city of Benicia, the town of Vallejo, the navy-yard of the United States, the depot of the Pacific Steamship Company, and hundreds of acres .of land in cultivation and in possession of a large rural population.

<p>Error to the District Court for the Northern District of Alabama, in which court Ilickman, the plaintiff in error, sued Jones, Moore, llegan, Coltart, Clay, and others, defendants in error, for maliciously causing him to be arrested, imprisoned, and prosecuted for a criminal offence, without probable cause.</p>

They received on board of her, at the port just named, a large quantity of merchandise on freight deliverable at San Francisco, and also merchandise their own property. They received also, on freight, payable to them for and on account of the owners, two hundred and forty-four tons of coal.

Held: nor do we suppose it ever will be by the State courts, that an *240 owner cannot appear in his own name and assert his rights in the vessel. Section 38, however, relieves the matter of all embarrassment, and shows that the framers of the statute seemed to think as we do, that when an appeal or writ of error was to take the case to a higher court, it should be by some person who asserted an interest in the vessel.

This was an action on the case for obstructing the plaintiff in the use of a wharf in the city of .Georgetown, in the District of Columbia. The wharf was situated on the south side of Water Street, between Market and Frederick Streets, in that city, and extended one hundred and one feet on the Potomac River. The plaintiff asserted a right to its use under various mesne conveyances from Francis and Charles Lowndes.

Held: that the power was not conferred upon the judge in his judicial capacity, sitting as a court, but upon him as a commissioner; and hence, an appeal under the 22d section of the Judiciary Act would not lie.

The plaintiff’s claim was for duties on certain woven goods alleged to have been unlawfully collected of him by the defendant as collector of the port of New York, and which had been paid under protest.

It appeared that in 1855, Swain sold to Medbery and oue Aldrich real estate in Michigan for $52,400, of which $10,000 was paid in cash, and the balance, $42,400, secured by a mortgage on the lands, payable in instalments at dif-. ferent times'; and that on this Michigan land, foundations had been made in the previous autumn, by driving piles for the erection of a saw-mill fifty by one hundred and fifty feet in size ; that Medbery was then the owner of certain lots in…

Issue being thus joined, the cause was tried at the Circuit Court in Greene County, within the third judicial district, before a jury. The defendants appeared by counsel. No evidence was given on the trial, on the part of the defendants, in support of the special defence set up as being under the order of the President. A verdict was rendered for the plaintiff and judgment was regularly entered upon the verdict.on the 8th June, 1864.

Held: as commons belonging to such towns or villages. 3d. Or that the President may think proper to reserve for military purposes. If the lot in question was covered by either of these exceptions, then it was not reserved by the act of 1812, and was not relinquished to the State by the act of 1881.

And this college executed a somewhat peculiar deed conveying them to Caldwell. Caldwell being thus in possession and claiming title, sold them in January, 1864, to a certain Yliet. Vliet paid him $4000, and gave him two promissory notes, each for $7000, payable in the course of the year at dates fixed.

In this condition of the general law on the subject, the legislature empowered James Robb, of New Orleans, to sell his real estate under certain conditions, and directed so much of the proceeds of the sale as should be coming to his children to be invested for their benefit, subject to the approval of the Probate Court, in certain species of securities, which could not be assigned or transferred until the termination of the administration.

<p>1. The Commissioner of the Land Office cannot properly grant a patent under the 7th section of the act of July, 1866, “ to quiet land titles in California,” unless the purchaser bring himself by affirmative proofs within the terms of the section.</p> <p>2. The granting of a patent for lands in cases where proofs, hearing, and decision are required, and where the exercise of judgment and discretion ■is thus necessary, is not a matter wherein the action of the Department of the Interior is subject to re-examination by the Supreme Court of the District. ,</p> <p>8. A judgment in mandamus ordering the performance of an official duty against an officer, as if yet in office, when in fact he had gone out after service of the writ, and before the judgment is void. Such a judgment cannot be executed against his successor.</p> <p>4. Mandamus to compel either the Commissioner of the General Land Office, or the Secretary of the Interior, to issue a patent, cannot be sustained under statutes as now existing.</p>

Held: 1st, that the second clause of this section does not apply to all lots situated within the limits of a city, town, or village, which existed on the 7th of July, 1846, but only to the lots owned or claimed by such city, town, or village; 2d, that the object of the section was to give to lotholders deriving title from a common source — from the authorities of a pueblo or town, or from an individual who was originally…

Held: Assistant Attorney-General, filing a brief by leave of the court, for the United States), for the plaintiff in error: 1.

That to insure the speedy termination of the present rebellion, it shall be the duty of the President of the United States to cause the seizure of all the estate and property . . . of the persons hereinafter named, and to apply and use the same, and the proceeds thereof, for the support of the army of the United States.” This 5th section proceeded to name six classes of persons whose property should be liable to seizure, and first among them: “ Any person hereafter acting as…

<p>1. The right of the States to tax the shares of the National banks reaffirmed.</p> <p>2. The statute of Kentucky (set forth in the statement of the case), taxing bank stock, levies a tax on the shares of the stockholders, as distinguished from the capital of the bank invested in Federal securities.</p> <p>8. This is true, although the tax is collected of the bank instead of the individual stockholders.</p> <p>4. The doctrine which exempts the instrumentalities of the Federal government from the influence of State legislation, is not founded on any express provision of the Constitution, but in the implied necessity for the use of such instruments by the Federal government.</p> <p>6. It is, therefore, limited by the principle that State legislation, which does not impair the usefulness or capability of such instruments to serve that government, is not within the rule of prohibition.</p> <p>6. A State law requiring the National banks to pay the tax which is rightfully laid on the shares of its stock is valid under this limitation of the doctrine.</p> <p>1 On a writ of error to a State court no question will be considered here which was not called to the attention of the State court.</p>

Held: was liable to become greatly depreciated in value; this statement being nowhere denied in the answer — the defendant averring only his ignorance on the subject — and the allegation being fully corroborated by the proof, at least so far forth as relates to the purchase of stock by the complainant ; and no question having been made on the examination as to the complainants’ still holding the stock.

This was an appeal in admiralty from the decree of the Circuit Court for the District of Missouri, in which one Bieseel, on the one side, had filed a libel in personam against M. & W. Mepham, owners of the steamer Iron City, for wages as master and pilot; and in which they, on the other, sought to set off against the claim for services, at whatever sum these might be estimated, a demand that they made against Biessel for injury to certain flour, which on crossing a bar in…

The bill averred that under this arrangement they did make advances, and that Nock was so enabled to fulfil his contract; but that for some reason but a small amount of the said proceeds were ever realized by Nock until lately; that he still owed the bank $8078.82.

.. or the suit is between a citizen of the State where the suit is brought and a citizen of another State.” But the section gives this original cognizance subject to two limitations, of which one runs thus: “ Nor shall any District or Circuit Court have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had…

Held: that the agreement was not limited in its operation to the time when the bond matured or the penalty became forfeited, but was a perpetual covenant not to enforce the bond in case the designated event at any time happened. 9.

<p>Error to the Circuit Court for the District of Iowa; in which court the United States, on the relation or one R. L. Lord, were plaintiffs, and asked and obtained a peremptory mandamus against the mayor and aldermen of the city of Davenport, defendants.</p>

The vote required the levy by the county officers of yearly taxes to pay the interest. The bonds were issued, and several of them passed into the hands of one Durant.

<p>Direct and positive oral testimony on a libel for collision between a steamier and a brig, going to show that the brig kept properly on her course, at least until the collision became inevitable, will not be controlled by the fact that the shape of the wound on the steamer tended to show that the brig could not have been at the instant of collision on such course, but must have changed it; it being possible enough that the shape of the wound was produced by a change in the brig’s course, made, in the last moment, to avoid a collision rendered, in truth, unavoidable by the steamer’s erroneous manmuvres, near the same time.</p>

The finding of the court upon the facts, which finding may be either general or special, shall have the same effect as the verdict of the jury. The rulings of the court in the cause, in the progress of the trial, when excepted to, at the time, may be reviewed by the Supreme Court of the United States, upon a writ of error, or upon appeal, provided the rulings be duly presented by a bill of exceptions.

This was an appeal by the United States from the judgment of the Court of Claims, giving to a discharged soldier a bounty which he claimed of $100.

Held: confirming the prior conclusion that the ship was in need of repairs, and thereupon the cargo was landed and stored.

The policy contained these stipulations: “ In case of loss, the party insured shall use every practicable effort for the safeguard and recovery of said steamboat, and if recovered cause the same to be forthwith repaired; and in case of neglect or refusal, on the part of the assured, to adopt prompt and efficient measures for the safeguard and recovery thereof, then the insurers are hereby authorized to interpose and recover the said steamboat, and cause the same to be…

In the year just named, 1857, the State established ten banks, which, in addition to the powers of receiving deposits, lending money, and dealing in exchange, had also the power of issuing paper money; the ordinary banks of deposit, discount, and issue or circulation. There were thus in the State, “banks” which were not banks of issue, and banks which were banks of this kind.

” With this provision in force as fundamental law, the legislature of the State, on the 2d March, 1857, by an act* which amended and consolidated the several acts relating to the city charter, authorized the common council of the city of Kenosha to “borrow, on the corporate credit of the city, any sum of money, for any term of time, at any rale of interest, and payable at any place deemed expedient, issuing bonds or scrip therefor.” The city accordingly did borrow $100,000…

By certain ancient statutes of Maryland, in force within the District,* it is enacted that in suits against an administrator he need not plead plene administravit, nor anything relative to assets; and that he shall not be burdened further than these have come to his hands; but that after verdict against the administrator, the court shall assess the pro rata which he ought to pay; and to do this the court is authorized “ when the real debt or damages are ascertained (meaning…

The decree of the Supreme Court of the District ordering a sale of Miss Dermott’s real estate, which the affirmance in the preceding case adjudged was rightly made, having been executed and a sale made, and- the property bought by Wilson, who as stated in the report of the case had been appointed receiver of its rents, Hoe, there also mentioned as an heir-at-law of Miss Dermott, with eight others, her heirs also, who joined with him, filed a bill against this Wilson to set…

This was an appeal from the District Court of the United States for the Northern District of Florida to the Circuit Court for the same district. There had been no decree rendered in that court, but consent of parties was given to the transfer of the cause into this court. ' The record was accordingly filed, and the case docketed. Upon the case being called, it was submitted by Mr. Feld, Assistant Attorney General for the United States, no opposite counsel appearing.

<p>Appeal from the Circuit Court for the District of Wisconsin.</p> <p>The owners of the schooner Perseverance filed a libel in the District Court of Wisconsin against the schooner Gray Eagle, for a collision in which their vessel had been sunk. The collision occurred in the Straits of Mackinaw, soon after midnight of the 23d of November, 1864, the night not having been a dark one; not so dark at least as that the sails of vessels could not be seen for near a quarter of a mile. The Perseverance had lost her lights in a storm, and was sailing with a white light, contrary to the rules prescribed by the act of Congress, “fixing certain rules and regulations for preventing collisions on the water,” approved April 29th, 1864, and which made it her duty to carry a green light on her starboard side, and a red one on her larboard, “ and no others” anywhere. She was sailing down the strait on a course E. by S., with the wind south, and discovered the lights of the Gray Eagle about a mile ahead, coming up the strait, on a course of about W. N.W.* The witnesses differed a little as to these points, but this was according to the weight of the testimony. The libel alleged, and the evidence of all the libellant’s witnesses corresponded with its statements, that when the Gray Eagle was first seen, or soon afterwards, she showed a red fight; but that this soon disappeared ; after which she showed a green light until near the moment of the collision, when she again showed her red fight. The libellants asserted that they had a right to suppose that the Gray Eagle would pass on the starboard of the Perseverance; but that shortly before the disaster she kept away, and, although the master of the latter called on her to luff several times, in a loud voice, and at the same time ordered his own man at the wheel to put the wheel' hard a-starboard, the Gray Eagle made no reply, but kept on her course, and in less than two minutes struck the Perseverance stem on, abreast the starboard quarter, with such force as to sink her in about two minutes, the master and crew with difficulty saving their fives.</p> <p>The defence set up by the answer for the Gray Eagle was, chiefly,</p> <p>1st. That the other vessel was sailing without the regulation lights and in violation of the act of Congress.</p> <p>2d. That at a certain place in the bay mentioned “a white light was seen about a mile distant, bearing about a point on the Gray Eagle’s port bow, which was supposed to be a fight on shore, or upon a vessel at anchor; that the Gray Eagle was then kept away about a point and steadied on her course to give berth to the light; that the light was not discovered to be a vessel’s light in motion by the commanding officer until the Perseverance got within about three lengths of the Gray Eagle, the said light being then nearly ahead and to windward ; that the light was then supposed to be the binnacle light of a vessel that had hauled up all she could to pass the .Gray Eagle to windward; that the mate, not seeing any other light, ordered the helm hard a-port, so as to pass on the port side and keep off and clear the stern of the vessel, and stepped to windward of his vessel, and then heard for the first time a cry from the other vessel to port the helm hard down, but that it was too late, and that the vessels were right together.”</p> <p>It seemed from the evidence that the light on the Perseverance was not reported to the mate in charge of the Gray Eagle till near the moment of collision. The mate testified that as soon as he saw it he ordered the “wheel up;” a wrong order. The men who had been watching the light cried out, • “hard down;” a right order, but not the one obeyed.</p> <p>The District Court dismissed the libel, principally on the ground that the Perseverance, having lost her lights, ought to have lain by at anchor in the night time, and was expressly prohibited from sailing with a white light. The Circuit Court reversed this decision, and decreed that both vessels were in fault, and that the damages should be divided between them. From this decree the owners of the Gray Eagle appealed.</p>

Appeals from the Circuit Court for the Southern District of New York. This was a libel in admiralty by Ann Cavan, to recover damages for injuries sustained by her whilst a passenger on board the ferryboat D. S. Gregory, crossing the Hudson River, from a collision, which occurred September 16th, 1866, between that boat and the steamboat George Washington.

<p>1. The law creates no maritime lien on a vessel as security for the performance of a contract to transport a cargo, unless some contract of affreightment has been made.</p> <p>2. Such a contract cannot be implied against a transportation company from the fact that a man has loaded a barge belonging to the company, by means of his own men, without any knowledge by the company of what he has done, and then delivered bills of lading to the agent of a steamer of the line, the agent at the moment being very much engaged with other matters, just before the steamer, which it was expected by the shipper would tow the barge, sets off; no sufficient statement being made by the shipper, when so delivering the bills, what bills they are, and the agent himself having no knowledge of what has been done in the particular case, nor of the contents of the hills.</p>

The owners of the schooner Winslow libelled the propeller Alleghany in the'District Court for Wisconsin, to recover compensation for a collision by which the schooner had been greatly injured and sunk.

On the voyage the barge was sunk and the wheat damaged, and the Home Insurance Company, which had given a policy on the wheat and paid it, filed a libel in admiralty against the steamer and her barge, to recover the loss. The principal question in issue was the seaworthiness of the barge. The injury occurred May 12th. About the latter part of June following, after another accident and loss of a cargo on the same barge, she was placed upon the ways for repairs.

Held: after a seizure and sale of the cotton by the government, that he was entitled to the net proceeds as given to loyal owners under the Abandoned and Captured Property Act. Having been pardoned, his ofience, in executing the bonds, could not be imputed to him. Appeal frotn the Court of Claims. That court had found the following case: That among the citizens of Georgia during the late rebellion was one Edward Padelford.

Balcom, and Elisha Eldred, composing the firm of Eldreds & Balcom, as indorsers of a promissory note dated Juue 12th, 1861, given by one E. E. Eldred, and the body and signature of which were in bis handwriting. The summons was served upon Anson Eldred, the only defendant residing within the District of Wisconsin, and the only one who appeared in the cause.

Held: in a case where the action of the party himself had somewhat precluded his allegation of the error.

District of Mississippi; the case being thus: The Judiciary Act of 1789 limits the jurisdiction of the Federal courts, so far as determined by citizenship, to “suits between a citizen of the State in which the suit is brought and a citizen of another State.” An act of 1838,† “to provide further for the collection of duties on imports” extended the jurisdiction to cases arising under “ the revenue laws of the United States,” where other provision had not been made.

In this case, which came on error from the Circuit Court for the Northern District of New York, the same condition of enactment and repeal of statutes presented itself as in the last case. It is set forth, supra, pp. 560-562. It makes the fundamental part of this case as of that. And the reader who desires to read the report of this case as well as the report of that, will please to recall it thence, or refer to it there.

Litchfield filed his bill in the court below against Richards, Register, and Pomeroy, Receiver of the United States Land Office at Port Dodge, Iowa, asking an injunction to restrain them from entertaining and acting upon applications made to them to prove pre-emptions to certain lands which lay within the land district for which they were respectively register and receiver.

Held: at this term, that the implied limitation upon State taxation, derived from the express permission to tax shares in the National banking associations, is to be so construed as not to embarrass the imposition or collection of State taxes to the extent of the permission fairly and liberally interpreted. † We do not think ourselves warranted, therefore, in extending the exemption éstablished by the case of McCulloch v.…

Held: that if the holding of the parties under F. was that of tenants, the relation of landlord and tenant between them was thus extinguished; but if the holding by them was as grantees in fee, they were not estopped from denying F.’s title. Grantees in fee hold adversely to all the world, and have the same right to deny the title of their vendors as the title of any other party. 4.

<p>This case was argued at an earlier part of the term; and the court, after advisement, having announced its judgment of affirmance,† Messrs. Blair and Dick, for the plaintiffs in error, now submitted, without oral argument, a printed brief, asking for rehearing and setting forth certain points of the case, including a fundamental fact, on which a? they conceived, the court had fallen into misapprehension.</p> <p>Having taken time to examine the brief,</p>

This was a petition presented by Mr. P. Phillips, in behalf of Morris and Johnson, for a writ of mandamus against Richard Busteed, judge of the District Court of the United States for the Middle District of Alabama.

This case was an appeal from the Court of Claims, and the matter here reported presents the case of two motions, made at two different times, for the defendant in error to dismiss it; made the first time under one state of facts, and the second time under another and new state-; and also a motion on the other side, under the new state of facts, for a special action by this court hereinafter stated.

On motion to dismiss, the case was this: Section 3 of the 14th amendment to the Constitution ordains that no person shall hold office under any State, who having previously taken an oath as an executive officer of any State to support the Constitution of the United States, has engaged in rebellion against the same, or given aid and comfort to the enemies thereof; and a statute of North Carolina enacts that no one disqualified under that amendment should hold office in North…

<p>Under the Act of July 13th, 1866, amendatory of the 4th section of the Act of March 3d, 1865, an officer in the regular army who during the rebellion accepted á commission of colonel in the volunteer organization, is not entitled to the three months’ pay given by those acts to officers of that grade on being honorably discharged under the terms of the act from “military service;’’ he resuming his duty and rank in the regular army, and being still in the said service.</p>

The case was thus: Benjamin Irvine brought ejectment against his brother John Irvine, to recover from the said John possession of certain lots. He put in evidence a patent (founded on a preemption certificate) from the United States to him, dated 8th October, 1849, and embracing the lots in controversy.

The collision occurred on the 9th of September, 1865, about midday ; the weather having been clear, and the vessels for some time previously in plain sight of each other. The libelled vessel, the Corsica, laid the blame of the disaster wholly on the other steamer. The District Court decreed for the libellant; the Circuit Court affirmed that decree, condemning the Corsica in $38,000 damages and costs. Whereupon the owners of the Corsica appealed to this court.

This was an appeal in admiralty from the decree of the Circuit Court of the United States for the Southern District. of New York; affirming a decree of the District Court on a libel in admiralty; the waters where the collision took place having been the very same as in the collision in the last case; those, namely, between Jersey City and the Battery at New York.

Held: that though the provision of the eleventh section refers to the rules to be observed by the courts in passing upon the merits of the claimant's right, .or title to the land, the liberal and equitable principles there enjoined as a duty in the decision of cases, cannot be fully or fairly carried out without giving to them application and effect in conducting the proceedings before the courts as well as in passing…

The tug was a small boat of about seventy tons burden. The ferryboat was a large steamboat, capable of carrying a thousand passengers, and a much faster sailer than the tug. They were going in the same general direction up the East River, about two hundred feet from the New York shore, the tug ahead and the ferryboat astern, as they passed Jackson Street. Somewhat higher up, the ferryboat endeavoring to pass between the tug and the shore, the collision took place.

This was an action of debt brought by the United States against one Green, and the sureties on his official bond, as agent for paying pensions at Cincinnati. Seven sureties wore named in the bond, all of whom executed it.

On motion to dismiss. The case was this: The city of Alexandria, in Virginia, on a suit brought by it, in one of the county courts of the State, against a certain Downham, a dealer in liquors, had obtained a judgment for two hundred dollars; the amount of a tax imposed by the city on dealers of his class.

<p>1. Certiorari, being a writ properly used to bring up to the Court of Error, on an allegation of diminution, outbranches of the record, or other documents and writings in the court below which have not been previously certified or sent, is not a proper thing to be asked for where it is desired to have the Court of Claims supply certain supposed defects in its conclusions deducible from the evidence before it.</p> <p>2. The proper method of obtaining such a finding is an order of this court, on motion duly made, directed to the Court of Claims, requiring it to make return as to the existence or non-existence of such facts. But this court cannot give the Court of Claims any directions as to what finding it shall make, or how it shall proceed to make up its finding on the points sought to have certified.</p>

Byrne did not know how many boats the captain of the tug would take. The tow, however, when completed, consisted of six boats, —two abreast, on each side of the tug, and one directly in the rear of each of the two bdats, as shown in the upper part of the drawing. The Citizen was on the port side, and nearest the tug, and the Wide World was in the same position on the starboard side.

This was an appeal in admiralty from the decree of the Circuit Court for the Southern District of New York, which, on a libel filed by the owners of the steamer Rip Van Winkle, against the steam tow-boat Syracuse, for a collision, had held the complaining boat itself in fault, and the tug-boat not liable.

Charles Weide and Joseph Weide, of Minnesota, brought suit in one of the State.courts of Minnesota against the .¿Etna Insurance Company, on a policy of insurance, to recover $10,000 insured upon a stock of goods lost by tire within the conditions of the policy.

On the 9th of October, 1866, the propeller, with the salt on board, reached Pox Island, in Lake Michigan, and about seven o’clock in the evening of the same day left it, bound directly for Chicago, using both sail and steam. The weather was foggy, and the wind was blowing from the northeast, with a considerable sea. The fog continued during that night and all the next day, and the wind blew freshly, though not so as to prevent the propeller’s carrying her foresail.

This was a motion by Mr. P. Phillips to dismiss an appeal, on the ground that it was not brought within the time allowed by law. The case was this: Freeborn, a resident of New York, had filed a libel against the ship Protector,, in the District Court for the Southern Disti’ict of Alabama, January 25th, 1859, for the price of certain necessary supplies and materials previously furnished to the ship in the port of New York.

Richard W. Meade, of Philadelphia, a native-born citizen of the United States, went to Spain towards the beginning of this century, and became engaged extensively in commerce with that country. He was there during the invasion of the French under Napoleon, and continued to reside there until the year 1821.

13,000 feet of leather fire-hose, containing specifications as to the quality of material and manufacture, and providing that the hose. should be warranted to stand a pressure of 200 lbs. to the square inch. The hose was to be deliverable and to be tested in Chicago, on the 1st September.

The writ of error in this case, which was a proceeding of the United States ex relatione Durant against the Board of Supervisors of Poweshiek County, Iowa, brought up a petition, on the part of the relator, for an alternative writ of mandamus to the supervisors of the county just named, commanding them to levy a tax sufficient to pay a certain judgment which he held against the county, or show cause for not so doing; the order for an alternative mandamus, and the issuing of…

Held: therefore, in a suit for infringing a patent for balancing millstones, that when, in addition to the particular town or city in which such large objects as millstones are used, the name and residence of the witness by whom that use was to be proved was also given, there was sufficient precision and certainty in the notice.

Wilkins, a resident of Memphis, Tennessee, owed the estate $3455, and being called upon at Memphis by Goodloe, the administrator, paid the debt and took a receipt. Goodloe duly accounted before the Probate Court in Alabama for the sum thus received. Afterwards, Ellett, a citizen of the State of Virginia, and who professed to be next of kin to the deceased, took out letters of administration in Tennessee, and brought this suit against Wilkins to recover the same debt.

William Walker, then a citizen of Charlestown, Massachusetts, without cause, compelled his wife and two of their children to leave his house. Before this time he had treated his wife with great harshness and cruelty, proceeding so far as to inflict personal violence on her.

Tall filed a libel, in the District Court at New York, against the steamer Guy, claiming a lien on the boat for repairs made upon her in Baltimore, Maryland, and alleged by the libel to have been necessary to fit her for the prosecution of her then employment, which was, in connection with several other boats, the transportation of the government mails, and of passengers and freight, between Norfolk, Virginia, and Newbern, North Carolina.

The United States brought suit in the Circuit Court for Maryland against Watkins, late marshal of the United States, and his sureties, on the official bond of the said marshal. Judgment was given for the United States; and Watkins took a writ of error.

Such trading was unlawful as trading with an enemy, and was moreover made void by statute. But trading in a prescribed form, under certain conditions, within the insurrectionary region, if the same had been brought within the lines of the National military occupation, was made lawful by treasury regulation, if the trading was carried on under a permit from certain officers of the Treasury Department.

Motion by Mr. Howe to dismiss a writ of error to the Supreme Court of Florida, which had been taken under the twenty-fifth section of the Judiciary Act; but which that counsel conceived-did not come within that act. The record showed an information, in the nature of a writ of quo warranto, in the Supreme Court of the State of Florida, in the name of the State, by the attorney-general of the'State, against William II.

Williams filed a petition, afterwards amended, in the St. Louis Land Court, against Carpenter, to determine the title to a lot of ground, once belonging to the common field lots of St. Louis.

This was the case of two motions to dismiss an appeal from the Supreme Court of the District of Columbia; one of the motions being made by the appellant on the ground that no citation had been issued according to law, and the other by the appellee, because the amount in controversy was not of the value of $1000. Moreover, there was no evidence in the record of an allowance of the appeal.

Rubber Co. v. Goodyear, 76 U.S. (9 Wall.) 788 (1869), is an early decision of the United States Supreme Court recognizing the right of a patent owner to license another person to practice the invention only in a limited field, and holding that such a licensee committed patent infringement when it made and sold products of the invention outside that field.

On motion of Mr. Gushing, for the appellant, to stay the mandate and for leave to file a bill of review; Mr. W. E. Gurtis opposing the application.

<p>1. Where, on a bill by several persons for the infringement of a patent and for an account (the defences being invalidity of the patent and a license), the court sustain the patent, and decree damages, a bill cannot be regarded as a cross-bill, which sets up a judgment in another suit against one of the complainants, and asks that the conjoined defendants in the principal suit set forth and discover what share of the damages they claim respectively, so that the defendant in that suit may set off his judgment as respects the one against whom it is.</p> <p>2. As an original bill it cannot be sustained, if it have either been filed before the decree for damages was rendered in the principal suit, or have been a judgment in attachment only, and where there was no service on the person of the defendant.</p> <p>3. A bill which is in no wise auxiliary to an original suit, nor in continuation of that proceeding, does not present a case proper for substituted service.</p>

The bill showed that the extension of the patent sought to be vacated Iby the proceeding expired on the 14th of June, 1865; before the suit was commenced, and the defendant demurred to it on that ground among others. The court below dismissed the bill, and the relator brought the. case here.

<p>1. A judgment recovered in the Common Pleas, at Westminster, England, against a person in the United States, without any service of process on him, or any notice of the suit other than a personal one served on him in this country, has no validity here, even of a primá facie character.</p> <p>2. On a suit at law, involving a question of priority of invention, where a patent under consideration is attempted to be invalidated by a prior patent, counsel cannot require the court to compare the two specifications, and to instruct the jury, as matter of law, whether the inventions therein described are or are not identical. The rule on the subject stated.</p>